Michael A. Caddell 

Cynthia B. Chapman

Gregory K. Evans

CADDELL & CHAPMAN

1331 Lamar, Suite 1070 

Houston TX 77010 

Telephone 713.751.0400 

Facsimile: 713.751.0906 

mac@caddellchapman.com 

Attorneys for Plaintiffs 

Additional Counsel on Signature Page 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

DAVE DONACHY, et al., 

Plaintiffs, 

v. 

INTRAWEST U.S. HOLDINGS, 

INC., AND PLAYGROUND 

DESTINATION PROPERTIES, 

INC., 

Defendants. 

) 

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Civ. Act. No. 1:10-cv-04038-RMBKMW

PLANTIFFS’ MEMORANDUM OF 

LAW IN OPPOSITION TO 

DEFENDANTS’ MOTION TO 

DISMISS 

CLASS ACTION 

JURY TRIAL DEMANDED

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TABLE OF CONTENTS

PAGE

Table of Authorities ...............................................................................................iv 

Preliminary Statement ............................................................................................. 1 

Factual Background ................................................................................................ 3 

I. Named Plaintiffs ........................................................................................... 3 

II. Defendants .................................................................................................... 5 

III. Cherokee and the Forum Selection Clause .................................................... 5 

IV. Turks & Caicos Islands (TCI) ....................................................................... 6 

Arguments and Authorities ..................................................................................... 8 

I. Forum Selection Clause Cannot Be Enforced Here For Numerous 

Reasons ......................................................................................................... 8 

 A. Third Circuit Law On Non-Signatories and Forum Selection

Clauses ............................................................................................... 8 

B. Defendants Do Not Even Argue Agency, Third-Party 

Beneficiary, or Employer/Employee ................................................. 11 

C. Defendants Rely Almost Exclusively On Sahara Sam’s, Which 

Involved Far Different Facts ............................................................. 13 

1. Defendants Are Not Nearly as “Closely Related” to the 

Purchase Contract As Non-Signatories in Sahara 

Sam’s ...................................................................................... 14 

2. Unlike Sahara Sam’s, No Defendant Here Is a 

 Signatory ................................................................................ 15 

3. Other Case Cited by Defendants Is Also Inapposite ................ 18 

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4. Defendants Failed to Distinguish D’Elia ................................. 19 

5. Unlike Sahara Sam’s, Enforcing Clause Here Would 

Contravene New Jersey Public Policy Due to Extreme 

Problems in TCI ...................................................................... 21 

6. Unlike Sahara Sam’s, Enforcing Clause Here Would 

Deprive Plaintiffs of Their Day In Court ................................. 23 

II. Defendants’ Forum Non Conveniens Argument Fails For Numerous 

Reasons ....................................................................................................... 24 

A. Defendants Failed to Offer Any Proof TCI Is Adequate .................... 25 

 B. Defendants Cannot Overcome Plaintiffs’ Choice of Their 

Home Forum ..................................................................................... 28 

 C. Private and Public Interest Factors Do Not Favor Dismissal ............. 29 

1. Private Interest Factors Heavily Favor New Jersey ................. 30 

2. Public Interest Factors Heavily Favor New Jersey .................. 32 

Conclusion ............................................................................................................ 33 

 

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TABLE OF AUTHORITIES

PAGE

CASES

Affiliated Mortgage Protection, LLC v. Tareen,

No. 06-4908, 2007 WL 203947 

 (D.N.J. Jan. 24, 2007) ................................................................................. 16 

Air Master Sales Co. v. Northbridge Park Co-Op, Inc., 

 748 F. Supp. 1110 (D.N.J. 1990)........................................................... 11, 13 

Ali v. D.O.C., 

 No. 08-2425, 2008 WL 5111274, at *1 

 (D.N.J. Nov. 25, 2008) ................................................................................ 12 

Am. Cynanamid Co. v. Picaso-Anstalt, 

 741 F. Supp. 1150 (D.N.J. 1990)................................................................. 24 

Burke v. Quartey, 

 969 F. Supp. 921 (D.N.J. 1997) ............................................................ 25, 27 

Coastal Steel Corp. v. Tilghman Wheelabrator, Ltd., 

 709 F.2d 190 (3d Cir. 1983) ........................................................................ 23 

D’Elia v. Grand Caribbean Co., LTD., 

 No. 09-1707, 2010 WL 1372027 

 (D.N.J. Mar. 30, 2010) ......................................................................... passim 

Dayhoff, Inc. v. H.J. Heinz, Co., 

 86 F.3d 1287 (3d Cir. 1996) .................................................................... 8, 21 

Doe v. Sun International Hotels, Ltd., 

 20 F. Supp.2d 1328 (S.D. Fla. 1998) ........................................................... 32

Dravo Corp. v. Robert B. Kerris, Inc., 

 655 F.2d 503 (3d Cir. 1981) ........................................................................ 11 

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DuPont v. Rhone Poulenc Fiber and Resin Intermediates, S.A.S., 

 269 F.3d 187 (3d Cir. 2001) ........................................................................ 10 

First Options of Chicago, Inc. v. Kaplan, 

 514 U.S. 938 (1995) ...................................................................................... 9 

Four River Exploration, LLC v. Bird Resources, Inc., 

 No. 09-3158, 2010 WL 216369 

 (D.N.J. Jan. 15, 2010) ............................................................... 10, 16, 18, 19 

Homa v. Am. Express Co., 

 558 F.3d 225 232 (3d Cir. 2009) ........................................................... 22, 33 

Huffmaster v. Robinson, 

 534 A.2d 435 (N.J. Super. Ct. Law Div. 1986) ........................................... 22 

Lacey v. Cessna Aircraft Co., 

 862 F.2d 38 (3d Cir. 1988) ........................................................ 24, 25, 28, 30 

M/S Bremen v. Zapata Off-Shore Co., 

 407 U.S. 1 (1972)........................................................................................ 21 

Manu Intern., S.A. v. Avon Products, Inc., 

 641 F.2d 62 (2d Cir. 1981) .......................................................................... 33 

Miller v. Boston Scientific Corp., 

 380 F. Supp. 2d 443 (D.N.J. 2005) .............................................................. 29 

Moneygram Payment Sys. v. Consorcio Oriental, S.A., 

 65 F. App’x 844 (3d Cir. 2003) ......................................................................... 21 

Nieminen v. Breeze-Eastern, 

 736 F. Supp. 580 (D.N.J. 1990) .................................................................. 27 

Piper Aircraft Co. v. Reyno, 

 454 U.S. 235, 241 (1981) ................................................................ 25, 26, 28 

Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 

 7 F.3d 1110 (3d Cir. 1993) ............................................................................ 9 

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Rieder Communities, Inc. v. Twp. of N. Brunswick, 

 546 A.2d 563 (App.Div. 1988) ................................................................... 12 

Sahara Sam’s Oasis, LLC v. Adams Companies, Inc., 

 No. 10-0881 (RMB/AMD), 2010 WL 3199886 

 (D.N.J. Aug. 12, 2010) .......................................................... 2, 10, 13, 15, 17 

