United States District Court, S.D. New York
J. NATHAN United States District Judge.
the Court is Plaintiffs' motion to lift the discovery
stay so that Plaintiffs may take the deposition of
Defendants' foreign law expert. For the following
reasons, the Court denies the request.
lawsuit, Plaintiffs are Sudanese refugees who have sued BNP
Paribas SA & BNP Paribas North America, Inc.
(collectively "BNP Paribas"), alleging that BNP
Paribas illegally processed financial transactions on behalf
of sanctioned Sundanese entities and, in doing so,
facilitated and supported the commission of widespread human
rights violations by the Sudanese Government. Dkt No. 49.
Defendants have filed a motion to dismiss arguing, inter
alia, that Plaintiffs' claims are time-barred, that
the act of state doctrine bars the claims, and that
Plaintiffs have failed to state a claim under Sudanese or
Swiss law. Dkt No. 65. Plaintiffs have not yet filed an
opposition to this motion to dismiss; their opposition is due
May 22, 2017. Dkt No. 73. The Court subsequently stayed
discovery pending resolution of the motion to dismiss. Dkt
Nos. 24, 48.
support of their motion to dismiss, Defendants rely on the
declaration of Tayeb Hassabo, an expert in Sundanese law. Dkt
No. 67-1. Plaintiffs contend that their "understanding
of Sudanese law contrasts sharply with Mr. Hassabo's,
" and Plaintiffs anticipate filing their own expert
declaration in response. Dkt No. 76 at 2. On April 26, 2017,
Plaintiffs filed a motion asking the Court to lift the
discovery stay "for the limited purpose of allowing
Plaintiffs to take the deposition of Defendants' expert
on Sudanese law Tayeb Hassabo prior to filing their
opposition to the Defendants' Motion to Dismiss."
Dkt No. 76. Defendants oppose the motion. Dkt No. 77.
is settled law that the sparring concerning preliminary
issues should not be permitted to degenerate into a
full-blown trial on the merits." Base Metal Trading
S.A. v. Russian Aluminum, No. 00 CIV.9627 JGK FM, 2002
WL 987257, *3 (S.D.N.Y. May 14, 2002). Notwithstanding this
principle, Plaintiffs contend that they should be granted
limited relief from the discovery stay in order to depose
Defendants' foreign law expert in anticipation of their
opposition to the motion to dismiss. Plaintiffs cite three
cases in support of this argument. Dkt No. 76 (citings/perm
v. Vatican Bank, No. C-99-04941 MMC (EDL), 2006 WL
1663847 (N.D. Cal. 2006); Base Metal, 2002 WL
987257; In re Bridgestone/Firestone, Inc. ATX, ATXIIand
Wilderness Tires Products Liab. Litig., 131 F.Supp.2d
1027 (S.D. Ind. 2001)).
three cases cited by Plaintiffs, a factual dispute needed to
be resolved before the Court could resolve an underlying
dispositive motion. For example, in both Base Metal
and In re Bridgestone, there were pending motions to
dismiss on forum non conveniens grounds. Base Metal,
2002 WL 987257, at *3; In re Bridgestone, 131
F.Supp.2d at 1029-30. Deciding a motion to dismiss on forum
non conveniens grounds involves "a fact-based
inquiry." In re Bridgestone, 131 F.Supp.2d at
1029 ("[T]he district court is accorded substantial
flexibility in evaluating a forum non conveniens motion, and
each case turns on its facts.'" (quoting
Van Cauwenberghe v. Biard, 486 U.S. 517,
529 (1988)). Similarly, Alperin involved a
jurisdictional issue, and jurisdictional discovery is
permitted "where pertinent facts bearing on the
question of jurisdiction are controverted ... or where a more
satisfactory showing of the facts is
necessary." Alperin, 2006 WL 1663847, at *3
(emphases added) (quoting Wells Fargo & Co. v. Wells
Fargo Express Co., 556 F.2d 406, 430, n. 24 (9th Cir.
1977)). With this background in mind, the courts in Base
Metal and In re Bridgestone permitted the
deposition of a foreign law expert because "resolution
of a motion to dismiss on the basis of forum non conveniens .
. . would likely depend on the results of th[e]
discovery." In re Bridgestone, 131 F.Supp.2d at
1030; see also Base Metal, 2002 WL 987257, at *4.
The district court in Alperin denied the request for
jurisdictional discovery as premature. 2006 WL 1663847, at
case, in contrast, involves a different procedural posture.
The motion to dismiss filed in this case asserts that
Plaintiffs have failed to state a claim under Sudanese law
upon which relief can be granted. It is axiomatic that, when
deciding such a motion to dismiss, a court must assume as
true all facts alleged in the complaint. Papelino v.
Albany College of Pharmacy of Union University, 633 F.3d
81, 85 n.1 (2d Cir. 2011). In other words, the absence of
factual disputes makes the three cases Plaintiffs rely upon
to justify their discovery request inapposite. Additionally,
the determination of foreign law is generally a question of
law for the Court to decide. Itar-Tass Russian News
Agency v. Russian Kurier, Inc., 153 F.3d 82, 92 (2d Cir.
1998); In re Lyondell Chemical Co., 543 B.R. 428,
443 (S.D.N.Y. Jan. 4, 2016). While the deposition or
testimony of a foreign law expert may be warranted if this
case proceeds to discovery or trial, the credibility of the
experts is not at issue, especially at the early stage of
this case. See Norwest Fin., Inc. v. Fernandez, 86
F.Supp.2d 212, 227 (S.D.N.Y. 2000) (noting that "it is
not the credibility of the experts [on foreign law] that is
at issue, it is the persuasive force of the opinions they
expressed") (quoting Itar-Tass, 153 F.3d at
92)). When analyzing the motion to dismiss, the Court will
assume the facts alleged by the Plaintiffs are true and will
rely on the sources of law submitted by the parties in their
briefing, including the competing foreign law expert
affidavits, to ascertain the application of Sudanese law in
this case. Under such a procedural posture, discovery is not
these reasons, Plaintiffs' request to depose
Defendants' foreign law expert is denied. ...