076 - 2021.04.16 - Brief For Defendants-Appellees

Case 20-3406, Document 76, 04/16/2021, 3079921, Page1 of 73
IN THE
United States Court of Appeals
for the Second Circuit
___________________
KINGSTOWN CAPITAL MANAGEMENT, L.P, KINGSTOWN PARTNERS MASTERS LTD,
KINGSTOWN PARTNERS II, L.P., KTOWN, LP, KINGSTOWN CAPITAL PARTNERS LLC,
INVESTHOLD LTD, VERALI LIMITED,
Plaintiffs-Appellants,
V.
RADOVAN VITEK, CPI PROPERTY GROUP, S.A., J&T BANKA, A.S., POSTOVA
BANKA, A.S., JAN GERNER, MILADA MALA, JEAN-FRANCOIS OTT, LUMIR
SAFRANEK, PAVEL SPANKO, J&T FINANCE GROUP SE, EGNARO INVESTMENTS
LIMITED, LCE COMPANY LIMITED, JULIUS STRAPEK, LEVOS LIMITED, ROTHSCHILD
& CO., TOMAS DAVID, RENE FOLTAN, MARTIN NEMECEK, PETR SEKANINA,
Defendants-Appellees.
__________________________
Appeal from the United States District Court for the

Southern District of New York
__________________________
BRIEF FOR DEFENDANTS-APPELLEES

__________________________
MITCHELL P. REICH MICHAEL C. HEFTER

HOGAN LOVELLS US LLP SETH M. COHEN
555 Thirteenth St., N.W. ANDREW M. HARRIS
Washington, DC 20004 HOGAN LOVELLS US LLP
(202) 637-5800 390 Madison Avenue
New York, NY 10017
(212) 918-3000
Attorneys for Defendants-Appellees Radovan Vitek,
CPI Property Group, S.A., Milada Mala, and Martin Němeček
(Additional counsel listed on inside cover)

JACK A. GORDON TIMOTHY G. CAMERON

JOSHUA B. KATZ JOHN D. BURETTA
KENT, BEATTY & GORDON, LLP CRAVATH, SWAINE & MOORE LLP
Eleven Times Square 825 Eighth Avenue
New York, NY 10036 New York, NY 10019
(212) 421-4300 (212) 474-1000
Attorneys for Defendant-Appellee Pavel Attorneys for Defendant-Appellee
Spanko Rothschild & Co
SCOTT M. KESSLER ANDREW H. SCHAPIRO

AKERMAN LLP QUINN EMANUEL URQUHART &
1251 Avenue of the Americas, 37th SULLIVAN, LLP
Floor 51 Madison Avenue, Floor 22
(212) 880-3800 (212) 849-7000
Attorney for Defendant-Appellee Rene Attorney for Defendant-Appellee Jean-
Foltan Francois Ott
CARL W. OBERDIER DAVID W. RIVKIN

KELLEN G. RESSMEYER MAEVE O’CONNOR
OBERDIER RESSMEYER LLP DEBEVOISE & PLIMPTON LLP
665 Third Avenue, Floor 28 919 Third Avenue
(212) 659-5141 (212) 909-6000
Attorneys for Defendants-Appellees Attorneys for Defendants-Appellees
Tomáš David and Petr Sekanina J&T FINANCE GROUP SE, J&T
BANKA, a.s., and Postova banka, a.s.
BLAINE BORTNICK, ESQ.
JAMES W. HALTER, ESQ. STAN CHELNEY
RASCO KLOCK PEREZ & NIETO, LLC CHELNEY LAW GROUP PLLC
555 Fifth Avenue 28 Liberty Street, 6th Floor
17th Floor New York, NY 10005
New York, NY 10017 (212) 653-0022
(646) 970-4770 Attorney for Defendant-Appellee Julius
Attorneys for Defendant-Appellee Jan Strapek
Gerner
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, counsel
for Defendants-Appellees state as follows:
CPI Property Group, S.A. (“CPIPG”) is a Luxembourg joint stock company,
the shares of which are listed on the market of the Frankfurt Stock Exchange. CPIPG
has no parent corporation, and no publicly held company has an ownership interest
of 10% or more in CPIPG. CPI FIM SA is a subsidiary of CPIPG and its shares are
listed on the regulated markets of the Luxembourg Stock Exchange and the Warsaw
Stock Exchange.
J&T FINANCE GROUP SE (“J&T Finance”) does not have a parent
corporation, and no publicly held company owns 10% or more of J&T Finance’s
stock. J&T Finance is the parent corporation of both J&T BANKA, a.s. (“J&T
Banka”) and Postova banka, a.s. (“Postova”), and no publicly held company owns
10% or more of J&T Banka’s or Postova’s stock.
Rothschild & Co SCA has 35% of its share capital owned by Rothschild &
Concordia SAS. Rothschild & Concordia SAS is not publicly held, and owns the
largest part of Rothschild & Co SCA’s share capital. No publicly held corporation
owns more than 10% of Rothschild & Co SCA’s share capital.
No other Defendant-Appellee is a nongovernmental corporate party.
i
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENT ..........................................................i
TABLE OF AUTHORITIES ....................................................................................iv
INTRODUCTION ..................................................................................................... 1
STATEMENT OF THE CASE .................................................................................. 3
A. The Kingstown Plaintiffs ................................................................. 3
B. The Investhold Plaintiffs .................................................................. 5
C. The Luxembourg Action .................................................................. 6
D. Proceedings Below ........................................................................... 7
E. The District Court’s Opinion ........................................................... 9
SUMMARY OF ARGUMENT ............................................................................... 11
ARGUMENT ........................................................................................................... 14
I. THE DISTRICT COURT DID NOT ABUSE ITS

DISCRETION BY DISMISSING THE CASE FOR FORUM
NON CONVENIENS ................................................................................. 14
A. The District Court Did Not Abuse Its Discretion By

Giving Plaintiffs’ Choice Of Forum Diminished
Deference ....................................................................................... 15
B. The District Court Did Not Abuse Its Discretion By

Concluding That Luxembourg Is An Adequate
Alternative Forum .......................................................................... 21
1. Luxembourg Permits Litigation of the Subject

Matter of the Dispute ........................................................... 22
2. Defendants Are Amenable to Process in

Luxembourg ......................................................................... 24
ii
TABLE OF CONTENTS—Continued
Page(s)
C. The District Court Did Not Abuse Its Discretion In

Weighing The Public And Private Interest Factors ....................... 32
1. The Private Interest Factors Weigh Heavily in

Favor of Luxembourg .......................................................... 33
2. The Public Interest Factors Weigh Heavily In

Favor of Luxembourg .......................................................... 34
II. THE DISTRICT COURT DID NOT ABUSE ITS

DISCRETION BY DISMISSING KINGSTOWN’S CLAIMS
FOR REASONS OF INTERNATIONAL COMITY............................... 36
A. “Parallel Proceedings” Are Pending In Luxembourg .................... 38
B. The District Court Did Not Abuse Its Discretion In

Finding That “Exceptional Circumstances” Warrant
Abstention ...................................................................................... 43
III. THE DISTRICT COURT DID NOT ABUSE ITS

DISCRETION IN THE PROCEDURES IT APPLIED ........................... 49
A. The District Court Did Not Abuse Its Discretion By

Considering Professor Prüm’s Declaration .................................... 49
B. The District Court Did Not Abuse Its Discretion By

Declining To Conduct A Foreign-Law Hearing ............................ 51
C. The District Court Did Not Abuse Its Discretion By

Declining to Order Discovery ........................................................ 53
D. The Case Was Properly Dismissed Without Prejudice .................. 55
CONCLUSION ........................................................................................................ 57
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
iii
TABLE OF AUTHORITIES
CASES:
AAR Int’l, Inc. v. Nimelias Enters., S.A.,

250 F.3d 510 (7th Cir. 2001) .............................................................................. 43
Advantage Int’l Mgmt. Inc. v. Martinez,

No. 93 CIV. 6227 (MBM), 1994 WL 482114
(S.D.N.Y. Sept. 7, 1994) ..................................................................................... 43
Allstate Life Ins. Co. v. Linter Grp. Ltd.,

994 F.2d 996 (2d Cir. 1993) ...................................................................37, 38, 44
Alpert v. Starwood Hotels & Resorts Worldwide, Inc.,

799 F. App’x 89 (2d Cir. 2020) .......................................................................... 52
Bayway Refin. Co. v. Oxygenated Mtkg. & Trading A.G.,

215 F.3d 219 (2d Cir. 2000) .........................................................................49, 50
Bigio v. Coca-Cola Co.,

239 F.3d 440 (2d Cir. 2000) .............................................................37, 38, 46, 48
Bigio v. Coca-Cola Co.,

448 F.3d 176 (2d Cir. 2006) ............................................................................... 17
Bonnie & Co. Fashions v. Bankers Tr. Co.,

945 F. Supp. 693 (S.D.N.Y. 1996) ..................................................................... 51
Bugliotti v. Republic of Argentina,

No. 17 Civ. 9934 (LAP), 2019 WL 586091
(S.D.N.Y. Jan. 15, 2019)..................................................................................... 48
Bugliotti v. Republic of Argentina,

952 F.3d 410 (2d Cir. 2020) .............................................................37, 48, 52, 53
Cap. Currency Exch., N.V. v. Nat’l Westminster Bank PLC,

155 F.3d 603 (2d Cir. 1998) ............................................................................... 14
Carey v. Bayerische Hypo-Und Vereinsbank AG,

370 F.3d 234 (2d Cir. 2004) .........................................................................17, 18
iv
TABLE OF AUTHORITIES—Continued
Page(s)
Castillo v. Shipping Corp. of India,

606 F. Supp. 497 (S.D.N.Y. 1985) ..................................................................... 30
CF 135 Flat LLC v. Triadou SPY S.A.,

No. 15-CV-5345 (AJN), 2016 WL 5945933
(S.D.N.Y. June 21, 2016)..............................................................................27, 28
Cifarelli v. Vill. of Babylon,

93 F.3d 47 (2d Cir. 1996) .............................................................................50, 51
Colorado River Water Conservation Dist. v. United States,

424 U.S. 800 (1976) ............................................................................................ 37
Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster

NV,
569 F.3d 189 (4th Cir. 2009) .............................................................................. 30
Curtis v. Beatrice Foods Co.,

481 F. Supp. 1275 (S.D.N.Y.), aff’d, 633 F.2d 203 (2d Cir. 1980)
(table) .................................................................................................................. 53
Dabbous v. American Express Co.,

No. 06 Civ. 11345(DAB), 2009 WL 1403930
(S.D.N.Y. May 8, 2009)...................................................................................... 27
Dahl v. United Techs. Corp.,

632 F.2d 1027 (3d Cir. 1980) ............................................................................. 27
De Cisneros v. Younger,
871 F.2d 305 (2d Cir. 1989) ............................................................................... 38
Denny v. Barber,
576 F.2d 465 (2d Cir. 1978) ............................................................................... 56
DiRienzo v. Philip Servs. Corp.,

294 F.3d 21 (2d Cir. 2002) .....................................................................16, 19, 35
Erausquin v. Notz, Stucki Mgmt. (Bermuda) Ltd.,

806 F. Supp. 2d 712 (S.D.N.Y. 2011) ..........................................................28, 31
v
Page(s)
Estate of Thomson ex rel. Estate of Rakestraw v. Toyota Motor Corp.