Technology Development Co., Ltd. v. Onischenko, 

 536 F. Supp. 2d 511 (D.N.J. 2007) ........................................................ 25, 27 

The Bremen v. Zapata Off-Shore Co., 

 407 U.S. 1 (1972)........................................................................................ 17 

Washington v. Correctional Medical Services, 

 No. 05-3715, 2006 WL 1210522, at *1 

 (D.N.J May 1, 2006) .................................................................................. 12 

Weisenberger v. BT Ams., Inc., 

 No. 09-4828, 2010 WL 1133473, at *1 

 (D.N.J. Mar. 22, 2010) ................................................................................ 23 

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PRELIMINARY STATEMENT

 This is a dispute between eleven individual Named Plaintiffs from 

New Jersey, New York, and Connecticut, and two corporate Defendants 

based in Denver, Colorado. Based on a forum selection clause in a contract 

between Plaintiffs and a third party, and the doctrine of forum non 

conveniens, Defendants argue this case belongs over a thousand miles away 

in the Turks & Caicos Islands (“TCI”). Defendants fail to mention that TCI 

was seized by the British government in August 2009 due to widespread 

political corruption, in what the former premier called a “coup,” which, as a 

consequence, resulted in the suspension of the TCI Constitution, including 

the right to trial by jury. Furthermore, Plaintiffs chose to file suit in New 

Jersey because this forum is convenient under the circumstances. 

 Defendants ask this Court to enforce the forum selection clause even 

though neither one of them was a signatory to the sales contract containing 

the clause, and even though Plaintiffs are not suing for breach of that 

contract. Further, the signatory (the developer of the Veranda resort) is not a 

defendant in this case. Thus, the parties to this case did not agree to litigate 

in TCI. Defendants did not cite a single case where a court enforced a forum 

selection clause even though no defendant in the case was a signatory. 

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Instead, Defendants rely almost exclusively on one case, Sahara 

Sam’s Oasis, LLC v. Adams Companies, Inc., in arguing that they, as nonsignatories, can enforce the clause because they are “closely related” to the 

contract containing it. However, the non-signatory defendants in Sahara 

Sam’s were far more “closely related” to the contract. The contract was 

actually printed on the letterhead of one non-signatory, who was expressly 

referenced by name in the contract six times as it had certain specified 

obligations under the contract. Further, the other non-signatory, also 

mentioned by name in the contract, also had certain obligations under the 

contract. Hence, both non-signatories in Sahara Sam’s were integrally 

involved in providing the promised goods and services. They therefore 

easily satisfied the “closely related” to standard. In stark contrast, the 

subject contract here never references either Defendant, and neither 

Defendant had any role to play in performing under the contract (i.e., 

constructing a condominium for each Plaintiff). Therefore, Defendants do 

not have standing to enforce the clause. 

 Moreover, the clause cannot be enforced anyway because doing so 

would contravene New Jersey public policy, and Plaintiffs would for all 

practical purposes be deprived of their day in court if forced to proceed in a 

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forum with which neither Plaintiffs nor Defendants have any current 

connection, and whose Constitution has been suspended. 

 Defendants cannot gain dismissal due to forum non conveniens

because they failed to satisfy their burden to establish that TCI is an 

adequate alternative forum, a threshold issue. To meet this burden, they had 

to offer evidence of TCI’s adequacy as an alternative forum (e.g., through 

affidavits); however, they offered no evidence at all. Because they failed to 

satisfy this threshold issue—likely due to the fundamental problems in 

TCI—their forum non conveniens argument fails at the outset. 

 In sum, Defendants’ motion to dismiss this case—involving eight 

New Jersey residents suing two U.S. companies—so that it may proceed far 

away in TCI should be denied. 

FACTUAL BACKGROUND

I. NAMED PLAINTIFFS 

 Named Plaintiffs Dave and Carol Donachy of Moorestown, New 

Jersey, invested a substantial part of their retirement savings in a Veranda 

condominium in July 2004. See Plaintiffs’ First Amended Complaint 

(“FAC”) ¶¶ 36-41. They did so based on the representations of Defendants, 

Intrawest U.S. Holdings and Playground Destination Properties, Inc. 

(collectively “Defendants”), that Veranda was a good real-estate investment 

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and that their $70,180 deposit would be “held in an interest-bearing trust 

account, ensuring [they were] protected from any unforeseen circumstances, 

right through the construction period.” Id. Named Plaintiffs Anthony and 

Susan DiMeglio of Princeton, New Jersey, did the same, purchasing a 

Veranda condo in May 2003 with a deposit of $85,980. FAC ¶¶ 48-53. 

Likewise, Richard and Suzanne Kucharski of Franklin Lakes, New Jersey, 

along with Andrew and Charlene Wingfield of Franklin Lakes, Vincent and 

Donna LaRocca of Scarsdale, New York, and Ali Imtiaz of Bethel, 

Connecticut, together purchased two Veranda condos in July 2004 with a 

deposit of $135,180. FAC ¶¶ 60-109. 

 Thereafter, there were numerous problems with the construction of 

Veranda, ending in the bankruptcy of the developer, Cherokee Limited 

(“Cherokee”). Ultimately, Named Plaintiffs’ substantial deposits were not 

safe from any and all possible circumstances, as promised by Defendants. 

Cherokee went bankrupt and Plaintiffs lost their deposits (which total 

approximately $10 million class wide). FAC ¶¶ 28-30.1 Through this 

lawsuit, Plaintiffs seek to recover their lost deposits (and other related out-

 

1

 Defendants contend that Plaintiffs did not plead that they never received their condos. 

See Defs.’ Mem. at n.2. This should have been obvious from the Amended Complaint, 

but in an abundance of caution, Plaintiffs expressly state that they did not receive their 

condominiums (nor their deposits), which is why they have filed this lawsuit. 

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of-pocket losses). Id. ¶ 31. They chose to sue in New Jersey out of 

convenience because they reside in New Jersey. 

II. DEFENDANTS 

 Defendants, Intrawest U.S. Holdings and Playground Destination 

Properties, Inc. (collectively “Defendants”), are both incorporated in the 

United States and headquartered in Denver, Colorado. Defs.’ Mem. at 3. 

The developer, Cherokee, retained Defendants to market the Veranda resort. 

See id. Defendants did so through phone calls and e-mails primarily to their 

existing clientele who had purchased other resort properties owned and/or 

operated by the Intrawest family of companies. FAC ¶ 23. 

III. CHEROKEE AND THE FORUM SELECTION CLAUSE 

 The forum selection clause that Defendants seek to invoke here is 

contained in a form contract between Cherokee, the developer of the 

Veranda resort, and each of the Named Plaintiffs—the Offer and Purchase 

Agreement (“Purchase Contract”). Cherokee inserted the forum selection 

clause because it was incorporated in TCI and the resort was located there. 

Cherokee is not a defendant here because it filed for Bankruptcy protection 

and was liquidated several years ago. 

