In re Optimal U.S. Litigation
In re Optimal U.S. Litigation
Opinion of the Court
OPINION AND ORDER
I. INTRODUCTION
This putative class action arises out of plaintiffs’ investment in the Optimal Strategic U.S. Equity Fund (“Optimal U.S.” or
On December 20, 2011, I denied defendants’ initial motion for forum non conveniens. At that time, the balance of factors was extremely close, and I noted that the public interest factors did point slightly in favor of dismissal. However, I denied defendants’ motion based primarily on the deference owed to plaintiffs’ choice of forum, the United States’ interest in enforcing violations of federal securities law, and the due diligence efforts conducted in New York. Defendants now move, for a second time, for dismissal on the grounds of forum non conveniens. Since the December 20 Opinion plaintiffs’ federal securities law claims have been dismissed and the parties have undertaken extensive discovery efforts in Europe. This dispute now concerns claims, governed by foreign law under relevant choice-of-law principles, brought by foreign plaintiffs suing mostly foreign defendants based on alleged misstatements made abroad. Because the balance of factors has changed and now point strongly towards dismissal, defendants’ motion is now granted.
II. APPLICABLE LAW
A. Forum Non Conveniens
“[F]ederal courts have the power to dismiss damages actions under the common-law forum non conveniens doctrine ... in ‘cases where the alternative forum is abroad.’ ”
The Second Circuit employs a three-part test established in the seminal case of Iragorri v. United Technologies Corporation in addressing motions to dismiss under the doctrine of forum non conveniens.
“[A] court reviewing a motion to dismiss for forum non conveniens should begin with the assumption that the plaintiffs choice of forum will stand.”
[f]actors disfavoring forum non conveniens dismissal “include the convenience of the plaintiffs residence in relation to the chosen forum, the availability of witnesses or evidence to the forum district, the defendant’s amenability to suit in the forum district, the availability of appropriate legal assistance, and other reasons relating to convenience or expense.” In contrast, Plaintiffs’ choice of forum deserves minimal deference where that choice was motivated by “attempts to win a tactical advantage resulting from local laws that favor the plaintiffs case, the habitual generosity of juries in the United States or in the forum district, the plaintiffs popularity or the defendant’s unpopularity in the region, or the inconvenience and expense to the defendant resulting from litigation in that forum.”10
Thus, “the greater the plaintiffs or the lawsuit’s bona fide connection to the United States and to the forum of choice and the more it appears that considerations of convenience favor the conduct of the lawsuit in the United States, the more difficult it will be ... to gain dismissal” whereas “the more it appears that the plaintiffs choice of a U.S. forum was motivated by forum-shopping reasons ... the less deference the plaintiffs choice commands.”
At step two, “the court must consider whether an adequate alternative forum exists.”
Dismissal is not appropriate if an adequate and presently available alternative forum does not exist.... [A] forum may ... be inadequate if it does not permit the reasonably prompt adjudication of a dispute, if the forum is not presently available, or if the forum provides a remedy so clearly unsatisfactory or inadequate that it is tantamount to no remedy at all.14
However, “[a]n alternative forum is adequate if the defendants are amenable to service of process there, and if it permits litigation of the subject matter of the dispute.”
“At step three, Defendants must establish that a balancing of the private and public interest factors tilts heavily in favor of the alternative forum.”
“The public interest factors include: (1) settling local disputes in a local forum; (2) avoiding the difficulties of applying foreign law; and (3) avoiding the burden on jurors by having them decide cases that have no impact on their commu
B. Choice of Law
To resolve choice-of-law conflicts in tort cases, New York applies an “interest analysis” to identify the jurisdiction that has the greatest interest in the litigation based on the occurrences within each jurisdiction, or contacts of the parties with each jurisdiction, that “ ‘relate to the purpose of the particular law in conflict.’ ”
Under the interest-analysis test, torts are divided into two types, those involving the appropriate standards of conduct, rules of the road, for example and those that relate to allocating losses that result from admittedly tortious conduct ... such as those limiting damages in wrongful death actions, vicarious liability rules, or immunities from suit.28
“Conduct-regulating rules have the prophylactic effect of governing conduct to prevent injuries from occurring.”
