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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
FREEFORD LIMITED,
Plaintiff, : Index No, 603652/2005
vs. : TAS Part 39
LANE P. PENDLETON, KIRK PENDLETON,
LAIRD P. PENDLETON, CAIRNWOOD CAPITAL
MANAGEMENT, LLC, CAIRNWOOD CAPITAL
PARTNERS, LLC, CAIRNWOOD CAPITAL
INTERNATIONAL, LTD., CAIRNWOOD GROUP,
LLC, and JOHN DOES 1 through 10,
Honorable Helen E. Freedman
Defendants.
PLAINTIFF FREEFORD LIMITED’S
MEMORANDUM OF LAW IN OPPOSITION
TO DEFENDANTS’ MOTION TO CONTINUE STAY
LEBOEUF, LAMB, GREENE & MacRAE LLP
125 West 55th Street
New York, NY 10019-5389
(212) 424-8000
Attorneys for Plaintiff
Freeford Limited
Of Counsel:
John G. Nicolich
Jaime M. JacksonTable of Contents
Page
Preliminary Statement... scscssssssessesssssessessessssnsseeveeseescersereneesecnssnssessesvesecsesaesnsancaneeeeeeeneeecsneseneees 1
STATEMENT OF FACTS wu..escesscesseesseesseessessessnsssessnesscsssesseessessnssseesessuesssesnesseesissesssssecsseenesseesaee 2
A. The Singapore Action Against Lane Pendleton And NewFirst Limited ....0.....cesseseeseee 2
B. Relevant Prior Proceedings In This Action .........ccscescssesssessesseessssseesseeseessessesseesessesseessed 4
Cc. Additional Delays Of The Singapore Action.........cscsssecssseseeessesteseeneeessessesseensseseeneanennes 5
1. Lane Pendleton’s Appeal And Failure To Produce
Documents And To Disclose The Hard Disk
From His Laptop Computer .........cssscsessessessesssssssesnssessesssssseeseessnseessneenseneseaneaeenees 5
2. Other Pending Discovery Issues In The Singapore Action ..........:.ssesseseeseesseesseeeee 8
3. Costs Awarded Against Lane Pendleton. 9
4. Pre-Trial Conferences/Trial Schedule........ccceessesssesseessesseeseesseeseessessnesseesessessneesnee 10
ARGUMENT
THIS COURT SHOULD DENY DEFENDANT’S
MOTION TO CONTINUE THE STAY ....sessesssesssscsecsssssssseseseeseessessessesesecenssseesessssesessneeenssseesseesee 11
CONCLUSION ....esssesssesssessesssssseesseeserssnssseeseeeseessssseessssssesseeseesnssnsssnssuesusesnssssssesseesseesenessssessaneseess 13SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
FREEFORD LIMITED,
Plaintiff, : Index No, 603652/2005
vs. : IAS Part 39
LANE P. PENDLETON, KIRK P. PENDLETON, _: Honorable Helen E. Freedman
LAIRD P. PENDLETON, CAIRNWOOD CAPITAL :
MANAGEMENT, LLC, CAIRNWOOD CAPITAL
PARTNERS, LLC, CAIRNWOOD CAPITAL
INTERNATIONAL, LTD., CAIRNWOOD GROUP,
LLC and JOHN DOES 1 through 10,
Defendants.
PLAINTIFF FREEFORD LIMITED’S
MEMORANDUM OF LAW IN OPPOSITION
TO DEFENDANTS’ MOTION TO CONTINUE STAY
Preliminary Statement
Plaintiff Freeford Limited (“Freeford’”) respectfully submits this Memorandum of
Law in opposition to the motion by defendant Lane P. Pendleton (“Lane Pendleton” or “LP”) for
acontinuance of the stay ordered by the Court on December 1, 2006 (“Stay Order”). Lane
Pendleton requests this Court to continue the stay pending entry of final judgment in an action
brought by Freeford against Lane Pendleton in the High Court of the Republic of Singapore (the
“Singapore Action”). Freeford responds herein to the contentions asserted in Defendant Lane P.
Pendleton’s Memorandum Of Law In Support Of His Motion For Continuance Of Stay, dated
February 22, 2007 (“Def. Memo.”).
The Stay Order was granted “pursuant to the directions on the record at oral
argument .. .on November 30, 2006” and will expire by its own terms on March 6, 2007. LanePendleton is requesting this Court to continue the stay on the ground that the Singapore Action
allegedly “is progressing quickly and efficiently’ (Def. Memo., p. 3). In fact, as demonstrated
below, Lane Pendleton has delayed resolution of his appeal of a discovery order in the Singapore
Action and has continued to obstruct discovery and impede progress in the Singapore Action,
which has not yet been scheduled for trial. Moreover, Lane Pendleton to date has failed and
refused to produce a copy of the hard disk of his laptop computer to Freeford, notwithstanding
that Lane Pendleton has provided a copy of that hard disk to counsel representing him in this
action. In summary -- and based on Lane Pendleton’s own submissions on this motion -- the
Singapore Action today is actually farther away from trial than the Singapore Action was when
the Stay Order was issued.
STATEMENT OF FACTS
The facts relevant to a determination of this motion are set forth in the revised
moving Affidavit of John J. Kenney, sworn to February 26, 2007 (“Kenney Aff.”), and in the
opposition Affidavit of John G. Nicolich, sworn to March 2, 2007 (“Nicolich Aff.”).
A. The Singapore Action Against
Lane Pendleton And NewFirst Limited
Freeford commenced the Singapore Action on July 20, 2005 and originally
alleged claims in that action against Lane Pendleton, NewFirst Limited (“NewFirst”), and
Caimwood Capital International, Ltd. (“CCT”). CCI, however, was never served, never became
a party to the Singapore Action, and was deleted from the Amended Writ of Summons and
Amended Statement of Claim filed by Freeford in July 2006 (see Kenney Aff., Exh. 2).
Freeford’s Amended Statement of Claim in the Singapore Action alleges a series
of misrepresentations that induced Freeford to invest approximately $4.8 million in stock of a
company now known as Orient Networks Holdings, Limited (“Orient Holdings”) (Kenney Aff.,
Exh. 2). Freeford has asserted claims for fraud, negligent misrepresentation, and breach of
collateral agreement and/or collateral warranties in the Singapore Action (id., {J 18-26, 30-35,
44-45, 48-54). Certain proceedings on Freeford’s claims in the Singapore Action have been
2conducted jointly with a separate action against Lane Pendleton and NewFirst brought by
Alliance Management SA, another investor in Orient Holdings (Nicolich Aff., { 5).
