At the same time, each of the defendants entered into an Employment Agreement with one of several subsidiary corporations of Swissray International. Durday and Montler each executed a three-year Employment Agreement with Swissray Medical Systems, which employed them, respectively, as Chief Financial Officer and Chief Executive Officer. Harle executed a similar Employment Agreement with Swissray Healthcare, which employed him as Chief Executive Officer. The acquisition of SSG apparently did not fulfill expectations. Accordingly, pursuant to an arbitration provision contained in paragraph 12.9 of the Asset Purchase Agreement, Swissray International and Swissray Medical Systems commenced arbitration proceedings in Seattle, Washington, against Durday, Montler, and Harle, to rescind the Asset Purchase Agreement based on fraudulent misrepresentations and fraudulent inducement.
Defendants now move to dismiss the instant action on the grounds of forum non conveniens.
Defendants further note that both Swissray Medical Systems and Swissray Healthcare have their principal place of business in, and are thus residents of, Gig Harbor, Washington, and that most of the relevant financial records and documents were prepared and are located in Washington State. Additionally, defendants note that while Swissray International, a New York corporation, is named as a plaintiff in this action, it was not a party to any of the three Employment Agreements, and thus has no standing to sue under these agreements. In opposition to the instant motion, plaintiffs contend that this action should not be dismissed because it was filed two months before defendants' Washington State action, and because one of the plaintiffs, Swissray International, is a New York resident. Plaintiffs note that while this latter factor alone is not dispositive, it must be considered a significant factor in determining the appropriateness of plaintiffs' selection of a forum in which to bring suit. Plaintiffs additionally note that each of the Employment Agreements at issue contains a provision in which the parties agreed that New York law would govern resolution of any disputes.