BURMANET: THE SAGA OF MIRIAM AND MICHAEL OF MYANMAR. December 12, 1995 by Strider As regular BurmaNet readers may be aware, Miriam Marshall Segal is a businesswoman operating in Burma and is well known apologist for the SLORC. Ms. Segal got herself into a bit of legal trouble recently which is explained in the following document. Michael Dobbs-Higgenson, who has appeared in several recent net articles, shows up in this document as an alleged co-conspirator of Ms. Segal's. What follows is the full text of an action taken by a Federal Judge in New York. This case has not gotten to trial and won't for a long time. This is just one motion by Ms. Segal arguing why the case should be dismissed right away (she lost). To set the stage: It's 1994 and Ms. Segal is doing business in Burma. Her business does so well, that a Hong Kong investment house (Peregrine) joins up with her to form a new company (Peregrine Myanmar) and she become the chief executive. The Hong Kong investors own 80% of the company and she owns the other 20%. It appears that Ms. Segal decided to cheat on her partners however. Enter Mr. Dobbs-Higginson and the Japanese company he represents: Mitsui. The scam is a bit complicated but the interesting part is that Ms. Segal's personal assistant (Ms. Duke) accidently faxes a memo meant for Dobbs-Higginson to, of all people, the partners in Hong Kong. Mistake. The investors, presumably after getting over their surprise, contact Ms. Duke and ask to help in nailing Ms. Segal. After consulting her own attorney, Ms. Duke agrees and she download the contents of the office computer's harddrive for the partners to read and also begins spying her her boss for them. The representative for the investors, Hector Lwin, comes to Burma to oust Ms. Segal. Ms. Segal rings up Gen. Maung Maung (referred to elsewhere by Ms. Segal as "my general.") Ms. Segal, according to court documents, tells Gen. Maung Maung: "Hector is very active--pin something on him, frame him--anything...I would raid Hector's house!.." In a later fax to her General, she writes: "regarding Hector, why can't his visa revocation be implemented--undesirable citizen, mistreatment of local staff, suspicion of illegal actions, too many lost passports, etc. My job is difficult enough without his undermining everything." Hector is promptly detained and thrown out of Burma for "travelling on an illegal passport." In a fax to Mr. Dobbs-Higgenson, Ms. Segal writes: "I'm am making sure that nothing is achieved by PCM [the investors] in Yangon. They are getting in deeper and deeper, and I think the time will soon come when they will have had enough." The investors had had enough. In July 1995, they finally fire Ms. Segal, but she just won't go. She still tells people that she owns the company and through her influence with the government, thwarts the investor's efforts to get rid of her and get their company back. The investors file an action in a New York court in October 1995, alleging that Ms. Segal cheated them, broke her employement contract. This is a civil case, so if Segal loses, she doesn't go to jail--she only pays damages. Ms. Segal asks the court to dismiss the case for three reasons. The first reason is that it would be more appropriate (convenient) to try the case in Hong Kong (doctrine of forum non conveniens). The second reason she gives for dismissing the case is that the investors forgot to name as co-conspirator an essential party: the SLORC. Ms. Segal's third reason for dismissing the case is that if it is in the US, it should be in a state court rather than a Federal court. By US rules, for the case to be in a Federal court, the plaintiff (Peregrine) would have to be from one state and she from another. Segal claims to be a resident of Burma, which is not a state at all. The court looked at Ms. Segal's arguments and said: you lose. A couple of observations the court didn't make (but which apply) are these: if it is "inconvenient" to try this case in New York, it is only inconvenient for the people suing her. Segal lives in New York. How much more convenient can you get? The real issue is that a court in New York is far more likely to make her pay than one in Hong Kong or Burma. The SLORC probably doesn't employ a lot of American lawyers, which is to Ms. Segal's advantage. If they knew that she tried to have them named as co-defendants, they might ask her some uncomfortable questions the next time she's in Burma. To be precise, Segal didn't exactly ask that the SLORC be joined to the suit. What she argued is something along the lines of this: the Burmese government should have been named along with her in order for it to be valid, and since they weren't it, has to be dismissed. Anyway, Judge Patterson threw out Ms. Segal's motion on December 5th and some day this thing should get to trial. It could be long time until this gets to a trial, but it will probably be even longer before the investors see their money again. ************************************ PEREGRINE MYANMAR LTD. and PEREGRINE CAPITAL MYANMAR LTD.,Plaintiffs, -v- MIRIAM MARSHALL SEGAL, Defendant. 