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IV. TURKS & CAICOS ISLANDS (TCI)

 TCI is a British Overseas Territory located near the Bahamas. In 

August 2009, the British government seized control over TCI based on 

widespread political corruption.2 Britain suspended the government and 

imposed direct rule.3 This resulted in the suspension of the TCI’s ministerial 

government and its House of Assembly for at least two years.

4

 This also 

resulted in the suspension of the Constitution, including the constitutional 

right to trial by jury.5

 This action was taken after a commission of inquiry completed its 

investigation that began in July 2008, an investigation that found

 

2

 See, e.g., Britain Imposes Direct Rule of Turks and Caicos Isles, CNN.com/Europe, 

August 15, 2009 (attached as Ex. A); UK Imposes Turks and Caicos Rule, BBC News, 

August 14, 2009 (Ex. B); Britain Seizes Control of Scandal-Hit Dependency, The 

Independent, August 15, 2009 (Ex. C). 

3

 See, e.g., Britain Imposes Direct Rule of Turks and Caicos Isles, CNN.com/Europe, 

August 15, 2009 (“Britain says it has suspended the government of the Turks and Caicos 

Islands and imposed direct rule after allegations of systemic corruption and ‘serious 

dishonesty’”) (Ex. A); UK Imposes Turks and Caicos Rule, BBC News, August 14, 2009 

(“[t]he administration of the UK territory in the Caribbean has been suspended for up to 

two years”) (Ex. B). 

4

 See, e.g., Britain Imposes Direct Rule of Turks and Caicos Isles, CNN.com/Europe, 

August 15, 2009 (“British Foreign Office Minister Chris Bryant said he instructed the 

British governor of the island territory to suspend the ministerial government and the 

House of Assembly for as long as two years”) (Ex. A); Former Premier Loses Appeal in 

UK, TCI Sun, August 13, 2009 (“[i]n summary, it will abolish the right to jury trial and it 

will suspend representative government by dissolving the House of Assembly and 

removing all elected officials, for a period of at least two years”) (Ex. D.). 

5

 See, e.g., Britain Imposes Direct Rule of Turks and Caicos Isles, CNN.com/Europe, 

August 15, 2009 (“order also suspends the right to trial by jury”) (Ex. A). 

 

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“information in abundance pointing to a high probability of systemic 

corruption and/or serious dishonesty” in TCI.6 A widely-circulated English 

newspaper reported the suspension of the government and Constitution as 

follows: “Britain imposed direct rule on the Turks and Caicos islands 

yesterday [August 14, 2009], suspending the constitution, dismissing the 

Parliament, handing power to a London-appointed governor and halting the 

right to trial by jury.”7 One of the former premiers of TCI called this action 

by the British government a “coup.”8

 At present, the Constitution is still suspended and will likely remain 

so until at least 2012, when the interim government hopes to have achieved 

certain milestones that will make elections possible.9

 

6

 See, e.g., Britain Imposes Direct Rule of Turks and Caicos Isles, CNN.com/Europe, 

August 15, 2009 (“the commission’s report, delivered May 31, found ‘information in 

abundance pointing to a high probability of systemic corruption and/or serious 

dishonesty’”) (Ex. A) 

7

 Britain Seizes Control of Scandal-Hit Dependency, The Independent, August 15, 2009 

(Ex. C). 

8

 UK Imposes Turks and Caicos Rule, BBC News, August 14, 2009 (“[[b]ut Mr. 

Williams, premier of the territory until direct rule was imposed, has described the UK 

government’s actions as a ‘coup’”) (Ex. B). 

9

 A Serious and Deteriorating Problem in the Turks and Caicos Islands, Website for 

Britain’s Foreign and Commonwealth Office, December 9, 2010 (Ex. E). 

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ARGUMENTS AND AUTHORITIES

I. FORUM SELECTION CLAUSE CANNOT BE ENFORCED 

HERE FOR NUMEROUS REASONS. 

Defendants invoke the forum selection clause in the Purchase

Contract even though neither Defendant is a signatory to it. There is no 

contract between Plaintiffs and Defendants; accordingly, the parties here did 

not contractually agree upon a litigation forum. Therefore, Defendants are 

non-signatories to the contract containing the forum selection clause they 

wish to enforce. 

A. Third Circuit Law On Non-Signatories and Forum 

Selection Clauses. 

One of the Third Circuit’s seminal cases on this issue is Dayhoff, Inc. 

v. H.J. Heinz, Co., 86 F.3d 1287 (3d Cir. 1996). That case involved several 

agreements among several parties, including a candy distribution agreement 

between Dayhoff (a U.S. candy distributor) and Heinz (an Italian candy 

maker). See id. at 1290. Heinz terminated the distribution agreement when 

it sold its business to Hershey. See id. at 1292. Dayhoff sued numerous 

parties in federal court in Pennsylvania in response, and Heinz, Hershey, and 

other defendants sought to enforce a forum selection clause in the 

distribution agreement that selected Cremona, Italy, as the litigation forum. 

See id. at 1293. 

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Citing U.S. Supreme Court precedent holding that a party cannot be 

compelled to arbitrate with another party, or to proceed in a specific forum, 

if it did not contractually agree with that other party to do so, the Third 

Circuit held that the forum selection clause “can be enforced only by 

signatories” to the distribution agreement. Id. at 1296 (citing First Options 

of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995)). The Court was troubled 

that a non-signatory (like Hershey) would have the option of accepting or 

rejecting a forum selection clause, and, accordingly, a signatory (like 

Dayhoff) would be forced to accede to the non-signatory’s wishes. See id. at 

1297. 

The Court acknowledged it had previously permitted non-signatories 

to enforce arbitration clauses10 based on an agency theory: “[b]ecause a 

principal is bound under the terms of a valid arbitration clause, its agents, 

employees, and representatives are also covered under the terms of such 

agreements.” Id. at 1296-97 (quoting Pritzker v. Merrill Lynch, Pierce, 

Fenner & Smith, Inc., 7 F.3d 1110 (3d Cir. 1993)). The Court held, 

 

10 In considering cases involving arbitration clauses, the Court noted that the U.S. 

Supreme Court held that an arbitration clause is a specialized-kind of forum selection 

clause. See Dayhoff, 86 F.3d at 1298 n.9. Accordingly, courts in the Third Circuit often 

cite to cases involving arbitration clauses when analyzing a forum selection clause. See, 

e.g., D’Elia v. Grand Caribbean Co., Ltd., No. 09-1707, 2010 WL 1372027, at *3 n.5 

(D.N.J. Mar. 30, 2010). 

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however, that the agency theory was not present in the facts before it in 

Dayhoff. See id. at 1297. 

Based on Dayhoff, the circumstances in which a non-signatory has 

standing to enforce a forum selection clause are limited. When analyzing 

whether a non-signatory has standing to enforce a forum selection clause, 

courts in the Third Circuit generally consider whether the non-signatory is 

“closely related” to the contract. See, e.g., Sahara Sam’s Oasis, LLC v. 

