United States District Court, S.D. New York
LUXEXPRESS 2016 CORP., ALAMO GROUP INC., LUXEXPRESS-II LTD., MYKOLA IVANENKO, and LARYSA IVANENKO, Plaintiffs,
GOVERNMENT OF UKRAINE, VIKTOR YANUKOVICH, ALEXANDER YANUKOVICH, MYKOLA AZAROV, ALEXEY AZAROV, YURY ANISTRATENKO, VALERIY KHOROSHKOVSKIY, ANDREW KLYUYEV, SERGEY KLYUYEV, SERGEY KLYUYEV, VITALIY ZAKHARCHENKO, VIKTOR PSHONKA, ARTEM PSHONKA, RENAT KUZMIN, ANATOLIY MELNIK, VLADIMIR GOGOL, OLENA LUKASH, VICTOR TATKOV, ARTUR YEMELYANOV, BORIS KOLESNIKOV, VLADIMIR KOZAK, ALEXEY KRYVOPISHIN, ALEXSANDER RYBAK, ALEXANDER POPOV, ANATOLIY GOLUBCHENKO, GALINA GEREGA, LEONIC CHERNOVETSKIY, SERGEY KURCHENKO, ARSENY YATSENYK, VIKTOR SHOKIN, BORIS OSTAPYUK, and JOHN DOES 1 through 20, Defendants.
Kenneth Foard McCallion McCallion & Associates, LLP New
York, Counsel for Plaintiffs
G. Hetzel Ralph T. Lepore, III Robert Michael Shaw Holland
& Knight, LLP Boston, Massachusetts Counsel for Defendant
the Government of Ukraine.
OPINION & ORDER
S. BRODERICK, United States District Judge.
Luxexpress 2016 Corp. (“Luxexpress 2016”), Alamo
Group, Inc. (“Alamo Group”), Luxexpress-II Ltd.
(“Luxexpress-II”), Mykola Ivanenko, and Larysa
Ivanenko (collectively, “Plaintiffs”), bring this
action against the Government of Ukraine
(“Ukraine”), thirty Ukrainian individuals, and
twenty John Doe Defendants (collectively,
“Defendants”). Plaintiffs bring claims pursuant
to the Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. § 1962, as well as
claims for fraud, abuse of process, civil theft, conversion,
unjust enrichment, and unlawful takings and wrongful
expropriation in violation of international law.
me is Ukraine's motion to dismiss the claims asserted
against it for lack of subject matter jurisdiction, improper
venue, and failure to state a claim. Because I find that 28
U.S.C. § 1391(f) requires Plaintiffs to bring their
claims against Ukraine in the United States District Court
for the District of Columbia and venue in the Southern
District of New York is improper, Ukraine's motion to
dismiss is GRANTED pursuant to Federal Rule of Civil
Procedure 12(b)(3). Because I find it to be in the interest
of justice, the case is transferred to the United States
District Court for the District of Columbia.
and Larysa Ivanenko founded Luxexpress-II in 1993. (SAC
¶ 73.) Until 2012 Luxexpress-II operated as an
automobile import business in Kiev, Ukraine, and primarily
imported American cars through various U.S. suppliers,
including Alamo Group. (Id. ¶ 4.) Through
various ordinances, written approvals, and lease agreements,
(id. ¶¶ 73-75, 78, 79), Ukraine permitted
and leased to Luxexpress-II a plot of land located in a
“prime” commercial district in the city of Kiev,
Ukraine upon which Plaintiffs constructed various buildings
related to their business, (id. ¶¶ 4, 73).
in 2002, Alamo Group invested substantial capital in Ukraine
through its business dealings with Luxexpress-II and Mykola
and Larysa Ivanenko. (Id. ¶¶ 24, 83, 92.)
