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charlierat

Posted: Thu Aug 03, 2006 7:29 pm

justamom wrote:

I was just wondering because anytime we have gone to court, if my lawyer doesnt ask for legal fees, he doesnt get them. If he does ask, then it is basically up to the judge on if he gets them, or if I eat the cost up. Even when Ive gone and things have been dismissed against me, sometimes the judge still wont give lawyer fees. I think its dependant on the judge too. Some just dont seem to do it.

Domestic relations is an entirely different animal. In domestic relations cases, attorneys fees are routinely asked for and awarded. In civil suits, they are only awarded if the Judge feels that sanctions are in order.

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justamom

Posted: Thu Aug 03, 2006 7:30 pm

charlierat wrote:

justamom wrote:

awww ok. I have been to court so many times with my insane ex it aint funny. But Im sure my lawyer doesnt mind lol.

justaMILF

Joined: 24 Mar 2006
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Heli

Posted: Thu Aug 03, 2006 7:31 pm

Fiery wrote:

Heli wrote:

Fiery wrote:

I'd bet on hannie too...but the reverse could happen....he might become so enamoured with you...you'll have aproblem on your hands...why you would probably be the first broad not to fawn all over him all the time.

Ewwwwwww I'd rather fawn over a dead bear Wink

ROFLMAO....OMG heli...you are making me laugh so much tonight...

It's because I have a splitting headache -- really!! Crying or Very sad

48C heat and humidity doesn't agree with me BUT

neither does all this a/c So ..... I pick my poison which

is a/c and an awful sinus headache Razz

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charlierat

Posted: Thu Aug 03, 2006 7:31 pm

Daniel wrote:

Did anyone else notice the error on page 4? Insure should have been ensure. I hope this doesn't invalidate the verdict Smile

Nothing to worry about. That would be a harmless error.

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Heli

Posted: Thu Aug 03, 2006 7:32 pm

charlierat wrote:

Daniel wrote:

Did anyone else notice the error on page 4? Insure should have been ensure. I hope this doesn't invalidate the verdict Smile

Nothing to worry about. That would be a harmless error.

Spelling detention in Judge's Chambers ... maybe Wink

Transcription Goddess

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JennyM

Posted: Thu Aug 03, 2006 7:34 pm

Nice to see that BFN has posted the Order without saying where they got it.

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charlierat

Posted: Thu Aug 03, 2006 7:36 pm

JD wrote:

Res judicata generally applies only when there is a final judgment on the merits. In some jurisdictions it would bar relitigating claims dismissed with prejudice for forum non conveniens (not sure about New York) but I don't believe the same is true when dismissal is without prejudice.

Res judicata applies to any final ruling on any issue. It applies to any ruling on any issue. There has now been a final determination on the issue of forum non conveniens. Barring a reversal on appeal (a long shot if ever there were one), res judicata now applies to the issue of forum non conveniens and any attempt to refile in New York would be dismissable on its face.

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Heli

Posted: Thu Aug 03, 2006 7:37 pm

JennyM wrote:

Nice to see that BFN has posted the Order without saying where they got it.

The important thing is whether they've posted a
skeeterized Dutch translation of it from a trusted
source Wink

Transcription Goddess

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Fu-Gee-La

Posted: Thu Aug 03, 2006 7:37 pm

JennyM wrote:

Nice to see that BFN has posted the Order without saying where they got it.

That SUCKS.

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Posts: 7247

Nomatophobia

Posted: Thu Aug 03, 2006 8:00 pm

Heli wrote:

JennyM wrote:

Nice to see that BFN has posted the Order without saying where they got it.

The important thing is whether they've posted a
skeeterized Dutch translation of it from a trusted
source Wink

I heard that their house translator left the country!

Joined: 02 Aug 2006
Posts: 49

Cat

Posted: Thu Aug 03, 2006 8:10 pm

JennyM wrote:

Nice to see that BFN has posted the Order without saying where they got it.

You really ought to complain over there, Jenny. Thanks for getting this for us.

Meow

Joined: 23 Mar 2006
Posts: 1098
Location: Elysian Gardens

pax

Posted: Thu Aug 03, 2006 8:12 pm

charlierat wrote:

JD wrote:

Precisely.

I wonder whether Beth et al. will appeal the opinion. If so, it would cost a fair amount for the appeal, and would almost certainly be upheld. I would also guess that someone somewhere will blame "those damn New York Courts." ROFL.