Worldwide,
545 F.3d 357 (6th Cir. 2008) .............................................................................. 27
Euromepa S.A. v. R. Esmerian, Inc.,

154 F.3d 24 (2d Cir. 1998) ................................................................................. 53
Finanz AG Zurich v. Banco Economico S.A.,

192 F.3d 240 (2d Cir. 1999) ............................................................................... 38
Finova Cap. Corp. v. Ryan Helicopters U.S.A., Inc.,

180 F.3d 896 (7th Cir. 1999) ........................................................................38, 43
Frontera Res. Azerbaijan Corp. v. State Oil Co. of Azerbaijan

Republic,
582 F.3d 393 (2d Cir. 2009) .........................................................................53, 54
Georgia Advoc. Off., Inc. v. Camp,

172 F.3d 1294 (11th Cir. 1999) .......................................................................... 55
Gilstrap v. Radianz Ltd.,

233 F. App’x 83 (2d Cir. 2007) .......................................................................... 33
Gross v. British Broad. Corp.,

386 F. 3d 224 (2d Cir. 2004) .............................................................................. 36
Gulf Oil Corp. v. Gilbert,

330 U.S. 501 (1947) ............................................................................................ 14
Hilton v. Guyot,
159 U.S. 113 (1895) ............................................................................................ 37
Holcombe v. Ingredients Sols., Inc.,

797 F. App’x 630 (2d Cir. 2020) ....................................................................... 55
Ingersoll Milling Mach. Co. v. Granger,

833 F.2d 680 (7th Cir. 1987) .............................................................................. 46
In re Alcon S’holder Litig.,

719 F. Supp. 2d 263 (S.D.N.Y. 2010) ..........................................................29, 31
vi
Page(s)
In re Am. Express Co. S’holder Litig.,

39 F.3d 395 (2d Cir. 1994) ................................................................................. 56
In re Banco Santander Sec.-Optimal Litig.,

732 F. Supp. 2d 1305 (S.D. Fla. 2010) ............................................................... 28
In re Bridgestone/Firestone, Inc.,
420 F.3d 702 (7th Cir. 2005) .............................................................................. 30
In re Buckskin Realty, Inc.,

No. 19-3828-bk, 2021 WL 1081480 (2d Cir. Mar. 22, 2021) ......................55, 56
In re Herald,
540 F. App’x 19 (2d Cir. 2013) ....................................................................21, 23
In re Lyondell Chem. Co.,

543 B.R. 428 (Bankr. S.D.N.Y. 2016) ................................................................ 23
In re Union Carbide Corp. Gas Plant Disaster,

809 F.2d 195 (2d Cir. 1987) ............................................................................... 28
Iragorri v. United Techs. Corp.,

274 F.3d 65 (2d Cir. 2001) (en banc) ..........................................................passim
Jota v. Texaco Inc.,

157 F.3d 153 (2d Cir. 1998) ............................................................................... 28
JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V.,

412 F.3d 418 (2d Cir. 2005) .........................................................................36, 37
Koster v. (Am.) Lumbermens Mut. Cas. Co.,

330 U.S. 518 (1947) ............................................................................................ 16
Krondes v. Nationstar Mortg., LLC,

789 F. App’x 913 (2d Cir. 2020) ........................................................................ 41
Leopard Marine & Trading, Ltd. v. Easy Street, Ltd.,

No. 15-cv-3064, 2015 WL 4940109 (S.D.N.Y. Aug. 6, 2015) ..............47, 48, 49
Leopard Marine & Trading, Ltd. v. Easy Street Ltd.,

896 F.3d 174 (2d Cir. 2018) ...................................................................43, 44, 49
vii
Page(s)
Litton Indus. v. Lehman Bros. Kuhn Loeb Inc.,

767 F. Supp. 1220 (S.D.N.Y. 1991) ................................................................... 50
Madanes v. Madanes,
981 F. Supp. 241 (S.D.N.Y. 1997) ..................................................................... 29
Malin v. XL Cap., Ltd.,

312 F. App’x 400 (2d Cir. 2009) ........................................................................ 56
Martinez v. Bloomberg LP,

740 F.3d 211 (2d Cir. 2014) ............................................................................... 54
MBI Grp., Inc. v. Crédit Foncier du Cameroun,

616 F.3d 568 (D.C. Cir. 2010) ............................................................................ 30
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,

460 U.S. 1 (1983) ................................................................................................ 47
Norex Petroleum Ltd. v. Access Indus., Inc.,

416 F.3d 146 (2d Cir. 2005) ........................................................................passim
Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co.,

484 U.S. 97 (1987) .............................................................................................. 27
Optical Commc’ns Grp., Inc. v. M/V Ambassador,

558 F. App’x 94 (2d Cir. 2014) .......................................................................... 52
Overseas Media, Inc. v. Skvortsov,

441 F. Supp. 2d 610 (S.D.N.Y. 2006), aff’d, 277 F. App’x 92
(2d Cir. 2008) ..................................................................................................... 27
Overseas Nat’l Airways, Inc. v. Cargolux Airlines Int’l, S.A.,

712 F.2d 11 (2d Cir. 1983) ...........................................................................21, 22
Palacios v. Coca-Cola Co.,

499 F. App’x 54 (2d Cir. 2012) ..............................................................30, 31, 32
Peregrine Myanmar Ltd. v. Segal,

89 F.3d 41 (2d Cir. 1996) .......................................................................25, 27, 33
viii
Page(s)
Piper Aircraft Co. v. Reyno,

454 U.S. 235 (1981) ............................................................................................ 54
Pollux Holding Ltd. v. Chase Manhattan Bank,

329 F.3d 64 (2d Cir. 2003) ..........................................................................passim
PT United Can Co. v. Crown Cork & Seal Co.,

138 F.3d 65 (2d Cir. 1998) .....................................................................22, 24, 26
Republic of Panama v. BCCI Holdings (Luxembourg) S.A.,

119 F.3d 935 (11th Cir. 1997) ............................................................................ 23
RIGroup LLC v. Trefonisco Mgmt. Ltd.,

949 F. Supp. 2d 546 (S.D.N.Y. 2013), aff’d, 559 F. App’x 58
(2d Cir. 2014) ...................................................................................................... 18
Rio Tinto PLC v. Vale S.A.,

No. 14 Civ. 3042(RMB)(AJP), 2014 WL 7191250
(S.D.N.Y. Dec. 17, 2014) ................................................................................... 28
R. Maganlal & Co. v. M.G. Chem. Co.,

942 F.2d 164 (2d Cir. 1991) ............................................................................... 25
Royal & Sun All. Ins. Co. of Canada v. Century Int’l Arms, Inc.,
466 F.3d 88 (2d Cir. 2006) ..........................................................................passim
Ruggiero v. Warner-Lambert Co.,

424 F.3d 249 (2d Cir. 2005) ............................................................................... 50
Schertenleib v. Traum,
589 F.2d 1156 (2d Cir. 1978) ............................................................................. 28
Schneider Nat’l Carriers, Inc. v. Carr,

903 F.2d 1154 (7th Cir. 1990) ................................................................38, 39, 40
Seales v. Panamanian Aviation Co.,

356 F. App’x 461 (2d Cir. 2009) ....................................................................... 27
Semmes Motors, Inc. v. Ford Motor Co.,

429 F.2d 1197 (2d Cir. 1970) ............................................................................. 44
ix
Page(s)
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp.,

549 U.S. 422 (2007) .............................................................................................. 9
Smith v. Guilford Bd. of Educ.,

226 F. App’x 58 (2d Cir. 2007) .......................................................................... 52
Stern v. Gen. Elec. Co.,

924 F.2d 472 (2d Cir. 1991) ............................................................................... 55
Tarazi v. Truehope Inc.,

958 F. Supp. 2d 428 (S.D.N.Y. 2013) ................................................................ 40
Transunion Corp. v. PepsiCo, Inc.,

811 F.2d 127 (2d Cir. 1987) .........................................................................22, 54
Tuazon v. R.J. Reynolds Tobacco Co.,

433 F.3d 1163 (9th Cir. 2006) ............................................................................ 28
Türedi v. Coca-Cola Co.,

343 F. App’x 623 (2d Cir. 2009) ........................................................................ 24
Tyco Fire & Sec., LLC v. Alcocer,

218 F. App’x 860 (11th Cir. 2007) ..................................................................... 27
United States v. Botti,

711 F.3d 299 (2d Cir. 2013) .........................................................................29, 52
United States v. Maynard,

117 F. App’x 28 (10th Cir. 2004) .................................................................52, 53
Verret v. Elliot Equip. Corp.,

734 F.2d 235 (5th Cir. 1984) .............................................................................. 55
Vill. of Westfield v. Welch’s,

170 F.3d 116 (2d Cir. 1999) ............................................................................... 46
Weiss v. La Suisse,
313 F. Supp. 2d 241 (S.D.N.Y. 2004) ................................................................ 52
Wenzel v. Marriott Int’l, Inc.,

629 F. App’x 122 (2d Cir. 2015) ..................................................................18, 26
x
Page(s)
Yáñez Osuna v. Citigroup Inc.,

820 F. App’x 38 (2d Cir. 2020) .......................................................................... 33
RULES:
Fed. R. Civ. P. 44.1 ......................................................................................50, 52, 53
S.D.N.Y. Local Civil Rule 6.1(a)............................................................................. 50
OTHER AUTHORITY:
14D Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure (Jurisdiction) § 3828.3 (4th ed. Oct. 2020 Update) .....................25, 26
xi
IN THE
United States Court of Appeals
for the Second Circuit
___________________
BRIEF FOR DEFENDANTS-APPELLEES