III. DISCUSSION
A. Deference Accorded to Plaintiffs’ Choice of Forum
Generally, a foreign plaintiffs choice of forum is accorded less deference, unless the choice of forum is based on “valid reasons, such as convenience.”
First, the “convenience of the plaintiffs residence in relation to the chosen forum,”
Second, “the availability of witnesses or evidence to the forum district”
Although plaintiffs suggest that there is a possibility of deposing several additional U.S. residents,
Third, “the defendant’s amenability to suit in the forum district,”
Fourth, I previously found that there was no indication that plaintiffs’ choice of forum was motivated by improper tactical considerations.
Fifth, I previously concluded that there was no indication that defendants were forum shopping.
In reweighing the Iragorri factors, the locus of discovery counsels that the deference accorded to plaintiffs’ choice of forum should be limited. I had previously distinguished the Banco Santander decision, based on a similar case, noting that “plaintiffs here argue that their choice of forum was based on the evidence available in New York.”
B. Adequacy of Switzerland as an Alternative Forum
I previously held that Switzerland was an adequate alternative forum for this action.
C. Private and Public Interest Factors
1. Private Interests
First, I previously held that the “relative ease of access to evidence”
On the other hand, I noted that evidence concerning due diligence efforts was focused in New York. It is now clear, however, that the focus of discovery is in Europe.
As will be discussed below under the third factor, a number of key witnesses are former employees of defendants and no longer subject to compulsory process to attend a trial in New York. Thus, the “relative ease of access to evidence”
Second, I previously held that the “cost to transport witnesses to trial”
Third, I previously held that the “availability of compulsory process for unwilling witnesses”
Fourth, I previously found defendants’ attempt to point to “other factors that make the trial more expeditious or less expensive”
Fifth, plaintiffs argue that the advanced stage of this litigation counsels against dismissal based on forum non conveniens. Although plaintiffs are correct on this point,
Although I previously found that the private interest factors “fail to weigh heavily in either direction,” I now find, based on the course of discovery, that private interests in this dispute between foreign plaintiffs and mainly foreign defendants arising from statements made abroad and based on transactions not governed by U.S. securities law, weigh in favor of a foreign forum; namely, Switzerland.
2. Public Interests
First, I previously found that the fora’s relative interests
Second, I previously acknowledged that the interest in “avoiding the difficulties of applying foreign law”
Plaintiffs have made no further arguments that would indicate New York law can be applied on a classwide basis. While plaintiffs make a convincing argument that the location of the tort should not be decisive,
D. Waiver
Plaintiffs argue that defendants’ waived their right to raise a forum non conveniens defense.
IY. CONCLUSION
For the foregoing reasons, defendants’ renewed motion for dismissal on grounds of forum non conveniens is granted. Plaintiffs’ motion for class certification and appointment of class representatives and class counsel is denied as moot. The Clerk of the Court is directed to close these motions [Docket No. 105]
SO ORDERED.
OPINION AND ORDER
1. INTRODUCTION
On August 10, 2012, this Court issued an Opinion and Order granting defendants’ renewed motion to dismiss for forum non conveniens. On August 28, 2012, plaintiffs moved pursuant to Local Rule 6.3 and Rule 59(e) of the Federal Rules of Civil Procedure for reconsideration of the August 10 Opinion on the grounds that the Court “(1) incorrectly considered] facts occurring after the complaint was filed to diminish the level of deference owed to Plaintiffs’ choice of forum; and (2) [found] inconveniences where there were none and overlooked] pivotal considerations in its analysis of ‘how great would be the inconvenience’ for Plaintiffs to restart this case in Switzerland.”
II. LEGAL STANDARD FOR RECONSIDERATION
Motions for reconsideration under Local Civil Rule 6.3 are committed to the sound discretion of the district court.
III. APPLICABLE LAW
A full discussion of the doctrine of forum non conveniens is contained in the August 10 Opinion.