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Daniel

Posted: Thu Aug 03, 2006 8:53 pm

Plaintext version(machine-converted, not checked for errors)

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 12

DECISION/ORDER
Index No. 102254/06 Motion Seg. No. 001

---------------------------------------x
ELIZABETH ANN TWITTY and DAVE EDWARD HOLLOWAY,
Plaintiffs,

- against -

JORAN VAN DER SLOOT and PAULUS VAN DER SLOOT,
Defendants.
---------------------------------------x

BARBARA R. KAPNICK, J.:

Plaintiffs Elizabeth Ann Twitty, a resident of Alabama, and Dave Edward Holloway, a resident of Mississippi, commenced this action against defendant Joran van der Sloat, a resident of the Netherlands, and his father, Paulus van der Sloat, a resident of Aruba.

Plaintiffs allege that defendant Joran van der Sloat sexually assaulted and falsely imprisoned their daughter, Natalee Holloway, during her high school graduation trip to Aruba in May 2005. The Complaint asserts claims against Joran van der Sloat for injuries suffered by their minor child arising out of her false imprisonment and for intentional and malicious interference with custodial relations. The Complaint also asserts a claim against defendant Paulus van der Sloot for failing to take reasonable steps to prevent his son from sexually assaulting Natalee Holloway.

Defendants now move by Order to Show Cause for an order: (i) pursuant to CPLR § 2004 extending the time within which the defendants have to appear, answer or otherwise move with respect to

the summons and complaint herein, including, but not limited to, challenging the jurisdiction of this Court, and/ or moving to dismiss the Complaint under CPLR § 3211 pending the determination of the instant motion; and (ii) pursuant to CPLR § 327(a) dismissing this action in its entirety, in the interests of substantial justice, as this Court is an inconvenient forum.

That portion of the motion in which defendants seek an extension of time wi thin which they have to appear, answer or otherwise move with respect to the summons and complaint was resolved pursuant to Stipulation dated March 8, 2006, which extended defendants' time to ten days following entry of this Court's Decision/Order on that portion of the instant motion seeking to dismiss on forum non conveniens grounds.

Discussion - Forum Non Conveniens

The common-law doctrine of forum non conveniens, also articulated in CPLR 327,
permits a court to stay or dismiss such actions where it is determined that
the action, although jurisdictionally sound, would be better adjudicated
elsewhere (see, generally, Siegel, NY Prac, § 28; 1 Weinstein-Korn-Miller, NY
Civ Prac, par 327.01, pp 3-469 -- 3-470).

Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478-479 (1984),

cert. den. 469 u.S. 1108 (1985).

The burden rests upon the defendant challenging the forum to demonstrate
relevant private or public interest factors which militate against accepting
the litigation (citations omitted) and the court, after considering and
balancing the various competing factors, must determine in the exercise of its
sound discretion whether to retain jurisdiction or not. Among the factors to
be considered

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are the burden on the New York courts, the potential hardship to the
defendant, and the unavailability of an alternative forum in which plaintiff
may bring suit (citations omitted). The court may also consider that both
parties to the action are nonresidents (citation omitted) and that the
transaction out of which the cause of action arose occurred primarily in a
foreign jurisdiction (citation omitted). No one factor is controlling
(citations omitted). The great advantage of the rule of forum non conveniens
is its flexibility based upon the facts and circumstances of each case
(citations omitted). The rule rests upon justice, fairness and convenience and
we have held that when the court takes these various factors into account in
making its decision, there has been no abuse of discretion reviewable by this
court (citations omitted).

Islamic Republic of Iran v. Pahlavi, supra at 479.

Burden on the New York Courts

Certainly, great deference must be afforded to plaintiffs' choice of forum in the first instance. "It is well established law that 'unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed ...' (Gulf Oil Corp. v Gilbert, 330 u. S. 501, 508 [1947]; Ba ta v Ba ta, 304 N.Y. 51, 56 [1952]; Hacohen v Bolliger Ltd., 108 A.D.2d 357, 360 [1985]." Waterways Ltd. v. Barclays Bank, 174 A.D.2d 324, 327 (1st Dep't 1991).

However, the Court of Appeals has held that "our courts should not be under any compulsion to add to their heavy burdens by accepting jurisdiction of a cause of action having no substantial nexus with New York." (Silver v. Great Am. Ins. Co., 29 N.Y.2d 356,

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361 (1972). See also, Shin-Etsu Chern. Co. , Ltd. v. ICICI Bank Limited, 9 A.D.3d 171, 176 (1st Dep't 2004).