____________________
INTRODUCTION
Several years ago, Plaintiffs chose to invest in a Luxembourg company that
owned real estate in Central and Eastern Europe. Plaintiffs claim that a Czech
individual subsequently took over the Luxembourg company—with the aid of
several Slovak, French, and Czech individuals and entities—and sold its assets at
below market value to straw purchasers and shell companies throughout Europe.
When Plaintiffs’ investments allegedly declined in value as a result, several
Plaintiffs sued in Luxembourg, under European law, to recover for the diminution
in value of their European shares.
Evidently dissatisfied with their prospects in Luxembourg, Plaintiffs brought
their dispute to the United States and asked the District Court to resolve it. The
District Court rightly declined that invitation. First, under the doctrine of forum non
conveniens, it found that the proper forum for resolving this case is Luxembourg,
where the relevant events occurred, the relevant evidence can easily be obtained and
Defendants are subject to the courts’ jurisdiction. Second, under the doctrine of
international comity abstention, the District Court held that it should defer to the
1
parallel proceeding that Plaintiffs themselves filed in Luxembourg, rather than
involve the U.S. courts in this wholly European dispute.
Plaintiffs fail to demonstrate that those conclusions were an abuse of
discretion. The District Court acted well within its considerable discretion in
concluding that this case—which arises out of business activities Plaintiffs
themselves initiated in Europe, concerns events occurring almost entirely in Europe,
and is the subject of a pending European proceeding—should be resolved in Europe.
Plaintiffs do not identify any respect in which the District Court misapplied the
governing legal standards. Instead, they invite this Court to reweigh factors the
District Court properly addressed, and to impose novel restrictions that this Court’s
precedents foreclose.
More troublingly, Plaintiffs rest their case on a number of significant factual
errors and omissions. Plaintiffs repeatedly claim that their amended complaint is
meaningfully distinct from the Luxembourg case because it relies on allegations that
“postdat[e] the Luxembourg Lawsuit’s filing” in 2015. Br. 47; see Br. 16, 31-32.
Remarkably, Plaintiffs neglect to mention that, just months before they filed this
case, they submitted a filing in Luxembourg that updated their suit to reflect
information they purportedly learned in the intervening years. Plaintiffs also assert
that they were “never given the opportunity” to respond to Defendants’ foreign-law
expert. Br. 53. That is simply false. After Defendants filed their foreign-law
2
declaration, Plaintiffs filed a brief and a declaration that directly responded to
Defendants’ expert.
The District Court did not abuse its discretion. And the lengths to which
Plaintiffs go to gin up some error by the District Court only confirm that its opinion
is beyond serious reproach. The judgment should be affirmed.
STATEMENT OF THE CASE
A. The Kingstown Plaintiffs
Kingstown Capital Management, L.P. and its four affiliates (collectively,
“Kingstown”) are investment firms organized and incorporated in Delaware and the
Cayman Islands that claim New York as their principal place of business. JA 368-
370; SPA 4.1 All of the Kingstown entities are under shared control, and collectively
claim to manage over $1.4 billion in assets. JA 368-370.
In 2011, Kingstown identified ORCO Property Group, S.A. (“ORCO”), a
Luxembourg real-estate development company undergoing a foreign bankruptcy
proceeding, “as a promising target for investment.” SPA 5; JA 382. In September
2012, Kingstown bought ORCO bonds, denominated in Euros and sold on a
European stock exchange. JA 125, 128, 383; SPA 5. Those bonds were later
converted into equity. JA 384; SPA 5.
1
The other Kingstown affiliates are Kingstown Partners Master Ltd., Kingstown
Partners II, L.P., Ktown, LP, and Kingstown Capital Partners LLC. JA 368-370.
3
Radovan Vitek, a Czech real-estate developer, began acquiring stock in
ORCO at roughly the same time. SPA 5; JA 370. Kingstown alleges that, over the
next two years, Vitek worked with a group of European companies and individuals
to “secretly acquire[ ] control” of ORCO and “strip[ ] [it] of valuable assets.” SPA
4; see JA 382-441. As part of that alleged scheme, Kingstown claims that ORCO’s
CEO, a French citizen named Jean-François Ott, made various false statements to
Kingstown to conceal Vitek’s activities, SPA 5-6; JA 382-384; that Czech Property
Investments (“CPI”) and its employee, Martin Němeček, helped Vitek hide his
purchases, SPA 6; JA 387-388; that a group of Czech and Slovak financial
institutions (collectively, the “J&T Defendants”) assisted Vitek in selling ORCO’s
assets, SPA 7-8; JA 372-373, 384-390;2 and that Rothschild & Co, a “worldwide
financial advisory group” of which Plaintiffs served only the French holding
company, acted as Vitek’s broker, SPA 7-8; JA 376, 386-387. Kingstown also
alleges that a number of other European companies and individuals acted as shell
companies and straw purchasers to help Vitek acquire ORCO’s assets at below-
market prices. SPA 7; see JA 371-376.3
2
The J&T Defendants include J&T FINANCE GROUP SE, J&T BANKA, a.s.
(“J&T Banka”), and Postova banka, a.s. See JA 372-373; SPA 7.
3
The entities alleged to have acted as Vitek’s shell companies are Egnaro
Investments Limited, LCE Company Limited, and Levos Limited. JA 375-376. The
individuals alleged to have acted as his straw purchasers are Tomáš David, René
4
Kingstown claims that, as a result of this alleged scheme, Vitek acquired a
majority stake in ORCO and sold off two of its “most valuable” assets—real estate
funds that owned properties located in Central and Eastern Europe. SPA 7-8, 12; JA
365-367, 410-441. Kingstown alleges that this “artificially depress[ed]” the value
of ORCO’s assets, and that in November 2014, Kingstown was forced to sell all of
its ORCO shares “at below-market prices.” SPA 8; JA 492, 499.
B. The Investhold Plaintiffs
Investhold Ltd. and its wholly owned subsidiary Verali Limited (collectively,
“Investhold”) are holding companies owned by a Czech investor and organized in
the Republic of the Marshall Islands and the Republic of Cyprus, respectively. SPA
4 & n.2; JA 370, 378. Investhold alleges that, beginning in 2008, it entered into a
partnership with Vitek to finance real estate transactions in Europe. JA 378-379;
SPA 8. According to Investhold, Vitek used partnership funds to finance his
takeover of ORCO without sharing the proceeds with Investhold. SPA 9; JA 441.
Investhold also claims that Vitek diluted Investhold’s ownership interest when he
restructured ORCO to form CPI Property Group (“CPIPG”), a Luxembourg
corporation. SPA 9; JA 449-455.
Foltán, Jan Gerner, Milada Mala, Lumir Safranek, Petr Sekanina, and Pavel Spanko.
JA 371-376. Mr. Safranek passed away in April 2020. See ECF Nos. 216, 233.
5
Investhold alleges that Vitek and Investhold agreed to terminate their
partnership in 2016. SPA 9; JA 459. Yet, according to Investhold, Vitek breached
the ensuing buyout agreement by failing to compensate Investhold for its full share
of the partnership. SPA 9; JA 459-460.
C. The Luxembourg Action
In January 2015, Kingstown filed suit in Luxembourg against Vitek, Ott,
CPIPG, and several of their alleged co-conspirators (the “Luxembourg Action”).
SPA 9-10; JA 122-123. In its summons—the equivalent of a complaint—Kingstown
alleged that Vitek, Ott, and CPI entities, with the aid of various companies and straw
purchasers, “orchestrated . . . the takeover of power” at ORCO and sold the
company’s assets at below-market prices. JA 137; see JA 133-148; SPA 10.
Kingstown charged that this takeover and sale violated various European and
Luxembourg corporate governance and transparency laws. JA 149-160. And it
sought damages equal to the “loss [it] suffered” when it was allegedly “forced to
sell” its shares in November 2014. JA 149.
In October 2018, Kingstown submitted a new filing in Luxembourg “adding
further detail to [its] claims.” SPA 11. In December 2017, a Luxembourg financial
regulator known as the Commission de Surveillance du Secteur Financier, or CSSF,
issued two press releases describing a report it had written concerning Vitek’s
activities from September 2012 to June 2016. JA 214-215; SPA 10 n.7. Kingstown
6
alleged that this report “confirmed” its allegations, JA 214-215, and it sought
additional statutory damages available in cases of market manipulation, JA 214-216.
In June 2019, in response to preliminary procedural objections raised by
certain defendants, the Luxembourg court held that Kingstown had properly effected
service on some, but not all, of the defendants. JA 236-263. In February 2020, one
of the defendants in the Luxembourg Action moved to dismiss the case on its merits.
SPA 11. That motion remains pending. Id.
D. Proceedings Below
Kingstown and Investhold filed this suit in April 2019. ECF No. 1. Plaintiffs
named as Defendants the same core group listed as defendants in the Luxembourg
Action, along with several alleged co-conspirators. Compare ECF No. 5, ¶¶ 17-31,
with JA 122-123. Plaintiffs accused Defendants of the same scheme alleged in the
Luxembourg Action—taking over ORCO, stripping its assets to the detriment of
minority shareholders like Kingstown, and concealing their alleged malfeasance.
Compare ECF No. 5, ¶¶ 1-7, with JA 128. And Plaintiffs sought recovery for the
same losses: the diminution in value that Kingstown allegedly suffered when its
shares declined in value. Compare ECF No. 5, ¶¶ 398, 417, with JA 149.
The complaint differed from the Luxembourg summons in only two salient
respects. First, in addition to claiming that Defendants violated European and
Luxembourg law, Plaintiffs claimed that Defendants violated a number of U.S. laws,
7
including the Racketeer Influenced and Corrupt Organizations Act (“RICO”)—a law
that (unlike its European counterparts) permits recovery of treble damages. JA 476-
499; see also ECF No. 5, ¶¶ 4, 7, 62, 64, 135, 271, 344-363 (alleging violations of
European and Luxembourg law); JA 364, 367, 385, 417, 448, 465-476 (same).
Second, Kingstown joined its claims with Investhold’s wholly distinct allegations
concerning Vitek’s supposed violation of their partnership. See JA 378-381, 441-
465.
Defendants moved to dismiss this suit on several grounds, including lack of
personal jurisdiction, forum non conveniens, and international comity abstention.
See ECF Nos. 61, 67, 69, 80, 82, 86, 108. The District Court stayed discovery while
the motions to dismiss were pending, and authorized Plaintiffs to amend their
complaint. See JA 328-329, 348, 351-357. Plaintiffs filed an amended complaint in
November 2019, which named an additional nine defendants and added dozens of
related factual allegations pulled from the same CSSF report summarized in
Kingstown’s October 2018 filing in Luxembourg. See JA 368, 465-476.
Defendants again moved to dismiss. ECF Nos. 140, 142, 143, 146, 153, 158,
161, 164. Plaintiffs filed an omnibus opposition memorandum to which they
attached an expert declaration on Luxembourg law written by François Moyse. JA
565-574. Defendants responded by submitting a reply memorandum and their own
expert declaration on Luxembourg law written by Professor André Prüm, the Chair
8
in Financial and Business Law at the University of Luxembourg and founding Dean
of the Faculty of Law, Economics and Finance. JA 580-605. In response, Plaintiffs
filed another brief—which they styled as an opposition to some later-filed motions
to dismiss—that explicitly addressed Prüm’s claims, ECF No. 211, at 21 n.20, 26-
27, along with a revised declaration from Moyse that contained new points
responding to Prüm’s declaration, JA 623-638; see ECF No. 217.
E. The District Court’s Opinion
In September 2020, the District Court (Cote, J.) granted Defendants’ motions
to dismiss. SPA 3-4. Because the District Court concluded the suit should be
dismissed on the basis of forum non conveniens and international comity abstention,
it did not reach the other bases for dismissal raised by Defendants. SPA 22; see
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 432 (2007) (“A
district court . . . may dispose of an action by a forum non conveniens dismissal”
before addressing “questions of subject-matter and personal jurisdiction”).
First, the District Court dismissed the suit “as to all defendants based on the
doctrine of forum non conveniens.” SPA 13. Starting with the first step of the
“three-part analysis” set forth in this Court’s precedents, SPA 22, the District Court
explained that Plaintiffs’ choice of forum is “entitled to diminished deference.” SPA
25. The District Court found that Investhold cannot “show any connection between
[its] claims and this jurisdiction,” id., and that litigating Kingstown’s claims in the
9
United States would be “massively inconvenient and expensive for everyone” and
reward transparent “forum shopping,” SPA 25-26. Turning to the “second step,” the
District Court found that “[t]here can be no serious dispute that Luxembourg is an
adequate forum for this dispute,” as it recognizes claims of fraud similar to the ones
asserted by Plaintiffs, and Plaintiffs “d[id] not dispute” that all of the Defendants are
subject to jurisdiction there. SPA 27-29 & n.17. The District Court then “weigh[ed]
the competing private and public factors” and found that the balance “tips decidedly
in favor of dismissal.” SPA 30-32.
Second, the District Court held that dismissal of Kingstown’s claims is
appropriate “for reasons of international comity.” SPA 15. Kingstown filed a
parallel suit in Luxembourg against the “same core parties,” alleging “the same
overarching theory of wrongdoing.” SPA 15-16. Further, the District Court found
that “exceptional circumstances” are present that warrant abstention. See SPA 15.
Among other things, it noted that the foreign proceeding was filed first, nearly all of
the operative facts occurred abroad, and the United States has little interest in
adjudicating this wholly foreign dispute. SPA 19-22.
10
SUMMARY OF ARGUMENT
The District Court’s decision may be overturned only upon a showing of abuse
of discretion. Plaintiffs do not come close to satisfying that high standard.
I. The District Court correctly held that, under the three-part test articulated
by this Court, the doctrine of forum non conveniens favors dismissal of this suit.
First, Judge Cote reasonably concluded that Plaintiffs’ choice to sue in the
United States is entitled only to “diminished” deference. SPA 24-25. As the District
Court explained, this suit has little connection to the United States, would be
“massively inconvenient” for the parties and the court to resolve here, and exhibits
“indicia of forum shopping.” SPA 25-26. The District Court properly found that
the handful of tenuous connections relied on by Plaintiffs—such as the fact that they
operate offices in Manhattan—are substantially outweighed by the convenience
justifications for resolving this suit in Luxembourg.
Second, the District Court correctly determined that Luxembourg is an
“adequate alternative forum.” SPA 27-30. As this Court has previously held, and
as Defendants’ expert confirmed, Luxembourg permits plaintiffs to bring fraud
claims that serve as an adequate substitute for civil RICO. Moreover, all of the
Defendants are subject to jurisdiction in Luxembourg. Plaintiffs’ claim that a
foreign forum is inadequate unless Defendants expressly agree to accept service
there is refuted by their own authorities and by numerous precedents of this Court.
11
Third, the District Court appropriately balanced the private and public interest
factors and held that they “weigh heavily in favor of litigating this suit in
Luxembourg.” SPA 30-32. Plaintiffs do not contend that the District Court made
any mistake of law; they just ask this Court to weigh the factors differently. But
weighing the factors lies in the heartland of the District Court’s discretion, and
Plaintiffs offer no reason to conclude the District Court exercised that discretion
improperly.
II. The District Court also did not abuse its discretion by dismissing
Kingstown’s claims under the doctrine of international comity abstention. That
well-established doctrine holds that U.S. courts may abstain from exercising
jurisdiction where “parallel proceedings” are pending in a foreign forum and
“exceptional circumstances” warrant dismissal. SPA 15. The District Court
reasonably held that both criteria are met here.
As to the existence of parallel proceedings, the District Court found that
Kingstown is litigating “substantially the same” case in Luxembourg—where it sued
the same core defendants, alleged the same course of misconduct, and is seeking the
same damages. Kingstown argues that “[m]uch of the conduct involved in this case
occurred after the Luxembourg Lawsuit was filed.” Br. 45. That is false; all of the
allegations relevant to Kingstown occurred prior to November 2014—when
Kingstown sold its shares in ORCO—and are encompassed by Kingstown’s October
12
2018 filing in the Luxembourg Action, which Kingstown fails to mention at any
point in its brief.
The District Court also properly found that “exceptional circumstances”
warrant abstention. Examining each of the eight factors this Court has instructed
district courts to consider in conducting that inquiry, the District Court found that
every one favors abstention—including that the Luxembourg suit was filed first, that
litigating this case in the United States would inflict substantial prejudice, and that
Luxembourg clearly has the predominant interest in the litigation. Kingstown fails
to identify any error in the District Court’s weighing of those factors, most of which
Kingstown fails even to address.
III. Plaintiffs’ efforts to identify some procedural error by the District Court
also fail. The District Court did not deny Plaintiffs an opportunity to respond to
Defendants’ foreign-law expert; although Plaintiffs neglect to acknowledge it, they
filed a brief and a declaration in which they expressly disputed Professor Prüm’s
contentions. Plaintiffs never validly requested a foreign law hearing or additional
discovery below, let alone identified any purpose that would have been served by
such proceedings. And Plaintiffs have offered no reason they should be granted a
third opportunity to replead or refile their deficient allegations. The District Court’s
judgment should be affirmed.
13
ARGUMENT
I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY

DISMISSING THE CASE FOR FORUM NON CONVENIENS.
The doctrine of forum non conveniens has “long permitted dismissal of suits
where jurisdiction and venue are proper, but another forum is substantially more
convenient.” Cap. Currency Exch., N.V. v. Nat’l Westminster Bank PLC, 155 F.3d
603, 606 (2d Cir. 1998). This doctrine serves to protect defendants from plaintiffs
who “seek not simply justice but perhaps justice blended with some harassment,” by
“forcing the trial at a most inconvenient place for an adversary.” Gulf Oil Corp. v.
Gilbert, 330 U.S. 501, 507 (1947).
This Court has emphasized that “[t]he decision to dismiss a case on forum non
conveniens grounds lies wholly within the broad discretion of the district court.”
Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir. 2001) (en banc) (internal
quotation marks and citation omitted). As a result, this Court’s “review of a forum
non conveniens dismissal is extremely limited,” and dismissal on forum non
conveniens grounds “may be overturned only when [this Court] believe[s] [the
district court’s] discretion has been clearly abused.” Id. (emphases in original;
citations omitted).
This Court has “outlined a three-step process to guide the exercise of that
discretion.” Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir.
14
2005). At “step one,” a district court is required to assess “the degree of deference
properly accorded the plaintiff’s choice of forum.” Id. At “step two,” it asks whether
an “alternative forum proposed by the defendants is adequate to adjudicate the
parties’ dispute.” Id. “Finally, at step three, a court balances the private and public
interests implicated in the choice of forum” to determine whether the suit is better
adjudicated in the alternative forum. Id.
The District Court faithfully applied that framework here. It concluded, at
step one, that Plaintiffs’ choice of forum deserves limited deference; at step two, that
Luxembourg is an adequate alternative forum; and at step three, that the balance of
private and public interests weighs in favor of this case’s adjudication in
Luxembourg. No part of that analysis constituted an abuse of discretion.
A. The District Court Did Not Abuse Its Discretion By Giving Plaintiffs’
Choice Of Forum Diminished Deference.
The District Court began its analysis at “the first step,” by “determin[ing] the
degree of deference properly accorded the plaintiff’s choice of forum.” Id. This
Court has explained that district courts should determine the requisite deference by
applying “a sliding scale” that measures the degree to which the plaintiff’s choice
was “dictated by reasons that the law recognizes as valid.” Iragorri, 274 F.3d at 71-
72. A plaintiff’s choice of forum is entitled to greater deference if it was motivated
by considerations of “convenience,” and less deference if there is a “plausible
15
likelihood” that it was “motivated by forum-shopping reasons.” Id.4 Here, the
District Court reasonably concluded that Investhold’s choice of forum merits “[l]ittle
or no deference,” SPA 25, and that Kingstown’s choice of forum merits
“significantly diminish[ed]” deference. SPA 27.
First, the District Court reasonably concluded that diminished deference is
appropriate because neither Investhold nor Kingstown has established that this suit
bears any “bona fide connection to the United States.” Iragorri, 274 F.3d at 72
(footnote omitted). The Investhold entities are foreign entities organized in the
Marshall Islands and the Republic of Cyprus, respectively, SPA 4 n.2, and so a U.S.
forum is “not presumptively the most convenient one.” Norex, 416 F.3d at 153
(citation omitted). Moreover, “all of the events associated with [Investhold’s] claims
occurred outside of New York, and indeed, almost entirely outside the United
States.” SPA 25. Simply put, Investhold has no valid convenience justification for
4
Ignoring these established standards, Plaintiffs contend that the deference due to a
plaintiff’s choice of forum “can vary . . . only when trial in the plaintiff’s chosen
forum would cause ‘oppressiveness and vexation’ to Defendants ‘out of all
proportion to plaintiff’s convenience’ or when the ‘chosen forum is inappropriate
because of considerations affecting the court’s own administrative and legal
problems.’” Br. 29-30 (quoting Koster v. (Am.) Lumbermens Mut. Cas. Co., 330
U.S. 518, 524 (1947)). That formulation, however, describes the balancing test
performed at step three of the forum non coveniens analysis, not the threshold inquiry
performed at step one, which seeks to determine whether the chosen forum is
“convenien[t]” for the plaintiff in the first place. Compare DiRienzo v. Philip Servs.
Corp., 294 F.3d 21, 33 (2d Cir. 2002), with id. at 28-29.
16
bringing suit in the United States. See Pollux Holding Ltd. v. Chase Manhattan
Bank, 329 F.3d 64, 71-72 (2d Cir. 2003).5
As for Kingstown, the District Court assumed, arguendo, that New York is
Kingstown’s “home forum,” given that it “operate[s] from offices in Manhattan.”
SPA 25 & n.14; but see JA 368-370 (stating that Kingstown is organized and
incorporated elsewhere). Nonetheless, the District Court reasonably found that
“other factors, many unique to this litigation, do not entitle Kingstown’s choice of
forum to the customary deference.” SPA 25; see Iragorri, 274 F.3d at 72-73
(explaining that Plaintiffs’ home forum is not automatically the most convenient
one); Carey v. Bayerische Hypo-Und Vereinsbank AG, 370 F.3d 234, 238-239 (2d
Cir. 2004) (same). Among other things, “the source of this litigation was
Kingstown’s decision to make an investment in Europe,” the allegations concern a
“European company . . . whose business is conducted exclusively in Europe,” and
Kingstown’s alleged injuries purportedly arise from “a plan that was hatched by
European individuals and entities and executed in Europe.” SPA 26-27. The fact
5
Plaintiffs claim that Investhold may piggyback on the deference purportedly due
to Kingstown plaintiffs. See Br. 34 (citing Bigio v. Coca-Cola Co., 448 F.3d 176,
179 (2d Cir. 2006)). Putting aside that Kingstown’s choice of forum is itself entitled
to “significantly diminish[ed]” deference, SPA 27, Plaintiffs misread Bigio. There,
the Court emphasized the “legitimate and substantial reasons” that all of the
plaintiffs had for bringing suit in the United States, including that each of the
plaintiffs had tried and failed to seek relief in Egypt when their commercial holdings
were improperly seized. Bigio, 447 U.S. at 177. Investhold can point to nothing
similar here.
17
that a few ancillary communications occurred in the United States, see Br. 30, 33,
does not establish a “substantial connection” where “the operative facts of th[e]
action” occurred abroad. Wenzel v. Marriott Int’l, Inc., 629 F. App’x 122, 124 (2d
Cir. 2015) (citation omitted). And that principle applies with particular force where,
as here, the plaintiffs themselves “voluntarily entered into” relationships with
foreign entities overseas. Carey, 370 F.3d at 238; see RIGroup LLC v. Trefonisco
Mgmt. Ltd., 949 F. Supp. 2d 546, 552 (S.D.N.Y. 2013), aff’d, 559 F. App’x 58 (2d
Cir. 2014).
Second, the District Court found that because “almost all of the witnesses and
documentary evidence are located in Luxembourg and the Czech Republic,”
proceeding with this litigation in the United States would be “massively
inconvenient and expensive for everyone.” SPA 26; see Iragorri, 274 F.3d at 72
(lack of “availability of witnesses or evidence to the forum district” and
“inconvenience and expense to the defendant” weigh against deference). Given
“[t]he breadth of plaintiffs’ allegations,” the parties would need to engage in
“massive evidence gathering abroad, almost all of which will have to be conducted
in compliance with European privacy and data restrictions.” SPA 26. And that
evidence gathering would be made especially difficult by the fact that “[n]one of the
witnesses apart from those associated with Kingstown are within the subpoena
power” of the District Court. Id.
18
Plaintiffs’ only response is to assert that some “[k]ey witnesses and evidence
are located in New York.” Br. 33. But the District Court rejected that same
conclusory assertion because Plaintiffs failed to “suggest what this evidence might
be, aside from knowledge possessed by the plaintiffs themselves.” SPA 26. That
remains true on appeal. All that Plaintiffs can point to are a handful of phone calls,
e-mails, and other communications allegedly made to Plaintiffs themselves. See,
e.g., JA 365, 387, 390. But plainly the cost of producing those scraps of evidence—
which lie in Plaintiffs’ own possession—pales in comparison to the cost of obtaining
the lion’s share of the evidence from third-party entities located in Europe.6
Third, the District Court reasonably found that Plaintiffs’ chosen forum is
inconvenient because several Defendants “may not be amenable to suit here.” SPA
26; see Iragorri, 274 F.3d at 72-73 (considerations of convenience disfavor
6
Plaintiffs fault the District Court for focusing “on only the New York contacts and
witnesses in its forum non conveniens analysis.” Br. 30. That charge is unfounded.
The District Court repeatedly considered whether Plaintiffs had a legitimate reason
for filing suit in the United States as a whole, rather than in Europe. See SPA 26-27
(explaining that evidence was located in “Europe[],” substantially similar suit was
filed “in Luxembourg,” and underlying conduct occurred “in Europe”).
Furthermore, forum non conveniens does not involve a tabulation of “contacts” in
the chosen forum. Br. 30. Instead, it focuses on the comparative convenience of
litigating the dispute in the District Court versus a Luxembourg court—and it makes
sense for that assessment to train on (the lack of) evidence in New York, rather than
peripheral alleged events elsewhere in the United States. See, e.g., Pollux, 329 F.3d
at 74 (affirming dismissal because plaintiffs “failed to demonstrate that New York
is convenient”); DiRienzo, 294 F.3d at 28-29 (assessing whether there were
“reason[s] that the law recognizes as valid” for “the complaint being filed in the
Southern District of New York”).
19
proceeding in a forum “where the defendant’s amenability to suit . . . is unclear”).
All of the Defendants contend they are “not subject to personal jurisdiction in this
action.” SPA 22. By contrast, Plaintiffs “d[id] not dispute” below that all of the
Defendants are subject to jurisdiction in Luxembourg. SPA 26, 29 n.17; see infra
pp. 25-26. The presence of these significant jurisdictional questions plainly
diminishes the convenience of the forum. Plaintiffs do not argue otherwise.
Fourth, the District Court observed that Plaintiffs’ choice of forum “bears
indicia of forum shopping.” SPA 25-26. Plaintiffs filed this action four years after
Kingstown filed “a substantially similar action in Luxembourg,” SPA 25, and only
a few months after it supplemented its Luxembourg pleadings to describe nearly all
of the conduct alleged in the amended complaint, see supra pp. 6-7—a supplemental
filing that Plaintiffs conspicuously fail to acknowledge even once in their brief.7
Moreover, the “salient difference” between the claims here and in Luxembourg is
that Plaintiffs sued here under RICO, SPA 25, a notoriously generous U.S. law that
affords the opportunity for treble damages and whose in terrorem effect at driving
7
Plaintiffs devote several pages to quibbling over whether this suit is truly “parallel”
to the Luxembourg litigation. Br. 31-33. Those distinctions are all incorrect, see
infra pp. 38-43, and they are also beside the point; “parallelism” is not required to
establish forum shopping, and the District Court did not rest its forum non
conveniens analysis on a finding that the suits are parallel. SPA 25-26. Instead, the
District Court reasonably found that Kingstown’s choice to bring a “substantially
similar” suit in Luxembourg before filing here contributes to a plausible inference
of forum shopping. SPA 25.
20
settlement is well known. See Norex, 416 F.3d at 155 (“recogniz[ing] that the
possibility of a RICO treble damages award might have made the choice of a United
States forum attractive . . . regardless of convenience). And the inference of forum-
shopping is heightened by the fact that Plaintiffs chose to sue here despite the
obvious procedural complexities, the lack of any meaningful connection with the
underlying claims, and “the inconvenience and expense to the defendant.” Iragorri,
274 F.3d at 72; see SPA 26-27. It was at minimum reasonable for the District Court
to conclude that these facts give rise to a “plausible likelihood” of forum shopping.
Iragorri, 274 F.3d at 71.
B. The District Court Did Not Abuse Its Discretion By Concluding That
Luxembourg Is An Adequate Alternative Forum.
Proceeding to the second step of the forum non conveniens inquiry, the
District Court next considered whether Luxembourg is an “adequate alternative
forum” to resolve Plaintiffs’ claims. Norex, 416 F.3d at 157. This Court has held
that a foreign forum presents an adequate alternative if (1) “it permits litigation of
the subject matter of the dispute” and (2) “the defendants are amenable to service of
process there.” Pollux, 329 F.3d at 75. Applying these criteria, this Court has
repeatedly held that Luxembourg is an adequate forum to resolve complex
commercial disputes and claims of fraud. See In re Herald, 540 F. App’x 19, 27-28
(2d Cir. 2013); Overseas Nat’l Airways, Inc. v. Cargolux Airlines Int’l, S.A., 712
21
F.2d 11, 14 (2d Cir. 1983). The District Court correctly found that there “can be no
serious dispute” that these criteria are met here. SPA 27.
1. Luxembourg Permits Litigation of the Subject Matter of the

