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September 6, 2019 SINGAPORE
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TORONTO
BY ELECTRONIC MAIL
The Honorable Arthur F. Engoron
Justice
New York Supreme Court, New York County
60 Centre Street, Room 566
New York, NY 10007
RE: Blue Mountain Credit Alternatives Master Fund L.P. et
al. v. Greidinger, Index. No. 157480/2019, Mot. Seq.
#001.
Dear Justice Engoron:
We write on behalf of Respondent Israel Greidinger in the above-referenced
action and in response to the Court’s invitation to make an additional submission
regarding arguments made on September 3, 2019 in opposition to Petitioners’
Motion to Enforce Subpoena and in support of the Cross-Motion to Quash Subpoena.
As explained below, Petitioners are seeking to expand so-called “tag”
jurisdiction in a way that would violate international comity and have a significant,
negative impact on New York policy considerations.
The Honorable Arthur F. Engoron
September 6, 2019
Page 2
This case and subpoena have nothing to do with New York. The underlying
appraisal action is pending in Delaware. Mr. Greidinger is an Israeli citizen and is
not a party to the appraisal action. He is the Deputy CEO of Cineworld, a UK entity,
which is also a non-party to the appraisal action. The documents at issue reside
either in the UK or Israel. The Delaware Court has already denied Petitioners’
multiple attempts to obtain discovery from Cineworld and has advised Petitioners to
go through the Hague Evidence Convention to obtain Cineworld’s documents. See
Ex. G to Affidavit of Lauren N. Rosenello (Dkt. 34), tr. at 4:14-16 (“If petitioners
want additional documents from [non-party] Cineworld, they’ll have to do it through
the proper channels in the UK.”). The only reason that we are before this Court now
is because Mr. Greidinger voluntarily agreed to be deposed in New York for the
convenience of the Petitioners’ counsel.
As Your Honor noted, no good deed goes unpunished. However, there are
several reasons why exercising tag jurisdiction would be inappropriate here.
First, Petitioners are seeking to obtain Cineworld’s documents by subpoenaing one
of its executives. Courts have repeatedly held that tag jurisdiction does not apply to
corporations. See Martinez v. Aero Caribbean, 764 F.3d 1062, 1068 (9th Cir. 2014)
(finding that tag jurisdiction does not apply to corporations even where corporate
officer is tagged); see also Vanpoy Corp. S.R.L. v Soleil Chartered Bank and Soleil
Capital Corp., 2019 NY Slip Op 30556(U) (N.Y. Sup. Ct. Feb. 21, 2019) (same).
Petitioners contend that tag jurisdiction satisfies due process under Burnham v.
2
The Honorable Arthur F. Engoron
September 6, 2019
Page 3
Superior Court of Cal., 495 U.S. 604 (1990), a case involving an individual who was
served in the jurisdiction where the suit was pending. Since Burnham, however, the
Supreme Court has held that a foreign corporation may be subjected to jurisdiction in
a matter unconnected to its activity in the state only if its activities are “so
‘continuous and systematic’ as to render [it] essentially at home in the forum State.”
Daimler AG v. Bauman, 571 U.S. 117, 139 (2014) (quoting Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (alteration in original) (internal
quotation omitted)). There is no dispute that Cineworld is not subject to jurisdiction
under Daimler and Petitioners’ attempt to obtain Cineworld’s documents by
indirection would amount to an end run around Daimler. It bears emphasis that
Petitioners are not seeking Mr. Greidinger’s personal files. Rather, they are seeking
to force him to exercise his authority as an officer of Cineworld to turn over
Cineworld’s documents.
Second, in considering whether Mr. Greidinger was immune from service
when he was voluntarily attending his deposition, the Court should consider the
interests of comity.1 Mr. Greidinger was appearing voluntarily at a deposition in an
action pending in Delaware. If Mr. Greidinger had, instead, appeared in Delaware
1
Courts have recognized the role of comity in determining whether a party is immune from service.