Defendants argue that the resolution of this case will undoubtedly involve the application of foreign law and the need for expert testimony to explain that law, as well as the necessity to translate thousands of documents from Dutch into English. While New York Courts are frequently called upon to apply the law of foreign jurisdictions (see, Anaqnostou v. Stifel, 204 A.D.2d 61, 62 [1st Dep't 1994]), the applicability of foreign law has been held to be an appropriate concern on a forum non conveniens motion. See, Nquyen v. Banque Indosuez, 19 A.D.3d 292 (1st Dep't 2005) Iv. den. 6 N.Y.3d 703 (2006) i Shin-Etsu Chern. Co.. Ltd. v. ICICI Bank. Ltd., supra at 178; Bewers v. American Horne Prods. Corp., 99 A.D.2d 949, 950 (1st Dep't 1984) aff'd 64 N.Y.2d 630 (1984).

Plaintiffs contend that this Court has an interest in insuring that Aruba is made a little bit safer for the many thousands of New York residents who travel there each year. However, defendants dispute that Aruba is a dangerous venue and point out that tourism, which may have declined slightly after May of 2005 for a combination of reasons, is still a major source of income for Aruba.

In any event, the taxpayers of this State should not be compelled to assume
the heavy financial burden attributable to the cost of administering the
litigation contemplated when their interest in the suit and the connection of
its

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subject matter to the State of New York is so ephemeral (citations omitted).

Islamic Republic v. Pahlavi, supra at 483.

Potential Hardship to the Defendants

Plaintiffs argue that defendants cannot claim undue hardship or inconvenience if they are compelled to litigate this action in New York since defendant Joran van der Sloot voluntarily traveled to New York in February 2006 for an interview which appeared on the ABC News Programs primetime and Good Morning America.

However, it appears that defendant's flight to New York and hotel arrangements for these interviews was paid for by ABC, and that defendants would, very likely, be subject to economic hardship if required to travel to New York, at their own expense, to participate in the various stages of this litigation.

Plaintiffs argue that jurisdiction should nonetheless be retained in New York because potential witnesses in this case, including many of Natalee Holloway's friends who were with her in Aruba , as well as certain agents of the F.B.I., reside in the United States. However, it is not clear that these witnesses would, in fact, be unable to travel to Aruba to testify or to what extent their testimony would be relevant and not cumulative.

In addition, plaintiffs contend that a 17-year old woman, who is initially unidentified, but subsequently named in the papers as

5

Karen Martina, alleges that she is a prior victim of a sexual assault purportedly committed by defendant Joran van der Sloot. Plaintiffs claim that her lawyer, Helen Lejuez, who at one time represented Elizabeth Twitty, has represented that she is not willing to testify in Aruba, but that she will probably testify in New York if her safety is assured.

Defendants' counsel, however, also claims to have spoken to Ms. Martina and has submitted an affidavit in which she indicates that Joran never did anything improper to her, that she is willing to testify in Aruba and that she "would not be able to afford to go to New York to testify on behalf of Joran Van der Sloot."l

Moreover, it appears that were the case to be retained in New York, the defendants would be prejudiced by their inability to subpoena other key witnesses, including law enforcement personnel, who are located in Aruba. See, e.g., Nicholson v. Pfizer, Inc., 278 A.D.2d 143 (1st Dep't 2000), in which the Appellate Division, First Department, held that dismissal on the ground of forum non conveniens was warranted where certain key witnesses were located

--------
[1] Plaintiffs' counsel made reference during the oral argument to a supplemental affidavit from Ms. Lejuez in which she firmly stands by her story that Karen Martina went to an Aruban government lawyer who brought her to Ms. Lejuez to make a complaint about the defendant. However, this affidavit was not submitted due to its production for the first time in Court during the oral argument.

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in New Jersey, and thus beyond the reach of New York's subpoena power.2

Defendants also contend that they would be unable to implead third parties into this case such as the beach patrol, who were charged with the responsibility of guarding people who were on the beach that night, as well as the casinos, bars and hotels in Aruba, if the action remains in New York, as they would have no jurisdiction over them.