IY. DISCUSSION
When I first denied dismissal for forum non conveniens, I recognized that “the balance of factors was extremely close.”
plaintiffs’ federal securities law claims have been dismissed and the parties have undertaken extensive discovery efforts in Europe. This dispute now concerns claims governed by foreign law under relevant choice-of-law principles, brought by foreign plaintiffs suing mostly foreign defendants based on alleged misstatements made abroad.19
I therefore concluded that “the balance of factors ... now point strongly towards dismissal.”
A. The Court’s Analysis of the Degree of Deference Accorded Plaintiffs’ Choice of Forum Does Not Merit Reconsideration
Plaintiffs argue that the Court made a “clear legal error” by “re-weighing the Iraggori [sic] convenience factors ‘as discovery in this case has progressed,’ ” to “newly conclude[ ] ‘that plaintiffs’ choice of forum is entitled to some, but little deference.’ ”
Here, the Court did not reevaluate the degree of deference due based on “facts that arose or came to light long after the complaint was filed.”
It is implausible that the Second Circuit intended to preclude a district court from reevaluating the extent to which a plaintiffs forum choice was “motivated by legitimate reasons” if it came to light later in the litigation that plaintiffs had initially misrepresented their claims and intentions with respect to discovery for the purpose of litigating in a United States court.
B. Plaintiffs’ Private Interest Arguments Regarding Difficulties of Transferring the Litigation to Switzerland Do Not Merit Reconsideration of the Dismissal
Plaintiffs also argue that the Court incorrectly weighed the convenience to defendants of litigating in Switzerland against the inconvenience to plaintiffs of doing so. In support of reconsideration, plaintiffs raise new arguments that the witnesses over whom compulsory process will be gained are not crucial or, in the case of Echevarria, cannot be compelled to testify in Switzerland and reassert the need for testimony from U.S. residents not subject to compulsory process in Switzerland.
Plaintiffs’ assertions regarding the need to depose U.S. residents, which have not been borne out by the course of discovery thus far,
Plaintiffs also argue that the Court failed to “analyz[e] the cost, time delays, and linguistic complications imposed upon Plaintiffs by changing both court and country mid-case.”
Plaintiffs argue that, despite the fact that the connection with New York is significantly diminished, “the public interests do not strongly favor dismissal.”
V. CONCLUSION
In sum, notwithstanding the costs of relocating to Switzerland mid-litigation, all other signs — that the transactions at issue were foreign, that all parties with the exception of one defendant are foreign, that Swiss law will most likely govern, and that the evidence and witnesses are concentrated in Europe-strongly support dismissal. For the foregoing reasons, plaintiffs’ motion to reconsider is denied. The Clerk of the Court is directed to close this motion [Docket Entry # 172] and this case.
SO ORDERED:
. Familiarity with prior Opinions, in particular the prior Opinion on forum non conveniens, is assumed. See In re Optimal U.S. Litig., 837 F.Supp.2d 244 (S.D.N.Y. 2011) ("December 20 Opinion”).
.Defendants include (1) Optimal U.S.’s investment manager, Optimal Investment Management Services, S.A. ("OIS”); (2) an employee thereof, Jonathan Clark; and (3) OIS’s corporate parent, Banco Santander, S.A. ("Banco Santander”). Plaintiffs include (1) Pioneer International Ltd. ("Pioneer”), an investment advisory firm incorporated in the British Virgin Islands; (2) the "Pioneer Plaintiffs,” fifty-six non-U.S. persons and entities who invested in Optimal U.S. based on advice provided by Pioneer (whose advice was in turn based on Defendants’ misrepresentations); (3) the "Santander Plaintiffs,” three foreign citizens/non-U.S. residents to whom Banco Santander International (“Santander U.S.”) marketed and sold Optimal U.S., and who held their Optimal U.S. investments in accounts with non-party Santander Bank St Trust, Ltd. in the Bahamas (“SBT Bahamas” or "SBT”); and (4) Silvana Worldwide Corp. ("Silvana”), a Plaintiff who invested in Optimal U.S. from a non-Santander-affiliated bank account. See In re Optimal U.S. Litig., 813 F.Supp.2d 351, 356-57 (S.D.N.Y. 2011) ("May 2 Opinion”); Fourth Amended Complaint ("FAC”) ¶ 64.
. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 722, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (quoting American Dredging Co. v. Miller, 510 U.S. 443, 449 n. 2, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994)). Accord Sinochem Int'l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007).
. Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 70 (2d Cir. 2003) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). Accord ICC Indus. Inc. v. Israel Disc. Bank, Ltd., 170 Fed.Appx. 766, 767 (2d Cir. 2006) (" 'Where the district court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.'") (quoting Carey v. Bayerische Hypo-Und Vereinsbank, 370 F.3d 234, 237 (2d Cir. 2004)).
. Base Metal Trading SA v. Russian Aluminum, 253 F.Supp.2d 681, 699 n. 13 (S.D.N.Y. 2003) (quoting Vanity Fair Mills, Inc. v. T Eaton Co., 234 F.2d 633, 645 (2d Cir. 1956)), aff'd, 98 Fed.Appx. 47 (2d Cir. 2004).
. Iragorri v. United Techs. Corp., 274 F.3d 65, 70-75 (2d Cir. 2001) (en banc).
. Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir. 2005). Accord Abdullahi v. Pfizer, Inc., 562 F.3d 163, 189 (2d Cir. 2009).
. Iragorri, 274 F.3d at 71. Accord Giro, Inc. v. Malaysian Airline Sys. Berhad, No. 10 Civ. 5550, 2011 WL 2183171, at *5 (S.D.N.Y. June 3, 2011).
. Iragorri, 274 F.3d at 71. Accord Thai-Lao Lignite (Thailand) Co. v. Government of the Lao People’s Democratic Republic, No. 10 Civ. 5256, 2011 WL 3516154, at *9 (S.D.N.Y. Aug. 3, 2011).
. Erausquin v. Notz, Stucki Mgmt. (Bermuda) Ltd., 806 F.Supp.2d 712, 724-25 (S.D.N.Y. 2011) (quoting Iragorri, 274 F.3d at 72) (emphasis added).
. Palacios v. Coca-Cola Co., 757 F.Supp.2d 347, 352 (S.D.N.Y. 2010) (quotation marks omitted). Accord Huang v. Advanced Battery Tech., Inc., No. 09 Civ. 8297, 2010 WL 2143669, at *3 (S.D.N.Y. May 26, 2010).
. Iragorri, 274 F.3d at 73.
. Abdullahi, 562 F.3d at 189.
. Id.
. Pollux Holding, 329 F.3d at 75. Accord Turedi v. Coca-Cola Co., 343 Fed.Appx. 623, 625 (2d Cir. 2009); Online Payment Solutions Inc. v. Svenska Handelsbanken AB, 638 F.Supp.2d 375, 384 (S.D.N.Y. 2009) ("[T]he standard imposed on a defendant to establish such adequacy is not heavy.”).
. BFI Grp. Divino Corp. v. JSC Russian Aluminum, 298 Fed.Appx. 87, 91 (2d Cir. 2008) (quotation marks omitted).
. Norex Petroleum, 416 F.3d at 158 (quotation marks omitted). Accord PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 74 (2d Cir. 1998).
. Erausquin, 806 F.Supp.2d at 726.
. See Iragorri, 274 F.3d at 73-74 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), superseded by statute as stated by Gazis v. John S. Latsis (USA) 729 F.Supp. 979, 987 (S.D.N.Y. 1990)).
. Maersk, Inc. v. Neewra, Inc., 554 F.Supp.2d 424, 453-54 (S.D.N.Y. 2008).
. Iragorri, 274 F.3d at 74.
. Palacios, 757 F.Supp.2d at 361.
. DiRienzo v. Philip Servs. Corp., 294 F.3d 21, 30 (2d Cir. 2002).
. Maersk, 554 F.Supp.2d at 453-54.