95 Civ. 8286 (RPP) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 1995 U.S. Dist. LEXIS 18179 December 5, 1995, Dated December 7, 1995, FILED COUNSEL: [*1] For PEREGRINE MYANMAR LTD., PEREGRINE CAPITAL MYANMAR LTD., plaintiffs: Russell E. Brooks, Milbank, Tweed, Hadley & McCloy, New York, NY. For MIRIAM MARSHALL SEGAL, defendant: Bruce C. Kramer, Western Dist. of Tennessee, Western Divis. JUDGES: Robert P. Patterson, Jr., U.S.D.J. OPINIONBY: Robert P. Patterson OPINION: OPINION AND ORDER ROBERT P. PATTERSON, JR., U.S.D.J., Plaintiffs Peregrine Myanmar Ltd. ("PML") and Peregrine Capital Myanmar Ltd. ("PCM") have sued Defendant Miriam Marshall Segal seeking damages and injunctive relief. Plaintiffs contend that Defendant breached her employment contract and fiduciary duties, tortiously interfered with their prospective economic advantage by seeking to undermine their investments in a business venture in Myanmar, the Southeast Asian nation formerly known as Burma, and has engaged in unfair competition. Defendant has moved, Pursuant to Fed. R. Civ. P. 12(b)(1) and (7) and the doctrine of forum non conveniens to dismiss Plaintiffs' claims. Background Plaintiff PML is a corporation organized under the laws of the British Virgin Islands with its principal place of business in Yangon, Myanmar. (Tr. at 42). n1 Plaintiff [*2] PCM is a corporation organized under the laws of Myanmar, with a principal place of business in Yangon, Myanmar. Peregrine Investments Holdings Limited ("PIV"), a publicly held Bermuda corporation headquartered in Hong Kong, controls both PML and PCM. (Mercer Aff. P2). PML is a holding company which is 80% owned by Plaintiff Peregrine Investment Holdings Limited ("PIV"), a corporation organized under the laws of Bermuda. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Citations to the transcript of the October 11, 1995 hearing appear in this Opinion and Order as "Tr." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - PAGE 3 1995 U.S. Dist. LEXIS 18179, *2 Ms. Segal is a citizen of the United States. (Motion to Dismiss, Ex. 5, Segal Aff. P1). In 1976, Ms. Segal began to travel to Burma, now Myanmar, to establish business ties. (Ex. 5. Segal Aff. P2). Since 1976, Ms. Segal has travelled extensively throughout the Far East, spending significant amounts of time in Yangon. In 1990, MMA Financo Fisheries Company, Ltd. ("MMAFFCL"), a corporation organized under the laws of Hong Kong and controlled by Ms. Segal, entered into a joint venture agreement [*3] with the Myanmar government, Ministry of Livestock Breeding and Fisheries ("the Ministry") to establish a company, Myanmar American Fisheries Co., Ltd. ("MAFCo"), organized under the laws of Myanmar, to develop the offshore fishing industry in Myanmar. In 1990, MMAFFCL was wholly owned by Miriam Marshall & Associates, Ltd., which was later incorporated as MMA International Holdings ("MMA International") under the laws of the British Virgin Islands. (Mercer Aff. P5). Under the July 1990 Joint Venture Agreement, MAFCo was structured as a 50-50 joint venture. Each co-venturer had the power to appoint three members to the six member board. (Mercer Aff. P4, Mercer Reply Aff. Ex. A, Clause 7). The foreign investor group ("the B Party") was entitled to manage the company. (Mercer Aff. P4, Mercer Reply Aff. Ex. A). In December, 1992, PML acquired a 23% interest in MMAFFCL from MMA International. (Mercer Aff. P5). In June, 1994, a further transaction resulted in PML's acquisition of 100% ownership of MMAFFCL and the acquisition by Ms. Segal and associated parties of a 20% ownership interest in PML. (Mercer Aff. P5, Agreement for the Acquisition of Shares in MMA Financo Fisheries Limited, [*4] June 1994). Subsequent to its acquisition of 100% of MMAFFCL, PML advanced over $ 1.4 million U.S. Dollars to MAFCo. (Mercer Aff. P6). On July 27, 1994, PML entered into