Alternative Forum

Although plaintiffs argue that pre-trial discovery in Aruba would be much more limited than the broad discovery afforded in this jurisdiction, the courts of the Kingdom of the Netherlands, of which Aruba is a constituent part, have been found to present an appropriate alternative forum in which to bring suit (see, Stoomhamer Amsterdam N.V. v. CLAL (Israel) Ltd., 204 A.D.2d 186 [1st Dep't 1994]; Obex Trading Corp. v. Maraven, S. A., 68 A.D.2d 841 [1st Dep't 1979]).

---------

[2] Although plaintiffs argue that defendants could compel witnesses located in Aruba, under the provisions of the Hague Convention, to offer testimony at a deposition, there is no dispute that there is no mechanism for this Court to compel these foreign witnesses to offer live testimony at a trial in New York. See, Strategic Value Master Fund, Ltd. v. Cargill Financial Services Corp., 421 F. Supp.2d 741, 768 (S.D.N.Y. 2006) which held that "[t]he fact that defendant's nonparty witnesses are not subject to the Court's compulsory process weighs heavily in favor of dismissal."

7

Plaintiffs further argue that Aruba does not present a viable alternative forum in this case because the prosecutor in charge of the criminal investigation, Karin P.J. Janssen, the Chief Prosecutor of the Public Prosecution Service of Aruba, has submitted a letter addressed to Mr. John Kelly, Esq. , one of plaintiffs' attorneys, stating that she personally believes that the presence in Aruba of the civil case would result in renewed media attention and media representatives traveling to Aruba which would have a negative effect on the ongoing investigation. However, her statement that it would be better to settle the civil proceedings in the New York courts is her personal opinion, and she writes in a subsequent letter to Mr. Tacopina that she does not have the authority to speak on behalf of the Aruban Government, but was rather writing "on behalf of the Public Prosecution Service of Aruba."

It appears to this Court that wherever this civil case proceeds there will be an enormous amount of media attention and press coverage, both in Aruba, in New York and elsewhere.

In addition, plaintiff Elizabeth Twitty indicates that she fears returning to Aruba because of an alleged incident and threat she received in September 2005 during a prior visit to the island. However, she has since returned, albeit briefly, to Aruba in November 2005 to give a statement to the Aruban police department, and it is not clear that adequate security arrangements could not be made to alleviate Ms. Twitty's concerns.

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Moreover, "although federal courts require an alternative forum for a forum non conveniens dismissal, New York courts do not where the New York connection to the litigation is minimal (see Shin-Etsu Chem. Co. Ltd. v. ICICI Bank Ltd., 9 A.D.3d 171, 179 [2004])." Wyser-Pratte Management Co., Inc. v. Babcock Borsig AG, 23 A.D. 3d 269, 270 (1st Dep't 2005).

Residency and Situs of The Occurrence

Plaintiffs submit that the fact that none of the parties to the action are New York residents is not dispositive. See, National Car Rental Systems, Inc. v. La Concorde Compagnie D'Assurance, 283 A.D.2d 249 (1st Dep't 2001).

While plaintiffs are correct that the residency of the parties is not always determinative, "[i]t is also well settled that acceptance of a suit between nonresident parties, based upon an out-of-State tort, is appropriate only upon a showing of special and unusual circumstances, none of which are evident here". Healy v. Renaissance Hotel Operatinq Co., 282 A.D.2d 363, 364 (1st Dep't 2001). See also, Economos v. Zizikas, 18 A.D.3d 392, 393 (1st Dep't 2005) .

Conclusion
----------

Accordingly, based on the papers submitted and the oral argument held on the record on May 17, 2006, and after weighing all the factors set forth in Islamic Republic of Iran v. pahlavi,

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supra, this Court finds that New York is not a convenient forum for litigating the instant dispute which "has no discernible connection to New York but a very substantial nexus to" Aruba. Hbouss v. Bank of Montreal, 23 A.D.3d 152 (1st Dep't 2005). See also, Finance and Tradinq Ltd. v. Rhodia S .A. , 28 A.D.3d 346 (1st Dep't 2006) ; Economos v. Zizikas, supra; Shin-Etsu Chern. Co., Ltd. v. ICICI Bank Limited, supra.

This Court, therefore, grants defendants' motion to dismiss this action on the ground of forum non conveniens. The Clerk may enter judgment dismissing plaintiffs' Complaint without prejudice and without costs or disbursements.

This constitutes the decision and order of this Court.

Date: August 3 , 2006

<signature>
Barbara R. Kapnick
J.S.C.

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Posts: 381
Location: NL

WangChung

Posted: Thu Aug 03, 2006 8:55 pm

JennyM wrote:

Nice to see that BFN has posted the Order without saying where they got it.