Adams Companies, Inc., No. 10-0881 (RMB/AMD), 2010 WL 3199886 

(D.N.J. Aug. 12, 2010); Four River Exploration, LLC v. Bird Resources, 

Inc., No. 09-3158, 2010 WL 216369 (D.N.J. Jan. 15, 2010); D’Elia v. Grand 

Carribean Co., Ltd., No. 09-1707, 2010 WL 1372027 (D.N.J. Mar. 30, 

2010). A party that is sufficiently “closely related” to the contract is entitled 

to enforce its provisions (and be bound by its provisions) because that party 

is akin to a signatory to the contract. See, e.g., DuPont v. Rhone Poulenc 

Fiber and Resin Intermediates, S.A.S., 269 F.3d 187, 194 (3d Cir. 2001) 

(noting that a non-signatory cannot be bound to an arbitration clause “unless 

it is bound under traditional principles of contract and agency law to be akin 

to a signatory of the underlying agreement”). 

To be “closely related,” the non-signatory must rely on an agency 

theory, be an intended third-party beneficiary, or rely on employer/employee 

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principles: “[i]n the Third Circuit, those circumstances in which a nonsignatory party may enforce the forum selection clause are limited, often 

reserved to matters of agency or employment or to principles of common 

law contracts.” D’Elia, 2010 WL 1372027 at *5 (emphasis added). 

B. Defendants Do Not Even Argue Agency, Third-Party 

Beneficiary, or Employer/Employee. 

 Neither Defendant makes any effort to argue that anything within the 

four corners of the Purchase Contract expressly confers them with standing 

to enforce its forum selection clause as an agent or employee of Cherokee 

(the signatory), or a third-party beneficiary. Nor could they; the Purchase 

Contract does not mention either Defendant by name.11 Importantly, one 

provision specifically identifies the third parties that could gain standing to 

enforce the Purchase Contract: 

This Agreement shall be binding upon and inure to the benefit 

of the Parties hereto, their successors, heirs and permitted 

assigns.12 The Purchaser [plaintiffs] may not assign this 

Agreement to any other person or persons without first 

 

11 “New Jersey courts have been hesitant to imply a third party beneficiary obligation 

unless the parties explicitly indicate that (1) the claimant is an intended beneficiary of the 

proposed arrangement and (2) that the claimant will have a direct claim under the 

contract.” Air Master Sales Co, 748 F. Supp. at 1117 (D.N.J. 1990) (citing Dravo Corp. 

v. Robert B. Kerris, Inc., 655 F.2d 503 (3d Cir. 1981)). Here, the Purchase Contract 

neither expressly indicates that either Defendant is an intended third party beneficiary, 

nor provides them with a “direct claim” under the agreement. 

12 Defendants do not contend that they are a successor, heir, or permitted assignee of the 

Purchase Contract. 

 

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obtaining written consent from the Seller [Cherokee LTD], such 

consent not to be unreasonably withheld. 

See ¶ 15.6 of Purchase Contract (Exhibit B to FAC). 

 Defendants therefore cannot possibly be third-party beneficiaries 

given that the contract specifically identified such and Defendants are not 

among those identified. “To determine whether a third-party is an intended 

beneficiary, New Jersey courts look to whether the contracting parties have 

expressly intended for that third-party to receive a benefit which might be 

enforced in the courts.” Ali v. D.O.C., No. 08-2425, 2008 WL 5111274, at 

*5 (D.N.J. Nov. 25, 2008) (citing Rieder Communities, Inc. v. Twp. of N. 

Brunswick, 546 A.2d 563 (App.Div. 1988)) (emphasis added). By their 

silence, it is clear that Cherokee and Plaintiffs did not expressly intend for 

Defendants to be a third-party beneficiary. 

 This Court has repeatedly held that third parties who fail to 

demonstrate that they are intended third-party beneficiaries to a contract lack 

standing to enforce its provisions. See Ali, 2008 WL 5111274, at *5; 

Washington v. Correctional Medical Services, No. 05-3715, 2006 WL 

1210522, at *5 (D.N.J May 1, 2006) (dismissing claim of a party that did 

“not provide any evidence to support an argument that the contract contains 

language that would make him an intended beneficiary with standing to 

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sue.”). See also, Air Master Sales Co. v. Northbridge Park Co-Op, Inc., 748 

F. Supp. 1110, 1117-1118 (D.N.J. 1990). 

C. Defendants Rely Almost Exclusively On Sahara Sam’s, 

Which Involved Far Different Facts. 

Rather than relying on agency, third-party beneficiary, or 

employer/employee principles, Defendants instead rely solely upon this 

Court’s decision in Sahara Sam’s Oasis, LLC v. Adams Companies, Inc., 

No. 10-0881 (RMB/AMD), 2010 WL 3199886 (D.N.J. Aug. 12, 2010). 

However, the pertinent facts in that case are clearly distinguishable from the 

facts here. First, and foremost, the non-signatory defendants in Sahara 

Sam’s were far more “closely related” to the contract containing the clause 

than Defendants are here. Second, unlike here, one of the defendants in 

Sahara Sam’s was a signatory. Hence, at least one of the defendants had 

standing to enforce the clause, as the plaintiffs had contractually agreed with 

that defendant to the alternative forum. 

Third, the alternative forum at issue in Sahara Sam’s was Oklahoma, 

whereas the alternative forum here is TCI, which has been seized by the 

British government due to widespread political corruption. Therefore, 

unlike Sahara Sam’s, dismissing this case so it may proceed in a forum like 

TCI will contravene New Jersey’s strong public policy to protect its citizens 

from misrepresentations. Fourth, unlike Oklahoma, TCI is so gravely 

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inconvenient and troubled that Plaintiffs will for all practical purposes be 

deprived of their day in court if forced to proceed in TCI. 

1. Defendants Are Not Nearly as “Closely Related” to 

The Purchase Contract As the Non-Signatories in 

Sahara Sam’s. 

Neither Defendant is at all analogous to the primary non-signatory in 

Sahara Sam’s—Adams Companies, Inc. (Adams). Although Adams was not 

a signatory, the contract containing the forum selection clause was printed 

on its letterhead (the contract at issue in Sahara Sam’s is attached hereto as 

Ex. F.) Moreover, the contract referred to “Adams” by name six different 

times, because Adams was integrally involved in providing the goods and 

services under the contract. See Ex. F at 1-3. Adams extended an express 

warranty and was obligated to contract with Teeter Engineering Group, P.A. 

(“Teeter,” the other non-signatory), for Teeter to review certain technical 

drawings. See id. at 2. Thus, the other non-signatory (Teeter) was also

referred to by name in the contract and also had certain specified obligations 

under the contract. See id. at 2. 

In sum, both Adams and Teeter were integrally involved, along with 

signatory Aaon, in providing the goods and services to plaintiffs in the 

contract. Because Adams and Teeter were so heavily involved, they were 

akin to signatories to the contract. Therefore, they satisfied the “closely 

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related” standard both as third-party beneficiaries and under agency 

principles. 