a written employment agreement with Ms. Segal. (Compl. Ex. A, B) Under the employment agreement, Ms. Segal was to receive an annual salary of $ 175,000 to be paid in U.S. Dollars. (Mercer Reply Aff. Ex. A). The employment agreement outlined Ms. Segal's responsibilities as follows: Employee has primary responsibility for maintaining and building relationships at the senior levels of the Myanmar Government Ministries and business community. Employee also has responsibility for maintaining contact with senior executives of major international companies interested in selling to or investing in Myanmar... Employee will work closely with the Managing Director and CEO of PCM in designing and implementing strategies to build MAFCO's business. Growth in income will directly relate to the successful execution of projects introduced by the employee. The employee, conversely, has the responsibility of closely coordinating with the Managing Director, PCM to ensure that projects she initiates are properly structured and [*5] closely coordinated with the investors' objectives. (Def. Mot. to Dismiss, Ex. 8). The employment agreement further provided Ms. Segal a housing allowance, five weeks annual vacation, and a car and driver. (Id.) During the negotiations which culminated in the agreement, Plaintiffs allege that Ms. Segal refused to consent to a provision requiring her to spend at least six months of every year in Myanmar. (May Aff. P6) PML separately entered into an agreement for the employment of Terry Dukes as Ms. Segal's New York based personal assistant. (Dukes 3d Aff. P1) PAGE 4 1995 U.S. Dist. LEXIS 18179, *5 On June 28, 1995, Ms. Dukes inadvertently faxed a memorandum from Ms. Segal addressed to Michael S. Dobbs-Higginson, a Hong Kong based advisor to Japanese conglomerate Mitsui & Co, to PIV's Hong Kong office. (Mercer Aff. P10). In the memorandum, Ms. Segal stated: In a conversation with Endo, discuss with him that (sic) fact that the government wants for me to become the official advisor for Mitsui. This would be very beneficial for us and for them. If that happens, the ministries will act promptly on Mitsui's requests and I will be able to follow through openly on everything and no one will dare say no... I [*6] would give anything for Mitsui to buy an interest in MAFCo and have an American management company do the quality control, marketing and managing of the plant, but not yet. Peregrine is about to put another $ 1.5 million into MAFCo and this money will be used for equipment, but they will not see the return anticipated by Rajan in the time allotted by Peregrine without the proper management and my assistance. At that time, Mitsui can come in and make a ridiculously low offer for 40% of MAFCo. (Mercer Aff. Ex. 2.) When Plaintiffs received the memorandum, they contacted Ms. Dukes. Shortly thereafter, with the consent of Ms. Dukes upon advice of her personal attorney, Plaintiffs obtained from Ms. Dukes' computer a series of documents sent by Ms. Segal to various individuals which related to MAFCo's business. In a May 31, 1995 letter to Claude Charles, PIV's Hong Kong Director and Ms. Segal's alleged co-conspirator, Defendant wrote: I really do hope that you and Michael come up with something creative by which Mitsui buys all of Peregrine's stake in MAFCo and then we are able to buy 35%-40% back. I think they should be able to get it quite cheaply. The truth of the matter [*7] is that without my help Peregrine will never be able to manage as is obvious by the events of the last few days, but I very much doubt that the current group will see that as a sign of anything. (Dukes Aff. Ex. 3) In a June 12, 1995 memorandum to General Maung Maung of Myanmar, Ms Segal wrote: 16. Hector is very active--pin something on him, frame him--anything...I would raid Hector's house!.. 