. DiRienzo, 294 F.3d at 28. Accord Allstate Life Ins. Co. v. Linter Grp. Ltd., 994 F.2d 996, 1002 (2d Cir. 1993) ("United States courts have an interest in enforcing United States securities laws, [but] this alone does not prohibit them from dismissing a securities action on the ground of forum non conveniens.”).
. Iragorri, 274 F.3d at 74—75.
. GlobalNet Financial.Com v. Frank Crystal & Co., 449 F.3d 377, 384 (2d Cir. 2006) (quoting Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189, 197, 491 N.Y.S.2d 90, 480 N.E.2d 679 (1985)). Accord Finance One Pub. Co. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 337 (2d Cir. 2005) (citation omitted) (explaining that the interest analysis is a "flexible approach intended to give controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation”).
. GlobalNet Financial.Com, 449 F.3d at 384 (quotation marks and citations omitted).
. Padula v. Lilarn Props. Corp., 84 N.Y.2d 519, 522, 620 N.Y.S.2d 310, 644 N.E.2d 1001 (1994).
. Cooney v. Osgood Mach., Inc., 81 N.Y.2d 66, 72, 595 N.Y.S.2d 919, 612 N.E.2d 277 (1993).
. Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998) (citing Brink’s Ltd. v. South African Airways, 93 F.3d 1022, 1031 (2d Cir. 1996)).
. Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 446 F.Supp.2d 163, 177 (S.D.N.Y. 2006).
. See Optimal, 837 F.Supp.2d at 253-56.
. See In re Herald, Primeo, & Thema Sec. Litig., No. 09 Civ. 289, 2011 WL 5928952 (S.D.N.Y. Nov. 29, 2011); Erausquin v. Notz, Stucki Mgmt. (Bermuda) Ltd., 806 F.Supp.2d 712 (S.D.N.Y. 2011); Anwar v. Fairfield Greenwich Ltd., 742 F.Supp.2d 367, 375-78 (S.D.N.Y. 2010); In re Banco Santander Sec-Optimal Litig., 732 F.Supp.2d 1305, 1336 (S.D.Fla. 2010), aff'd sub nom. Inversiones Mar Octava Limitada v. Banco Santander S.A., 439 Fed.Appx. 840 (11th Cir. 2011) (per curiam).
. In re Banco Santander Sec.-Optimal Litig., 732 F.Supp.2d at 1336.
. Iragorri, 274 F.3d at 72.
. Optimal, 837 F.Supp.2d at 253 (emphasis in original).
. Id. at 254.
. Iragoni, 274 F.3d at 72.
. See Optimal, 837 F.Supp.2d at 254.
. See 1/16/12 letter from Paulo R. Lima, defendants’ counsel, to the Court.
. 7/13/12 letter from Javier Bleichmar, plaintiffs’ counsel, to the Court.
. See 7/16/12 letter at 3.
. See 8/6/12 and 8/8/12 Declarations of Javier Bleichmar, plaintiffs' counsel.
. See 8/6/12 Declaration of Javier Bleichmar, plaintiffs' counsel, ¶ 6.
. See Optimal, 837 F.Supp.2d at 254.
. Iragorri, 274 F.3d at 72.
. See Optimal, 837 F.Supp.2d at 254-55.
. In re Banco Santander Sec.-Optimal Litig., 732 F.Supp.2d at 1336.
. See Optimal, 837 F.Supp.2d at 255.
. In re Banco Santander Sec.-Optimal Litig., 732 F.Supp.2d at 1336.
. See Optimal, 837 F.Supp.2d at 256-57.
. I briefly note that the unavailability of the class action mechanism in Switzerland does not render it an inadequate forum. See Aguinda v. Texaco, Inc., 303 F.3d 470, 478 (2d Cir. 2002) (holding that joinder, where there is no class action mechanism, "is not so burdensome as to deprive the plaintiffs of an effective alternative forum”). While the lack of a class action mechanism may be relevant to the convenience analysis in the private interest factors, this carries little weight when there are no U.S. plaintiffs and the other factors weigh strongly in favor of dismissal. See Gilstrap v. Radianz Ltd., 443 F.Supp.2d 474, 488 (S.D.N.Y. 2006).