In stark contrast, neither Defendant here is referred to even once in the 

Purchase Contract. There is no mention in the Purchase Contract of either 

Defendant providing goods or services to Plaintiffs under this Contract. 

Defendants do not claim that they had any role in providing what Plaintiffs 

bargained for under the contract (the construction of a condo). Hence, the 

facts concerning Defendants here are not at all like the facts concerning the 

non-signatories in Sahara Sam’s. 

2. Unlike Sahara Sam’s, No Defendant Here Is a 

Signatory. 

In Sahara Sam’s, and in nearly all other cases Plaintiffs could find, at 

least one of the defendants in the case was a signatory to the contract 

containing the forum selection clause. In Sahara Sam’s, defendant Aaon 

was a signatory. Sahara Sam’s, 2010 WL 3199886 at *1. Thus, the plaintiff 

had contractually agreed with defendant Aaon to litigation in Oklahoma. 

The only issue was whether the presence of other defendants who were not 

signatories (Adams and Teeter) would defeat the clause. This Court 

enforced the clause as to all the parties in the case—which avoided the same 

litigation proceeding in two or three different jurisdictions—because, as 

discussed below, the non-signatories were “closely related” to the contract. 

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The facts here are far different. Neither Defendant here is a signatory. 

Plaintiffs here did not agree to litigation in TCI with either Defendant in this 

case. Accordingly, TCI is not a proper forum for the parties here and, 

further, there is no risk that the litigation here would proceed in two different 

jurisdictions, given Cherokee’s liquidation.13

With one exception, in each case that Plaintiffs found where a court 

permitted a non-signatory to enforce a forum selection clause there was at 

least one signatory defendant.14 Plaintiffs could only find one case in the 

Third Circuit where a court permitted a non-signatory to enforce a forum 

selection clause even though no defendant in the case was a signatory, and 

that case involved far different facts than those here. 

In Foley & Lewis Racing, Inc. v. Burling, the court enforced a forum 

selection clause in favor of defendant Marc Burling, who signed the contract 

containing the clause in his capacity as president of the company. No. 07-

 

13 In Sahara Sam’s, the forum selection clause was asserted by three defendants in the 

context of a motion to dismiss. If all of the parties were not held to the forum selection 

clause, it presumably would have resulted in one counter-claim remaining in this Court 

and the other claims being transferred to Oklahoma. 2010 WL 3199886, at *2. In 

contrast, not enforcing the forum selection clause here will result in all of the claims 

related to the sale of the Veranda deposits being litigated in this Court. 

14

 Accord, Four River Exploration, LLC v. Bird Resources, Inc., No. 09-3158, 2010 WL 

216369 (D.N.J. Jan. 15, 2010) (enforcing clause where one of defendants in case was a 

signatory); D’Elia v. Grand Caribbean Co., Ltd., No. 09-1707, 2010 WL 1372027 

(D.N.J. Mar. 30, 2010) (same); Affiliated Mortgage Protection, LLC v. Tareen, No. 06-

4908, 2007 WL 203947 (D.N.J. Jan. 24, 2007) (same). 

 

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972, 2008 WL 544655 (D.N.J. Feb. 27, 2008). Thus, although he was not a 

signatory in his individual capacity, he was a signatory in his professional 

capacity as president. Hence, that case fits comfortably within the 

exceptions noted above involving agency and employer/employee. 

The absence of a defendant who is a signatory is significant. The U.S. 

Supreme Court’s holding in Bremen that forum selection clauses are 

presumptively valid was based, in part, on the notion that contracting parties 

should be able to select their forum. The Bremen v. Zapata Off-Shore Co., 

407 U.S. 1, 11 (1972) (“[i]t is settled...that parties to a contract may agree in 

advance to submit to the jurisdiction of a given court”). That element is 

missing here because these parties did not contract with each other. 

It is also worth noting that the plaintiffs in Sahara Sam’s—who 

objected to enforcement of the clause—were also very differently situated 

than Plaintiffs here. The plaintiffs in Sahara Sam’s were commercial

businesses located in New Jersey, who were forced to litigate their case in 

Oklahoma.15 Sahara Sam’s, 2010 WL 3199886 at *1-2. In sharp contrast, 

enforcing the clause here would require eleven individuals from New Jersey, 

 

15 According to the complaint filed in Sahara Sam’s Oasis, the defendant that was a 

signatory to the contract (Aaon) was based in Oklahoma, and defendants Adams and 

Teeter (the non-signatories that were bound by the forum selection clause) were based in 

North Carolina. Here, in contrast, the signatory to the contract with plaintiffs (Cherokee) 

is based in TCI and no longer exists. 

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New York and Connecticut to litigate over one thousand miles away in TCI, 

a country deeply troubled and without a Constitution at the moment. 

3. Other Case Cited by Defendants Is Also Inapposite.

The other case that Defendants rely upon, Four River Exploration, 

LLC v. Bird Resources, Inc., No. 09-3158, 2010 WL 216369 (D.N.J. Jan. 15, 

2010), involves facts so different from those here that it is clearly inapposite. 

Four River involved a plaintiff—who was a signatory—enforcing a forum 

selection clause against two defendants, a company and its president. See id. 

at *2. The president signed the contract on the company’s behalf in his 

professional capacity, but not in his individual capacity. See id. at 2-3. 

Thus, it was hardly controversial for Judge Pisano to enforce the clause 

against the president who signed the contract on the company’s behalf: 

“[Mr. DeVileger] is president of Bird Resources, and as such was very 

substantially involved in providing the services required by the parties’ 

Agreement.” Id. at *3 (internal citations omitted). Those two defendants, 

along with the plaintiff, contractually agreed to trial in New Jersey state 

court. Enforcing the clause merely resulted in a remand of the case from 

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New Jersey federal court back to New Jersey state court. That is obviously 

far different from the facts here.16 

Unlike the parties in Four River, the parties here did not agree to trial 

in TCI. Further, moving the case over one thousand miles away to TCI is 

obviously much different than moving from New Jersey federal court to 

New Jersey state court. Still further, the New Jersey state courts are 

obviously much more stable than the unfortunate situation in TCI. 

Accordingly, the enforcement of the clause in Four River is not instructive 

as to whether Defendants here can enforce a clause they did not bargain for, 

which would result in the case moving far away to TCI. 

4. Defendants Failed to Distinguish D’Elia. 

Notably absent from Defendants’ brief is any reference to a recent 

decision from this district, D’Elia v. Grand Caribbean Co., LTD., No. 09-

1707, 2010 WL 1372027 (D.N.J. Mar. 30, 2010). In that case, a husband 

and wife sued several defendants, including Grand Caribbean and Interval 

 

16 The forum selection clause in Four River was asserted in the context of a plaintiff’s 

motion to remand the case to state court where the plaintiff and one of the defendants had 

contractually agreed to litigate in New Jersey state court; however, the other defendant 

was a non-signatory to that contract. Thus, if the court had not enforced the forum 

selection clause on the non-signatory, it presumably would have resulted in that 

defendant staying in federal court and the other defendant going back to state court. Four 

River Exploration, 2010 WL 216369, at *2-3. 