Prior to the November 30 hearing on defendants’ original motion for a stay in this
New York action, discovery proceedings in the Singapore Action had been delayed because Lane
Pendleton (a) had not complied with Freeford’s requests for discovery of documents; (b) had
unsuccessfully resisted Freeford’s application for additional discovery; (c) had unsuccessfully
appealed an order allowing Freeford to conduct cross-examinations; and (d) had failed to timely
respond to interrogatories served by Freeford. See Kenney Aff., Exh. 3, {J 12-23. One
significant open discovery issue related to Freeford’s application for disclosure of an original
hard disk of a notebook computer used by Lane Pendleton while he was a director of Orient
Holdings’ wholly-owned subsidiary, Orient Telecommunications Networks Pte Ltd (“OTN”).
See id., 4 20.
On November 24, 2006, Assistant Registrar Ang Ching Pin in the Singapore
Action issued the brief grounds of decision setting forth rulings on several discovery issues
(Nicolich Aff., Exh. 3). The brief grounds of decision stated, inter alia, that:
1. “compelling evidence set out above led to the irresistible inference that the
original hard disk [from LP’s notebook computer] was and remains in
LP’s possession and control” (id., p. 3, J] 12);
2. Assistant Registrar Ang Ching Pin “ordered the original hard disk be
produced and returned to the judicial managers of OTN” (id., page 4,
712);
3. facts and circumstances “were strongly indicative of a selective fulfillment
of the defendants’ discovery obligations (id., page 4, | 13); and
4. “defendants had not fully discharged their discovery obligations” (id.,
page 4, ¥ 16).B. Relevant Prior Proceedings In This Action
Freeford commenced this New York action against Lane Pendleton and against
certain related persons and entities (the “Caimwood Defendants”) in October 2005. Freeford has
asserted claims against defendants for fraud, negligent misrepresentation, promissory estoppel,
breach of implied contract, aiding and abetting, and breach of fiduciary duty based on
defendants’ misrepresentations and other misconduct related to Freeford’s investment of
approximately $4.8 million in stock of Orient Holdings (see Nicolich Aff., Exh. 4). Freeford
seeks judgment for compensatory and punitive damages (id., p. 40). Freeford thus asserts claims
in this action that are not asserted in the Singapore Action, including claims against the
Cairwood Defendants who are not parties to the Singapore Action. Lane Pendleton is the only
defendant in this New York action who also is a defendant in the Singapore Action.
In an order dated July 5, 2006 (“July 5 Order”), this Court denied defendants’
motion for dismissal (see Nicolich Aff., Exh. 5). In reaching its decision, this Court ruled, inter
alia, that (a) “there is an absence of substantial identity of the parties” in the New York and
Singapore Actions; and (b) “New York is the only jurisdiction where plaintiff can obtain
jurisdiction over all the relevant parties” (id., p. 11).
This Court heard oral argument on defendants’ original motion for a stay on
November 30, 2006 (see Nicolich Aff., Exh. 2). In view of Lane Pendleton’s appeal of
discovery orders in the Singapore Action, this Court made clear that Lane Pendleton either was
“to provide the discovery in Singapore” or the Court would “otherwise make [Lane Pendleton]
provide it here” (id., 9:3-8). During argument, counsel for Lane Pendleton, John E. Floyd,
admitted that the parties were engaged in “a merry-go-round in Singapore” concerning Lane
Pendleton’s compliance with discovery orders, which led this Court to state that “I don’t want to
hear about an appeal” of those orders (id., 9:18-10:3). In response, Mr. Floyd commented that
“in all honesty, the last thing I want to do is mislead you,” and that “the laptop is in Singapore
. .. whatever was copied or not copied is in Singapore” (id., 10:4-12, emphasis added). Counsel
for the Cairnwood Defendants, William Hangley, then represented to this Court that “LanePendleton withdrew the opposition [in Singapore] so that in effect we agreed to the discovery of
the computer” (id., 14:13-15). At the conclusion of the hearing, the Court issued a three-month
stay and required the parties to “report back to me as to where you are in three months” (id.,
15:1-3).
Cc. Additional Delays Of The Singapore Action
As noted above, this Court issued the Stay Order “pursuant to the directions on
the record at oral argument . . . on November 30, 2006,” which included the Court’s statement
that “I don’t want to hear about an appeal” of the Singapore Court’s discovery orders.
Defendants nevertheless have continued to delay the Singapore Action by appealing the
Singapore Court’s discovery orders, by refusing to produce the copy of the hard disk from Lane
Pendleton’s laptop computer that we now know is in the possession of Lane Pendleton’s counsel
in this action, and by otherwise failing to timely produce required disclosures in the Singapore
Action. Moreover, the Court in the Singapore Action has issued several recent orders awarding
costs to Freeford as a result of defendants’ misconduct in discovery.
1. Lane Pendleton’s Appeal And Failure To Produce Documents
And To Disclose The Hard Disk From His Laptop Computer
On December 4, 2006, Lane Pendleton and NewFirst filed the Notice of Appeal
To Judge Of The High Court In Chambers (“Notice of Appeal’) (Nicolich Aff., Exh. 6). The
Notice of Appeal states, inter alia, that defendants intend to appeal from the decision of
Assistant Registrar Ang Ching Pin given on November 24, 2006 and to seek rescission of the
orders requiring defendants to produce and return the original hard disk of LP’s laptop computer
and to allow inspection of certain documents in the possession, custody, or power of defendants.
Lane Pendleton thus filed this appeal notwithstanding this Court’s direction that “I don’t want to
hear about an appeal,” and contrary to Mr. Hangley’s representation that “Lane Pendleton
withdrew the opposition so that in effect we agreed to the discovery of the computer” (Nicolich
Aff., Exh, 2, 10:2-3; 14:13-15).On December 8, 2006, Lane Pendleton and NewFirst filed the Notice of Appeal
To Judge Of The High Court In Chambers (Amendment No. 1) (“Amended Notice of Appeal”)
(Nicolich Aff., Exh. 7). Contrary to this Court’s instructions, the Amended Notice of Appeal
similarly states, inter alia, that defendants intend to appeal from the decision of Assistant
Registrar Ang Ching Pin given on November 24, 2006 and to seek rescission of the orders
requiring defendants to produce and return the original hard disk of LP’s laptop computer and to
allow inspection of certain documents in the possession, custody, or power of defendants.
On December 11, 2006, the Order of Court dated November 24, 2006 by
Assistant Registrar Ang Ching Pin was filed in the Singapore Action (Nicolich Aff., Exh. 8).
