Given the affinities to a number of places, in my view the affinity test does not lead to a clear result that can tip the scales, and therefore it is clear that it does not lead to tipping the scales in such a way that the defendants have lifted the burden imposed on them.
- To this, it should be added that the application of the reasonable expectations test of the parties leads to the conclusion that in terms of the expectations of the parties, in the circumstances of our case, there is a preference for the forum in Israel over the forum in the United States. As to this, as stated, the defendant is an Israeli citizen, the plaintiffs are Israeli citizens, and the correspondence between the parties was made in Hebrew. However, in addition, the pleadings were delivered to the defendants through an authorized representative within the boundaries of the State of Israel, and the lawsuit was conducted in the Israeli court for more than two years until the date of filing the present application. As part of this, three pre-trial hearings were held in the case and many motions were submitted. Among other things, the defendants initially raised arguments relating to the jurisdiction of this court and claimed that the claim in its first form was under the jurisdiction of the Labor Court. I am of the opinion that in this conduct of the defendants, they revealed their opinion as to their reasonable expectation and admitted in practice that the proper forum is Israel. Otherwise, it is clear that they would have argued this a long time ago. From this I learned that even in terms of the reasonable expectations of the parties, the forum in Israel is the proper forum.
- Moreover, I am of the opinion that the application of the public considerations test also leads to the rejection of the application. This is based on a public consideration of efficiency, according to which a hearing that has been going on for about two years before the Israeli court, in which three pre-trial hearings have already been held, two judgments have been annulled, and no less than 32 applications have been filed, will continue to be conducted in this forum until the end.
- In addition, I also found that the defendants' argument that conducting the proceeding in Israel would cause the defendants unnecessary costs should be rejected, since this would require the flight of witnesses from the United States to Israel. This is because the defendants themselves stated that they intended to testify only with the defendant and that they had no other witnesses besides him, while all the witnesses on behalf of the plaintiffs were Israelis.
- To all of this it should be added that despite the fact that the burden of proving the natural foreign forum is on them, the defendants did not mention a single word in the application as to what is the appropriate alternative forum for the conduct of the claim in question, but only reiterated their claim that the forum in Israel is improper. In fact, only for the first time in their response to the plaintiffs' response did the defendants claim that the proper forum was the United States.
- In light of all of the above, I have come to the conclusion that all the tests indicate that the Pleasure Forum is the forum in Israel. At the very least, I am of the opinion that given that the invention was lawfully made in Israel and in view of the burden imposed on the defendants, the latter did not lift the burden imposed on them, to prove clearly and conspicuously that the local forum is inadequate. Therefore, the application should be rejected.
- Given my conclusion above, and since I have rejected the application on its merits, I am not required to rule on the question of whether there is a delay in its filing - given that it was not filed, as per the provision of Regulation 29 of the Regulations, at the first opportunity after the statement of claim, but only more than two years after the filing of the first statement of defense in the case - in order to reject it outright for this reason only.
Conclusion;
- The application is hereby denied.
- The defendants will bear the plaintiffs' expenses in the sum of ILS 4,000 in respect of this request. Expenses will be paid within 30 days from today.
- The Secretariat will communicate this decision to the parties.
Granted today, 10 Adar 5785, March 10, 2025, in the absence of the parties.