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Servicing.17 Id. at *1-2. Defendant Interval Servicing—a non-signatory—

sought to enforce a forum selection clause contained in a contract between 

plaintiffs and Grand Caribbean.18 Id. at *2-4. 

Judge Hillman explained that “[i]n the Third Circuit, a non-signatory 

party may enforce a forum selection clause in a contract if that party is a 

third-party beneficiary of the contract or is closely related to the contractual 

relationship or dispute such that it is foreseeable that the party will be 

bound.” Id. at *3 (collecting cases). He then found that Interval Servicing 

was not an intended third-party beneficiary by virtue of merely performing 

“certain administrative and business services on behalf of the other 

defendants.” Id. at *4.

Importantly, the court also rejected Interval Servicing’s “closely 

related” argument, which is quite similar to the argument Defendants make 

here. Judge Hillman explained: 

In the Third Circuit, those circumstances in which a nonsignatory party may enforce the forum selection clause are 

limited, often reserved to matters of agency or employment or 

 

17 Interval Servicing was an entity that “managed” the resort at which the plaintiffs 

suffered the injures at issue in the lawsuit, and also “handled the management and 

operation” of certain duties for the other defendants. See D’Elia, 2010 WL 1372027, at 

*2. 

18 Similar to the forum selection clause in the Purchase Contract here, the clause at issue 

in D’Elia purportedly applied to “any claim arising from any” injury or accident at the 

resort, and provided that any such case would be brought in Mexico under Mexican law. 

See D’Elia, 2010 WL 1372027, at *1. 

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to principles of common law contracts.... Absent any proof that 

Interval Servicing is an agent, employee, or an entity with a 

comparable relationship to a signatory-defendant, Interval 

Servicing cannot enforce the forum selection clause because

there is no indication that it belongs to the category of entities 

that are normally characterized as ‘closely related’ to a 

signatory for purposes of the enforcement of a forum selection 

clause or a similar contractual provision. 

Id. at *5 (citing Dayhoff, Inc. v. Heinz Co., 86 F.3d 1287, 1296 (3d Cir. 

1996)). Just as in D’Elia, Defendants here have also failed to put forth any 

“proof” to show that they are sufficiently “closely related” to the Purchase 

Contract. See D’Elia, 2010 WL 1372027, at *5, n.7. Nor have they put 

forth any proof that they are in an agency, employment or other comparable 

relationship with the other signatory to the Purchase Contract (Cherokee). 

Id. As such, Defendants lack standing to enforce the clause here. 

 5. Unlike in Sahara Sam’s, Enforcing Clause Here 

Would Contravene New Jersey Public Policy Due to 

Extreme Problems in TCI. 

 

As Defendants acknowledge in their brief, a forum selection clause 

can be held unenforceable where, inter alia, its enforcement would violate a 

strong public policy of the forum, or would result in jurisdiction so seriously 

inconvenient as to be unreasonable. See Defs.’ Mem. at 6 (quoting 

Moneygram Payment Sys. v. Consorcio Oriental, S.A., 65 F. App’x 844, 846 

(3d Cir. 2003)); see also M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 

12-13 (1972) (holding that a court may decline to enforce a forum selection 

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clause if doing so would ‘contravene a strong public policy of the forum in 

which suit is brought, whether declared by statute or judicial decision’). 

A strong public policy of New Jersey is protecting its residents from 

misrepresentations like those at issue here, as evidenced by the New Jersey 

Consumer Fraud Act, which the New Jersey legislature intended to be one of 

the strongest consumer protection laws in the nation. See Homa v. Am. 

Express Co., 558 F.3d 225 232 (3d Cir. 2009) (“the ‘available legislative 

history of [the NJCFA] demonstrates that the Act was intended to be one of 

the strongest consumer protection laws in the nation... [and] should be 

construed liberally in favor of protecting consumers’”) (quoting Huffmaster 

v. Robinson, 534 A.2d 435, 437-38 (N.J. Super. Ct. Law Div. 1986)). 

The clause that Defendants seek to enforce provides that the Purchase 

Contract is to be “interpreted and governed in all respects according to the 

law of the Turks & Cacios...” See Defs.’ Mem. at 5 (emphasis supplied). If 

applied, Plaintiffs would presumably be precluded from asserting their state 

law claims, including Count I for violations of the NJCFA. Depriving 

Plaintiffs of this important remedy—particularly under the circumstances 

here—would violate this strong public policy of New Jersey. 

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6. Unlike in Sahara Sam’s, Enforcing Clause Here 

Would Deprive Plaintiffs of Their Day In Court. 

 

Enforcing the clause here would require individual plaintiffs from 

New Jersey, New York and Connecticut to litigate, in TCI, their claims 

against two U.S. corporations. Defendants even admit that transferring the 

case to this foreign venue will “presumably” require Plaintiffs to “obtain 

new counsel.” Defs.’ Mem. at 16. Under the circumstances, requiring these 

domestic plaintiffs to litigate their claims against domestic defendants in a 

foreign forum is “so seriously inconvenient as to be unreasonable.” Coastal 

Steel Corp. v. Tilghman Wheelabrator, Ltd., 709 F.2d 190, 202 (3d Cir. 

1983). See Weisenberger v. BT Ams., Inc., No. 09-4828, 2010 WL 1133473, 

at *5 (D.N.J. Mar. 22, 2010) (refusing to enforce a forum selection clause in 

a case that was “[a] local dispute between an American Plaintiff and an 

American Defendant...there has been no showing that any of the relevant 

evidence in this case is located [abroad]. Rather, the principal dispute 

concerns Plaintiff’s losses that flowed from his change in employment.”).19 

 

19 Defendants’ conclusory assertion that its witnesses will “likely” be located in “British 

Columbia or somewhere in Canada, or in TCI” is without any evidentiary support—

particularly given that discovery has not even commenced in this case. See Defs.’ Mem. 

at 15. Also unavailing is Defendants’ suggestion that a “site visit” would occur in TCI. 

The key issues in this case center around the representations that Defendants made, which 

were delivered to Plaintiffs in their home states of New Jersey, New York, and 

Connecticut. See FAC ¶ 16. 

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Neither Plaintiffs nor Defendants here have any current connection 

with TCI, which makes it extremely uncertain as to whether TCI—a country 

undergoing extreme political and constitutional turmoil—would even 

entertain this dispute between parties all domiciled in the United States. 

Under these circumstances, the clause cannot be enforced. 

II. DEFENDANTS’ FORUM NON CONVENIENS ARGUMENT 

FAILS FOR NUMEROUS REASONS.

It is well settled that the doctrine of forum non conveniens “must be 

sparingly applied, inasmuch as its application results in the dismissal of an 

action over which the court has jurisdiction and would ordinarily have a duty 

to resolve.” Am. Cynanamid Co. v. Picaso-Anstalt, 741 F. Supp. 1150, 115 

(D.N.J. 1990). The doctrine permits a district court to dismiss a complaint 

only “when an alternative forum has jurisdiction to hear the case, and when 

trial in the chosen forum would establish...oppressiveness and vexation to a 

defendant...out of all proportion to plaintiff’s convenience, or when the 

chosen forum [is] inappropriate because of considerations affecting the 

court’s own administrative and legal problems.” Piper Aircraft Co. v. 