This Order of Court formally set forth the orders described in the brief grounds of decision dated
November 24, 2006 (Nicolich Aff., Exh. 3) and, inter alia, ordered defendants to allow
inspection of documents and to produce and return the original hard disk of LP’s laptop
computer.
On December 22, 2006, the 7th Affidavit of Lane Pendleton was filed in the
Singapore Action (Nicolich Aff., Exh. 9). Paragraph 11 of LP’s 7th Affidavit states that a copy
of the hard disk from LP’s laptop computer had been sent to LP’s attorneys in America at
Bondurant, Mixson & Elmore, the law firm representing LP in this action. Mr. Floyd, however,
had represented to this Court on November 30, 2006 that he “in all honesty” did not want to
mislead this Court, and that “the laptop is in Singapore . . . [and] whatever was copied or not
copied is in Singapore” -- without disclosing that his firm actually possessed a copy of the hard
disk and could have promptly provided Freeford discovery of such information.
The hearing of defendants’ appeal of the November 24, 2006 Order of Assistant
Registrar Ang Ching Pin commenced before the Honorable Justice Belinda Ang Saw Ean on
January 11, 2007. In an Order of Court dated January 11, 2007 (Nicolich Aff., Exh. 10), Justice
Belinda Ang Saw Ean, inter alia, denied leave to admit the 7th Affidavit of Lane Pendleton and
ordered defendants to expunge the 7th Affidavit of Lane Pendleton’s court records.The Honorable Justice Belinda Ang Saw Ean held continued hearings of
defendants’ appeal of the November 24, 2006 Order on February 6 and February 9, 2007
(Nicolich Aff., § 17). On February 22, 2007, the Order of Court dated February 9, 2007 was
filed in the Singapore Action with respect to defendants’ appeal of the November 24, 2006 Order
(Nicolich Aff., Exh. 11). The February 9, 2007 Order, inter alia, (a) dismissed certain portions
of defendants’ appeal and ordered defendants to provide disclosure of ten categories of
documents by March 2, 2007; (b) allowed defendants’ appeal with respect to two categories of
documents; and (c) held over the remaining issues on the appeal to a special half-day hearing to
be fixed after February 23, 2007.
Singapore counsel for Freeford has advised that the Honorable Justice Belinda
Ang Saw Ean held the special half-day hearing on February 28, 2007 but the hearing was not
completed that day. The Honorable Justice Belinda Ang Saw Ean therefore directed the parties
to obtain an early additional hearing date for the completion of the appeal from the Singapore
High Court Registry. Freeford’s Singapore counsel accordingly tried to obtain available dates
for Chandra Mohan, Esq., the Singapore lawyer for Lane Pendleton who has been instructed to
argue the appeal. Counsel for Lane Pendleton failed to timely provide such information (see
Nicolich Aff., Exh. 12). Counsel for the parties thus were required to attend before the Duty
Registrar of the Singapore High Court on March 1, 2007 to try to obtain an early hearing date as
directed by Justice Belinda Ang Saw Ean. Lane Pendleton’s lawyers there took the position that
they were unavailable for hearings on any of the dates that Justice Belinda Ang Saw Ean had
available in the next 27 days. As a consequence, the additional hearing date for the appeal has
been fixed for March 28, 2007, a full month after the prior hearing on February 28, 2007
(Nicolich Aff., Exh. 13). The appeal that Lane Pendleton filed in December 2006 therefore has
remained outstanding throughout the three-month stay issued by the Court, and Lane Pendleton’s
appeal will not be resolved, at the earliest, until March 28, 2007.2, Other Pending Discovery Issues In The Singapore Action
On January 30, 2007, the Order of Court dated January 29, 2007 of Assistant
Registrar Kenneth Yap was filed in the Singapore Action (Nicolich Aff., Exh. 14). This Order of
Court, inter alia, ordered defendants to provide certain discovery responses on February 16,
2007 and on February 23, 2007.
On February 2, 2007, Lane Pendleton filed his 10th and 11th Affidavits (Nicolich
Aff., Exhs. 15, 16). These two affidavits purported to comply with the Order of Court dated
November 24, 2006 and defendants’ continuing obligation to provide discovery by disclosing
36,740 e-mails and certain other documents that allegedly are responsive to Freeford’s discovery
requests.
On February 5, 2007, Assistant Registrar Ang Ching Pin held a hearing on
Freeford’s application for a preemptory order based on defendants’ failure to comply with
unappealed portions of the Order of Court dated November 24, 2006. The transcript of that
hearing includes the following rulings concerning the inadequate and untimely disclosures
provided in the 10th and 11th Affidavits of Lane Pendleton (Nicolich Aff., Exh. 17, p. 11):
[W]hat has been provided is rather unsatisfactory in form and in
substance, and provided at the eleventh hour.... In light of
defendants’ tardiness in filing the affidavits and third and fourth
[Supplementary Lists of Documents], and the necessity of the
plaintiffs taking out the applications for an unless order, I will be
awarding the plaintiffs costs of today’s application... .
In addition, Assistant Registrar Ang Ching Pin issued the following rulings
requiring defendants to provide disclosure by March 12, 2007 (id., pp. 14-15):
T have to be mindful of the prejudice the plaintiffs have suffered
from the numerous delays arising from discovery, and not further
delay this matter unnecessarily. Your clients have been given
more than enough time — since August 2006 they have maintained
that they are instructing solicitors to go through the data in the hard
disk copy for relevance. Six months down the road, they are still
saying that same thing. I will give them one more month. This is
a final order that the defendants make full and proper discovery by
5 March 2007 for the non-appealed documents in Annex A, in
8compliance with paragraphs 6-9 of the order of court dated 26 [sic]
November 2006, and for the defendants to provide copies of the
said documents by 12 March 2007. (Emphasis in original.)
The aforesaid rulings were incorporated in an Order of Court dated February 5, 2007 (Nicolich
Aff, Exh. 18).
On February 14, 2007, the Order of Court dated February 9, 2007 of Assistant
Registrar David Lee was filed in the Singapore Action (Nicolich Aff., Exh. 19). This Order of
Court, inter alia, ordered defendants to provide additional disclosures to Freeford by February
23, 2007 and by March 23, 2007.
On February 16, 2007, Lane Pendleton filed a 12th Affidavit (Nicolich Aff.,
Exh. 20). This affidavit purported to comply with the Order of Court dated January 29, 2007 and
defendants’ continuing obligation to provide discovery by disclosing an additional 21,046 e-
mails that allegedly are responsive to Freeford’s discovery requests.
