Opinion
2013-11-12
NEW DELHI TELEVISION LIMITED, Plaintiff–Appellant, v. NIELSEN HOLDINGS N.V., et al., Defendants, The Nielsen Company (US), LLC, et al., Defendants–Respondents.
Pepper Hamilton LLP, New York (Thomas McC. Souther of counsel), for appellant. Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Aidan Synnott of counsel), for respondents.
Pepper Hamilton LLP, New York (Thomas McC. Souther of counsel), for appellant. Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York (Aidan Synnott of counsel), for respondents.
TOM, J.P., ANDRIAS, FRIEDMAN, FREEDMAN, CLARK, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered April 16, 2013, which, insofar as appealed from as limited by the briefs, granted defendants' motion to dismiss the amended complaint in its entirety as against The Nielsen Company (US), LLC, AC Nielsen Corporation, and AC Nielsen Company, LLC (Nielsen defendants), unanimously affirmed, without costs.
In this action commenced by plaintiff, a news network headquartered in India, against the Nielsen defendants, operators of a global marketing research firm that measures television ratings data, alleging that their joint venture, TAM Media Research Private Limited (TAM), which they created with defendants WPP PLC and Kantar Group, Ltd, fraudulently misrepresented or corrupted the data, the amended complaint was properly dismissed on the ground of forum non conveniens ( seeCPLR 327[a] ). Although the Nielsen defendants do not refute that they are New York corporations, plaintiff is located in India, the underlying events occurred in India, the evidence and the witnesses are located in India, and TAM, a necessary but unnamed party, is located in India ( see Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 479, 478 N.Y.S.2d 597, 467 N.E.2d 245 [1984], cert. denied469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778 [1985]; United States Aviation Underwriters v. United States Fire Ins. Co., 134 A.D.2d 187, 190, 520 N.Y.S.2d 716 [1st Dept.1987], affd. 73 N.Y.2d 723, 535 N.Y.S.2d 592, 532 N.E.2d 98 [1988] ). Additionally, plaintiff has not shown that India is an inadequate alternative forum ( see id.).
As noted above, TAM is a necessary party that plaintiff failed to name as a defendant. Dismissal is also warranted on this basis ( seeCPLR 1001 [a] ). TAM's conduct is at issue in every cause of action, and the amended complaint, which mentions TAM hundreds of times, alleges that TAM is defendants' joint venture ( see Henshel v. Held, 13 A.D.2d 771, 216 N.Y.S.2d 41 [1st Dept.1961] ).
Finally, the negligence claims were properly dismissed for failure to state a claim because the complaint fails to identify any duty defendants owed to plaintiff ( seeCPLR 3211[a][7]; Evans v. 141 Condominium Corp., 258 A.D.2d 293, 295, 685 N.Y.S.2d 191 [1st Dept.1999] ).
We note that defendants have agreed to toll the statute of limitations for the period that this lawsuit was pending.