See, e.g., DuPont v. Bronston, 46 A.D.2d 369, 372, 362 N.Y.S.2d 471 (NY App. Div. 1974),
(where subpoena was served on party while attending a proceeding in U.S. Tax Court, holding
that “comity suggests we should carefully avoid interference with a privilege of the Federal
courts”), overruled on other grounds by AABCO Sheet Metal Co. v. Lincoln Ctr. for Performing
Arts, Inc., 249 A.D.2d 39 (NY App. Div. 1998) .
3
The Honorable Arthur F. Engoron
September 6, 2019
Page 4
and Petitioners attempted to pull the same stunt of serving him with a subpoena, it
would have been unenforceable. See, e.g., Krapf v. Krapf, C.A. No. 6611-VCG, Tr.
at 17 (Del. Ch. Oct. 28, 2014) (TRANSCRIPT) (quashing a subpoena served on a
nonresident non-party while in Delaware). Attached hereto as Exhibit A is a true and
correct copy of the Krapf transcript.
Further, because Mr. Greidinger is an Israeli citizen, principals of
international comity should be considered in the immunity analysis.
The Restatement (Third) of the Foreign Relationship Law of the United
States (noted during the September 3 hearing) states that “[j]urisdiction based on
service of process on one only transitorily present in a state is no longer acceptable
under international law if that is the only basis for jurisdiction and the action in
question is unrelated to that state.” RESTATEMENT (THIRD) OF THE FOREIGN
RELATIONS LAW OF THE UNITED STATES, § 421 (1987), Reporter’s Notes at 309-10.2
Third, Petitioners cannot excuse their failure to follow the appropriate
procedures under the Hague Evidence Convention, despite being admonished to do
so by the Delaware Court. Petitioners claim that compliance with the Hague
Convention is optional. But the First Department has recognized that “[w]hen
2
See also Linda J. Silberman, Judicial Jurisdiction in the Conflict of Laws Course, 28 VAND. J.
TRANSNAT’L L. 389, 405 (1995) (noting that so-called “tag” jurisdiction is not a valid source of
jurisdiction over defendants from the European Union); Peter Hay, Transient Jurisdiction,
Especially over International Defendants: Critical Comments on Burnham v. Superior Court of
California, 1990 U. ILL. L. REV. 593, 600 (“To Europeans .... transient jurisdiction no longer
comports with contemporary standards of due process (or its equivalent) and therefore had to be
abandoned in English and Irish practice.”)
4
The Honorable Arthur F. Engoron
September 6, 2019
Page 5
discovery is sought from a nonparty in a foreign jurisdiction, application of the
Hague Convention, which encompasses principals of international comity, is
virtually compulsory.” Orlich v. Helm Bros., 160 A.D.2d 135, 143 (1990). The
Court must make a particular comity analysis to determine whether the Hague
Evidence Convention applies even if it determines it has jurisdiction over Mr.
Greidinger. Gap, Inc. v. Stone Int’l Trading, Inc., 1994 WL 38651, at *1 (S.D.N.Y.
Feb. 4, 1994) (stating “courts commonly look to the status of the person from whom
discovery is sought as one factor in determining whether to apply the provisions of
the treaty”). Petitioners have presented no compelling argument that international
law and the Hague Evidence Convention should be disregarded.
Fourth, granting the Petition and expanding tag jurisdiction in this situation
would have significant, negative policy implications for New York. There would be
a chilling effect on corporate travel to New York. Corporate executives will likely
avoid travel to New York if they could be tagged with a subpoena to produce
significant discovery (either personal or corporate) for any case, regardless of
whether they are a party to the action and where the action is pending.
Further, expanding tag jurisdiction to apply to nonparties regardless of where
the action is pending would increase the financial and administrative burdens on
New York courts. If New York determines that it can oversee discovery disputes for
non-party, nonresidents for actions pending in other jurisdictions, there will be an
influx of discovery disputes before New York courts and New York will be required
5
The Honorable Arthur F. Engoron
September 6, 2019
Page 6
to use resources to oversee disputes for which New York has no interest.3
Other states that have discussed this issue have reached a similar conclusion.4
See Phillips Petroleum Co. v. OKC Ltd. Partnership, 634 So.2d 1186, 1187 (La.