Freeford’s Singapore counsel have started reviewing the documents disclosed on
the 5th Supplementary List of Documents and have found a significant portion of these
documents to be entirely irrelevant to the matters at issue in the Singapore Action -- contrary to
Singapore procedure and the sworn declaration by Lane Pendleton that the documents listed
“relat[e] to the matters in question” in the Singapore Action (Nicolich Aff., Exh. 20, p. 6, 1).
Freeford’s Singapore counsel therefore has objected to these disclosures provided by Lane
Pendleton and has demanded that defendants identify the documents that are relevant to the
Singapore Action in compliance with the Singapore procedure. (Nicolich Aff., Exh. 21).
3. Costs Awarded Against Lane Pendleton
The Singapore Court recently has made several awards of costs in favor of
Freeford and against defendants in the Singapore Action based on defendants’ failures to timely
provide discovery and to comply with judicial orders. For example, the following costs (in
Singapore dollars) were awarded to Freeford in Orders described above:Order dated November 24, 2006
(Exhibit 8).. $3,000 plus disbursements
Order dated January 11, 2007
(Exhibit 10) .. 1,500
Order dated January 29, 2007
(Exhibit 14)... 800 plus disbursements
Order dated February 5, 2007
(Exhibit 18)... 3,500 plus disbursements
Order dated February 9, 2007
(Exhibit 19)... 1,000 plus disbursements
Total... $9,800 plus disbursements
4. Pre-Trial Conferences/Trial Schedule
Freeford’s Singapore counsel has advised that, as a result of defendants’ appeals
and defendants’ failure to comply with discovery orders, the pre-trial conference previously
scheduled for November 29, 2006 has been rescheduled several times and is currently scheduled
for March 23, 2007. Freeford’s counsel also has advised that the Singapore Court is unlikely to
issue an order scheduling the trial of the Singapore Action at the pre-trial conference scheduled
for March 23, 2007 because defendants have delayed the hearing on the appeal on discovery
issues until March 28, 2007. Even after that date, a trial is unlikely to be scheduled unless and
until Lane Pendleton has fully complied with all outstanding discovery requests and has not
taken any additional appeals of orders compelling discovery. Also, Lane Pendleton’s recent but
belated disclosure of more than 57,000 documents may further delay the trial of the Singapore
Action (Nicolich Aff., § 27).
Indeed, Lane Pendleton’s own submissions on this motion establish that the
Singapore Action today is actually farther away from trial than the Singapore Action was when
this Court issued the Stay Order on December 1, 2006. More specifically, Lane Pendleton’s
Singapore counsel previously submitted an affidavit stating that he expected the Singapore
10Action “to go to trial in the first half of 2007” -- i.e., no more than seven months from issuance
of the December 1, 2006 Stay Order. See Kenney Aff., Exh. 4,4 10. Lane Pendleton’s current
position, however, is that the trial of the Singapore Action will take place in “the fall of this
year” -- i.e., by December 2007, or approximately ten months from Lane Pendleton’s filing of
this motion. See Def. Memo., pp. 2, 5.
ARGUMENT
THIS COURT SHOULD DENY DEFENDANT’S
MOTION TO CONTINUE THE STAY
CPLR 2201 authorizes a court to exercise its discretion to stay an action “ina
proper case, upon such terms as may be just.” The Court nevertheless should not continue a stay
where, as here, “the circumstances underlying [the] prior order imposing the stay have
substantially changed” and plaintiff “has been unduly prejudiced.” Kwiatkowski v. National
Student Marketing Corp., 85 A.D.2d 559, 560 (1st Dep’t 1981).
More specifically, when this Court issued the Stay Order, the Singapore Court had
just issued rulings compelling Lane Pendleton to provide certain items of discovery in the
Singapore Action, including the original hard disk from his laptop computer (Nicolich Aff.,
Exh. 3). Moreover, this Court issued the Stay Order “pursuant to the directions on the record at
oral argument,” which included this Court’s directions that Lane Pendleton “was to provide
discovery in Singapore” and that the Court did not “want to hear about an appeal” of the
discovery orders in the Singapore Action (id., p. 9).
Lane Pendleton nevertheless defied this Court’s instructions by appealing the
discovery orders issued in the Singapore Action, by repeatedly delaying discovery and failing to
comply with Singapore’s disclosure requirements, and by belatedly producing more than 57,000
documents in violation of Singapore discovery procedures. See Nicolich Aff., {J 12-25.
11As a result of Lane Pendleton’s misconduct and delaying tactics, Lane
Pendleton’s appeal in the Singapore Action will not be resolved, at the earliest, until March 28,
2007 (Nicolich Aff., { 27), and the Singapore Court recently has ordered Lane Pendleton to
reimburse Freeford for almost $10,000 in costs (not including disbursements) (id. at § 26).
Freeford accordingly is suffering prejudice not simply because prosecution of its
claims against Lane Pendleton in Singapore have been delayed, but because Freeford’s
independent claims against the Cairnwood Defendants in this action have been delayed. See Mt.
McKinley Insurance Co. v. Corning, Inc., 33 A.D.3d 51, 59 (1st Dep’t 2006) (reversing stay
where “New York action includes policies, claims and issues that are not part of the PCC
bankruptcy” and to “stay proceedings as to these matters will only promote delay, not
efficiency”),
In view of these circumstances, Lane Pendleton misplaces reliance on American
Marine Insurance Group v. Price Forbes Ltd., 166 A.D.2d 263 (1st Dep’t 1990), which granted a
stay in deference to proceedings pending in Great Britain. In American Marine, however, the
great majority of witnesses and documents were “located in London,” the conduct complained of
occurred “primarily in London,” and it was “highly questionable whether New York is even an
appropriate forum for the present action.” Jd. at 264. By contrast, the Cairnwood Defendants and
their documents are located in the United States (not in the alternative forum), the conduct
complained of occurred in various widespread localities (such as London, Paris, Geneva, Beirut,
Hong Kong, and Singapore), and this Court has previously ruled not only that “there is an absence
of substantial identity of the parties” in the New York and Singapore Actions, but also that “New
York is the only jurisdiction where plaintiff can obtain jurisdiction over all the relevant parties”
(Nicolich Aff, Exh. 5, p. 11).
Finally, the First Department recently followed established precedent in reversing a
stay order and ruling that it is “appropriate to stay an action in deference to another only where the
determination in the other will resolve all of the issues in the stayed action and the judgment on
one trial will dispose of the controversy in both actions. ... The possibility or actuality of two
12trials is of no importance.” Mt. McKinley Insurance Co. v. Corning, Inc., 33 A.D.3d 51, 58-59
(Ist Dep’t 2006). The Singapore Action, however, will not resolve Freeford’s claims against the
Caimmwood Defendants, thereby establishing that this Court should not continue the stay of this
action.
