United States District Court, S.D. New York
Leonard Zack, LEONARD ZACK & ASSOCIATES, Lawrence Daniel O'Neill, Attorneys for Plaintiffs.
Richard A Beran, Thomas J. Goodwin, McCARTER & ENGLISH, LLP, Attorneys for National Asset Management Agency, Defendants.
Anthony P. Callaghan, Robert C. Brady, Jonathan D. Klein, GIBBONS P.C., Attorneys for Defendants Arthur Michael Royal Aynsley and Allan Dukes.
Jean-Marie L. Atamian, Michelle J. Annunziata, MAYER BROWN LLP, Attorneys for Defendant Byrne Wallace.
MEMORANDUM OPINION DENYING MOTION FOR RECONSIDERATION
LEWIS A. KAPLAN, District Judge.
This is an action by five members of the Flynn family (the "Flynns") and fifteen or more entities to which they have some connection against twenty-three individuals and entities arising out of the Flynns' borrowing from an Irish bank of more than $200 million to finance the Flynn plaintiffs' real estate activities. The amended complaint asserts claims under the Racketeer Influenced and Corrupt Organizations Act ("RICO") and on theories of fraud, trespass to chattels, conversion, unjust enrichment, constructive trust, civil conspiracy, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, and negligence.
On July 29, 2014, the Court dismissed the amended complaint on the ground of forum non conveniens, conditioned on the filing by the moving defendants, on or before August 12, 2014, of a document tolling the running of time from the date of commencement of this action until the thirtieth day after the date of such filing for purposes of determining the timeliness of any action subsequently commenced by plaintiffs in the courts of Ireland with respect to any of the matters asserted in the amended complaint. Such a document was filed, and the dismissal became unconditional, at 2:41 p.m. on August 12, 2014. Later that day, plaintiffs moved, pursuant to S.D.N.Y. Civil Rule 6.3 and Fed.R.Civ.P. 60, for reconsideration. They make two arguments, each directed at a different factor in the forum non conveniens analysis.
First, plaintiffs in substance contend that the Court erred in concluding that Ireland provides an adequate alternative forum. They assert that, "based on a decision by the Irish High Court that was issued after the Court's Memorandum Order herein, it is now entirely clear that the Irish Courts would decline to hear the instant matter due to lack of jurisdiction.... [P]ursuant to the National Asset Management Agency Act of 2009..., the Flynns would be barred from suing NAMA without NAMA's consent. Thus, if NAMA were to decline consent, plaintiffs would be without an avenue for redress due to lack of jurisdiction." In short, they contend that Ireland does not provide an adequate alternative forum absent the consent of the lead defendant. There is a suggestion also that the lack of such a forum in Ireland undercuts the Court's conclusion that the choice of this forum was influenced by forum shopping.
Plaintiffs' second argument is that, "contrary to the knowingly false jurisdictional evidence presented by defendants in this case, each of the Flynn plaintiffs except for James Flynn, is domiciled in the United States." In essence, they argue that the Court therefore was misled into giving too little weight to the presumption in favor of the plaintiffs' choice of forum. And they rely also, in this connection, on a new declaration by John Flynn, Sr., which purports to add to the previous record concerning the Flynns' alleged U.S. domiciles.
Both of these arguments fail. The attempt to portray Ireland as lacking an adequate alternative forum is frivolous. The argument that the National Asset Management Act, 2009 (the "Act") bars suit in Ireland against defendant the National Asset Management Agency ("NAMA") absent its consent was not made in opposition to the defendants' motion and, in any case, patently is incorrect. The recent Irish High Court decision - far from confirming plaintiffs' argument - refutes it. The claim of fraud by the defendants with respect to alleged "jurisdictional facts" concerning the Flynns' domiciles likewise is baseless.
The Rule 6.3 Motion
Plaintiffs' motion, to the extent it rests on S.D.N.Y. Civil Rule 6.3, is seriously flawed. Relief is available under Rule 6.3 "only if the movant demonstrates that the Court overlooked controlling decisions or factual matters that were before the Court on the underlying motion. Such a motion may not advance new facts, issues or arguments not previously presented to the court." As none of the material relied upon in this motion nor the new argument that the Act precludes suit against NAMA in Ireland absent its consent were before the Court on the original motion, the Court quite plainly did ...