Reyno, 454 U.S. 235, 241 (1981) (emphasis added). This is a high burden, 

and Defendants here bear that burden on all elements in the forum non 

conveniens analysis. Lacey v. Cessna Aircraft Co., 862 F.2d 38, 43-44 (3d 

Cir. 1988). 

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 Defendants were initially required to establish that an adequate 

alternative forum exists. Lacey, 862 F.2d at 44. Because they made no 

effort to show that TCI is an adequate alternative forum, there is no need for 

the Court to address the next step in the analysis, which requires Defendants 

to prove that the private and public interest factors weigh heavily in favor of 

dismissal. See id.; see also Burke v. Quartey, 969 F. Supp. 921, 929 (D.N.J. 

1997) (“defendant bears a heavy burden to satisfy both components of the 

analysis and must establish a strong preponderance in favor of dismissal”). 

A. Defendants Failed to Offer Any Proof TCI Is Adequate. 

The adequacy of the alternative forum is a threshold issue that must be 

addressed at the outset. See Piper Aircraft, 454 U.S. at 255 n.22. Two 

conditions must be met to satisfy the adequacy requirement: (1) the movant 

must be amenable to process in the alternative forum; and (2) the subject 

matter of the lawsuit must be cognizable in the alternative forum in order to 

provide the plaintiff appropriate redress. See Technology Development Co., 

Ltd. v. Onischenko, 536 F. Supp. 2d 511, 517 (D.N.J. 2007). Defendants 

bear the burden of establishing that they are amenable to process in TCI and 

that it is an adequate forum. See id. 

 Defendants did not state that they are amenable to process in TCI. See 

D’Elia, 2010 WL 1372027 at *7 (rejecting forum non conveniens argument 

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because movant failed to explicitly concede that it was subject to jurisdiction 

in alternative forum). Further, they did not offer any evidence establishing 

that TCI “has jurisdiction to hear the case.” Piper, 454 U.S. at 241. Neither 

Plaintiffs nor Defendants are domiciled in TCI and none of them have a 

current connection to TCI. Hence, it is not at all clear that TCI has 

jurisdiction to hear this case or would agree to hear it given that no TCI 

residents are involved. Lastly, Defendants did not proffer any authority to 

illustrate the existence of a satisfactory remedy for Plaintiffs in TCI. See 

D’Elia, 2010 WL 1372027 at *7 (rejecting forum non conveniens argument 

because movant failed to offer authority illustrating existence of adequate 

remedy in alternative forum). Defendants therefore did not meet their 

burden on the first prong of the adequacy standard. 

 Moreover, they did not offer any evidence to prove that TCI—whose 

independence as a country and Constitution were suspended in 2009 by the 

British government due to widespread political corruption—is an adequate 

forum (i.e., offers the plaintiff appropriate redress). In Lacey, the Third 

Circuit rejected a forum non conveniens motion because the movants did not 

provide any evidence that the alternative forum was adequate. 862 F.2d 38 

(3d Cir. 1988). 

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Lacey involved a plane crash in British Columbia and the ensuing

lawsuit in the Western District of Pennsylvania. See id. at 39-40. The Third 

Circuit noted that the movants did not file any affidavits to support their 

forum non conveniens motion. See id. at 41. The movants argued they were 

not required to do so because the trial court could determine the issue solely 

by reference to the complaint and plaintiffs’ affidavits. See id. at 44. The 

Third Circuit rejected this argument, holding instead that failing to provide 

any evidence of British Columbia’s adequacy was fatal to movants’ forum 

non conveniens motion because the trial court lacked sufficient information 

to undertake the adequacy analysis. See id. 

 Numerous New Jersey district courts have held similarly. See, e.g., 

Burke v. Quartey, 969 F. Supp. 921, 930 (D.N.J. 1997) (denying motion 

because movants failed to offer any evidence that alternative forum was 

adequate); Nieminen v. Breeze-Eastern, 736 F. Supp. 580, 583 (D.N.J. 1990) 

(same); Technology Dev. Co., Ltd. v. Onischenko, 536 F. Supp. 2d 511, 519 

(D.N.J. 2007) (refusing to dismiss because movant failed to satisfy adequacy 

requirement by offering only his own sworn affidavit and citations to other 

cases finding Russia to be an adequate forum, both of which were 

insufficient evidence). 

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 Applied here, Defendants cannot have the case dismissed on the basis 

of forum non conveninens because they have not offered any evidence to 

show that TCI is an adequate forum. They did not submit an affidavit from 

an expert on the laws and courts of TCI. Based on the numerous cases cited 

above, Defendants did not satisfy this threshold issue and, therefore, their 

motion to dismiss must be denied. 

 Defendants did not attempt to prove adequacy because they could not 

possibly do so in the face of the recent political turmoil in TCI. As 

explained above, the government and the Constitution were suspended in 

August 2009 for at least two years, including the suspension of the right to 

trial by jury. Given these fundamental flaws, Defendants cannot possibly 

establish TCI as an adequate forum. Piper, 454 U.S. at 254 (holding that a 

forum would be inadequate where the remedy in the alternative forum is so 

clearly inadequate or unsatisfactory that it amounts to no remedy at all). 

B. Defendants Cannot Overcome Plaintiffs’ Choice of Their 

Home Forum. 

 Even if Defendants had established adequacy—which they did not 

even attempt—they cannot overcome Plaintiffs’ choice of their home forum. 

The Third Circuit has held that the “plaintiff’s choice of forum should rarely 

be disturbed, unless the balance of factors is strongly in favor of the

defendant.” Lacey, 862 F.2d at 43 (emphasis added). Furthermore, “the 

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greater the plaintiff’s or the lawsuit’s bona fide connection to the United 

States and to the forum of choice and the more it appears that considerations 

of convenience favor the conduct of the lawsuit in the United States, the 

more difficult it will be for the defendant to gain dismissal. . . .” Miller v. 

Boston Scientific Corp., 380 F. Supp. 2d 443, 450 (D.N.J. 2005). 

 Here, eight of Plaintiffs reside in New Jersey and all of them reside in 

the United States. Based upon information and belief, none of them and 

none of the potential class members of this class action reside in TCI. 

Because Plaintiffs reside in or near New Jersey, their choice of this forum 

was clearly motivated by convenience. Based on the Miller case cited just 

above, it is far more difficult for Defendants to gain dismissal where the 

forum choice was based on convenience. See Miller, 380 F. Supp. 2d at 450. 

Moreover, this case has an obvious and bona fide connection to New Jersey 

because Plaintiffs reside in or near New Jersey and, accordingly, received 

there the alleged misrepresentations that form the basis of this suit. They 

clearly did not choose New Jersey to vex, harass, or oppress Defendants, 

who both are headquartered in the United States, not TCI. 