CONCLUSION
For the reasons set forth above, this Court should deny this motion by defendant
Lane Pendleton to continue the stay of this action.
Dated: New York, New York
March 2, 2007
LeBOEUF, LAMB, GREENE & MacRAE LLP
By:
John G. Nicolich
Jaime M. Jackson
125 West 55th Street
New York, New York 10019
Telephone: (212) 424-8000
Facsimile: (212) 424-8500
Attorneys for Plaintiff
Freeford Limited
13
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK FREEFORD LIMITED, Plaintiff, : Index No, 603652/2005 vs. : TAS Part 39 LANE P. PENDLETON, KIRK PENDLETON, LAIRD P. PENDLETON, CAIRNWOOD CAPITAL MANAGEMENT, LLC, CAIRNWOOD CAPITAL PARTNERS, LLC, CAIRNWOOD CAPITAL INTERNATIONAL, LTD., CAIRNWOOD GROUP, LLC, and JOHN DOES 1 through 10, Honorable Helen E. Freedman Defendants. PLAINTIFF FREEFORD LIMITED’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO CONTINUE STAY LEBOEUF, LAMB, GREENE & MacRAE LLP 125 West 55th Street New York, NY 10019-5389 (212) 424-8000 Attorneys for Plaintiff Freeford Limited Of Counsel: John G. Nicolich Jaime M. JacksonTable of Contents Page Preliminary Statement... scscssssssessesssssessessessssnsseeveeseescersereneesecnssnssessesvesecsesaesnsancaneeeeeeeneeecsneseneees 1 STATEMENT OF FACTS wu..escesscesseesseesseessessessnsssessnesscsssesseessessnssseesessuesssesnesseesissesssssecsseenesseesaee 2 A. The Singapore Action Against Lane Pendleton And NewFirst Limited ....0.....cesseseeseee 2 B. Relevant Prior Proceedings In This Action .........ccscescssesssessesseessssseesseeseessessesseesessesseessed 4 Cc. Additional Delays Of The Singapore Action.........cscsssecssseseeessesteseeneeessessesseensseseeneanennes 5 1. Lane Pendleton’s Appeal And Failure To Produce Documents And To Disclose The Hard Disk From His Laptop Computer .........cssscsessessessesssssssesnssessesssssseeseessnseessneenseneseaneaeenees 5 2. Other Pending Discovery Issues In The Singapore Action ..........:.ssesseseeseesseesseeeee 8 3. Costs Awarded Against Lane Pendleton. 9 4. Pre-Trial Conferences/Trial Schedule........ccceessesssesseessesseeseesseeseessessnesseesessessneesnee 10 ARGUMENT THIS COURT SHOULD DENY DEFENDANT’S MOTION TO CONTINUE THE STAY ....sessesssesssscsecsssssssseseseeseessessessesesecenssseesessssesessneeenssseesseesee 11 CONCLUSION ....esssesssesssessesssssseesseeserssnssseeseeeseessssseessssssesseeseesnssnsssnssuesusesnssssssesseesseesenessssessaneseess 13SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK FREEFORD LIMITED, Plaintiff, : Index No, 603652/2005 vs. : IAS Part 39 LANE P. PENDLETON, KIRK P. PENDLETON, _: Honorable Helen E. Freedman LAIRD P. PENDLETON, CAIRNWOOD CAPITAL : MANAGEMENT, LLC, CAIRNWOOD CAPITAL PARTNERS, LLC, CAIRNWOOD CAPITAL INTERNATIONAL, LTD., CAIRNWOOD GROUP, LLC and JOHN DOES 1 through 10, Defendants. PLAINTIFF FREEFORD LIMITED’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO CONTINUE STAY Preliminary Statement Plaintiff Freeford Limited (“Freeford’”) respectfully submits this Memorandum of Law in opposition to the motion by defendant Lane P. Pendleton (“Lane Pendleton” or “LP”) for acontinuance of the stay ordered by the Court on December 1, 2006 (“Stay Order”). Lane Pendleton requests this Court to continue the stay pending entry of final judgment in an action brought by Freeford against Lane Pendleton in the High Court of the Republic of Singapore (the “Singapore Action”). Freeford responds herein to the contentions asserted in Defendant Lane P. Pendleton’s Memorandum Of Law In Support Of His Motion For Continuance Of Stay, dated February 22, 2007 (“Def. Memo.”). The Stay Order was granted “pursuant to the directions on the record at oral argument .. .on November 30, 2006” and will expire by its own terms on March 6, 2007. LanePendleton is requesting this Court to continue the stay on the ground that the Singapore Action allegedly “is progressing quickly and efficiently’ (Def. Memo., p. 3). In fact, as demonstrated below, Lane Pendleton has delayed resolution of his appeal of a discovery order in the Singapore Action and has continued to obstruct discovery and impede progress in the Singapore Action, which has not yet been scheduled for trial. Moreover, Lane Pendleton to date has failed and refused to produce a copy of the hard disk of his laptop computer to Freeford, notwithstanding that Lane Pendleton has provided a copy of that hard disk to counsel representing him in this action. In summary -- and based on Lane Pendleton’s own submissions on this motion -- the Singapore Action today is actually farther away from trial than the Singapore Action was when the Stay Order was issued. STATEMENT OF FACTS The facts relevant to a determination of this motion are set forth in the revised moving Affidavit of John J. Kenney, sworn to February 26, 2007 (“Kenney Aff.”), and in the opposition Affidavit of John G. Nicolich, sworn to March 2, 2007 (“Nicolich Aff.”). A. The Singapore Action Against Lane Pendleton And NewFirst Limited Freeford commenced the Singapore Action on July 20, 2005 and originally alleged claims in that action against Lane Pendleton, NewFirst Limited (“NewFirst”), and Caimwood Capital International, Ltd. (“CCT”). CCI, however, was never served, never became a party to the Singapore Action, and was deleted from the Amended Writ of Summons and Amended Statement of Claim filed by Freeford in July 2006 (see Kenney Aff., Exh. 2). Freeford’s Amended Statement of Claim in the Singapore Action alleges a series of misrepresentations that induced Freeford to invest approximately $4.8 million in stock of a company now known as Orient Networks Holdings, Limited (“Orient Holdings”) (Kenney Aff., Exh. 2). Freeford has asserted claims for fraud, negligent misrepresentation, and breach of collateral agreement and/or collateral warranties in the Singapore Action (id., {J 18-26, 30-35, 44-45, 48-54). Certain proceedings on Freeford’s claims in the Singapore Action have been 2conducted jointly with a separate action against Lane Pendleton and NewFirst brought by Alliance Management SA, another investor in Orient Holdings (Nicolich Aff., { 5). Prior to the November 30 hearing on defendants’ original motion for a stay in this New York action, discovery proceedings in the Singapore Action had been delayed because Lane Pendleton (a) had not complied with Freeford’s requests for discovery of documents; (b) had unsuccessfully resisted Freeford’s application for additional discovery; (c) had unsuccessfully appealed an order allowing Freeford to conduct cross-examinations; and (d) had failed to timely respond to interrogatories served by Freeford. See Kenney Aff., Exh. 3, {J 12-23. One significant open discovery issue related to Freeford’s application for disclosure of an original hard disk of a notebook computer used by Lane Pendleton while he was a director of Orient Holdings’ wholly-owned subsidiary, Orient Telecommunications Networks