1994) (finding the Court had “no statutory or other authority to order a nonresident
corporation, not a party to the litigation, to appear and produce documents at a
deposition to be taken in Louisiana, even when the nonresident corporation is
otherwise subject to the personal jurisdiction of the court”); Syngenta Crop Prot.,
Inc. v. Monsanto Co., 908 So.2d 121, 129 (Miss. 2005) (finding the Court could not
“subpoena a nonresident nonparty to appear and/or produce in Mississippi
documents which are located outside the State of Mississippi, even if the nonresident
nonparty is subject in another context to the personal jurisdiction of the court”)
3
This is why New York courts “are not required to add to their financial and administrative burdens
by entertaining litigation which does not have any connection with this State.” Islamic Republic
of Iran v. Pahlavi, 62 N.Y.2d 474, 478 (N.Y. 1984). Much like courts have discretion to dismiss
(or transfer) a case on forum non conveniens grounds, this Court has discretion not to oversee
discovery in a matter that “does not have any connection with this State.”
4
It is appropriate in this circumstance for the Court to consider and give weight to the decisions of
Courts in other jurisdictions regarding a uniform law such as the UIDDA. The language of
CPLR § 3119(f) explicitly directs Courts to construe the UIDDA in such a way as to promote
uniformity across states that have enacted it.
CPLR § 3119(f); see also In Aerco Intern., Inc., 40
Misc. 3d 571, 575, 964 N.Y.S.2d 900, 904 (Sup. Ct. Westchester County 2013) (“[I]n applying
and constructing the Uniform Act, the court is directed to consider the need to promote
uniformity of the law among states that have enacted the statute.”)).This practice of promoting
uniformity when interpreting “uniform” laws has been a mainstay of New York law for over 100
years. See, e.g., In re Kolben’s Estate, 203 Misc. 1012, 1017, 120 N.Y.S.2d 812, 816 (Sur. Ct.
1953) (“The construction of a uniform statute … by the courts of other jurisdictions is entitled to
great weight in this state.”); Century Bank of City of New York v. Breitbart, 89 Misc. 308, 311-12,
151 N.Y.S. 588, 590 (City Ct. 1915) (“[D]ecisions of the courts of other states, interpreting
identical provisions of ‘uniform statutes,’ should be accepted by our trial courts with the same
authority as though rendered by our own tribunals.”).
6
The Honorable Arthur F. Engoron
September 6, 2019
Page 7
(emphasis added); Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 2015 WL 1726739, at
*3 (Va. Apr. 16, 2015) (“[E]nforcement of a subpoena seeking out-of-state discovery
is generally governed by the courts and the law of the state in which the witness
resides or where the documents are located.”); Coffman v. Virah Corp., No.
13C2623, 2015 WL 11582880, at *1 (Tenn. Cir. Ct. June 29, 2015) (denying motion
to compel compliance with a subpoena, and noting the distinction between subpoena
power over a nonparty and personal jurisdiction).
For all of these reasons, Respondent respectfully requests that the
Petition be denied and the Cross-Motion be granted. We are available at the call of
the Court should Your Honor have any questions.
Respectfully,
/s/ Christopher P. Malloy
Christopher P. Malloy
cc: Robert S. Saunders (by Electronic Mail)
Jenness E. Parker (by Electronic Mail)
Lauren N. Rosenello (by Electronic Mail)
Theodore Hawkins (by Electronic Mail)
Maya Ginsburg (by Electronic Mail)
Thomas Redburn, Jr. (by Electronic Mail)
7
856712-WILSR01A - MSW
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Case Number:
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Hearing Date:
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Dept:
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County of Los Angeles
DEPARTMENT 71
TENTATIVE RULING
MASSACHUSETTS EDUCATIONAL FINANCING AUTHORITY
,
vs.
ALEXANDER
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Case No.:
BC682984
Hearing Date:
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Plaintiff Massachusetts Educational Financing Authoritys
unopposed
motion to enforce the Settlement Agreement is granted.
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Plaintiff Massachusetts Education Financing Authority (MEFA) (Plaintiff) moves
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(Notice of Motion, pg. 1; C.C.P. §664.6.)