C. Private and Public Interest Factors Do Not Favor Dismissal. 

There is no need for the Court to address the private and public 

interest factors set forth in Gulf Oil Corp. v. Gilbert given that Defendants 

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failed to satisfy the threshold issue of adequacy. Nevertheless, Plaintiffs will 

address those factors for the Court’s convenience. Defendants were required 

to show that the private and public interest factors heavily favor dismissal in 

order to overcome the deference due to Plaintiffs’ choice of New Jersey. 

See Lacey, 862 F.2d at 44 (“moving defendant must show than an adequate 

alternative forum exists...and, if so, that the private and public interest 

factors weigh heavily on the side of dismissal”) (emphasis added). 

Defendants clearly failed to meet their burden. Plaintiffs now address each 

factor in turn. 

 1. Private Interest Factors Heavily Favor New Jersey. 

 (1) The relative ease of access to sources of proof: Eight of the 

eleven Plaintiffs reside in New Jersey, and the other three Plaintiffs reside in 

nearby New York and Connecticut. Hence, the critical mass of witnesses 

and documents on the plaintiff’s side are located in and around New Jersey. 

Defendants are both headquartered in Denver, Colorado. New Jersey is far 

more convenient for them than TCI. Therefore, New Jersey would afford 

Plaintiffs and Defendants much easier access to proof. This factor weighs 

heavily in favor of New Jersey. 

 (2) Availability of compulsory process for attendance of unwilling, 

and the cost of obtaining attendance of willing, witnesses: All eleven 

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Plaintiffs are located in New Jersey or nearby New York and Connecticut. 

Therefore, the cost of obtaining their attendance in New Jersey will be far 

cheaper than forcing them to travel to TCI, which will require substantial air 

fare and very substantial lodging costs. Moreover, Defendants’ travel costs 

will likewise be far cheaper if New Jersey is the forum. This factor weighs 

heavily in favor of New Jersey. 

 (3) Possibility of view of premises, if view would be appropriate to

the action: Plaintiffs’ case is centered on misrepresentations delivered from 

Defendants—presumably in Denver—to Plaintiffs residing in New Jersey, 

New York, and Connecticut. Thus, as Defendants noted, it is not at all clear 

that a site visit to TCI is required. Therefore, this factor does not figure 

prominently in the analysis. 

 (4) All other practical problems that make trial of a case easy, 

expeditious and inexpensive: This case will undoubtedly cost less for both 

sides if it proceeds in New Jersey. Plaintiffs will have little to no travel 

costs while Defendants will spend far less traveling to New Jersey than to 

TCI. Defendants acknowledged that a site visit to TCI is not certain. See

Defs.’ Mem. at 15. Therefore, they contradicted their own argument for this 

factor that there will likely be numerous discovery trips to TCI. See id. at 

16. This factor weighs heavily in favor of New Jersey. 

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2. Public Interest Factors Heavily Favor New Jersey. 

 (1) Administrative difficulties flowing from court congestion: 

Administrative concerns such as court congestion are not entitled to great 

weight, particularly in a case where, like here, Plaintiffs chose a forum with 

a strong interest in the dispute. See Doe v. Sun International Hotels, Ltd., 20 

F. Supp.2d 1328, 1330 (S.D. Fla. 1998). 

 (2) The “local interest in having localized controversies decided at 

home”: This case involves numerous New Jersey residents against two 

Denver-based defendants. No party hales from TCI. Hence, New Jersey has 

a much stronger interest in this litigation than does TCI. Further, TCI law 

does not apply to misrepresentations delivered by U.S.-based representatives 

to New Jersey residents. Hence, this factor heavily favors New Jersey. 

 (3) The interest in “having the trial of a diversity case in a forum 

that is at home with the state law that must govern the case” and the 

avoidance of unnecessary problems in conflict of laws, on in the application 

of foreign law: This case is based on misrepresentations presumably 

emanating from Denver and received in New Jersey, New York, and 

Connecticut. Thus, it is very unlikely that foreign law (TCI law) will apply 

to Plaintiffs’ misrepresentations claims. However, even if foreign law did 

apply, this would be no justification for dismissing this case as federal courts 

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often apply foreign law. See, e.g., Manu Intern., S.A. v. Avon Products, Inc., 

641 F.2d 62, 68 (2d Cir. 1981) (“we must guard against an excessive

reluctance to undertake the task of deciding foreign law, a chore federal 

courts must perform often”). 

 (4) The unfairness of burdening citizens in an unrelated forum with 

jury duty: Defendants are simply wrong in arguing that this case has no 

connection to New Jersey. The case involves eight New Jersey residents 

who received Defendants’ misrepresentations in New Jersey. New Jersey 

obviously has a strong interest in ensuring that its residents are protected 

from misrepresentations as evidenced by the New Jersey’s legislature’s 

enactment of the Consumer Fraud Act. Homa v. Am. Express Co., 558 F.3d 

225, 232 (3d Cir. 2009) (“the available legislative history of [the NJCFA] 

demonstrates that the Act was intended to be one of the strongest consumer 

protection laws in the nation...[and] should be construed liberally in favor of 

protecting consumers.”). This factor weighs heavily in favor of New Jersey. 

CONCLUSION

 For the foregoing reasons, this case—involving New Jersey residents 

against two U.S. corporate defendants—should not be dismissed in favor of 

proceeding over a thousand miles away in TCI, a country in great political 

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34 

and constitutional turmoil that has little to no connection to this case. 

Defendants’ motion to dismiss should be denied. 

Respectfully submitted, 

By: //s// Joseph G. Sauder

CHIMICLES & TIKELLIS LLP 

Joseph G. Sauder 

Benjamin F. Johns 

One Haverford Centre 

361 West Lancaster Avenue 

Haverford, PA 19041 

Telephone: (610) 642-8500 

Facsimile: (610) 649-3633 

E-mail: JosephSauder@chimicles.com

BFJ@chimicles.com

Michael A. Caddell

State Bar No. 249469

CADDELL & CHAPMAN

1331 Lamar, #1070 

Houston TX 77010 

Telephone 713.751.0400 

Facsimile: 713.751.0906 

mac@caddellchapman.com 

COUNSEL FOR PLAINTIFFS 

OF-COUNSEL

Cynthia B. Chapman 

State Bar No. 164471 

cbc@caddellchapman.com

Gregory K. Evans 

State Bar No. 24002065 

Caddell & Chapman 

1331 Lamar, Suite 1070 

Houston, TX 77010-3027 

(713) 751-0400 

(713) 751-0906 FAX 

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CERTIFICATE OF SERVICE

I, Joseph G. Sauder, hereby certify that on this 28th day of January, 

2011, I caused the foregoing PLANTIFFS’ MEMORANDUM OF LAW 

IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS, and 

Declaration of Benjamin F. Johns (and exhibits thereto) to be filed using the 

Court’s CM/ECF system, thereby serving it upon all counsel of record in 

this case. 

Dated: January 28, 2011 

 /s/ Joseph G. Sauder

 Joseph G. Sauder 

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