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Mount Whitney Investments, LLLP v. Goldman Morgenstern & Partners Consulting, LLC

United States District Court, S.D. New York

March 23, 2017

MOUNT WHITNEY INVESTMENTS, LLLP, a Nevada limited-liability limited partnership, Plaintiff,
v.
GOLDMAN MORGENSTERN & PARTNERS CONSULTING, LLC d/b/a GOMOPA, a New York limited liability company; MANFRED RITTER, an individual; STEFAN ELSTERMANN, an individual; THOMAS SCHULTE, an individual; DOES 1-10; and ROES 1-10, Defendants.

          OPINION AND ORDER

         Plaintiff Mount Whitney Investments, LLLP (“MWI” or “Plaintiff”) brings this suit against Goldman Morgenstern & Partners Consulting, LLC d/b/a GoMoPa (“GoMoPa”), as well as individual defendants Manfred Ritter (“Ritter”), Stefan Elstermann (“Elstermann”), and attorney Thomas Schulte (“Schulte”) (collectively “Defendants”), alleging defamation, violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), tortious interference with contract, tortious interference with business relations/economic advantage, and breach of contract. Before the Court is Defendant Schulte's motion to dismiss for lack of personal jurisdiction, or in the alternative, on forum non conveniens grounds. For the reasons set forth below, Schulte's motion is GRANTED.

         I. Background

         a. The Parties

         Plaintiff MWI, an investment company, is a limited liability limited partnership (“LLLP”) formed under the laws of Nevada and with its principal place of business located in Las Vegas. Complaint (Doc. 2) ¶ 8. MWI's principal manager is Volker Tabaczek (“Tabaczek”), a citizen and resident of Germany. Id. at ¶ 22; Complaint Ex. 7. Defendant GoMoPa is a limited liability company formed under the laws of New York. Id. at ¶ 9. Defendants Ritter, Elstermann, and Schulte are residents of Germany. Id. at ¶¶ 10‒12. Schulte is an attorney with a practice in Germany. Id. at ¶ 2.

         b. Factual Background[1]

         Plaintiff alleges that in 2014 and early 2015, Defendants engaged in a coordinated scheme intended to extort money from Plaintiff. According to Plaintiff, in 2014 MWI entered into contracts with Defendants Ritter and Elstermann, in which Ritter and Elsterman agreed to provide MWI with certain financial services in exchange for commission payments.[2] Id. at ¶¶ 14, 17. MWI paid Ritter and Elstermann advanced commissions totaling close to thirty thousand dollars. Id. at ¶¶ 16, 19. Subsequently, MWI learned that neither Elstermann nor Ritter possessed the licenses or permits necessary to fulfill their duties under the contracts. Id. at ¶ 20. MWI maintains that Elstermann and Ritter lied about their qualifications in order to obtain the advanced commissions. Id.

         Plaintiff further claims that on October 7, 2014, Schulte, on behalf of his client Ritter, called for an in-person meeting with Tabaczek in Germany, in which Schulte demanded that MWI pay Ritter thirty thousand euros. Id. at ¶ 22. Schulte informed Tabaczek that if he failed to pay Ritter, Ritter and Elstermann would use an online platform, Gomopa.net, owned through GoMoPa, to launch a smear campaign against Plaintiff[3] Id. Tabaczek ultimately refused to pay Ritter. Id. at ¶ 23.

         In December 2014, Plaintiff alleges that Ritter began emailing MWI's business associate, Michael Rudolf. Id. at ¶ 24. Plaintiff claims that the emails were hostile towards Rudolf and made a number of false and baseless statements about MWI and Tabaczek, including accusations that MWI and Tabaczek were, inter alia: (i) engaging in fraud and violating SEC regulations; (ii) violating investor agreements; (iii) intentionally causing investments in the United States to disappear; and (iv) destroying evidence regarding investments. Id. at ¶¶ 24‒26. Plaintiff maintains that the emails also threatened “unwarranted legal action” against MWI. Id. at ¶ 29.

         Between December 2014 and February 2015, Plaintiff claims that Elstermann published articles on GoMoPa's website containing defamatory statements against MWI, MWI's business associates, Tabaczek, and his wife.[4] Id. at ¶¶ 30, 34‒35; see Complaint Exs. 7, 9. Elstermann also allegedly threatened to file baseless complaints of fraud and other wrongful acts against MWI and Tabaczek with various regulatory authorities. Id. at ¶ 31. Plaintiff further claims Elstermann and Ritter encouraged their clients to file similar complaints against Tabaczek and his wife. Id. at ¶ 32.

         Finally, MWI claims that Defendants are responsible for sending unsolicited communications to MWI's employees and prospective clients in order to damage its reputation and hinder its business ventures. Id. at ¶¶ 52‒55. Some of the messages allegedly mischaracterized a 2008 German court decision, “to falsely portray Mr. Tabaczek as having been convicted of fraud and portray Mr. Tabaczek in a false light to investors and other business associates.” Id. at ¶¶ 51, 52‒55. Plaintiff claims Defendants' conduct resulted in MWI losing a five million dollar investment. Id. at ¶ 56.

         Plaintiff asserts that Defendants' alleged wrongdoings are part of “an ongoing operation of extorting money from business professionals by publishing false and defamatory content, then offering to remove the subject content in exchange for money payoffs.” Id. at ¶ 33.

         II. Procedural Background

         Plaintiff initiated the instant action on June 9, 2015, seeking injunctive relief and damages. (Doc. 1). On December 9, 2015, Schulte requested a pre-motion conference before filing a motion to dismiss, which was held on December 30, 2015. (Doc. 40). On February 8, 2016, GoMoPa filed a motion to dismiss on forum non conveniens grounds. (Doc. 57). The Court denied the motion on May 2, 2016 finding that although Germany was an adequate forum, GoMoPa - being a New York entity - had failed to overcome the deference owed to Plaintiffs choice of a New York forum. See Matter of the Application of Mt. Whitney Investments, LLLP, No. 15 Civ. 4479 (ER), 2016 WL 1737109 (S.D.N.Y. May 2, 2016).

         On April 1, 2016, [5] Schulte filed the instant motion to dismiss arguing that this Court should dismiss Plaintiffs claims for lack of personal jurisdiction, or in the alternative, on forum non conveniens grounds.[6] (Doc. 71). Specifically, Schulte claims that this Court does not have jurisdiction over him because he has no ties to New York and argues that Germany is a more appropriate forum. See Memorandum of Defendant Schulte in Support of Motion to Dismiss (“Def. Memo.”) (Doc. 80) ¶ 30.

         III. Legal Standards

         A. Rule 12(b)(2) Motion to Dismiss: Lack of ...


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