Background
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(Decl. of Rohan ¶2.)
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(Decl. of Rohan ¶3, Exh. A.)
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(
See
Decl. of Rohan ¶¶3-4, Exh. A at ¶10.)
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Motion to Enforce Settlement
Legal Standard
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(
Malouf Brothers v. Dixon
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Discussion
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(Decl. of
Rohan ¶2
, Exh. A.)
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Case Number:
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Hearing Date:
July 12, 2024
Dept:
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT
DIMERCO EXPRESS USA CORP.
,
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,
Defendant(s).
)
)
)
)
)
)
)
)
)
)
)
CASE NO.:
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[TENTATIVE] ORDER RE:
APPLICATION FOR DEFAULT JUDGMENT
Dept. 3
8:30 a.m.
July 12
, 2024
)
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Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
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2024CUEN023875 BENEFITS SYSTEMS INC vs GOLD COAST SECURITIES INC.
Jul 09, 2024 |
Jeffrey G. Bennett
|
Motion to Vacate Sister State Judgment or Alternatively, to Stay Enforcement of Judgment |
2024CUEN023875
SUPERIOR COURT OF CALIFORNIA
COUNTY OF VENTURA
Tentative Ruling
2024CUEN023875: BENEFITS SYSTEMS INC vs GOLD COAST SECURITIES INC.
07/09/2024 in Department 21
Motion to Vacate Sister State Judgment or Alternatively, to Stay Enforcement of Judgment
The morning calendar in courtroom 21 will normally begin between 8:30 and 8:45 a.m. Please
arrive at the courtroom no later than 8:30 a.m. The door will be opened before the calendar is
called.
The Court allows appearances by CourtCall but is not equipped for Zoom. If appearing by
CourtCall, call in no later than 8:15 a.m. If you intend to appear by CourtCall, you must make
arrangements with CourtCall by 4:00 p.m. the day before your scheduled hearing. Requests for
approval of a CourtCall appearance made on the morning of the hearing will not be granted. No
exceptions will be made.
With respect to the tentative ruling below, no notice of intent to appear is required. If you wish to
submit on the tentative ruling you can fax notice to Judge Riley's secretary, Ms. Sedillos at
805-289-8705, stating that you submit on the tentative. You may also email the Court at:
Courtroom21@ventura.courts.ca.gov with all counsel copied on the email. Do not call in lieu of
sending a fax or email. If you submit on the tentative without appearing and the opposing party
appears, the hearing will be conducted in your absence. If you are the moving party and do not
communicate to the Court that you submit on the tentative or you do not appear at the hearing,
the Court may deny your motion irrespective of the tentative.
Unless stated otherwise at the hearing, if a formal order is not signed at the hearing, the
prevailing party shall prepare a proposed order and comply with CRC 3.1312 subdivisions (a),
(b), (d) and (e). The signed order shall be served on all parties and a proof of service filed with
the court. A "notice of ruling" in lieu of this procedure is not authorized.
Tentative Ruling
The Court DENIES the request to vacate the Judgment because GCSI’s only argument in support
of its request to vacate the Judgment is based on §473.5, and because §473.5 does not apply to a
judgment entered on a sister-state judgment such as the Judgment entered by this Court on April
22, 2024.
The Court also DENIES GCSI’s request for a stay of enforcement of the Judgment.
Analysis
Defendant’s Request for an Order Vacating the Judgment
GCSI’s sole stated ground for vacating the Judgment is that GCSI lacked actual notice of the
Texas action in time to defend, and therefore it entitled to relief from the Judgment pursuant to
Code of Civil Procedure §473.5.
2024CUEN023875: BENEFITS SYSTEMS INC vs GOLD COAST SECURITIES INC.
However, it is well-established that the Court cannot grant relief from the Judgment pursuant to
§473.5, because §473.5 is not applicable to a judgment entered on a sister-state judgment:
“Judgment debtors contend the trial court erred in refusing to vacate the sister state
judgment pursuant to section 473.5. We disagree because section 473.5 is inapplicable to
a sister state judgment entered under the SSFMJA.1
‘When service of a summons has not resulted in actual notice to a party in time to defend
the action and a default or default judgment has been entered against him or her in the
action, he or she may serve and file a notice of motion to set aside the default or default
judgment and for leave to defend the action. The notice of motion shall be served and
filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after
entry of a default judgment against him or her; or (ii) 180 days after service on him or her
of a written notice that the default or default judgment has been entered.’ (§ 473.5, subd.
