Moreover, the plaintiff claims that the transaction was made with the involvement of the Israeli company, which was the driving force behind the transaction and was supposed to purchase the devices from the manufacturer in China, while the plaintiff further claimed that his activity in the foreign company was supposed to be carried out from Israel, using his knowledge and experience, as he was managing a similar business in Israel.
Admittedly, it has not escaped my notice that there are other connections that may point to California USA as a relevant forum for clarifying the claim - defendant 1 is, as stated, a resident of the United States, as part of the venture, the foreign company was established in California, USA, offices were rented in the United States, it was claimed that the commercial activity between the parties was carried out in the US dollar currency and the machines were supposed to be shipped from China to the US. At the same time, there are also connections that may point to China as a relevant forum, since the entire project is based on the engagement with the Chinese supplier from which the machines were purchased. At the same time, I did not get the impression that these connections have a significant connection to the courts in the state of California, USA, or alternatively to the courts in China, which outweighs the connections to the Israeli courts.
Moreover. The conduct of the defendants after the disputes arose between the plaintiff and defendant 1 further strengthens the ties to the State of Israel. Because, at the stage after the disputes arose, according to defendant 1 as aforesaid, he also authorized defendant 2 - who is an Israeli resident - to meet on his behalf with the plaintiff, as his proxy for the purpose of locating solutions to the disputes that arose (there is no dispute that defendant 1 granted a power of attorney to his brother to speak with the plaintiff, and defendant 1 raised arguments regarding the scope and duration of the power of attorney). In this context, the plaintiff's claim that he discovered that defendant 2 contacted the plaintiff's supplier in China, behind his back, in an attempt to work with him independently (a claim that is ostensibly backed up by correspondence between the supplier in China and defendant 2), strengthens defendant 2's connection to the issues in dispute, and as a result, further increases the ties to the State of Israel.
- It should be emphasized that I have found to be a diagnosis of our case from Civil Case (Jerusalem District) 26136-03-22 Katz v. Geffen [Nevo] (February 12, 2023) to which the defendants referred. In the same matter, the requested remedy was the receipt of accounts of foreign companies, in connection with projects that were conducted in England, the amendment of registration in the shareholders' register that was conducted in England, as well as the receipt of accounts from the private accounts of an English resident. The shareholders of the companies did not reside in Israel, apart from the plaintiff. It was further determined that English law applies to the agreements made between the plaintiff and the defendant. These circumstances are different from the circumstances that exist in our case, in which, as stated above, there are many and more significant connections to the State of Israel.
- It should also be noted that in view of the technological developments that enable communication and movement between countries, as well as the testimony of witnesses by digital means, the courts will tend not to accept claims regarding the impropriety of the forum due to the difficulty in summoning witnesses to testify (Civil Appeals Authority 2705/97 Gibbs A. Sinai (1989) inTax Appeal v. The Lockformer Co. nav(1) 109, 115 (1998); Civil Appeal Authority 5318/18 Unibin Resourcer Ltd. Yaakov Meroz [Nevo] (January 16, 2019)).
- As for the test of the parties' expectations, the court must examine the reasonable expectations of the parties and the ability to conduct an efficient proceeding in Israel (see Clal, paragraph 5). The expectations of the parties also indicate that there is no preference for the forum in the United States over the forum in Israel. The initial engagement was made while defendant 1 was in Israel, and even after disputes arose, defendant 1 referred the plaintiff to negotiate with his brother, defendant 2, a resident of Israel. In any event, the defendants did not present a jurisdictional stipulation according to which legal proceedings would take place in a country that is not Israel.
- In examining the public considerations, the court must examine whether public considerations tip the scales in favor of holding the litigation in the Israeli or foreign forum, such as the existence of similar potential plaintiffs in Israel (see: Miscellaneous Applications Civil (Tel Aviv District) 5730/06 Conference of Jewish Material Claims Against Germany Inc. Perry, pp. 14-15 [Nevo] (May 30, 2006); Civil Appeal Authority 2737/08 Arbel v. TUI AG [Nevo] (January 29, 2009) para. 20). In our case, I also did not find that public considerations prevent the hearing from taking place in Israel, or indicate that the foreign forum has an interest in hearing the claim.
- In summary, I did not find that the defendants met the burden imposed on them to prove that the forum in Israel is not the appropriate forum to discuss the claim, or that there is another forum with a stronger affinity to discuss it.
Motion to Delete the Claim Against Defendant 2
- The defendants claimed that defendant 2 was involved in the lawsuit in order to grant jurisdiction to the Israeli court, and that the statement of claim does not disclose a cause of action against him. I have not found it acceptable to accept their arguments in this matter.
- The involvement of defendant 2 in the dispute arises both from the plaintiff's claims - who attached to the statement of claim a WhatsApp message sent to him by defendant 1 in which he addressed it to defendant 2, and from the defendants themselves. Defendant 1 explicitly claimed in the application that he authorized defendant 2 to meet with the plaintiff on his behalf, as his proxy for the purpose of finding solutions to the disputes that arose. His reservations regarding the power of attorney that he gave to his brother defendant 2 relate to the scope of the power of attorney, emphasizing that it was granted for a short and limited period only, but he does not dispute the very granting of the power of attorney and the brother's involvement in this framework in the relationship between the parties.
- Moreover, the statement of claim reveals a cause of action - even prima facie - with respect to defendant 2, against whom allegations are raised that he contacted, without the plaintiff's knowledge, to the machine supplier in China, and sought to work with him independently, while concealing the matter from the plaintiff. To substantiate his claims, the plaintiff attached correspondence that was allegedly conducted between defendant 2 and the supplier in China.
- To be precise: in accordance with case law, the use of the court's power to dismiss in limine will be done sparingly and with the necessary caution, and only in exceptional cases will the court be inclined to accept requests of this kind before an evidentiary inquiry and proper clarification of the parties' arguments has been conducted (Civil Appeal Authority 6992/14 Israel Electric Company in Tax Appeal v. Kibbutz Usha [Nevo] (December 29, 2014)). It was also ruled that a claim should not be dismissed in limine, where there is even a slim chance that may give rise to relief for the plaintiff.
- Therefore, I did not find that the statement of claim does not disclose a cause of action against defendant 2 at all, and therefore I did not find that the claim against him should be dismissed out of hand.
Conclusion
- In the margins, it should be noted that the motion to dismiss the claim in limine was filed without a duly verified affidavit. On August 12, 2024, the defendants requested an extension to submit their response to the plaintiff's response, on the grounds that an extension was required in order to allow defendant 1 to arrive at the appointment set at the Israeli Consulate in California, in order to verify his affidavit there, and to attach it to the response. Although an extension was granted as requested (decision of August 20, 2024), no signed affidavit was submitted in support of the application. In view of the result I reached, the absence of a signed affidavit does not change my decision, but this was taken into account in the cost ruling.
- Ultimately, the motion to dismiss the lawsuit in limine is denied. The defendants will file a statement of defense by March 12, 2025.
- The defendants will bear the plaintiff's expenses in the sum of ILS 1,500, which will be paid within 30 days from today.
Granted today, February 07, 2025, in the absence of the parties.