Pte Ltd (“OTN”). See id., 4 20. On November 24, 2006, Assistant Registrar Ang Ching Pin in the Singapore Action issued the brief grounds of decision setting forth rulings on several discovery issues (Nicolich Aff., Exh. 3). The brief grounds of decision stated, inter alia, that: 1. “compelling evidence set out above led to the irresistible inference that the original hard disk [from LP’s notebook computer] was and remains in LP’s possession and control” (id., p. 3, J] 12); 2. Assistant Registrar Ang Ching Pin “ordered the original hard disk be produced and returned to the judicial managers of OTN” (id., page 4, 712); 3. facts and circumstances “were strongly indicative of a selective fulfillment of the defendants’ discovery obligations (id., page 4, | 13); and 4. “defendants had not fully discharged their discovery obligations” (id., page 4, ¥ 16).B. Relevant Prior Proceedings In This Action Freeford commenced this New York action against Lane Pendleton and against certain related persons and entities (the “Caimwood Defendants”) in October 2005. Freeford has asserted claims against defendants for fraud, negligent misrepresentation, promissory estoppel, breach of implied contract, aiding and abetting, and breach of fiduciary duty based on defendants’ misrepresentations and other misconduct related to Freeford’s investment of approximately $4.8 million in stock of Orient Holdings (see Nicolich Aff., Exh. 4). Freeford seeks judgment for compensatory and punitive damages (id., p. 40). Freeford thus asserts claims in this action that are not asserted in the Singapore Action, including claims against the Cairwood Defendants who are not parties to the Singapore Action. Lane Pendleton is the only defendant in this New York action who also is a defendant in the Singapore Action. In an order dated July 5, 2006 (“July 5 Order”), this Court denied defendants’ motion for dismissal (see Nicolich Aff., Exh. 5). In reaching its decision, this Court ruled, inter alia, that (a) “there is an absence of substantial identity of the parties” in the New York and Singapore Actions; and (b) “New York is the only jurisdiction where plaintiff can obtain jurisdiction over all the relevant parties” (id., p. 11). This Court heard oral argument on defendants’ original motion for a stay on November 30, 2006 (see Nicolich Aff., Exh. 2). In view of Lane Pendleton’s appeal of discovery orders in the Singapore Action, this Court made clear that Lane Pendleton either was “to provide the discovery in Singapore” or the Court would “otherwise make [Lane Pendleton] provide it here” (id., 9:3-8). During argument, counsel for Lane Pendleton, John E. Floyd, admitted that the parties were engaged in “a merry-go-round in Singapore” concerning Lane Pendleton’s compliance with discovery orders, which led this Court to state that “I don’t want to hear about an appeal” of those orders (id., 9:18-10:3). In response, Mr. Floyd commented that “in all honesty, the last thing I want to do is mislead you,” and that “the laptop is in Singapore . .. whatever was copied or not copied is in Singapore” (id., 10:4-12, emphasis added). Counsel for the Cairnwood Defendants, William Hangley, then represented to this Court that “LanePendleton withdrew the opposition [in Singapore] so that in effect we agreed to the discovery of the computer” (id., 14:13-15). At the conclusion of the hearing, the Court issued a three-month stay and required the parties to “report back to me as to where you are in three months” (id., 15:1-3). Cc. Additional Delays Of The Singapore Action As noted above, this Court issued the Stay Order “pursuant to the directions on the record at oral argument . . . on November 30, 2006,” which included the Court’s statement that “I don’t want to hear about an appeal” of the Singapore Court’s discovery orders. Defendants nevertheless have continued to delay the Singapore Action by appealing the Singapore Court’s discovery orders, by refusing to produce the copy of the hard disk from Lane Pendleton’s laptop computer that we now know is in the possession of Lane Pendleton’s counsel in this action, and by otherwise failing to timely produce required disclosures in the Singapore Action. Moreover, the Court in the Singapore Action has issued several recent orders awarding costs to Freeford as a result of defendants’ misconduct in discovery. 1. Lane Pendleton’s Appeal And Failure To Produce Documents And To Disclose The Hard Disk From His Laptop Computer On December 4, 2006, Lane Pendleton and NewFirst filed the Notice of Appeal To Judge Of The High Court In Chambers (“Notice of Appeal’) (Nicolich Aff., Exh. 6). The Notice of Appeal states, inter alia, that defendants intend to appeal from the decision of Assistant Registrar Ang Ching Pin given on November 24, 2006 and to seek rescission of the orders requiring defendants to produce and return the original hard disk of LP’s laptop computer and to allow inspection of certain documents in the possession, custody, or power of defendants. Lane Pendleton thus filed this appeal notwithstanding this Court’s direction that “I don’t want to hear about an appeal,” and contrary to Mr. Hangley’s representation that “Lane Pendleton withdrew the opposition so that in effect we agreed to the discovery of the computer” (Nicolich Aff., Exh, 2, 10:2-3; 14:13-15).On December 8, 2006, Lane Pendleton and NewFirst filed the Notice of Appeal To Judge Of The High Court In Chambers (Amendment No. 1) (“Amended Notice of Appeal”) (Nicolich Aff., Exh. 7). Contrary to this Court’s instructions, the Amended Notice of Appeal similarly states, inter alia, that defendants intend to appeal from the decision of Assistant Registrar Ang Ching Pin given on November 24, 2006 and to seek rescission of the orders requiring defendants to produce and return the original hard disk of LP’s laptop computer and to allow inspection of certain documents in the possession, custody, or power of defendants. On December 11, 2006, the Order of Court dated November 24, 2006 by Assistant Registrar Ang Ching Pin was filed in the Singapore Action (Nicolich Aff., Exh. 8). This Order of Court formally set forth the orders described in the brief grounds of decision dated November 24, 2006 (Nicolich Aff., Exh. 3) and, inter alia, ordered defendants to allow inspection of documents and to produce and return the original hard disk of LP’s laptop computer. On December 22, 2006, the 7th Affidavit of Lane Pendleton was filed in the Singapore Action (Nicolich Aff., Exh. 9). Paragraph 11 of LP’s 7th Affidavit states that a copy of the hard disk from LP’s laptop computer had been sent to LP’s attorneys in America at Bondurant, Mixson & Elmore, the law firm representing LP in this action. Mr. Floyd, however, had represented to this Court on November 30, 2006 that he “in all honesty” did not want to mislead this Court, and that “the laptop