(a).)
“Judgment debtors contend their motion to vacate judgment was timely under section
473.5, subdivision (a) because it was made within 180 days after entry of the sister state
judgment. They contend the court should have vacated the sister state judgment under
section 473.5, subdivision (a) because their failure to offer a defense in the Indiana action
arose from the absence of service of process and their lack of actual notice. The fatal
fallacy of their position lies in their failure to recognize that section 473.5 is not
applicable to a judgment entered pursuant to the SSFMJA.
“In Fidelity Creditor Service, Inc. v. Browne (2001) 89 Cal.App.4th 195, 203 [106 Cal.
Rptr. 2d 854] the court explained, ‘Section 473.5 is addressed to motions to set aside a
default or default judgment … . Section 473.5 is a procedural remedy by which a default
or default judgment may be set aside …; and is inapplicable to a sister state judgment
entered pursuant to the SSFMJA because it is not a default or default judgment.”
(Conseco Marketing, LLC v. IFA & Ins. Services, Inc. (2013) 221 Cal.App.4th 831, 844.)
Defendant’s Request for a Stay of Enforcement of the Judgment
Code of Civil Procedure Section 1710.50(a) provides that:
“(a) The court shall grant a stay of enforcement where:
(1) An appeal from the sister state judgment is pending or may be taken in the state which
originally rendered the judgment. Under this paragraph, enforcement shall be stayed until
the proceedings on appeal have been concluded or the time for appeal has expired…[¶¶]
(5) Any other circumstance exists where the interests of justice require a stay of
enforcement.”
2024CUEN023875: BENEFITS SYSTEMS INC vs GOLD COAST SECURITIES INC.
With respect to a stay of enforcement under §1710.50(a)(1), GCSI does not submit any evidence
that an appeal is pending from the Texas judgment. Instead, GCSI’s Chief Executive Officer
Tae Ho merely states in his declaration that he intends to file a “Bill for Review.” (See Ho
Decl., ¶4.) However, GCSI fails to cite to any authority or submit any evidence indicating that
it is still able to file a timely appeal of the Texas judgment. And under Texas law, a Bill for
Review does not appear to constitute an appeal at all, but rather a separate equitable proceeding
to challenge a judgment that may no longer be appealed. (See In re Tex. Real Estate Comm'n
(Tex.Ct.App. 2018) 2018 Tex. App. LEXIS 672, at *6-7.) Section 1710.50(a)(1) only provides
for a stay of enforcement for appeals. Accordingly, GCSI fails to establish it is entitled to a stay
of enforcement under §1710.50(a)(1).
With respect to §1710.50(a)(5), GCSI contends that it would be in the “interests of justice” to
stay enforcement of the Judgment “due to the lack of notice resulting in…the denial of due
process by the default judgment….” GCSI’s argument regarding a denial of due process lacks
merit, as
“…[D]ue process of law does not require actual notice, only a method reasonably certain
to accomplish that end. [Citation.] ‘Mullane makes it clear that due process of law
does not require actual notice, but only a method reasonably certain to accomplish that
end. [Citations.] “If the form of substituted service is reasonably calculated to give an
interested party actual notice of the proceedings and an opportunity to be heard, the
traditional notions of fair play and substantial justice implicit in due process are
satisfied.”’ [Citation.]
(Rasooly v. City of Oakley (2018) 29 Cal.App.5th 348, 357.)
Here, there appear to have been reasonable attempts by the Texas Secretary of State to serve
GCSI with a Citation , which is apparently the Texas equivalent of a summons, and the
complaint in the Texas action. (See Decl. of Adraian Ciechanowicz, ¶¶4-8.) GCSI fails to
make any argument – much less submit any evidence – that these efforts were constitutionally
deficient. Accordingly, GCSI fails to show that it has been denied due process.