Dispute.
A foreign forum is adequate “if it permits litigation of the subject matter” of
the case. Pollux, 329 F.3d at 75. Contrary to Plaintiffs’ suggestion, this standard
“ ‘does not depend on the existence of the identical cause of action in the other
forum,’ nor on identical remedies.” Norex, 416 F.3d at 157-158 (quoting PT United
Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 74 (2d Cir. 1998)); cf. Br. 54-55
(arguing that “Luxembourg is not an adequate forum” due to the “unavailability of
any similar cause of action” (emphasis added)). And that “principle pertains with
particular force to civil RICO actions,” given that “few foreign jurisdictions provide
such an expansive civil vehicle for parties injured by ongoing criminal schemes,”
and “even more rare are foreign provisions for the recovery of treble damages.”
Norex, 416 F.3d at 158. In the civil RICO context, a foreign forum is adequate so
long as it “provide[s] alternative legal actions to address the wrongdoing
encompassed by civil RICO,” such as actions for “fraud.” Id.; see Transunion Corp.
v. PepsiCo, Inc., 811 F.2d 127, 129 (2d Cir. 1987) (per curiam).
That standard is plainly satisfied here. As the District Court explained,
Luxembourg “allows suits based on, inter alia, complex financial fraud, conversion,
breach of fiduciary duty, and other business torts.” SPA 27. This conclusion accords
22
with the holdings of this Court and other circuits to consider this question. See
Herald, 540 F. App’x at 27; Republic of Panama v. BCCI Holdings (Luxembourg)
S.A., 119 F.3d 935, 952 (11th Cir. 1997); In re Lyondell Chem. Co., 543 B.R. 428,
458 n.160 (Bankr. S.D.N.Y. 2016). It is also supported by the declaration of
Defendants’ foreign law expert, Professor André Prüm, who explained that
Luxembourg would allow fraud claims based on the allegations in the amended
complaint. JA 590-603.
In response, Plaintiffs invoke the declaration of their foreign-law expert,
François Moyse, who asserted that Luxembourg recognizes only two narrow causes
of action for fraud, and that neither could be raised based on the allegations in this
case. Br. 26-28; see JA 568-569. But Professor Prüm comprehensively rebutted
that characterization of Luxembourg law. See JA 590-603. He explained that
Luxembourg recognizes many of the same predicate offenses alleged in the amended
complaint, including money laundering, theft, extortion, fraud, and concealment, JA
599, and that private litigants in Luxembourg can bring suits for civil damages based
on a defendant’s commission of a criminal tort, such as fraud, JA 594. When Moyse
had the opportunity to respond to Prüm’s contentions, see supra pp. 8-9, his only
answer was that Prüm’s identified causes of action are infrequently invoked—not
that they are unavailable. See JA 629-630. The District Court did not abuse its
discretion by accepting Prüm’s exposition of Luxembourg law, which aligns with
23
the consensus position of other courts to consider similar questions. See Türedi v.
Coca-Cola Co., 343 F. App’x 623, 626 (2d Cir. 2009) (district court did not abuse
its discretion by accepting experts’ characterizations of foreign law).8
Because Plaintiffs are incorrect about the available causes of action in
Luxembourg, they are also wrong that the only claims available to them would be
untimely. Br. 28. Professor Prüm explained that the relevant causes of action in tort
have a 30-year statute of limitations, which has not yet run. See JA 592. Plaintiffs
have never disputed that premise, and have therefore failed to rebut the point that
there are claims “presently available” to them in Luxembourg. Norex, 416 F.3d at
159.9
2. Defendants Are Amenable to Process in Luxembourg.
The District Court reasonably found that Defendants are “amenable to
process” in Luxembourg. SPA 29 n.17. A defendant is “amenable to process” where
the forum “would have jurisdiction over the parties” if the plaintiff brought suit
8
Plaintiffs also assert that Luxembourg “does not recognize civil or criminal
conspiracy.” Br. 25. But even if that were true—and it is not, see JA 600-01—this
Court has held that “fraud actions in tort” are a sufficient alternative to RICO, even
if the forum does not recognize “respondeat superior and conspiracy theories.” PT
United, 138 F.3d at 74.
9
Moreover, given that Plaintiffs first filed suit in Luxembourg nearly seven years
ago and updated their claims four years later, any failure to comply with a limitations
period has been caused by their own inaction and therefore cannot render the forum
unavailable. See infra pp. 30-32.
24
there. Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 46 (2d Cir. 1996); see Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure (Jurisdiction)
§ 3828.3 (4th ed. Oct. 2020 Update) (defendant is “amenable to process” in a foreign
forum “[i]f the case and all of the parties come within that alternative court’s
jurisdiction” (citation omitted)); R. Maganlal & Co. v. M.G. Chem. Co., 942 F.2d
164, 167 (2d Cir. 1991) (foreign forum is adequate if “the defendant is subject to
[its] jurisdiction”).
Plaintiffs “d[id] not dispute” below “that each defendant is subject to the
jurisdiction of courts in Luxembourg.” SPA 29 n.17. For good reason. As the
parties’ foreign-law experts agreed, Luxembourg has jurisdiction over the
Defendants so long as (1) at least one Defendant is domiciled in Luxembourg; (2) the
other Defendants reside or are incorporated in the European Union; and (3) the
claims are “so closely connected that it is expedient to hear and determine them
together.” JA 585-586 (citation omitted) (setting forth this standard); see JA 626
(not disputing it). At least one Defendant, CPIPG, is domiciled in Luxembourg;
indeed, it has “declared itself subject to the jurisdiction of Luxembourg over this
dispute.” SPA 29; see JA 533-535. All of the remaining Defendants “reside or are
incorporated in European Union member states.” SPA 28. And Plaintiffs’ claims
against all of these parties are indisputably closely connected to the claims against
CPIPG. SPA 28-29 & n.17. It follows that all of the defendants “are subject to
25
service of process and the jurisdiction of courts in Luxembourg.” SPA 28; see JA
585-586.
Rather than dispute this conclusion, Plaintiffs try to shift the goalposts,
arguing that to be “amenable to service” in a foreign forum, a defendant must have
“expressly agreed” to submit to its jurisdiction. Br. 19. This argument, however,
confuses a sufficient condition for establishing jurisdiction with a necessary one, and
is squarely refuted by this Court’s precedents.
It is true that defendants can establish their amenability to service of process
by consenting to jurisdiction in a foreign forum. See Wright & Miller, supra,
§ 3828.3 (explaining that “[c]ourts often allow a defendant to satisfy the availability
requirement” this way (emphasis added)). Defendants sometimes do so, for
instance, where there is a “potential jurisdictional problem” in the foreign forum that
can be “cured” by consent. PT United, 138 F.3d at 74-75. But that is not the only
way a defendant may establish amenability to process. This Court has repeatedly
found that a defendant may establish amenability to process by showing that it is
subject to jurisdiction in the foreign forum, even if it has not affirmatively consented
to jurisdiction. See, e.g., Wenzel, 629 F. App’x at 125 (finding the defendant
amenable to process because “service of process on th[e] defendants would be
possible were the [plaintiffs] to bring their suit in [the foreign forum]” (emphasis
added)); Seales v. Panamanian Aviation Co., 356 F. App’x 461, 463 n.1 (2d Cir.
26
2009) (finding Jamaica an adequate forum because the defendant was “subject to
service of process in Jamaica,” even though the defendant did not expressly submit
itself to jurisdiction); Peregrine, 89 F.3d at 46 (“[P]laintiffs do not dispute that Hong
Kong courts would have jurisdiction over the parties.” (emphasis added)); Overseas
Media, Inc. v. Skvortsov, 441 F. Supp. 2d 610, 617-618 (S.D.N.Y. 2006) (defendant
was “clearly amenable to service of process in Russia” because he was “a Russian
citizen currently residing in Russia”), aff’d, 277 F. App’x 92 (2d Cir. 2008).10
Several of the cases that Plaintiffs cite prove the point. In Dabbous v.
American Express Co., No. 06 Civ. 11345(DAB), 2009 WL 1403930 (S.D.N.Y. May
8, 2009), the court found the defendants amenable to service in a foreign forum
because they were “either present in [the forum] or ha[d] consented to jurisdiction.”
Id. at *5 (emphases added). And in CF 135 Flat LLC v. Triadou SPY S.A., No. 15-
CV-5345 (AJN), 2016 WL 5945933 (S.D.N.Y. June 21, 2016), the court found that
three of the four defendants were amenable to service in Switzerland because a Swiss
court “could exercise jurisdiction” over them—again, because they either
“consented to jurisdiction” or because they “reside[d] there.” Id. at *4 (emphasis
10
Accord Estate of Thomson ex rel. Estate of Rakestraw v. Toyota Motor Corp.
Worldwide, 545 F.3d 357, 365 (6th Cir. 2008); Tyco Fire & Sec., LLC v. Alcocer,
218 F. App’x 860, 865 (11th Cir. 2007) (per curiam); Dahl v. United Techs. Corp.,
632 F.2d 1027, 1029 n.1 (3d Cir. 1980); cf. Omni Cap. Int’l, Ltd. v. Rudolf Wolff &
Co., 484 U.S. 97, 104 (1987) (explaining that a defendant is “amenab[le] to service”
for purposes of personal jurisdiction inquiry where, “[a]bsent consent,” there is
“authorization for service of summons on the defendant”).
27
added). Conversely, in Rio Tinto PLC v. Vale S.A., No. 14 Civ. 3042(RMB)(AJP),
2014 WL 7191250 (S.D.N.Y. Dec. 17, 2014), the court found that two defendants
“may not be amenable to service by English courts” because they “reside[d] in the
United States” and had not “consented to jurisdiction in England.” Id. at *12-13.
Plaintiffs’ remaining cases do not show otherwise. In some, courts found
consent sufficient to establish amenability without suggesting it was required. See
Norex, 416 F.3d at 157; Pollux, 329 F.3d at 75; see also, e.g., Erausquin v. Notz,
Stucki Mgmt. (Bermuda) Ltd., 806 F. Supp. 2d 712, 726 (S.D.N.Y. 2011); In re
Banco Santander Sec.-Optimal Litig., 732 F. Supp. 2d 1305, 1331 (S.D. Fla. 2010);
Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1178 (9th Cir. 2006). In
others, courts required consent to establish amenability to process because the
defendant would not be subject to jurisdiction in the foreign forum “in the absence
of such a condition.” Jota v. Texaco Inc., 157 F.3d 153, 159 (2d Cir. 1998) (quoting
In re Union Carbide Corp. Gas Plant Disaster, 809 F.2d 195, 203-204 (2d Cir.
1987));11 see Schertenleib v. Traum, 589 F.2d 1156, 1160 (2d Cir. 1978) (explaining
11
Contrary to Plaintiffs’ puzzling claim, the court in Jota did not find the defendant
“subject to Ecuadorean courts’ personal jurisdiction as a legal matter.” Br. 22. Just
the opposite: It held that “the only defendant in the present case . . . is not subject to
suit in Ecuador,” and that consent was required for that reason. Jota, 157 F.3d at
159 (“[a]ccordingly, dismissal for forum non conveniens is not appropriate, at least
absent a commitment by Texaco to submit to the jurisdiction of the Ecuadorean
courts) (emphases added).
28
that, even where plaintiff could not “have forced defendant to defend the three tort
claims in Geneva,” amenability to service may be established by consent); In re
Alcon S’holder Litig., 719 F. Supp. 2d 263, 267, 279 (S.D.N.Y. 2010) (requiring
consent where two defendants resided in the United States and five resided in various
European countries); Madanes v. Madanes, 981 F. Supp. 241, 266 (S.D.N.Y. 1997)
(requiring consent because it was unclear whether “an Argentine court would be
unable to assert personal jurisdiction”). Far from helping Plaintiffs’ case, these
authorities make clear that consent is an alternative way of establishing amenability
when jurisdiction would otherwise be in question.12
As a final argument, Plaintiffs note that they have failed to perfect service on
Defendant Ott in Luxembourg. Br. 24. But Plaintiffs identify nothing in
Luxembourg law that would prevent them from attempting to serve Ott again. See
JA 258-259 (Luxembourg court’s finding that other defendants were properly served
after service of a “resummons”). No party has argued that Ott would not be subject
12
Because jurisdiction is not in question, there is no basis for Plaintiffs’ request (Br.
25) that the Court condition dismissal on waiver of “any” defenses in the
Luxembourg forum. In any event, Plaintiffs failed to request a conditional dismissal
below, see ECF No. 178 at 61-68, so their newfound request for such a dismissal has
been forfeited. See United States v. Botti, 711 F.3d 299, 313 (2d Cir. 2013) (issues
raised without “developed argumentation . . . are deemed waived” (citation
omitted)). Defendants reserve their rights to raise all available defenses in the
Luxembourg action.
29
to the jurisdiction of the Luxembourg courts if Plaintiffs served him properly. See
JA 586.
In any event, even if Plaintiffs’ failure to serve Ott properly placed him
beyond the Luxembourg court’s jurisdiction, that would not render Luxembourg
unavailable as a forum. See SPA 28 n.15. This Court has joined “several Courts of
Appeals” in holding that “a plaintiff may not overcome a forum non conveniens
dismissal based on ‘the unavailability of an alternative forum when the
unavailability is a product of its own purposeful conduct.’ ” Palacios v. Coca-Cola
Co., 499 F. App’x 54, 56 (2d Cir. 2012) (quoting Compania Naviera Joanna SA v.
Koninklijke Boskalis Westminster NV, 569 F.3d 189, 203 (4th Cir. 2009)). Applying
that principle, this Court and others have repeatedly held that plaintiffs cannot
complain that an alternative forum is unavailable due to procedural defects “entirely
of their own making,” id.—such as failing to “return[ ] [a] summons,” MBI Grp., Inc.
v. Crédit Foncier du Cameroun, 616 F.3d 568, 572-573 (D.C. Cir. 2010), “notify the
defendants” of the lawsuit, In re Bridgestone/Firestone, Inc., 420 F.3d 702, 706-707
(7th Cir. 2005), or file an appeal, Palacios, 499 F. App’x at 57. As one court in this
Circuit explained, “[i]t would be a strange world if a litigant could ‘bootstrap’
himself into a New York court by missing the statute of limitation in the proper
forum.” Castillo v. Shipping Corp. of India, 606 F. Supp. 497, 504 (S.D.N.Y. 1985).
30
None of the “[c]ountless decisions” that Plaintiffs cite (Br. 23) refutes this
principle. In not one of those cases did a court excuse a plaintiff from effecting
proper service, or following any other procedural requirements, in the foreign forum.
See, e.g., Erausquin, 806 F. Supp. 2d at 726 (stating simply that the defendants
“consent[ed] to jurisdiction in Switzerland”). Indeed, at least one of Plaintiffs’ cases
expressly conditioned dismissal on service being “properly made.” Stipulation and
Order Regarding Consent to Conditions ¶¶ 1, 3, In re Alcon S’holder Litig., No. 1:10-
cv-00139 (S.D.N.Y. June 29, 2010), ECF No. 60 (emphasis added).13
Here, the District Court found that “Ott was dismissed from the Luxembourg
Action due to plaintiffs’ failure to properly serve him.” SPA 28 n.15. And as the
Luxembourg court explained, that error was due to Plaintiffs’ repeated failure to
comply with basic service rules: Plaintiffs never attempted to serve Ott in person,
but instead mailed summonses to various wrong addresses they pulled from
13
Plaintiffs claim that Norex establishes that they cannot be “fault[ed]” for “their
failure to meet Luxembourg’s service requirements.” Br. 24 n.4. But Plaintiffs
simply ignore this Court’s subsequent decision in Palacios, which held that Plaintiffs
could not complain that a forum was unavailable due to a procedural defect “entirely
of their own making.” 499 F. App’x at 56; see id. at 56-57 (explaining that the
plaintiffs failed to file an appeal for which they had a “strong, good-faith basis” in a
Guatemala proceeding they themselves initiated). In Norex, by contrast, the
plaintiffs were “precluded” from litigating in a foreign jurisdiction due to a
preexisting judgment in a case in which they had not been properly served, and their
only means of overcoming that preclusive judgment was “remote” and “not . . .
likely” to succeed. 416 F.3d at 158-160. Like in Palacios, and unlike in Norex,
Plaintiffs could easily have obtained jurisdiction over Ott in the Luxembourg
proceeding they themselves filed by serving him in person or at the correct address.
31
unreliable sources. JA 255-256. Although Plaintiffs attempt to blame their “service
defect” on Mr. Ott, Br. 21 (quoting JA 626), that is an unpleaded invention flatly
contradicted by the record and the findings of two courts. See SPA 28 n.15; JA 255-
256. If Plaintiffs still cannot manage to serve Ott correctly, that will be a procedural
defect “entirely of their own making,” Palacios, 499 F. App’x at 56, and thus would
not render the Luxembourg courts unavailable to resolve their claims.
C. The District Court Did Not Abuse Its Discretion In Weighing The Public
And Private Interest Factors.
Because an adequate alternative forum exists to adjudicate Plaintiffs’ claims,
the District Court properly proceeded to the final step of the forum non conveniens
analysis: It “balanced” the public and private interest factors “to ascertain whether
the case should be adjudicated in [Plaintiffs’] chosen forum or in the alternative
forum proposed by [Defendants].” Iragorri, 274 F.3d at 73. The District Court
concluded that, even taking into account “the deference to be accorded Kingstown’s
choice of forum,” SPA 32,14 those factors “weigh heavily in favor of litigating this
case in Luxembourg.” SPA 30-32.
Plaintiffs do not claim that, in performing this analysis, the District Court
applied an incorrect legal standard. See Pollux, 329 F.3d at 70. Instead, they argue
14
In light of this statement, Plaintiffs’ suggestion that the District Court afforded
Kingstown’s choice of forum “no deference at all,” Br. 34, is demonstrably untrue.
See also SPA 32 (noting that the court’s decision would be the same if Kingstown
received “the deference customarily given to a plaintiff suing in his home forum”).
32
simply that the District Court should have weighed the factors differently. But the
function of weighing factors lies at the core of the District Court’s considerable
discretion. See Yáñez Osuna v. Citigroup Inc., 820 F. App’x 38, 42-43 (2d Cir.
2020); Gilstrap v. Radianz Ltd., 233 F. App’x 83, 85-86 (2d Cir. 2007); Peregrine,
89 F.3d at 46. Plaintiffs do not come close to showing the District Court abused that
discretion here.
1. The Private Interest Factors Weigh Heavily in Favor of

