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BFI Group Divino Corp. v. JSC Russian Aluminum

December 12, 2007

BFI GROUP DIVINO CORPORATION, PLAINTIFF,
v.
JSC RUSSIAN ALUMINUM D/B/A RUSAL, A FOREIGN CORPORATION; JSC BRATSK ALUMINUM PLANT, A FOREIGN CORPORATION; RUSAL AMERICA CORP., A DELAWARE CORPORATION; DAYSON HOLDING LTD., A FOREIGN CORPORATION; AND DOES 1-20, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Conner, Sr. D.J.

ECF CASE

OPINION AND ORDER

This is a motion for relief from the Judgment this Court entered on May 30, 2007, granting defendants' motion to dismiss on the ground of forum non conveniens. See BFI Group Divino Corp. v. JSC Russian Aluminum, 481 F. Supp. 2d 274 (S.D.N.Y. 2007) (Conner, J.) ("BFI I"). Plaintiff moves for relief from the Judgment pursuant to FED. R. CIV. P. 60(b), on the ground that newly discovered evidence shows that Nigeria, which we found to be an adequate alternative forum, is in fact unsafe and inadequate. For the following reasons, plaintiff's motion is denied.

BACKGROUND

The facts of this case are set out at length in BFI I, familiarity with which is presumed. The following is a summary of the facts relevant to the present motion, as well as such background facts as are helpful in providing context.

In BFI I, plaintiff BFI Group Divino Corp. ("BFI") brought claims of tortious interference with contract, tortious interference with prospective business advantage, unfair competition, and conspiracy to commit fraud against defendants JSC Russian Aluminum d/b/a RUSAL ("RUSAL"), JSC Bratsk Aluminum Plant ("Bratsk"), RUSAL America Corp. ("RUSAL America"), Dayson Holding Ltd. ("Dayson"), and "Does 1-20," several unnamed agents of the corporate defendants (collectively, "defendants"). The dispute arose out of plaintiff's bid to purchase a majority interest in the Aluminum Smelter Company of Nigeria ("ALSCON"), a Nigerian government-owned company that was being privatized. BFI I, 481 F. Supp. 2d at 277. Defendants RUSAL and Bratsk also submitted bids. Id.

Plaintiff alleged several irregularities relating to the bidding process. Plaintiff claimed that, while the bidding was still open, the General Manager of ALSCON told plaintiff that the Nigerian government had already promised ALSCON to RUSAL. Id. Plaintiff also claimed that although it submitted the highest bid ($410 million, compared with RUSAL's bid of $205 million), it was improperly disqualified from the bidding process, after being told it had won. Id. at 278. RUSAL ultimately purchased ALSCON, and plaintiff brought suit in this Court and in Nigeria.*fn1 Id. at 279.

In BFI I, we granted defendants' motion to dismiss on the grounds of forum non conveniens. Id. at 289. We found Nigeria to be an adequate alternative forum because defendants were subject to service of process and had agreed to appear there, and because Nigerian law provided causes of action analogous to those plaintiff sought to bring in this Court. See id. at 280-83. Plaintiff argued that Nigeria was nevertheless inappropriate because Nigerian courts would not fairly and adequately adjudicate the case, and plaintiff's employees would be at risk of physical harm if the case were tried there. Id. at 283.

We rejected the first argument because it was based on little more than a disagreement with an earlier ruling of the Nigerian trial court. Id. (noting the Second Circuit's reluctance to find foreign courts corrupt or biased "absent some particularized showing of wrongdoing"). We rejected the safety argument as well. Id. at 284. Although we acknowledged the appropriateness of considering the litigants' safety, we found that plaintiff had offered "only generalized statements regarding instability in the region." Id. Given that, as well as the facts that plaintiff was then litigating a closely related case in a Nigerian court and seeking to operate a business there, we found the argument unpersuasive. Id.

DISCUSSION

I. Plaintiff's "Newly Discovered Evidence"

Plaintiff now moves for relief from our Judgment*fn2 under FED. R. CIV. P. 60(b)(2) ("newly discovered evidence") or, alternatively, Rule 60(b)(6) ("any other reason that justifies relief"). (See Pl. Mem. Supp. Mot. For Relief From J. at 5.) The motion is based on "the grounds that due to the increasing level of violence in Nigeria, and the actual violent events that have recently taken place in said country, key witnesses are unwilling to appear in Nigeria," and that trying the case there would place those involved in physical danger. (Id. at 2.)

The one "key witness" plaintiff has identified as being unwilling to appear in Nigeria is Nikolay Nikolaishvili. (Id. at 3-4.) Mr. Nikolaishvili was the Project Manager for RUSAL in its acquisition of ALSCON. (Williams Decl., Ex. B.) He sent the Court a letter, dated June 8, 2007, expressing his unwillingness to appear in Nigeria and purporting to revoke RUSAL's consent to jurisdiction there.*fn3 (Id.) The letter stated that on June 3, 2007, six RUSAL employees were kidnaped from an ALSCON site in Ikot Abasi, Akwa Ibom State, Nigeria, by "an unknown militant group." (Id.) Plaintiff also claims that the general level of violence in Nigeria has been increasing, and that "it has been widely reported in the news media that ...


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