The opinion of the court was delivered by: VICTOR Marrero, District Judge.
By Decision and Order dated January 30, 2003 (the "Decision")*fn1 the
Court, addressing defendants' renewed motion to dismiss, scheduled an
evidentiary hearing with respect to the issue of whether the Court has
subject matter jurisdiction over this action, which involves foreign
state defendants, based on the commercial activity exception to the
Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602-1611. In
separate letters to the Court dated February 19, 2003, both defendants
requested clarification of the Court's ruling and additional time to
comply, while also implying that the Court may have incorrectly shifted
the applicable burden of persuasion to defendants. In order to respond to
defendants' concerns, the Court held a conference with the parties on
February 27, 2003, at which it issued a clarifying statement, a copy of
which is attached and incorporated to the Order set forth below.
Accordingly, it is hereby
Brad M. Reiss v. Societe Centrale, et al.
at the Conference with the Parties on February 27, 2003
Attachment to Supplemental Order Dated February 27, 2003
Pending before the Court is the renewed motion to dismiss the Amended
Complaint of defendants Societe Centrale du Groupe des Assurances
Nationales ("Societe") and Gan S.A. (Collectively, the "Defendants"). The
Court issued a Decision and Order, dated January 30, 2003 (hereinafter,
the "Decision"), analyzing the issues presented by the Renewed Motion to
Dismiss, making preliminary evaluations of the evidence put forward,
indicating issues of fact in dispute that must be decided by the Court
and, ultimately, ordering an evidentiary hearing on the issue of whether
this Court has subject matter jurisdiction over this action, which
involves foreign state defendants, based on the commercial activity
exception to the Foreign Sovereign Immunities Act ("FSIA"),
28 U.S.C. § 1602-1611.
This conference was convened at the request of defendant Societe in a
letter dated February 19, 2003, which was supported by GAN S. A. in a
letter of the same day and essentially opposed by the plaintiff in this
case, Brad M. Reiss ("Reiss") in a letter dated February 21, 2003. We
meet today because Societe and GAN S.A. suggest that this Court is
mistaken in the following respects: (i) as to the control that the
Defendants have over three of the principal witnesses in this case,
Phillipe Rosio ("Rosio"), Alan Juliard ("Juliard") and Guy de Chavanne
("de Chavanne") (collectively referred to as the "French Witnesses");
(ii) in placing the burden on the Defendants for locating and producing
at an evidentiary hearing de Chavanne, the former principal of both
Defendants during the time of the events at issue in this case, from
around 1992-1997, who appears to have been the key executive of the "GAN
group" involved in the sale of UIC and UIS to General Electric Capital
Corporation ("GECC"); and (iii) in placing the burden on the Defendants
for producing Rosio and Juliard at an evidentiary hearing.
The Defendants explain that they need more time to arrange for the
testimony that this Court suggested would be helpful in its Decision and
also request that the Court consider various alternate means of hearing
the testimony of the French Witnesses because it will likely not be
feasible to have them come to New York. Therefore, the Defendants have
asked for an adjournment of the evidentiary hearing originally scheduled
to have begun on Wednesday, February 26, 2003, and a scheduling
conference in order to set a new date for an evidentiary hearing that
takes into account their concerns.
There are two preliminary legal matters that should not be in dispute
between the parties.