. Maersk, 554 F.Supp.2d at 453-54.
. See Optimal, 837 F.Supp.2d at 257-58.
. Maersk, 554 F.Supp.2d at 453-54.
. On August 9, 2012, plaintiffs’ counsel sent a letter to the Court attaching the August 6, 2012 Memorandum Decision and Order in Viking Global Equities LP v. Porsche Automobil Holding SE, 36 Misc.3d 1233(A), Index No. 650435/11, 2012 WL 3640684 (Sup.Ct. N.Y.Co. Aug. 6, 2012), arguing that the decision counsels in favor of weighing the New York based diligence evidence heavily and discounting the burden of applying foreign law. However, that case is easily distinguishable because (1) the court "afforded great weight” to plaintiffs’ choice of forum; (2) the plaintiffs' "principal places of business [were] in New York”; and (3) the alleged misrepresentations were "purportedly made directly to plaintiffs in New York.” Id. at 10. For these reasons, none of which exist here, the court held that "New York clearly has a vested interest” in the action. Id. at 12.
. Id.
. See Optimal, 837 F.Supp.2d at 258.
. Maersk, 554 F.Supp.2d at 453-54.
. See Optimal, 837 F.Supp.2d at 259.
. See id.
. Maersk, 554 F.Supp.2d at 453-54.
. Id.
. See Optimal, 837 F.Supp.2d at 259.
. See Lony v. E.I. DuPont de Nemours & Co., 935 F.2d 604, 614 (3d Cir. 1991) ("[W]henever discovery in a case has proceeded substantially so that the parties already have invested much of the time and resources they will expend before trial, the presumption against dismissal on the grounds of forum non conveniens greatly increases.”).
. See Defendants’ Reply in Support of Their Renewed Motion to Dismiss Based on Forum non Conveniens at 4.
. See Maersk, 554 F.Supp.2d at 453-54.
. See Optimal, 837 F.Supp.2d at 259-61.
. See id.
. Id. at 260.
. See In re Optimal U.S. Litig., 865 F.Supp.2d 451, 451-53 (S.D.N.Y. 2012).
. Procedure Pénale n° PI4010/2009 Franck Berlamont c/Manuel Echeverría.
. See Optimal, 837 F.Supp.2d at 260-61.
. Maersk, 554 F.Supp.2d at 453-54.
. See Optimal, 837 F.Supp.2d at 261-62.
. See id.
. See LaSala v. TSB Bank, PLC, 514 F.Supp.2d 447, 465-66 (S.D.N.Y. 2007) (reasoning that situations where misconduct in one jurisdiction causes injury in another country present a scenario where the locus of the tort might not align with the jurisdiction with the greatest interest).
. See Padula v. Lilam Props. Corp., 84 N.Y.2d 519, 522, 620 N.Y.S.2d 310, 644 N.E.2d 1001 (1994).
. Although Clark did issue misstatements from New York, these misstatements were made in a telephone call to Switzerland.
. See 7/26/12 letter from Javier Bleichmar, plaintiffs' counsel, to the Court.
. Defendants' renewed motion for dismissal based on forum non conveniens was raised in defendants’ 7/16/12 letter to the Court requesting a pre-motion conference, which I instructed the parties I would treat as a motion, but was not docketed as a motion.
.Familiarity with prior Opinions, in particular the December 20, 2011 Opinion denying defendants' forum non conveniens motion, and the August 10, 2012 Opinion granting defendants’ renewed forum non conveniens motion is assumed. See In re Optimal U.S. Litig., 837 F.Supp.2d 244 (S.D.N.Y. 2011) ("December 20 Opinion”); 837 F.Supp.2d 244 ("August 10 Opinion”).
. Lead Plaintiffs’ Motion for Reconsideration of the Court’s Dismissal for Forum Non Conveniens ("PL Mem.”) at 1.
. See Patterson v. United States, No. 04 Civ. 3170, 2006 WL 2067036, at *1 (S.D.N.Y. July 26, 2006) (citing McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)).