It also is unclear what staying enforcement of the Judgment for an indefinite period would
achieve, as GCSI fails to submit any evidence indicating that it may still timely appeal the Texas
judgment and – in the absence of such evidence – fails to submit any evidence that it will be able
to overturn the Texas judgment. In the absence of such evidence, a stay of enforcement of the
Judgment would not be in the interests of justice.
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S KADDEN , A RPS , S LATE , M EAGHER & F LOM LLP FOUR TIMES SQUARE FIRM/AFFILIATE OFFICES P.O. BOX 636 ----------- BOSTON NEW YORK 10036-6522 CHICAGO ________ HOUSTON LOS ANGELES TEL: (212) 735-3000 PALO ALTO FAX: (212) 735-2000 WASHINGTON, D.C. WILMINGTON www.skadden.com ----------- DIRECT DIAL BEIJING 212-735-3792 BRUSSELS DIRECT FAX FRANKFURT 917-777-3792 HONG KONG EMAIL ADDRESS LONDON MOSCOW CHRISTOPHER.MALLOY@SKADDEN.COM MUNICH PARIS SÃO PAULO SEOUL SHANGHAI September 6, 2019 SINGAPORE TOKYO TORONTO BY ELECTRONIC MAIL The Honorable Arthur F. Engoron Justice New York Supreme Court, New York County 60 Centre Street, Room 566 New York, NY 10007 RE: Blue Mountain Credit Alternatives Master Fund L.P. et al. v. Greidinger, Index. No. 157480/2019, Mot. Seq. #001. Dear Justice Engoron: We write on behalf of Respondent Israel Greidinger in the above-referenced action and in response to the Court’s invitation to make an additional submission regarding arguments made on September 3, 2019 in opposition to Petitioners’ Motion to Enforce Subpoena and in support of the Cross-Motion to Quash Subpoena. As explained below, Petitioners are seeking to expand so-called “tag” jurisdiction in a way that would violate international comity and have a significant, negative impact on New York policy considerations. The Honorable Arthur F. Engoron September 6, 2019 Page 2 This case and subpoena have nothing to do with New York. The underlying appraisal action is pending in Delaware. Mr. Greidinger is an Israeli citizen and is not a party to the appraisal action. He is the Deputy CEO of Cineworld, a UK entity, which is also a non-party to the appraisal action. The documents at issue reside either in the UK or Israel. The Delaware Court has already denied Petitioners’ multiple attempts to obtain discovery from Cineworld and has advised Petitioners to go through the Hague Evidence Convention to obtain Cineworld’s documents. See Ex. G to Affidavit of Lauren N. Rosenello (Dkt. 34), tr. at 4:14-16 (“If petitioners want additional documents from [non-party] Cineworld, they’ll have to do it through the proper channels in the UK.”). The only reason that we are before this Court now is because Mr. Greidinger voluntarily agreed to be deposed in New York for the convenience of the Petitioners’ counsel. As Your Honor noted, no good deed goes unpunished. However, there are several reasons why exercising tag jurisdiction would be inappropriate here. First, Petitioners are seeking to obtain Cineworld’s documents by subpoenaing one of its executives. Courts have repeatedly held that tag jurisdiction does not apply to corporations. See Martinez v. Aero Caribbean, 764 F.3d 1062, 1068 (9th Cir. 2014) (finding that tag jurisdiction does not apply to corporations even where corporate officer is tagged); see also Vanpoy Corp. S.R.L. v Soleil Chartered Bank and Soleil Capital Corp., 2019 NY Slip Op 30556(U) (N.Y. Sup. Ct. Feb. 21, 2019) (same). Petitioners contend that tag jurisdiction satisfies due process under Burnham v. 2 The Honorable Arthur F. Engoron September 6, 2019 Page 3 Superior Court of Cal., 495 U.S. 604 (1990), a case involving an individual who was served in the jurisdiction where the suit was pending. Since Burnham, however, the Supreme Court has held that a foreign corporation may be subjected to jurisdiction in a matter unconnected to its activity in the state only if its activities are “so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” Daimler AG v. Bauman, 571 U.S. 117, 139 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (alteration in original) (internal quotation omitted)). There is no dispute that Cineworld is not subject to jurisdiction under Daimler and Petitioners’ attempt to obtain Cineworld’s documents by indirection would amount