Alamo Group maintains its principal place of business in the
United States, specifically in the state of Georgia, and is
incorporated under the laws of Georgia. (Id. ¶
19.) In January 2002, Alamo Group loaned approximately $300,
000 to Luxexpress-II to fund the expansion of Alamo
Group's business operations in Ukraine. (Id.) In
addition, Alamo Group's records from August 2004 until
February 2009 reflect transactions between Luxexpress-II and
Alamo Group totaling over $2.5 million, and certain of the
transactions in this time period involved shipment of
automobiles from the United States to Ukraine. (Id.)
around December 2003, Defendants and certain agencies within
the Government of Ukraine issued an order granting authority
and responsibility for the construction of a road and railway
bridge across the Dnieper River, which flows through Kiev.
(Id. ¶ 95.) Defendants used the construction of
the road and bridge as a pretext to expropriate and seize
Plaintiffs' property. (Id. ¶ 96.) In
February 2004, Defendants sent Luxexpress-II a notice stating
that Plaintiffs' rights with respect to their use of the
plot of land in Kiev could be terminated, and the land could
instead be utilized for the construction project.
(Id. ¶ 98.) In April 2004, Defendants requested
that Luxexpress-II inform them what monetary compensation
they would demand for the taking of a portion of the plot of
land in Kiev upon which Plaintiffs' business operated.
(Id. ¶ 100.)
submitted the requested paperwork setting forth its
estimation of the fair market value of the portion of the
land that would be affected by the planned construction.
(Id. ¶ 103.) However, Defendants ignored
Plaintiffs' submission. (Id. ¶ 105.)
Defendants seized the entirety of the Plaintiffs' land,
demolished the buildings and business equipment located on
the land, and refused to compensate Plaintiffs whatsoever.
(Id. ¶¶ 106-09, 134-35.) Ukraine's
seizure of the land and demolition of Plaintiffs'
business equipment and property “had a direct adverse
impact on rights and interests of Plaintiffs and their
business relations in the United States” because the
taking interfered with Plaintiffs' business relationships
with U.S. corporations such as Alamo Group. (Id.
¶ 12.) As a result of Defendants' conduct,
Plaintiffs and their business partners in the United States
suffered millions of dollars in damages from, among other
things, the property seizures, destruction of the property,
and cancellation of their rights in the property.
(Id. ¶ 15.)
Mykola Ivanenko, and Larysa Ivanenko filed this action on
June 23, 2015, (Doc. 1), and filed their amended complaint,
which added Ukraine as a Defendant, on July 2, 2015, (the
“Amended Complaint”) (Doc. 5). Plaintiffs sought
and I granted extensions of time for Plaintiffs to effect
service of process on Ukraine, (Docs. 18-25), and Plaintiffs
served Ukraine “pursuant to the provisions of the
Foreign Services Immunities Act” under 28 U.S.C. §
1608(a)(3). (Doc. 18). On August 24, 2016, Ukraine submitted
a pre-motion letter regarding its anticipated motion to
dismiss the Amended Complaint, (Doc. 27), and Plaintiffs
submitted their response letter on August 29, 2016, (Doc.
30). I held a pre-motion conference regarding the anticipated
motion on October 21, 2016. On October 24, 2016, I issued an
order granting Plaintiffs leave to file the Second Amended
Complaint, granting Ukraine leave to file its anticipated
motion to dismiss, and setting a briefing schedule with
respect to Ukraine's motion. (Doc. 35.)
filed the Second Amended Complaint on December 7, 2016. (Doc.
41.) On January 31, 2017, Ukraine filed its motion to dismiss
and supporting papers. (Docs. 44-45.) On April 19, 2017,
Plaintiffs filed their memorandum of law in opposition and
supporting papers, (Docs. 48-49), and on June 19, 2017,
Ukraine filed its reply in support of the motion and
supporting papers, (Doc. 56).
respect to the Ukrainian individuals named as Defendants (the
“Individual Defendants”), although an electronic
amended summons was issued in connection with the Amended
Complaint for each of the Individual Defendants on July 14,
2015, (Doc. 12), there is no indication that Plaintiffs
served them. Further, there is no indication that Plaintiffs
obtained summons for the Individual Defendants with regard to
the Second Amended Complaint and/or that Plaintiffs served
the Individual Defendants with the Second Amended Complaint.
No attorneys have filed appearances on the docket as of the
date of issuance of this ...