Luxembourg.
As to the private interest factors, the District Court properly observed that
adjudicating this case would require “massive foreign discovery” and that “[t]he
difficulties in obtaining witnesses and evidence located abroad are significant.” SPA
30-31; see JA 355-357 (Plaintiffs’ counsel describing the complex foreign discovery
needed to litigate their case). By contrast, it found that Plaintiffs have little interest
in adjudicating this case in the United States, given that it concerns “a purported
scheme regarding European assets of a European company” arising out of Plaintiffs’
decision to invest in a European company without “any presence in the United
States.” SPA 31; see Iragorri, 274 F.3d at 73-74 (availability of witnesses and
burden of producing evidence are relevant private interest factors). Accordingly, it
found that “[t]he private interest factors weigh heavily in favor of litigating this case
in Luxembourg.” SPA 30.
33
In response, Plaintiffs blithely assert that “the private interests are a wash”
because “some” evidence is located in the United States, “some” parties are at home
here, and “some” sliver of the conduct occurred here. Br. 36-37. But that is pure
ipse dixit. Plaintiffs do not meaningfully engage with the District Court’s finding
that the overwhelming majority of evidence is located in Europe, that obtaining that
evidence would be “massively inconvenient and expensive for everyone,” and that
almost the entirety of the alleged scheme occurred in Europe. SPA 26. Simply
ignoring the considerations the District Court relied on is not the recipe for a
successful abuse-of-discretion challenge.
2. The Public Interest Factors Weigh Heavily In Favor of

Luxembourg.
The District Court reasonably found that “[t]he public interest factors also
weigh heavily in favor of dismissal.” SPA 31. “Luxembourg has the predominant
interest” in resolving this suit, given that “[i]t was that jurisdiction’s corporate
governance laws that Vitek and the other defendants allegedly violated” and
“questions of foreign law will be significant in this litigation.” Id. And “[w]here,
as here, there is little connection to New York, those questions should be left to
European courts”—which, indeed, are “already addressing” the claims “brought by
Kingstown.” SPA 31-32.
Plaintiffs claim that the District Court “fail[ed] to consider” two of the factors
listed in this Court’s precedents—namely, the “administrative difficulties associated
34
with the forum court’s hearing the case,” and “the unfairness” of requiring the case
to be resolved by “a community with no relation to the litigation.” Br. 38-39. Not
true. The District Court discussed the administrative difficulties of obtaining
evidence located in Europe. SPA 30-32. And it found that the public interest
weighed in favor of dismissal precisely because the United States has little or no
relation to the litigation, while the dispute arose in and concerns residents of
Luxembourg. SPA 31-32.15
Plaintiffs also assert that “there is no ground to conclude that Luxembourg has
a ‘predominant’ interest in the case.” Br. 38. Plaintiffs “d[id] not dispute” this point
in the District Court, and so have failed to preserve it for review. SPA 20.
Regardless, the reasons the District Court gave are entirely valid: This suit involves
persons, entities, and conduct in Luxembourg and implicates Luxembourg law. SPA
31; see Pollux, 329 F.3d at 76 (country where purchase and alleged fraud occurred
had stronger interest). Plaintiffs’ suggestion that their claims “arise[] under U.S. law
with no Luxembourg counterpart,” Br. 38, simply recapitulates their erroneous
argument that Luxembourg lacks an adequate substitute for civil RICO. See supra
pp. 22-24. Luxembourg is fully capable of resolving Plaintiffs’ claim, and the
15
In any event, the private and public interest factors to be considered vary
depending on the circumstances. See, e.g., DiRienzo, 294 F.3d at 29-30 (finding that
“[o]nly the first three [private interest] factors are implicated here”).
35
District Court did not abuse its discretion by holding that their suit should be
adjudicated there.
This case is therefore distinguishable from Gross v. British Broadcasting
Corp., where the district court found that the relevant factors “were either neutral or,
at most, slightly favored” the foreign forum, yet nonetheless granted the forum non
conveniens motion; this Court, crediting the District Court’s “own analysis,”
reversed. 386 F.3d 224, 232-233 (2d Cir. 2004). Here, the District Court found that
both the private and public interest factors “weigh[ed] heavily” in favor of the
foreign forum, SPA 30-32, and its bases for that conclusion are sufficiently
unassailable that Plaintiffs have not seriously tried to dispute them. The District
Court reasonably exercised its discretion, and its dismissal of this suit under forum
non conveniens should be affirmed.
II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY

DISMISSING KINGSTOWN’S CLAIMS FOR REASONS OF
INTERNATIONAL COMITY.
The District Court determined that Kingstown’s claims should be dismissed
for a second, independent reason: because “abstention is required as a matter of
international comity.” SPA 13. That conclusion was also a reasonable exercise of
the District Court’s discretion and should likewise be affirmed.
International comity is “the recognition which one nation allows within its
territory to the legislative, executive, or judicial acts of another nation.” JP Morgan
36
Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423 (2d Cir.
2005) (quoting Hilton v. Guyot, 159 U.S. 113, 164 (1895)). One branch of the
doctrine of international comity, known as “ ‘adjudicative’ international comity,”
holds that courts may abstain from exercising jurisdiction over an action where a
parallel proceeding is pending in a foreign court. Bugliotti v. Republic of Argentina,
952 F.3d 410, 414 (2d Cir. 2020) (per curiam).
This abstention doctrine is neither novel nor limited to the Second Circuit. It
traces its roots to “the English common law,” JP Morgan Chase Bank, 412 F.3d at
423-424, and has been recognized by many other circuits, see Royal & Sun All. Ins.
Co. of Canada v. Century Int’l Arms, Inc., 466 F.3d 88, 92-94 (2d Cir. 2006). Nor
is it limited, as Plaintiffs suggest, to “foreign bankruptcy proceedings.” Br. 42.
Although this Court has held that comity is “particularly appropriate” in the
bankruptcy context, Allstate Life Ins. Co. v. Linter Grp. Ltd., 994 F.2d 996, 999 (2d
Cir. 1993) (emphasis added), it has repeatedly recognized that comity may be
granted “[o]utside the bankruptcy context” as well, Royal & Sun, 466 F.3d at 93; see
Bigio v. Coca-Cola Co., 239 F.3d 440, 454 (2d Cir. 2000). Indeed, international
comity abstention is essentially Colorado River abstention applied overseas, see
Royal & Sun, 466 F.3d at 92-93 (citing Colorado River Water Conservation Dist. v.
United States, 424 U.S. 800 (1976)), and this Circuit has applied Colorado River in
37
a wide array of contexts, see, e.g., De Cisneros v. Younger, 871 F.2d 305, 309 (2d
Cir. 1989).
Abstention in favor of an ongoing proceeding is appropriate where two criteria
are satisfied: first, the alternative proceeding must be “parallel” to the plaintiff’s
case, Royal & Sun, 466 F.3d at 93, and, second, “exceptional circumstances” must
counsel in favor of abstention, id. at 93, 95. “The decision whether to dismiss a case
on international comity grounds ordinarily lies within the discretion of the district
court,” Bigio, 239 F.3d at 454, and is reviewed for abuse of discretion, see Finanz
AG Zurich v. Banco Economico S.A., 192 F.3d 240, 246 (2d Cir. 1999); Allstate Life
Ins. Co., 994 F.2d at 999. Although review of a district court’s abstention decision
is “more rigorous” than the ordinary abuse-of-discretion standard, Royal & Sun, 466
F.3d at 92 (citation omitted), a district court’s decision to abstain may be upheld
even if abstention is not “the sole result consistent with a proper exercise of the
district court’s discretion.” Bigio, 239 F.3d at 454; see Finova Cap. Corp. v. Ryan
Helicopters U.S.A., Inc., 180 F.3d 896, 900 (7th Cir. 1999).
A. “Parallel Proceedings” Are Pending In Luxembourg.
The District Court properly concluded that the Luxembourg Action is
“parallel” to this suit. SPA 15. To be parallel, two cases need not be identical; it is
sufficient that “substantially the same parties are litigating substantially the same
issues simultaneously in two fora.” Royal & Sun, 466 F.3d at 94 (quoting Schneider
38
Nat’l Carriers, Inc. v. Carr, 903 F.2d 1154, 1156 (7th Cir. 1990)). Kingstown itself
filed the Luxembourg Action four years before it brought this case. SPA 9-11. In
its Luxembourg summons, it named as defendants the same “core parties” it accuses
of misconduct here, including Vitek, Ott, and CPIPG. SPA 15-16; see JA 122-123.
It accused them of the same core scheme of misconduct that it alleges in its amended
complaint below. See SPA 10-11. And it measured damages in essentially the same
way, asking for compensation for the alleged reduction in the value of its shares
attributable to the defendants’ “misconduct.” Compare JA 216, with JA 492, 499.
Indeed, many of the allegations in the two filings track each other point-for-
point. To offer just two examples: In Luxembourg, Kingstown accused Vitek and
Ott of “orchestrat[ing] a ‘cabal’” to take over ORCO. JA 128. Here, it alleges they
developed “a secret pact” to do so. JA 365. In Luxembourg, Kingstown alleged that
Vitek and Ott sold ORCO’s “Endurance Real Estate Fund’s Office Sub-fund” assets
“under hazy circumstances,” to J&T Banka, which in turn sold it to Sidoti, an entity
“owned by Milada Mala, who is none other than Mr Radovan Vitek’s mother.” JA
138-139. In its amended complaint, Kingstown makes the same claim: that Vitek
and Ott “[c]onceal[ed] the [d]etails” of the sale of the “Endurance Office Sub-fund”
to J&T Banka, which then sold it to Sidoti, “an entity nominally owned by Milada
Mala, Vitek’s mother.” JA 415, 422.
39
Kingstown tries but fails to identify any salient difference between these two
cases. It notes that it chose to include a handful of parties in this action that it did
not list in the Luxembourg Action. Br. 43-44. But “[t]he existence of additional
parties in one suit does not of itself destroy parallelism”; otherwise, abstention could
“be avoided by the stroke of a litigant’s pen.” Schneider, 903 F.2d at 1156. Here,
the only new plaintiffs Kingstown added to the later-filed case are its own corporate
affiliates, who share common ownership, are represented by the same attorneys, and
assert precisely the same claims and injuries as the other Kingstown Plaintiffs. SPA
16-17; JA 368-370; see Tarazi v. Truehope Inc., 958 F. Supp. 2d 428, 434 (S.D.N.Y.
2013) (noting that courts have widely held that “affiliates” of existing parties are
“substantially similar” for purposes of the parallelism inquiry). Similarly, the only
new defendants Kingstown added are “the financial institutions and straw
purchasers” that Kingstown alleges were “used by the defendants named in the
Luxembourg Action to effect their alleged scheme.” SPA 17; see JA 371-377.
Kingstown discussed nearly all of these individuals, including J&T Banka and
Rothschild & Co, cf. Br. 44-45, in its Luxembourg filing. See JA 135, 138, 156.
Kingstown does not identify any respect in which adding these “essentially ancillary
parties”—many of whom are not alleged to have acted until after Kingstown suffered
its alleged injuries, see JA 405-408—meaningfully changed its case. SPA 16-17.
40
Kingstown also argues that the suits are non-parallel because in the
Luxembourg Action it raised claims under European and Luxembourg law, whereas
in the United States it raised claims under U.S. law. See Br. 45-46. But, of course,
simply suing under the parallel laws of each respective forum does not render two
suits non-parallel; the dispositive question is whether the cases involve
“substantially the same issues.” Royal & Sun, 466 F.3d at 94 (emphasis added); see
Krondes v. Nationstar Mortg., LLC, 789 F. App’x 913, 914 (2d Cir. 2020) (cases
parallel because they both challenged “the validity of [an] allegedly fraudulent
mortgage,” “even though [one case] raise[d] federal claims” and the other raised
state-law claims). Here, Kingstown is pressing the same allegations of fraud, against
the same core group of entities, to recover for the same alleged injury. SPA 18. On
every relevant dimension, the “issues” in the two cases are “substantially the same.”
Royal & Sun, 466 F.3d at 94.
Finally, Kingstown suggests that the questions at stake in the two cases differ
because “[m]uch of the conduct involved in this case occurred after the Luxembourg
Lawsuit was filed.” Br. 45; see Br. 47. That is doubly incorrect. First, all of the
factual allegations pertaining to Kingstown occurred prior to November 2014, when
Kingstown sold its shares in ORCO and its alleged injury occurred. JA 382-441;
see JA 492, 499. The only allegations postdating the filing of the Luxembourg
summons in January 2015 relate to Investhold. See JA 441-465. But the District
41
Court did not find that there is a parallel Luxembourg proceeding involving
Investhold, nor did it dismiss Investhold’s claims on grounds of international comity
abstention. Those allegations are therefore immaterial to the abstention question.
Second, to the extent Kingstown is suggesting that it learned information after
2014 that affected its damages calculations, that information has already been
introduced in the Luxembourg Action. As Plaintiffs’ expert explains—on the very
page of his declaration that Plaintiffs cite, see Br. 44-45, 47—Kingstown “increased
[its] request for damages” in the “October 2018 brief” it filed in Luxembourg to
reflect “a new valuation of ORCO that incorporated events and records postdating
the filing of the 20 January 2015 summons.” JA 635; see JA 214-216. Indeed, that
“new valuation” was based on the very same CSSF report Plaintiffs later relied on
as the basis for the post-2014 allegations in their amended complaint here. Compare
JA 214, with JA 465-476. Although Kingstown remarkably fails to mention the
October 2018 Luxembourg filing even once in its brief, that filing incorporates any
information Kingstown has learned since 2014 that is even arguably relevant to its
claims.
In the end, Kingstown’s argument boils down to a disagreement with this
Circuit’s law: It believes that the suits must be “totally duplicative,” not just
substantially the same, to be parallel. Br. 45 (citation omitted). That, however, is
precisely what this Court has time and again held is not required to establish
42
parallelism. See Royal & Sun, 466 F.3d at 93.16 Under the standards set forth in this
Court’s precedents, the Luxembourg Action is parallel to this suit.
B. The District Court Did Not Abuse Its Discretion In Finding That
“Exceptional Circumstances” Warrant Abstention.
The District Court also did not abuse its discretion in holding that “exceptional
circumstances” warrant abstention in favor of the parallel proceeding in
Luxembourg. SPA 19 (quoting Royal & Sun, 466 F.3d at 93). This Court has
articulated a non-exhaustive list of eight factors that courts should consider in
deciding whether exceptional circumstances are present:
[1] the similarity of the parties, [2] the similarity of the issues, [3] the order in
which the actions were filed, [4] the adequacy of the alternate forum, [5] the
potential prejudice to either party, [6] the convenience of the parties, [7] the
connection between the litigation and the United States, and [8] the
connection between the litigation and the foreign jurisdiction.
Leopard Marine & Trading, Ltd. v. Easy Street Ltd., 896 F.3d 174, 190-191 (2d Cir.
2018) (quoting Royal & Sun, 466 F.3d at 94). Courts also must consider “the
‘totality of the circumstances’” before abstaining from the exercise of jurisdiction.
Royal & Sun, 466 F.3d at 94 (quoting Finova, 180 F.3d at 900). Here, the District
16
Kingstown also suggests that suits are parallel only where “there is a ‘substantial
likelihood’ that the foreign litigation ‘will dispose of all claims presented in the
federal case.’” Br. 43 (quoting AAR Int’l, Inc. v. Nimelias Enters., S.A., 250 F.3d
510, 518 (7th Cir. 2001)). This Court has never adopted that restrictive standard.
And even if AAR International were this Court’s guide, its standard would be
satisfied here, as a judgment in the Luxembourg proceeding would likely be res
judicata in this case. See SPA 17-19; Advantage Int’l Mgmt. Inc. v. Martinez, No.
93 CIV. 6227 (MBM), 1994 WL 482114, at *4 (S.D.N.Y. Sept. 7, 1994).
43
Court reasonably found that each of the factors this Court has identified, as well as
the totality of the circumstances, favor abstention.
Similarity of the parties and the issues. For the reasons already noted, the
Luxembourg Action involves substantially the same parties and presents
substantially the same issues as this case. SPA 15-19; see supra pp. 38-43. The first
two factors thus favor abstention. See Leopard Marine, 896 F.3d at 190.
The order in which the actions were filed. “Kingstown waited more than
four years after filing the Luxembourg Action to press its rights in this lawsuit.”
SPA 19. What is more, the Luxembourg Action has proceeded further than this case,
which has not passed the jurisdictional stage. See SPA 11. The timing of the suits
thus favors abstention, as well. See Semmes Motors, Inc. v. Ford Motor Co., 429
F.2d 1197, 1203 (2d Cir. 1970) (“[W]hen the same party is plaintiff in both actions,
the instances where the second court should go forward despite the protests of a party
to the first action where full justice can be done, should be rare indeed.”).
The adequacy of the alternate forum. “There can be no serious dispute that
Luxembourg is an adequate forum.” SPA 27. It is “a modern, sophisticated financial
center with an advanced legal system,” which permits adjudication of the claims of
fraud presented here. Id. Moreover, unlike the District Court, the Luxembourg court
is unquestionably “a court of competent jurisdiction.” Allstate Life Ins. Co., 994
F.2d at 999 (citation omitted).
44
The potential prejudice to either party. Defendants would be “seriously
prejudiced by being required to litigate in New York.” SPA 21. Nearly all the
relevant documents and witnesses are located in Europe, and the parties would need
to undergo “a lengthy process of international discovery,” complicated by questions
of “European data protection and privacy laws,” to obtain relevant evidence here.
Id. By contrast, “it is difficult to envision how Kingstown would be prejudiced from
proceeding in the forum it chose many years ago.” SPA 22. Kingstown has pointed
to no evidence, “apart from that in its own files,” that is located in the United States,
Id. at 21-22, and Kingstown’s complaint that proceedings are moving too slowly in
Luxembourg rings hollow where there are “serious question[s] as to whether
Kingstown’s own actions have delayed resolution of the Luxembourg Action,” SPA
21. “[T]he practical burdens of concurrent litigation” therefore weigh heavily in
favor of deferring to the first-filed suit. Id.
The convenience of the parties. For similar reasons, Luxembourg is the more
convenient forum. It has easier access to discovery, undisputed jurisdiction, and
proximity to the “complex constellation of European individuals and companies” at
issue. Id. Although Kingstown has an office in New York, it voluntarily initiated
business in Europe and chose to file suit there years before it thought to sue in New
York. SPA 22.
45
The connection between the litigation and the United States. This case has
at best a “tenuous” connection to the United States. SPA 19-20. The only domestic
links that Kingstown has identified are “the existence of Kingstown offices in New
York, a few visits by Ott to New York and roughly a score of communications
received by Kingstown.” Id. This Court has previously found that ancillary
connections of this nature do not establish a strong domestic interest in adjudicating
the suit. See Bigio, 239 F.3d at 454. And the United States has no meaningful stake
in resolving claims by “a sophisticated [domestic] party that initiated contact with
[a] foreign company, decided to invest in [the] foreign company, and chose in the
first instance to litigate its claims in that company’s home jurisdiction.” SPA 20;
see Ingersoll Milling Mach. Co. v. Granger, 833 F.2d 680, 685 (7th Cir. 1987).
The connection between the litigation and the foreign jurisdiction. By
contrast, Kingstown “do[es] not dispute that Luxembourg has the predominant
interest in resolving the issues surrounding Vitek’s conduct.” SPA 20. “[A]ll of the
events relevant to this litigation occurred in Europe.” Id. “The scheme involves a
Luxembourg-based entity.” Id. And “there are serious issues of Luxembourg
corporate law at stake.” Id.17 These factors plainly give Luxembourg a greater
interest in resolving the dispute. See Pollux, 329 F.3d at 76.
17
Kingstown analogizes to cases in which courts said abstention was “ ‘disfavored’ ”
because “the ‘applicable substantive law’ ” was “federal.” Br. 46 (quoting Vill. of
Westfield v. Welch’s, 170 F.3d 116, 124 (2d Cir. 1999)). But in those cases, both the
46
Totality of the circumstances. The “totality of the circumstances” also favor
abstention. Royal & Sun, 466 F.3d at 94 (citation omitted). As the District Court
explained, “[p]rinciples of international comity dictate that the Luxembourg judicial
system be given the opportunity to resolve the Luxembourg Action, which is a suit
focused on conduct affecting a Luxembourg corporation that occurred in
Luxembourg.” SPA 20. No other factor is present that “counterbalance[s]” or
“overcomes the exceptional circumstances supporting abstention.” SPA 20-21.
Kingstown’s response is tellingly feeble. Rather than engage in any analysis
of the factors laid out in this Court’s precedents, Kingstown asserts that the
considerations the District Court identified are “routinely present in parallel
litigation.” Br. 50. That is quite obviously untrue. It will be the “exceptional” case
in which a plaintiff filed in a foreign forum years before suing in the United States,
all of the operative facts occurred abroad, all of the defendants are foreign,
adjudicating the suit in the United States would be highly costly and inconvenient,
foreign proceeding and the domestic one were governed by U.S. law. See Leopard
Marine & Trading, Ltd. v. Easy Street, Ltd., No. 15-cv-3064, 2015 WL 4940109, at
*3 (S.D.N.Y. Aug. 6, 2015) (parties’ contract “provide[d] for [the] application of
United States law”); Welch’s, 170 F.3d at 124 (explaining that “[f]ederal law will
govern” in both state and federal proceedings, because both cases pertained to
compliance with federal law). Here, by contrast, the Luxembourg proceeding is
governed entirely by foreign law, while the U.S. case implicates significant issues
of Luxembourg law. The governing “rule of decision” in both cases thus cuts in
favor of, rather than against, abstention. Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 23 (1983).
47
and the foreign court is more competent to exercise jurisdiction, conduct discovery,
and adjudicate the foreign-law issues at the heart of the case. This Court has never
found abstention unwarranted in the face of remotely comparable facts. Cf. Bigio,
239 F.3d at 454 (holding that abstention would not be an abuse of discretion where
the case concerned an alleged seizure of a U.S. corporation’s property in Egypt).
Kingstown’s attempts to analogize this case to Bugliotti and Leopard Marine
only confirm how far afield this case is from ones in which this Court has deemed
abstention improper. In Bugliotti, the district court “did not identify any exceptional
circumstances” to justify its decision to abstain from a dispute over Argentine tax
credits. 952 F.3d at 415 (emphasis added and citation omitted). The entirety of its
rationale consisted of eleven words: that abstention was proper “[g]iven the
importance of the Tax Credit Program to the [Argentine] Republic.” Bugliotti v.
Republic of Argentina, No. 17 Civ. 9934 (LAP), 2019 WL 586091, at *3 (S.D.N.Y.
Jan. 15, 2019). This Court simply held that this cursory explanation was insufficient,
while “express[ing] no view as to whether abstention might be appropriate based
upon other considerations, or on a more developed record.” Bugliotti, 952 F.3d at
415 n.4.
In Leopard Marine, the district court declined to abstain because of a
mountain of factors: Among other things, it noted that the parties’ contract expressly
provided that their disputes would be resolved in U.S. court under U.S. law; that the
48
parallel foreign proceeding was filed only “three days” before the U.S. suit; and that
the parties had “no special connection” with a foreign country other than the fact
that their ship had briefly docked there. 2015 WL 4940109, at *2-3. This Court
unsurprisingly held that, in reaching that conclusion, the district court “did not abuse
its discretion.” Leopard Marine, 896 F.3d at 193. This case differs in every
respect—which is why here, unlike in Leopard Marine, the District Court found
abstention warranted. That holding was a permissible exercise of its discretion and
should be affirmed.
III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN THE
PROCEDURES IT APPLIED.
Plaintiffs conclude by raising four last-ditch objections to the procedures the
District Court followed. None has merit.
A. The District Court Did Not Abuse Its Discretion By Considering