21. I think [Peregrine] will try and buy out my shares and contract. In the meantime, make life as difficult as possible for the group so they learn that without support from me they will achieve nothing. They cannot force me to sell stock, and ownership of the company under Myanma law is still MMAI! (Dukes Aff. Ex. 6) In a fax later sent to General Maung Maung, Ms. Segal inquired "regarding Hector, why can't his visa revocation be implemented--undesirable citizen, mistreatment of local staff, suspicion of illegal actions, too many lost passports, etc. My job is difficult enough without his undermining everything." (Dukes Aff. Ex. 7) n2 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 On July 6, 1995, Hector Lwin, executive director of plaintiff PCM was PAGE 5 1995 U.S. Dist. LEXIS 18179, *7 detained and later investigated and expelled from Myanmar for "traveling on an illegal passport." (Lwin Decl. P1, 4-8) - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*8] On June 21, 1995, in a memorandum to Mr. Dobbs-Higginson, Ms. Segal wrote "it is not that I am patting myself on the back, but I am recognized throughout the world as being the strongest and most influential person with the government of Myanmar." (Dukes Aff. Ex. 8) In a June 22, 1995 memorandum to Mr. Dobbs-Higginson, Ms. Segal stated: "I am making sure that nothing is achieved by PCM in Yangon. They are getting in deeper and deeper, and I think the time will soon come when they will have had enough." (Dukes Aff. Ex. 9) On or about July 10, 1995, the Board of Directors of PML terminated Ms. Segal's employment contract for cause and her services as one of its directors. (Mercer Aff. P19) PCM removed Segal as a director, effective July 11, 1995. (Mercer Aff. P19) Plaintiffs assert that, despite PML's June 1994 acquisition of 100% of MMAFFCL, which owns 50% of MAFCo, and the July 1995 removal of Ms. Segal from her employment and from her positions on the boards of directors of both PML and PCM, Defendant has continued to portray herself and act as beneficial owner of MAFCo. (Mercer Aff. P21) Plaintiffs further contend that Defendant has used her personal influence with the Government [*9] of Myanmar to thwart the efforts of Plaintiffs' new appointees to run MAFCo and to harass Plaintiffs' employees. (Mercer Aff. P21, 20) Subsequent to a hearing held before this Court on October 11, 1995 on Plaintiffs' motion for a preliminary injunction, which was converted into a hearing on Plaintiffs' application for permanent injunctive relief, Defendant moved, pursuant to Fed. R. Civ. P 12(b)(1) and (7) and the doctrine of forum non conveniens to dismiss Plaintiffs' complaint. A. Defendant's Motion Pursuant to Fed. R. Civ. P. 12(b)(1) Defendant contends that this Court must dismiss Plaintiffs claims because it lacks subject matter jurisdiction. Plaintiffs allege that this Court has jurisdiction pursuant to 28 U.S.C. @ 1332(a)(2), which gives federal courts original jurisdiction over "all civil actions where the matter in controversy exceeds the sum or value of $ 50,000, and is between...citizens of a State and citizens or subjects of a foreign state." 28 U.S.C. @ 1332(a)(2). Defendant argues that no jurisdiction based upon diversity of citizenship exists because Plaintiffs are citizens of foreign states and she is not a "citizen of a State" within the meaning of the [*10] statute. 28 U.S.C. @ 1332(a) requires complete diversity of citizenship between the parties in order for a federal court to exercise jurisdiction. The determination of whether diversity exists must be made as of the time the action is commenced. Bevilaqua v. Bernstein, 642 F. Supp. 1072, 1073 (S.D.N.Y. 1986); See also Anderson v. Watt, 138 U.S. 694, 34 L. Ed. 1078, 11 S. Ct. 449 (1891). For jurisdictional purposes, an individual's citizenship is determined by her domicile. While a person may have more than one residence at a given time, she may only have one domicile. See National Artists Management Co., Inc. v. Weaving, 769 F. Supp. 1224, 1227 (S.D.N.Y. 1991). PAGE 6 1995 U.S. Dist. LEXIS 18179, *10 Domicile "is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 1608, 104 L. Ed. 2d 29 (1989). "The domicile of a person is the place where he has his true, fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning. Domicile therefore, has both a physical and a mental dimension and is more than an individual's [*11] residence, although the two typically coincide." 13B C. Wright & A. Miller, Federal Practice and Procedure @ 3612 at 526-27. An individual therefore may be a citizen of a state without being a resident of that state. Where an individual's residence is unclear, a court considering domicile must look to the intent of the individual. See Brignoli v. Balch, Hardy & Scheinman, Inc., 696 F. Supp. 37, 41 (S.D.N.Y. 1988). In such situations, a court must consider a variety of relevant factors to determine the domicile of an individual: No single factor is conclusive, although the residence of a married person's spouse and children (if the couple has not separated) is given considerable weight. "Among the influential factors are the place where civil and