. See Rafter v. Liddle, 288 Fed.Appx. 768, 769 (2d Cir. 2008) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). The standards governing motions to alter or amend judgment pursuant to Rule 59(e) and motions for reconsideration or reargument pursuant to Local Rule 6.3 are the same. See Henderson v. Metropolitan Bank & Trust Co., 502 F.Supp.2d 372, 375 (S.D.N.Y. 2007)
. In re BDC 56 LLC, 330 F.3d 111, 123 (2d Cir. 2003) (quotation and citation omitted).
. RST (2005) Inc. v. Research in Motion Ltd., 597 F.Supp.2d 362, 365 (S.D.N.Y. 2009) (quoting Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).
. In re Fosamax Prods. Liab. Litig., 815 F.Supp.2d 649, 651 (S.D.N.Y. 2011).
. See Grand Crossing, L.P. v. United States Underwriters Ins. Co., No. 03 Civ. 5429, 2008 WL 4525400, at *3 (S.D.N.Y. Oct. 6, 2008).
. See 886 F.Supp.2d at 301-06.
. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947).
. 274 F.3d 65, 73-74 (2d Cir. 2001) (en banc).
. See id. at 73.
. Id. The existence of an adequate alternative forum is not disputed.
. Id. at 73-74.
. Id. at 74-75.
. August 10 Opinion, 886 F.Supp.2d at 301-03.
. Id.
. See Rabbi Jacob Joseph School v. Allied Irish Banks, P.L.C., No. 11 Civ. 5801, 2012 WL 3746220, at *8 (E.D.N.Y. Aug. 27, 2012) (affording "considerable deference” to plaintiff's chosen forum, but dismissing for forum non conveniens where the balance of public and private interests was "sufficient to overcome the weight afforded to [the plaintiff's] chosen forum.”).
. August 10 Opinion, 886 F.Supp.2d at 301-03.
. Id.
. PL Mem. at 2 (quoting August 10 Opinion).
. Frederiksson v. HR Textron, Inc., 484 Fed. Appx. 610, 611-12, No. 10 Civ. 4406, 2012 WL 2044588, at *1 (2d Cir. Jun. 7, 2012).
. Id. (holding that the district court erred by "reifying] on the Final Accident Report” which was not released until "well after Appellants filed their complaint” to conclude that "Appellants ignored the significance of the evidence in Finland”).
. August 10 Order, 886 F.Supp.2d at 306-07 (emphasis added).
. Iragorri, 274 F.3d at 73.
. Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 154 (2d Cir. 2005). This conclusion is further justified by the fact that plaintiffs are all foreign — another fact that was clear from the outset.
. The primary newly arisen circumstance referenced in the August 10 Opinion — the dismissal of the federal claims — was not a consideration in my analysis of the first Iragorri factor. Rather, this circumstance relates to the third Iragorri factor — the weighing of the private/public interests.
. As I noted in the August 10 Opinion, several factors justified a reevaluation of plaintiffs’ motivation: as of July 16 a majority of depositions had been noticed or taken in Europe, plaintiffs had resisted sitting for depositions in New York, and the scope of document discovery was focused abroad. See 886 F.Supp.2d at 306-07. There is no indication that the focus of discovery in Europe, which was contrary to plaintiffs initial representations, was due to the dismissal of the federal claims.
. Specifically plaintiffs assert that "Mr. Echeverría will not offer any relevant testimony” because he is the subject of a related Swiss criminal action that triggers the right against self-incrimination, and that moving the case to Switzerland will not help secure the testimony of the other three witnesses that defendants identified. See PI. Mem. at 5-6. In contrast they note that moving the case to Switzerland will prevent the parties from obtaining testimony from numerous individuals. See id. at 6.
. Defendants correctly note that motions for reconsideration are not a vehicle for advancing new arguments, and evidence that was previously available should not be considered for the first time unless failure to do so would cause "manifest injustice.” See Def. Mem. at 1 n. 1 (citing Langsam v. Vallaria Gardens, No. 08 Civ. 2222, 2009 WL 2252612, at *2 (S.D.N.Y. July 28, 2009) ("Where the movant ... merely ... attempts to advance new facts, the motion for reconsideration must be denied.”)). Accord Henderson, 502 F.Supp.2d at 379 (considering the impact of a filing fee for the first time on reconsideration where failure to do so "could effect 'a manifest injustice’ ”).