is in Singapore . . . [and] whatever was copied or not copied is in Singapore” -- without disclosing that his firm actually possessed a copy of the hard disk and could have promptly provided Freeford discovery of such information. The hearing of defendants’ appeal of the November 24, 2006 Order of Assistant Registrar Ang Ching Pin commenced before the Honorable Justice Belinda Ang Saw Ean on January 11, 2007. In an Order of Court dated January 11, 2007 (Nicolich Aff., Exh. 10), Justice Belinda Ang Saw Ean, inter alia, denied leave to admit the 7th Affidavit of Lane Pendleton and ordered defendants to expunge the 7th Affidavit of Lane Pendleton’s court records.The Honorable Justice Belinda Ang Saw Ean held continued hearings of defendants’ appeal of the November 24, 2006 Order on February 6 and February 9, 2007 (Nicolich Aff., § 17). On February 22, 2007, the Order of Court dated February 9, 2007 was filed in the Singapore Action with respect to defendants’ appeal of the November 24, 2006 Order (Nicolich Aff., Exh. 11). The February 9, 2007 Order, inter alia, (a) dismissed certain portions of defendants’ appeal and ordered defendants to provide disclosure of ten categories of documents by March 2, 2007; (b) allowed defendants’ appeal with respect to two categories of documents; and (c) held over the remaining issues on the appeal to a special half-day hearing to be fixed after February 23, 2007. Singapore counsel for Freeford has advised that the Honorable Justice Belinda Ang Saw Ean held the special half-day hearing on February 28, 2007 but the hearing was not completed that day. The Honorable Justice Belinda Ang Saw Ean therefore directed the parties to obtain an early additional hearing date for the completion of the appeal from the Singapore High Court Registry. Freeford’s Singapore counsel accordingly tried to obtain available dates for Chandra Mohan, Esq., the Singapore lawyer for Lane Pendleton who has been instructed to argue the appeal. Counsel for Lane Pendleton failed to timely provide such information (see Nicolich Aff., Exh. 12). Counsel for the parties thus were required to attend before the Duty Registrar of the Singapore High Court on March 1, 2007 to try to obtain an early hearing date as directed by Justice Belinda Ang Saw Ean. Lane Pendleton’s lawyers there took the position that they were unavailable for hearings on any of the dates that Justice Belinda Ang Saw Ean had available in the next 27 days. As a consequence, the additional hearing date for the appeal has been fixed for March 28, 2007, a full month after the prior hearing on February 28, 2007 (Nicolich Aff., Exh. 13). The appeal that Lane Pendleton filed in December 2006 therefore has remained outstanding throughout the three-month stay issued by the Court, and Lane Pendleton’s appeal will not be resolved, at the earliest, until March 28, 2007.2, Other Pending Discovery Issues In The Singapore Action On January 30, 2007, the Order of Court dated January 29, 2007 of Assistant Registrar Kenneth Yap was filed in the Singapore Action (Nicolich Aff., Exh. 14). This Order of Court, inter alia, ordered defendants to provide certain discovery responses on February 16, 2007 and on February 23, 2007. On February 2, 2007, Lane Pendleton filed his 10th and 11th Affidavits (Nicolich Aff., Exhs. 15, 16). These two affidavits purported to comply with the Order of Court dated November 24, 2006 and defendants’ continuing obligation to provide discovery by disclosing 36,740 e-mails and certain other documents that allegedly are responsive to Freeford’s discovery requests. On February 5, 2007, Assistant Registrar Ang Ching Pin held a hearing on Freeford’s application for a preemptory order based on defendants’ failure to comply with unappealed portions of the Order of Court dated November 24, 2006. The transcript of that hearing includes the following rulings concerning the inadequate and untimely disclosures provided in the 10th and 11th Affidavits of Lane Pendleton (Nicolich Aff., Exh. 17, p. 11): [W]hat has been provided is rather unsatisfactory in form and in substance, and provided at the eleventh hour.... In light of defendants’ tardiness in filing the affidavits and third and fourth [Supplementary Lists of Documents], and the necessity of the plaintiffs taking out the applications for an unless order, I will be awarding the plaintiffs costs of today’s application... . In addition, Assistant Registrar Ang Ching Pin issued the following rulings requiring defendants to provide disclosure by March 12, 2007 (id., pp. 14-15): T have to be mindful of the prejudice the plaintiffs have suffered from the numerous delays arising from discovery, and not further delay this matter unnecessarily. Your clients have been given more than enough time — since August 2006 they have maintained that they are instructing solicitors to go through the data in the hard disk copy for relevance. Six months down the road, they are still saying that same thing. I will give them one more month. This is a final order that the defendants make full and proper discovery by 5 March 2007 for the non-appealed documents in Annex A, in 8compliance with paragraphs 6-9 of the order of court dated 26 [sic] November 2006, and for the defendants to provide copies of the said documents by 12 March 2007. (Emphasis in original.) The aforesaid rulings were incorporated in an Order of Court dated February 5, 2007 (Nicolich Aff, Exh. 18). On February 14, 2007, the Order of Court dated February 9, 2007 of Assistant Registrar David Lee was filed in the Singapore Action (Nicolich Aff., Exh. 19). This Order of Court, inter alia, ordered defendants to provide additional disclosures to Freeford by February 23, 2007 and by March 23, 2007. On February 16, 2007, Lane Pendleton filed a 12th Affidavit (Nicolich Aff., Exh. 20). This affidavit purported to comply with the Order of Court dated January 29, 2007 and defendants’ continuing obligation to provide discovery by disclosing an additional 21,046 e- mails that allegedly are responsive to Freeford’s discovery requests. Freeford’s Singapore counsel have started reviewing the documents disclosed on the 5th Supplementary List of Documents and have found a significant portion of these documents to be entirely irrelevant to the matters at issue in the Singapore Action -- contrary to Singapore procedure and the sworn declaration by Lane Pendleton that the documents listed “relat[e] to the matters in question” in the Singapore Action (Nicolich Aff., Exh. 20, p. 6, 1). Freeford’s Singapore counsel therefore has objected to these disclosures provided by Lane Pendleton and has demanded that defendants identify the documents that are relevant to the Singapore Action in compliance with the Singapore procedure. (Nicolich Aff., Exh. 21). 