political rights are exercised, taxes paid, real and personal property (such as furniture and automobiles) located, driver's and other licenses obtained, bank accounts maintained, location of club and church membership and places of business or employment." National Artists Management Co., 769 F. Supp. at 1228 (quoting 1 Moore's Federal Practice P0.74 [3-3] at 707.64). Permanency of living arrangements and [*12] location of physicians, attorneys, and accountants are also relevant. Id. The party seeking to invoke jurisdiction bears the burden of proving that diversity exists. See National Artists Management Co., 769 F. Supp. at 1228. An individual, however, is presumed to retain the domicile of her birth unless it can be demonstrated that she has established a new domicile. For this reason, "where a party has established a domicile...the burden for demonstrating that a new domicile has been established lies with the person seeking to establish the change." National Artists Management Co., 769 F. Supp. at 1228. Defendant does not dispute that, prior to 1990, when she began to spend significant amounts of time in Myanmar, she was a New York domiciliary. Accordingly, Defendant bears the burden of demonstrating that she has established a new domicile. Ms. Segal's affidavit of November 4, 1995 reflects frequent changes in her place of residence during the time she spends in Myanmar. According to her statement, Ms. Segal has resided at 23/25 Kaba Aye Road in Yangon, Myanmar since July, 1995. (Segal Aff. P1) n3 From the commencement of her employment with Peregrine in July, 1994, until [*13] July, 1995, Ms. Segal acknowledges that she shared a residence with Rajan Pillai at 30-E Inya Road. (Segal Aff. P4) In a fax sent to Mr. Pillai in June 1995, discussing finances relating to her living expenses, Ms. Segal refers to the house at 30-E Inya Road as "Accommodations". (Dukes 3d Aff. Ex. A) Throughout the letter, Ms. Segal presses Peregrine's obligation to pay for expenses she incurred to maintain the house. Ms. Segal's arguments portray the house as part of the business venture, not her permanent home: As previously mentioned, we were given $ 5,000 each to furnish a house from A-Z, a house that could be used for entertaining to further the positive visibility of Peregrine...The house, as you know, is frequently used for visiting guests and Peregrine personnel." PAGE 7 1995 U.S. Dist. LEXIS 18179, *13 (Dukes 3d Aff. Ex. A) - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n3 Ms. Segal's address is listed as No. 30 Pale Road, Bahan Township, Yangon in papers filed on December 5, 1995 in a court action recently instituted in Myanmar. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Prior to July 1994, Ms. Segal avers [*14] that she had a month-to-month lease at Union House, located on University Avenue in Yangon. (Segal Aff. P5) Plaintiffs submitted the affidavit of U Min Swe, who owns Union House and states that he discussed leasing it with Mr. Peter Cass shortly prior to February 1, 1993, with the understanding that "the house would be used as a residence for members of the staff of MMA International (MMAI) who would either live in or visit Yangon from time to time." (Min Swe Aff. P3) Based upon his experience and a visit to Ms. Segal when she was a guest at a Yangon Hotel, U Min Swe does not believe that Union House was Ms. Segal's permanent residence from 1993 until July, 1994. (Min Swe Aff. P4) Even if Ms. Segal did stay at Union House when she was in Myanmar, the fact that she held a month-to-month lease on a residence used by herself and her business associates does not indicate the type of permanency required to establish a change in domicile. Peregrine succeeded Ms. Segal as lessee of Union House, furthering the idea that the house was primarily leased as part of a business venture. (Min Swe Aff. P6) Finally, Ms. Segal avers that she lived at a house called the "White House" prior to Union House. [*15] Ms. Segal is not listed in the 1995 Burma Telephone Directory. Nor is she listed with the telephone enquiry, which provides unlisted numbers. (Myint Aff. P5,6) Ms. Segal has presented no evidence that she is involved in religious or social organizations in the Yangon community in which she claims that she has established her home. Although she states that she has a physician, an attorney and an accountant in Myanmar, these facts alone do not establish a change in domicile. Turning to an assessment of Defendant's ties to