Would you expect anything less? They haven't had an original thought over there since Natalee ran away. Very Happy

Everybody Have Fun Tonight

Joined: 23 Mar 2006
Posts: 11451

Heli

Posted: Thu Aug 03, 2006 9:00 pm

Thank you so much Daniel.

I really hate reading pdf docs in Adobe Reader
My mouse gets spastic and the page jumps around....

Much appreciated.

**Daniel has posted the Decision of Justice Kapnick
above

Transcription Goddess

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Posts: 23410
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JennyM

Posted: Thu Aug 03, 2006 9:21 pm

WangChung wrote:

JennyM wrote:

Nice to see that BFN has posted the Order without saying where they got it.

Would you expect anything less? They haven't had an original thought over there since Natalee ran away. Very Happy

You gotta point there.

My bad.

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Posts: 7908
Location: America. Home of the brave and the free

prolific

Posted: Thu Aug 03, 2006 9:25 pm

JennyM wrote:

WangChung wrote:

JennyM wrote:

Nice to see that BFN has posted the Order without saying where they got it.

Would you expect anything less? They haven't had an original thought over there since Natalee ran away. Very Happy

You gotta point there.

My bad.

Debbie credited Angelalala

Joined: 24 Mar 2006
Posts: 9110
Location: Living happily in my "clueless" little world.

victims cry

Posted: Thu Aug 03, 2006 9:28 pm

Heli wrote:

Thats great Daniel thanks Smile

, and for those who actually want to see the ruling or see what it looks like, roger has jsut given me the link with all the pictures of the pages that he saved and has posted for those without pdf!

http://scrux.com/transcripts/nydismissal

Last edited by victims cry on Thu Aug 03, 2006 9:33 pm; edited 1 time in total

On Vacation!

Joined: 22 Mar 2006
Posts: 9299

Fu-Gee-La

Posted: Thu Aug 03, 2006 9:30 pm

prolific wrote:

JennyM wrote:

WangChung wrote:

JennyM wrote:

Nice to see that BFN has posted the Order without saying where they got it.

Would you expect anything less? They haven't had an original thought over there since Natalee ran away. Very Happy

You gotta point there.

My bad.

Debbie credited Angelalala

You mean she blamed her. Laughing

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Posts: 7247

GeorgiaMom

Posted: Thu Aug 03, 2006 9:37 pm

Fixing to discuss the dismissal now on Greta. 10:35 EST. Well, she said coming up next.

Joined: 25 Mar 2006
Posts: 4163

victims cry

Posted: Thu Aug 03, 2006 9:43 pm

OMG grrrrrrrrrrr

did he actually just say this was a publicity stunt???? in diff words

On Vacation!

Joined: 22 Mar 2006
Posts: 9299

victims cry

Posted: Thu Aug 03, 2006 9:47 pm

greta just told jqk that she doesnt think the answers are with Joran or Paulus Laughing

On Vacation!

Joined: 22 Mar 2006
Posts: 9299

WangChung

Posted: Thu Aug 03, 2006 9:49 pm

victims cry wrote:

greta just told jqk that she doesnt think the answers are with Joran or Paulus Laughing

The answers are in MB where they've always been. Frances Ellen Byrd Twisted Evil

- she nose.

Everybody Have Fun Tonight

Joined: 23 Mar 2006
Posts: 11451

jmo

Posted: Thu Aug 03, 2006 9:50 pm

victims cry wrote:

OMG grrrrrrrrrrr

did he actually just say this was a publicity stunt???? in diff words

He did say that! Just shows how totally vile the Holloways and Twittys are! Just disgusting! Evil or Very Mad

~Naughty By Nature~

Joined: 23 Mar 2006
Posts: 3946

statinmyopinion2

Posted: Thu Aug 03, 2006 9:51 pm

victims cry wrote:

greta just told jqk that she doesnt think the answers are with Joran or Paulus Laughing

Greta...Cya'ing...doesnt want her employer seeing the other side of a lawsuit.......now that this civil suit is in the can, she knows that JT is dead serious to bring civil suits to everyone and anyone who slandered Joran. He said he wouldn't sue Greta...but he NEVER said he wouldn't SUE fox news..for allowing Beth Twitty go on their shows each night and slander and defame, Joran, Paulus, and their entire family.

HMI, we are still watching you!

Joined: 25 Mar 2006
Posts: 2308

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