News Ltd. v. Australis Holdings Pty, Ltd.

—Order, Supreme Court, New York County (Ira Gammerman, J.), entered October 17, 2001, which, insofar as appealed from as limited by the briefs, denied third-party defendants-appellants’ motion to dismiss the third-party complaint, or, in the alternative, to sever third-party plaintiffs’ claims against them from those against plaintiff and plaintiffs affiliates named in the third-party complaint, unanimously affirmed, with costs. Third-party plaintiffs-respondents allege, inter alia, that third-party defendants-appellants were induced by, or otherwise acted in concert with, plaintiff and plaintiffs affiliates also named as third-party defendants (herein, defendants), in breaching certain interrelated agreements in which appellants’ affiliates gave respondents the right to distribute appellants’ motion pictures in Australia via cable pay television; in a separate agreement, appellants allegedly guaranteed their affiliates’ performance. All of the agreements contain forum selection clauses, some mandatory, which appellants invoked in support of their motion to dismiss, and others, including that contained in the guarantee agreement, non-exclusive. The motion was properly denied on the ground that none of the appellants is a party to any contract containing a mandatory forum selection clause. In circumstances where forum selection was clearly a topic of focused attention by the sophisticated parties and their counsel who, in making certain claims exclusive to a particular forum or applicable to nonsignatories, did so expressly in the relevant agreement, respondents’ contract and tort claims arising out of the guarantee agreement should not be subject to the mandatory forum selections clauses contained in other agreements executed by other parties (see, Lemme v Wine of Japan Import, 631 F Supp 456, 461). Therefore, New York is a permissible forum for these claims. Nor does it avail appellants to argue that their affiliates are necessary parties to this action, where the guarantee agreement itself provides that suit thereon may be instituted against appellants alone, or to invoke the doctrine of forum non conveniens, where there is no single forum that would be convenient to all parties. Severance was also properly denied given the substantial overlapping of respondents’ claims against appellants and defendants, all of which arise out of closely interrelated contracts, and the resulting obvious risk of duplication of resources and inconsistent results. We have considered and rejected appellants’ other arguments. Concur—Mazzarelli, J.P., Andrias, Saxe, Wallach and Marlow, JJ.