New York, Ms. Segal, a United States citizen, is married to Dr. Myron Segal, who was, until his retirement in Spring 1994, an employee of Blue Cross-Blue Shield in New York. (Dukes Aff. P7) According to a deed dated March, 1989, Ms. Segal and her husband purchased a condominium at 25 Central Park West in New York. (Reichenbach Aff. Ex A) Shortly thereafter, Ms. Segal spent a large sum of money redecorating the apartment, where she lives with her husband and her son, Eric. (Dukes 3d Aff. P2,5) According to Defendant's submissions, the apartment was transferred to Seavest Partners by a contract executed on December 1, 1994. (Howard Aff. P2) n4 Despite the transfer, [*16] Ms. Segal still refers to the apartment as "my New York apartment." (Dukes 3d Aff. Ex. A, H) Manhattan's 1995-1996 White Pages contains a listing for "Miriam and Mike Segal" at 25 Central Park West. As recently as March 20, 1995, Ms. Segal referred to the number listed in the Manhattan directory as her "home telephone." (Dukes 3d Aff. Ex. I, K) - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - PAGE 8 1995 U.S. Dist. LEXIS 18179, *16 - n4 Although the ownership of Seavest Partners has not been disclosed, Dr. Segal has acknowledged that Seavest Partners plays a substantial role in managing his investments. (Dr. Segal Aff. P6) - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Further evidence of Ms. Segal's intent in relation to domicile is found in numerous business communications. In a May 31, 1995 fax from Ms. Segal to R.C. Kwok which provided a fax number within New York's area code as the sender's, Defendant indicated that she receives business related mail at her New York residence: "I arrived home, and your letter and check were waiting." (Dukes 3d Aff. Ex. E) In a fax to Michael Dobbs-Higginson dated June 22, 1995, Ms. Segal suggested that [*17] she considers New York her base of operations, stating: "I work from New York on Myanmar related projects...If the communication expenses were not so high to Yangon, I would not even mention it, but they run at the rate of $ 10/minute for faxing and telephoning." (Dukes 3d Aff. Ex. D) While Ms. Segal mentions she is not a registered voter in New York and does not have a New York driver's license (Segal Aff. P5), these factors are not conclusive of the determination of domicile. See National Artists Management Co., 769 F. Supp. at 1228. Ms. Segal, moreover, has not demonstrated a connection with another jurisdiction by exercising her right to vote or holding a driver's license elsewhere. Similarly, while Plaintiffs have submitted no tax returns evidencing payments to authorities in New York, Ms. Segal avers that she is not obligated to pay taxes in Myanmar because of the temporary nature of her residence. (Segal Aff. P5) Ms. Segal has acknowledged that she maintains a bank account in New York. (Segal Aff. P11) Prior to Spring, 1995, Ms. Segal had her salary paid by Peregrine into a New York bank account. (Liu Aff. P2) She also has a physician, an attorney and an accountant in [*18] New York. (Segal Aff. P13) In Spring 1995, Dr. Segal was hospitalized in New York; he continues to receive medical attention in New York. (Dr. Segal Aff. P8) Defendant and her husband maintain a membership at a New York Synagogue. (Dr. Segal Aff. P7) Finally, the manner in which Ms. Segal accounted for expenses on business related trips indicates her intent with respect to domicile. In a fax to Cushman May dated March 21, 1995, she included a figure reflecting "the cost of my next round trip ticket to Yangon." (Dukes 3d Aff. Ex. G) The facts set forth above establish that Myanmar is the focus of Defendant's business operations. For this reason, papers and correspondence submitted in this case reveal that Ms. Segal has spent a significant portion of her time there over the past several years. The submissions also suggest, however, that Defendant maintains strong ties to New York, a city she has long called, and continues to call, her home. The evidence submitted to this Court leads to the conclusion that Ms. Segal has not changed her domicile and therefore continues to be a citizen of New York for purposes of subject matter jurisdiction. Because Plaintiffs are citizens of a foreign [*19] state, this Court has jurisdiction over this proceeding pursuant to 28 U.S.C. @ 1332(a)(2). PAGE 9 1995 U.S. Dist. LEXIS 18179, *19 B. Defendant's Motion to Dismiss for Failure to Join an Indispensable Party Defendant moves to dismiss, pursuant