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BURMANET: Miriam and Michael of Mya

Received: (from strider) by igc4.igc.apc.org (8.6.12/Revision: 1.16 ) id WAA04141; Tue, 12 Dec 1995 22:19:10 -0800
Date: Tue, 12 Dec 1995 22:19:10 -0800
Subject: BURMANET: 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

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

     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.


LTD.,Plaintiffs, -v- MIRIAM MARSHALL SEGAL, Defendant.

95 Civ. 8286 (RPP)


1995 U.S. Dist. LEXIS 18179

 December 5, 1995, Dated 
 December 7, 1995, FILED

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


 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.


 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
- - - - - - - - - - - - - - - - - -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.

 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
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.
 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

 In a May 31, 1995 letter to Claude Charles,
PIV's Hong Kong Director and Ms.
Segal's alleged co-conspirator, Defendant
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
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- - - - - - - - - - - - - - - - -

 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.
 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
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
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
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
- - - - - - - - - - - - - - - - -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.

 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.

 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

 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.
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
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

 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- - - - - - - - - - - - - - - - -

 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.


 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

Dated: New York, New York
 PAGE 12
 1995 U.S. Dist. LEXIS 18179, *27

December 5, 1995

 Robert P. Patterson, Jr.