to an end run around Daimler. It bears emphasis that Petitioners are not seeking Mr. Greidinger’s personal files. Rather, they are seeking to force him to exercise his authority as an officer of Cineworld to turn over Cineworld’s documents. Second, in considering whether Mr. Greidinger was immune from service when he was voluntarily attending his deposition, the Court should consider the interests of comity.1 Mr. Greidinger was appearing voluntarily at a deposition in an action pending in Delaware. If Mr. Greidinger had, instead, appeared in Delaware 1 Courts have recognized the role of comity in determining whether a party is immune from service. See, e.g., DuPont v. Bronston, 46 A.D.2d 369, 372, 362 N.Y.S.2d 471 (NY App. Div. 1974), (where subpoena was served on party while attending a proceeding in U.S. Tax Court, holding that “comity suggests we should carefully avoid interference with a privilege of the Federal courts”), overruled on other grounds by AABCO Sheet Metal Co. v. Lincoln Ctr. for Performing Arts, Inc., 249 A.D.2d 39 (NY App. Div. 1998) . 3 The Honorable Arthur F. Engoron September 6, 2019 Page 4 and Petitioners attempted to pull the same stunt of serving him with a subpoena, it would have been unenforceable. See, e.g., Krapf v. Krapf, C.A. No. 6611-VCG, Tr. at 17 (Del. Ch. Oct. 28, 2014) (TRANSCRIPT) (quashing a subpoena served on a nonresident non-party while in Delaware). Attached hereto as Exhibit A is a true and correct copy of the Krapf transcript. Further, because Mr. Greidinger is an Israeli citizen, principals of international comity should be considered in the immunity analysis. The Restatement (Third) of the Foreign Relationship Law of the United States (noted during the September 3 hearing) states that “[j]urisdiction based on service of process on one only transitorily present in a state is no longer acceptable under international law if that is the only basis for jurisdiction and the action in question is unrelated to that state.” RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, § 421 (1987), Reporter’s Notes at 309-10.2 Third, Petitioners cannot excuse their failure to follow the appropriate procedures under the Hague Evidence Convention, despite being admonished to do so by the Delaware Court. Petitioners claim that compliance with the Hague Convention is optional. But the First Department has recognized that “[w]hen 2 See also Linda J. Silberman, Judicial Jurisdiction in the Conflict of Laws Course, 28 VAND. J. TRANSNAT’L L. 389, 405 (1995) (noting that so-called “tag” jurisdiction is not a valid source of jurisdiction over defendants from the European Union); Peter Hay, Transient Jurisdiction, Especially over International Defendants: Critical Comments on Burnham v. Superior Court of California, 1990 U. ILL. L. REV. 593, 600 (“To Europeans .... transient jurisdiction no longer comports with contemporary standards of due process (or its equivalent) and therefore had to be abandoned in English and Irish practice.”) 4 The Honorable Arthur F. Engoron September 6, 2019 Page 5 discovery is sought from a nonparty in a foreign jurisdiction, application of the Hague Convention, which encompasses principals of international comity, is virtually compulsory.” Orlich v. Helm Bros., 160 A.D.2d 135, 143 (1990). The Court must make a particular comity analysis to determine whether the Hague Evidence Convention applies even if it determines it has jurisdiction over Mr. Greidinger. Gap, Inc. v. Stone Int’l Trading, Inc., 1994 WL 38651, at *1 (S.D.N.Y. Feb. 4, 1994) (stating “courts commonly look to the status of the person from whom discovery is sought as one factor in determining whether to apply the provisions of the treaty”). Petitioners have presented no compelling argument that international law and the Hague Evidence Convention should be disregarded. Fourth, granting the Petition and expanding tag jurisdiction in this situation would have significant, negative policy implications for New York. There would be a chilling effect on corporate travel to New York. Corporate executives will likely avoid travel to New York if they could be tagged with a subpoena to produce significant discovery (either personal or corporate) for any case, regardless of whether they are a party to