to Fed. R. Civ. P. 12(b)(7) for failure to join an indispensable party as required by Fed. R. Civ. P. 19(a). Rule 19(a) requires that: A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If a necessary party cannot be joined to pending litigation, the Federal Rules of Civil Procedure require that a court determine [*20] whether that party is indispensable. In assessing whether a party is indispensable: the factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. Fed. R. Civ. P. 19(b). If, under the foregoing criteria, a party that cannot be joined is deemed to be indispensable, a court must dismiss the lawsuit. Defendant contends that the 1990 Joint Venture Agreement entered between MMAFFCL and the Ministry renders the government of Myanmar an indispensable party to the current litigation. The litigation before this Court concerns Ms. Segal's obligations under the employment contract she entered with Peregrine when she sold her interest in MMAFFCL. This litigation does not concern ownership of shares in MAFCo. That ownership has remained [*21] the same as it was when the Joint Venture Agreement was entered. Resolution of Ms. Segal's employment dispute with Plaintiffs will not affect the ownership interests of the Ministry in MAFCo. The Ministry is not a necessary party to the dispute between Plaintiffs and their former employee, Ms. Segal. C. Defendant's Motion to Dismiss Based on the Doctrine of Forum Non Conveniens Defendant contends that dismissal of this action is appropriate under the doctrine of forum non conveniens. District courts have discretion to grant motions to dismiss based on the doctrine of forum non conveniens where a more convenient forum exists in which it could be litigated. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). There is a "strong presumption in favor of a plaintiff's choice of forum." Allstate Life Ins. Co. v. Linter Group Ltd., 994 F.2d 996, 1001 (2d Cir. 1993) cert. denied 126 L. Ed. 2d 334, 114 S. Ct. 386 (1993). This presumption is PAGE 10 1995 U.S. Dist. LEXIS 18179, *21 entitled to less weight where, as here, the plaintiff is not suing in its home forum. CL-Alexanders Laing & Cruickshank v. Goldfeld, 709 F. Supp. 472, 480 (S.D.N.Y. 1989). Nonetheless, [*22] the defendant bears the burden of demonstrating why the plaintiff's choice of forum should be disturbed. Id. To overcome the presumption favoring a plaintiff's choice of forum, a defendant must demonstrate that an adequate alternative forum exists and, considering several public and private interest factors, that "the balance of convenience tilts strongly in favor of trial in the foreign forum." R. Maganlal & Co. v. M.G. Chemical Co., Inc., 942 F.2d 164 (2d Cir. 1991). The party moving to dismiss on the basis of forum non conveniens must demonstrate that analysis of the public and private interest factors set forth by the Supreme Court in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508-509, 91 L. Ed. 1055, 67 S. Ct. 839 (1947), yields a balance substantially favoring the alternative forum. See R. Maganlal & Co., 942 F.2d at 167. The Gilbert Court set forth the following "important private interest" factors: [1] "relative ease of access to sources of proof"; [2] availability of compulsory process for attendance of unwilling witnesses; [3] cost of obtaining attendance of willing witnesses; [4] possibility of viewing the premises where the injury occurred; [*23] and [5] other practical problems relating to efficiency and expense of a trial. Gilbert, 330 U.S. at 508. The Gilbert Court went on to list the following "factors of public interest": [1] court congestion; [2] unfairness of imposing jury duty on citizens of a forum unrelated to the litigation; [3] local interest in having localized controversies decided locally; and [4] "avoidance of the unnecessary problems in conflict of laws or in applying foreign law." Id. Prior to balancing the public and private interest factors to determine the most convenient forum, a court must conclude that an adequate alternative forum exists for the plaintiff to litigate its claim. Defendant Segal contends that Hong Kong is an appropriate alternative forum for Plaintiffs' suit. Defendant states that she would be willing to submit to the jurisdiction of Hong Kong or of Myanmar if this case is dismissed based upon the doctrine of forum non conveniens. n5 Plaintiffs do not dispute the contention that Hong Kong may be an alternative forum for this litigation, but instead focus on discussing the public and private interest factors which favor litigating the suit in New York. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 Although Plaintiff states that she would submit to Myanmar jurisdiction, she does not argue that Myanmar represents an adequate alternative forum. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*24] Defendant has not demonstrated that the private interest factors set forth by the Gilbert Court weigh in favor of litigating the case in Hong Kong. Plaintiffs' central evidence regarding damages it has suffered and continues to suffer as a result of Defendant's alleged actions is information obtained from the computer of Terry Dukes, Ms. Segal's personal assistant, who at all times relevant to this litigation, has lived and worked in Douglaston, New York and is a key witness to Ms. Segal's alleged treachery. (Brooks Aff. P3) In addition to Ms. Dukes, Plaintiffs have indicated that they intend to call Mr. A. Cushman May, a resident of Warwick, New York, who, as a director of PML, played a substantial role in the negotiations which led to Ms. Segal's 1994 employment PAGE 11 1995 U.S. Dist. LEXIS 18179, *24 agreement, Mr. Rajan Pillai, a New York lawyer currently working as Managing Director of Plaintiff Peregrine Myanmar Capital Ltd. in Myanmar, Alan K. Mercer, who resides in Hong Kong, and Peregrine's financial personnel who presumably work at Plaintiffs' corporate headquarters in Hong Kong. Plaintiffs have represented that they will pay the travel related expenses to enable the witnesses who live in the Far East to [*25] testify. Defendant rebuts Plaintiffs claims regarding ease of access to sources of proof, and availability and cost of procuring witnesses by arguing that holding the litigation in New York would be financially burdensome to Ms. Segal. Ms. Segal suggests that she may call Mr. Dobbs-Higginson, Mr. Charles, and "other associates of the plaintiffs" who reside in the Far East, to testify at trial. Wherever the trial takes place, witnesses will be forced to travel to provide testimony. The presence of Plaintiffs' most significant witness, Ms. Dukes, and of documents essential to their proof of Ms. Segal's wrongdoing in New York favor maintaining the litigation in this jurisdiction. The presence of Mr. May and Peregrine's willingness to pay travel related expenses for its other witnesses to attend trial in New York further favor New York as the appropriate forum. While conducting the litigation in Hong Kong could provide easier access to Plaintiffs' records, it would complicate access to records of the communications by Ms. Segal which Plaintiffs allege form the basis for their claims. The public interest factors do not point to Hong Kong as the more appropriate forum. Court congestion [*26] is not a factor with respect to this Court because no delay for trial exists in this part. Although Hong Kong may have an interest in protecting its corporate entities from wrongdoing of the sort Ms. Segal is alleged to have committed, this jurisdiction's strong interest in this litigation derives from the fact that most of the conduct Ms. Segal is alleged to have committed originated in New York. Ms. Segal's significant ties to New York, moreover, increase the likelihood that this Court grant Plaintiffs meaningful relief. In contrast, Defendant's lack of contacts with Hong Kong limit the impact an order issued or judgment entered by a court in that jurisdiction could have upon her. Defendant argues that this Court should dismiss this suit because it will require application of foreign law. Application of foreign law alone, however, is not sufficient reason to dismiss a case based upon the doctrine of forum non conveniens. See R. Maganlal & Co., 942 F.2d at 169. This case is primarily a dispute regarding Ms. Segal's obligations under her employment agreement with Peregrine. Although this Court may be required to hear expert testimony explaining Hong Kong law relating to employment [*27] agreements, the case will not involve other complex issues of foreign law. In sum, Defendant has failed to satisfy her burden to show that Hong Kong is the more convenient forum for litigation of this action. Conclusion For all of the reasons stated above, Defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (7) and the doctrine of forum non conveniens is denied. IT IS SO ORDERED. Dated: New York, New York PAGE 12 1995 U.S. Dist. LEXIS 18179, *27 December 5, 1995 Robert P. Patterson, Jr. U.S.D.J.