3. Costs Awarded Against Lane Pendleton The Singapore Court recently has made several awards of costs in favor of Freeford and against defendants in the Singapore Action based on defendants’ failures to timely provide discovery and to comply with judicial orders. For example, the following costs (in Singapore dollars) were awarded to Freeford in Orders described above:Order dated November 24, 2006 (Exhibit 8).. $3,000 plus disbursements Order dated January 11, 2007 (Exhibit 10) .. 1,500 Order dated January 29, 2007 (Exhibit 14)... 800 plus disbursements Order dated February 5, 2007 (Exhibit 18)... 3,500 plus disbursements Order dated February 9, 2007 (Exhibit 19)... 1,000 plus disbursements Total... $9,800 plus disbursements 4. Pre-Trial Conferences/Trial Schedule Freeford’s Singapore counsel has advised that, as a result of defendants’ appeals and defendants’ failure to comply with discovery orders, the pre-trial conference previously scheduled for November 29, 2006 has been rescheduled several times and is currently scheduled for March 23, 2007. Freeford’s counsel also has advised that the Singapore Court is unlikely to issue an order scheduling the trial of the Singapore Action at the pre-trial conference scheduled for March 23, 2007 because defendants have delayed the hearing on the appeal on discovery issues until March 28, 2007. Even after that date, a trial is unlikely to be scheduled unless and until Lane Pendleton has fully complied with all outstanding discovery requests and has not taken any additional appeals of orders compelling discovery. Also, Lane Pendleton’s recent but belated disclosure of more than 57,000 documents may further delay the trial of the Singapore Action (Nicolich Aff., § 27). Indeed, Lane Pendleton’s own submissions on this motion establish that the Singapore Action today is actually farther away from trial than the Singapore Action was when this Court issued the Stay Order on December 1, 2006. More specifically, Lane Pendleton’s Singapore counsel previously submitted an affidavit stating that he expected the Singapore 10Action “to go to trial in the first half of 2007” -- i.e., no more than seven months from issuance of the December 1, 2006 Stay Order. See Kenney Aff., Exh. 4,4 10. Lane Pendleton’s current position, however, is that the trial of the Singapore Action will take place in “the fall of this year” -- i.e., by December 2007, or approximately ten months from Lane Pendleton’s filing of this motion. See Def. Memo., pp. 2, 5. ARGUMENT THIS COURT SHOULD DENY DEFENDANT’S MOTION TO CONTINUE THE STAY CPLR 2201 authorizes a court to exercise its discretion to stay an action “ina proper case, upon such terms as may be just.” The Court nevertheless should not continue a stay where, as here, “the circumstances underlying [the] prior order imposing the stay have substantially changed” and plaintiff “has been unduly prejudiced.” Kwiatkowski v. National Student Marketing Corp., 85 A.D.2d 559, 560 (1st Dep’t 1981). More specifically, when this Court issued the Stay Order, the Singapore Court had just issued rulings compelling Lane Pendleton to provide certain items of discovery in the Singapore Action, including the original hard disk from his laptop computer (Nicolich Aff., Exh. 3). Moreover, this Court issued the Stay Order “pursuant to the directions on the record at oral argument,” which included this Court’s directions that Lane Pendleton “was to provide discovery in Singapore” and that the Court did not “want to hear about an appeal” of the discovery orders in the Singapore Action (id., p. 9). Lane Pendleton nevertheless defied this Court’s instructions by appealing the discovery orders issued in the Singapore Action, by repeatedly delaying discovery and failing to comply with Singapore’s disclosure requirements, and by belatedly producing more than 57,000 documents in violation of Singapore discovery procedures. See Nicolich Aff., {J 12-25. 11As a result of Lane Pendleton’s misconduct and delaying tactics, Lane Pendleton’s appeal in the Singapore Action will not be resolved, at the earliest, until March 28, 2007 (Nicolich Aff., { 27), and the Singapore Court recently has ordered Lane Pendleton to reimburse Freeford for almost $10,000 in costs (not including disbursements) (id. at § 26). Freeford accordingly is suffering prejudice not simply because prosecution of its claims against Lane Pendleton in Singapore have been delayed, but because Freeford’s independent claims against the Cairnwood Defendants in this action have been delayed. See Mt. McKinley Insurance Co. v. Corning, Inc., 33 A.D.3d 51, 59 (1st Dep’t 2006) (reversing stay where “New York action includes policies, claims and issues that are not part of the PCC bankruptcy” and to “stay proceedings as to these matters will only promote delay, not efficiency”), In view of these circumstances, Lane Pendleton misplaces reliance on American Marine Insurance Group v. Price Forbes Ltd., 166 A.D.2d 263 (1st Dep’t 1990), which granted a stay in deference to proceedings pending in Great Britain. In American Marine, however, the great majority of witnesses and documents were “located in London,” the conduct complained of occurred “primarily in London,” and it was “highly questionable whether New York is even an appropriate forum for the present action.” Jd. at 264. By contrast, the Cairnwood Defendants and their documents are located in the United States (not in the alternative forum), the conduct complained of occurred in various widespread localities (such as London, Paris, Geneva, Beirut, Hong Kong, and Singapore), and this Court has previously ruled not only that “there is an absence of substantial identity of the parties” in the New York and Singapore Actions, but also that “New York is the only jurisdiction where plaintiff can obtain jurisdiction over all the relevant parties” (Nicolich Aff, Exh. 5, p. 11). Finally, the First Department recently followed established precedent in reversing a stay order and ruling that it is “appropriate to stay an action in deference to another only where the determination in the other will resolve all of the issues in the stayed action and the judgment on one trial will dispose of the controversy in both actions. ... The possibility or actuality of two 12trials is of no importance.” Mt. McKinley Insurance Co. v. Corning, Inc., 33 A.D.3d 51, 58-59 (Ist Dep’t 2006). The Singapore Action, however, will not resolve Freeford’s claims against the Caimmwood Defendants, thereby establishing that this Court should not continue the stay of this action. CONCLUSION For the reasons set forth above, this Court should deny this motion by defendant Lane Pendleton to continue the stay of this action. Dated: New York, New York March 2, 2007 LeBOEUF, LAMB, GREENE & MacRAE LLP By: John G. Nicolich Jaime M. Jackson 125 West 55th Street New York, New York 10019 Telephone: (212) 424-8000 Facsimile: (212) 424-8500 Attorneys for Plaintiff Freeford Limited 13