. As I noted in the August 10 Opinion, as of July 16 a majority of depositions had been noticed or taken in Europe, plaintiffs had resisted sitting for depositions in New York, and the scope of document discovery was focused abroad. See 886 F.Supp.2d at 306-07. And as defendants noted, plaintiffs can-celled the depositions of certain of the U.S. witnesses they now claim are vital. See Def. Mem. at 6 n. 6.
. August 10 Opinion, 886 F.Supp.2d at 309-10.
. See Declaration of Titus van Stiphout in Support of Lead Plaintiffs’ Motion for Reconsideration of the Court’s Dismissal for Forum Non Conveniens ("van Stiphout Decl.”) at 3.
. Accord Anwar v. Fairfield Greenwich Ltd., 742 F.Supp.2d 367, 378 (S.D.N.Y. 2010) (holding that “the argument [regarding unavailability of certain witnesses in the foreign forum] ignores the other side of the same coin: that this Court's subpoena power could not extend beyond its jurisdiction to compel action by third-party witnesses in [the foreign forum]” and concluding that "this factor does not outweigh the other considerations here strongly showing that Singapore is the more appropriate forum for this lawsuit”).
. In light of my conclusions regarding public interest, see infra Part III.C, and the limited deference granted to a foreign plaintiff’s choice of forum, the balance would still strongly favor the foreign forum.
. PL Mem. at 8 (citing August 10 Order).
. August 10 Opinion, 886 F.Supp.2d at 309-10.
. Plaintiffs’ declaration regarding proceedings in Switzerland notes that “litigation in Switzerland is preceded by an attempt at conciliation” which may be waived by agreement of the parties if the amount in controversy exceeds CHF 100,000. See van Stiphout Decl. at 3. The Declaration also notes that the losing party bears the costs of translation, which may cause both parties to reevaluate the wisdom of proceeding with the litigation. See Declaration of Maurice Harari in Support of Defendants’ Opposition to Plaintiffs’ Motion for Reconsideration of the Court's Dismissal for Forum Non Conveniens ¶ 9.
. Cf. Henderson, 502 F.Supp.2d at 379 (considering the impact of a filing fee for the first time on reconsideration where failure to do so "could effect 'a manifest injustice' ").
. PI. Mem. at 10.
. December 20 Opinion, 837 F.Supp.2d at 260. .This Opinion distinguished Erausquin v. Notz, Stucki Mgmt. (Bermuda) Ltd., 806 F.Supp.2d 712 (S.D.N.Y. 2011) and In re Banco Santander Sec.-Optimal Litig., 732 F.Supp.2d 1305, 1336 (S.D.Fla. 2010), aff'd sub nom. Inversiones Mar Octava Limitada v. Banco Santander S.A., 439 Fed.Appx. 840 (11th Cir. 2011) (per curiam), which dismissed related cases on forum non conveniens grounds in part because the United States’ interest in the litigation had been affirmed in the multiple other litigations, criminal and civil, relating to the Madoff fraud. See also August 10 Opinion, 886 F.Supp.2d at 309-10.
. August 10 Opinion, 886 F.Supp.2d at 309-10.
. In my August 10 Opinion, I explained that "[w]hile I previously found that the public interest factors weighed slightly in favor of a foreign forum, now that the federal claims are no longer present and exclusively foreign law will govern, I find that the public interest factors weigh heavily in favor of Switzerland.” I'd., at 310-11.
. PL Mem. at 10 (quoting Gross v. British Broad. Corp., 386 F.3d 224, 233-34 (2d Cir. 2004)). I also note that Gross involved a New York plaintiff and is therefore easily distinguishable.
. See August 10 Opinion, 886 F.Supp.2d at 310-11.
Reference
- Full Case Name
- In re OPTIMAL U.S. LITIGATION
- Cited By
- 20 cases
- Status
- Published