United States District Court, S.D. New York
MOUNT WHITNEY INVESTMENTS, LLLP, a Nevada limited-liability limited partnership, Plaintiff,
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
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
“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.
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.
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. 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.
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 Id. Tabaczek ultimately refused
to pay Ritter. Id. at ¶ 23.
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.
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. 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.
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.
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.
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).
April 1, 2016,  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. (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.
Rule 12(b)(2) Motion to Dismiss: Lack of ...