the action and where the action is pending. Further, expanding tag jurisdiction to apply to nonparties regardless of where the action is pending would increase the financial and administrative burdens on New York courts. If New York determines that it can oversee discovery disputes for non-party, nonresidents for actions pending in other jurisdictions, there will be an influx of discovery disputes before New York courts and New York will be required 5 The Honorable Arthur F. Engoron September 6, 2019 Page 6 to use resources to oversee disputes for which New York has no interest.3 Other states that have discussed this issue have reached a similar conclusion.4 See Phillips Petroleum Co. v. OKC Ltd. Partnership, 634 So.2d 1186, 1187 (La. 1994) (finding the Court had “no statutory or other authority to order a nonresident corporation, not a party to the litigation, to appear and produce documents at a deposition to be taken in Louisiana, even when the nonresident corporation is otherwise subject to the personal jurisdiction of the court”); Syngenta Crop Prot., Inc. v. Monsanto Co., 908 So.2d 121, 129 (Miss. 2005) (finding the Court could not “subpoena a nonresident nonparty to appear and/or produce in Mississippi documents which are located outside the State of Mississippi, even if the nonresident nonparty is subject in another context to the personal jurisdiction of the court”) 3 This is why New York courts “are not required to add to their financial and administrative burdens by entertaining litigation which does not have any connection with this State.” Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478 (N.Y. 1984). Much like courts have discretion to dismiss (or transfer) a case on forum non conveniens grounds, this Court has discretion not to oversee discovery in a matter that “does not have any connection with this State.” 4 It is appropriate in this circumstance for the Court to consider and give weight to the decisions of Courts in other jurisdictions regarding a uniform law such as the UIDDA. The language of CPLR § 3119(f) explicitly directs Courts to construe the UIDDA in such a way as to promote uniformity across states that have enacted it. CPLR § 3119(f); see also In Aerco Intern., Inc., 40 Misc. 3d 571, 575, 964 N.Y.S.2d 900, 904 (Sup. Ct. Westchester County 2013) (“[I]n applying and constructing the Uniform Act, the court is directed to consider the need to promote uniformity of the law among states that have enacted the statute.”)).This practice of promoting uniformity when interpreting “uniform” laws has been a mainstay of New York law for over 100 years. See, e.g., In re Kolben’s Estate, 203 Misc. 1012, 1017, 120 N.Y.S.2d 812, 816 (Sur. Ct. 1953) (“The construction of a uniform statute … by the courts of other jurisdictions is entitled to great weight in this state.”); Century Bank of City of New York v. Breitbart, 89 Misc. 308, 311-12, 151 N.Y.S. 588, 590 (City Ct. 1915) (“[D]ecisions of the courts of other states, interpreting identical provisions of ‘uniform statutes,’ should be accepted by our trial courts with the same authority as though rendered by our own tribunals.”). 6 The Honorable Arthur F. Engoron September 6, 2019 Page 7 (emphasis added); Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 2015 WL 1726739, at *3 (Va. Apr. 16, 2015) (“[E]nforcement of a subpoena seeking out-of-state discovery is generally governed by the courts and the law of the state in which the witness resides or where the documents are located.”); Coffman v. Virah Corp., No. 13C2623, 2015 WL 11582880, at *1 (Tenn. Cir. Ct. June 29, 2015) (denying motion to compel compliance with a subpoena, and noting the distinction between subpoena power over a nonparty and personal jurisdiction). For all of these reasons, Respondent respectfully requests that the Petition be denied and the Cross-Motion be granted. We are available at the call of the Court should Your Honor have any questions. Respectfully, /s/ Christopher P. Malloy Christopher P. Malloy cc: Robert S. Saunders (by Electronic Mail) Jenness E. Parker (by Electronic Mail) Lauren N. Rosenello (by Electronic Mail) Theodore Hawkins (by Electronic Mail) Maya Ginsburg (by Electronic Mail) Thomas Redburn, Jr. (by Electronic Mail) 7 856712-WILSR01A - MSW