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We’ve blogged before about legal translation services for international litigation and the impact that the Hague Convention can have on cross-border litigation. Bentel & Company v. Schraubenwerk Zerbst GmbH (“Bentel”), Case No. 16 C 11479 from the U.S. District Court for the Northern District of Illinois, highlights the difficulty that U.S. based litigants can have in initiating such litigation against foreign entities.

In Bentel, the plaintiff, an Ohio-based management and consultant company, contacted the defendant, a German component and subsystem manufacturer in the wind power industry, to see if it would attend a wind power exhibition in the United States. Although the defendant did not attend the exhibition, the plaintiff’s owner proposed the possibility of the plaintiff’s owner scouting for new customers in Mexico, the United States, and Canada. The parties agreed that the plaintiff would act as defendant’s representative in the “NAFTA” states (U.S., Canada, and Mexico) and would perform certain duties such as performing market analyses and engaging in customer relations. The parties signed a commission agreement memorializing their contract. Under the terms of their agreement, the defendant was to pay the plaintiff a performance-based commission of 5% or $1,000 per month until new clients materialized.

The plaintiff proposed several potential Illinois clients to the defendant, including one named “Nordex USA,” which supplied various hardware and fastener components. Nordex allegedly became a customer of the defendant as a result of the plaintiff’s efforts. Several years later, the defendant terminated its commission agreement with the plaintiff. The plaintiff claimed that the defendant still owed approximately $50,000 in commissions on sales to Nordex and over $100,000 in commissions in sales to a Florida-based company.

In an effort to retrieve some of its unpaid commissions from the defendant, the plaintiff hired a German lawyer to demand payment from the defendant under specific German laws. The plaintiff then filed suit in the U.S. District Court for the Northern District of Ohio and alleged claims for breach of contract, violation of Ohio and Illinois statutes regarding sales commissions, and unjust enrichment. The court subsequently dismissed the lawsuit for lack of personal jurisdiction under Ohio’s “long-arm” statute.

Specifically, the court found that the plaintiff had failed to show that the defendant’s contacts with Ohio gave rise to the plaintiff’s claims for breach of the commission agreement. The plaintiff then filed suit in the U.S. District Court for the Northern District of Illinois alleging the same four causes of action it alleged in the lawsuit it filed in the Northern District of Ohio. The defendant moved to dismiss the case; based on lack of personal jurisdiction or, alternatively, forum non conveniens. The defendant argued, among other things, that its contacts with Illinois had no relation to the plaintiff’s claims for breach of the commission agreement and that therefore, the plaintiff could not establish that the court had specific jurisdiction over the German company. The court rejected this argument, finding that the plaintiff had sufficiently alleged commissionable activities in Illinois that related to the defendant’s contacts with the state; thus, the plaintiff had established the necessary “minimum contacts” so as to confer specific jurisdiction over the defendant.

The court also addressed whether conferring specific jurisdiction over the defendant would offend “traditional notions of fair play and substantial justice” under Asahi Metal Indus. Co., v. Sup. Ct. of Cal., 480 U.S. 102, 113 (1987). The court found that the burden on the defendant in defending a lawsuit in the United States would violate this principal, although it did recognize that the defendant would be slightly burdened by having to travel to the United States. The court found that the Northern District of Illinois was a much more convenient forum for the plaintiff to pursue this claims than Florida or Germany and that it would be much easier for the parties to obtain written and oral discovery from Ohio if the case were to proceed in Illinois.

However, even though the court declined to dismiss the case on jurisdictional grounds, the court agreed with the defendant that a trial in a German forum would be most convenient for the parties. Under the common law doctrine of forum non conveniens, a court may dismiss a suit over which it would normally have jurisdiction if it best serves the convenience of the parties and the ends of justice. See In re Bridgestone/Firestone, Inc. 420 F.3d 702, 703 (7th Cir. 2005). The court found that Germany was an “available and adequate forum” under Piper Aircraft Co. v. Teyno, 454 U.S.235, 254 n.22 (1981).

German to English Legal Translation Costs

The court also examined the private and public interests at stake, finding that the private interest factors favored dismissal. The court reasoned that the plaintiff was comprised of just one individual who spoke both German and English and further reasoned that it would be less costly in terms of translation costs to have a German court translate the relevant documents that were originally written in German. The court also considered that if the matter were allowed to proceed, pursuant to the Hague Convention, the court would have to write letters rogatory to the United States Department of Justice requesting the ability to take evidence abroad. Letters rogatory are formal, written requests by one judicial body to another judicial body in a different, independent jurisdiction. The Justice Department would then forward the request to the applicable German authority, who would process them and deliver them to the relevant entity or individual, a process that would take between three and six months to complete. Regarding the public interest issue, the district court found that compared to Germany, Illinois had little to no interested in deciding the dispute. The court also found that the case was likely to proceed much more quickly in the applicable German state as opposed to the U.S District Court for the Northern District of Illinois, which experiences a heavy caseload due to its location in Chicago, Illinois.

Based on the foregoing reasons, the court entered an order dismissing the case under Federal Rule of Civil Procedure Rule 12(b)(3) on forum non conveniens grounds provided that the defendant agreed to submit to jurisdiction in German and not object to the admission of evidence obtained in the United States.

Contact our legal translation service to obtain legal translation of letter rogatory and other litigation documents from and into German, Mandarin, Spanish, French, Swedish, Korean, Portuguese, Italian, and other languages for transnational, cross-border and international litigation.

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