Professor Prüm’s Declaration.
Plaintiffs claim that the District Court “abused its discretion” by considering
Professor Prüm’s declaration, which was filed with Defendants’ reply brief, and by
supposedly failing to “give[ ] [Plaintiffs] the opportunity” to respond to that
declaration. Br. 52-53. This argument rests on a serious misstatement of both the
law and the facts.
As to the law, district courts have broad discretion to consider “affidavits
submitted with . . . reply papers.” Bayway Refin. Co. v. Oxygenated Mtkg. & Trading
49
A.G., 215 F.3d 219, 227 (2d Cir. 2000); see Cifarelli v. Vill. of Babylon, 93 F.3d 47,
53 (2d Cir. 1996); see also S.D.N.Y. Local Civil Rule 6.1(a) (allowing “reply
affidavits”). A district court does not abuse its discretion where a reply affidavit
“address[es] new material issues raised in the opposition papers” and the court
“permit[s] the nonmoving party to respond” to any “new evidence” it contains.
Bayway Refin. Co., 215 F.3d at 226-227 (quoting Litton Indus. v. Lehman Bros.
Kuhn Loeb Inc., 767 F. Supp. 1220, 1235 (S.D.N.Y. 1991)); see Ruggiero v. Warner-
Lambert Co., 424 F.3d 249, 252 (2d Cir. 2005).
The District Court acted well within the scope of its discretion here.
Defendants introduced Professor Prüm’s declaration in response to “new material
issues raised in the opposition papers,” Bayway Refin. Co., 215 F.3d at 226-227
(citation omitted)—namely, a declaration by Plaintiffs’ foreign-law expert that
raised new issues about the adequacy of Luxembourg as an alternative forum. See
JA 565-574. In responding to those new issues, and providing further support for
Defendants’ opening argument that Luxembourg is an adequate forum, Professor
Prüm’s declaration was a normal part of a reply memorandum on a question of law.
See Fed. R. Civ. P. 44.1 (issues of foreign law are “question[s] of law”). Indeed,
given that Prüm’s declaration contained arguments of law, not “new evidence,”
Bayway Refin. Co., 215 F.3d at 227 (citation omitted), the District Court would have
been within its discretion to consider that declaration and deny Plaintiffs any further
50
opportunity to respond. See Cifarelli, 93 F.3d at 53; Bonnie & Co. Fashions v.
Bankers Tr. Co., 945 F. Supp. 693, 708 (S.D.N.Y. 1996).
Nonetheless, the District Court did allow Plaintiffs to respond to Prüm’s
declaration. Although Plaintiffs fail to acknowledge it, they filed a brief after
Defendants’ reply memorandum that explicitly responded to Professor Prüm’s
statements about foreign law. ECF No. 211, at 21 n.20, 26-27 & n.27. They also
submitted a new declaration from their foreign-law expert implicitly answering
Prüm’s declaration. JA 623-638; see ECF No. 217. Plaintiffs’ assertion (Br. 53)
that they were “never given the opportunity to dispute” Prüm’s declaration is—to
put it bluntly—entirely false. Indeed, the declaration responding to Plaintiffs’ reply
brief and Professor Prüm’s declaration is included in the joint appendix, see JA 623-
638, and is cited repeatedly throughout Plaintiffs’ brief, see Br. 9, 12-13 n.2, 21, 25-
27, 31-33, 45-47, 52-54, including on the very page where they make this erroneous
claim, see Br. 53 n.7.
B. The District Court Did Not Abuse Its Discretion By Declining To Conduct
A Foreign-Law Hearing.
Plaintiffs next claim that the District Court erred by declining to grant their
request for a foreign-law hearing. Br. 56. As an initial matter, Plaintiffs never
validly made such a request below. The only place in which they adverted to a
foreign-law hearing was in footnote 37 of their 189-page omnibus opposition brief,
which contained the following conclusory sentence: “In the alternative, if
51
Defendants are allowed to select a specific forum or introduce foreign-law evidence
on reply, the Court should order discovery and hold a foreign-law hearing pursuant
to Rule 44.1 of the Federal Rules of Civil Procedure.” ECF No. 178, at 65 n.37.
This Court has held that “issues adverted to in a perfunctory manner,
unaccompanied by any developed argumentation, are deemed waived.” United
States v. Botti, 711 F.3d 299, 313 (2d Cir. 2013) (citation omitted). “This rule has
particular force where [a party] makes an argument only in a footnote.” Id. (citation
omitted); see Optical Commc’ns Grp., Inc. v. M/V Ambassador, 558 F. App’x 94,
95 (2d Cir. 2014). Here, because Plaintiffs made no effort to explain the basis for
their perfunctory request, buried in a footnote, and phrased in the alternative, they
cannot now fault the District Court for failing to discuss it.
In any event, the District Court acted properly by declining to hold a foreign-
law hearing. Although courts have “flexibility” to “employ fact-like procedures” to
assist them in resolving difficult foreign-law issues, Bugliotti, 952 F.3d at 413, they
are also free to resolve such questions—like all legal questions—on the basis of a
written record alone. See, e.g., Alpert v. Starwood Hotels & Resorts Worldwide,
Inc., 799 F. App’x 89, 91 (2d Cir. 2020); Weiss v. La Suisse, 313 F. Supp. 2d 241,
244 (S.D.N.Y. 2004). Plaintiffs have never identified, either here or below, any
useful information that would be gleaned by a foreign-law hearing. It therefore was
not an abuse of discretion for the District Court to decline to hold one. See United
52
States v. Maynard, 117 F. App’x 28, 30 (10th Cir. 2004) (rejecting argument that the
district court was “required to hold a hearing” under Rule 44.1).18
C. The District Court Did Not Abuse Its Discretion By Declining to Order
Discovery.
Plaintiffs are also incorrect that the District Court abused its discretion by
declining to order “discovery on the issues of forum non conveniens and
international-comity abstention.” Br. 56. Plaintiffs failed to preserve this claim, too:
Their only “request” for discovery below appeared in the same conclusory footnote
as their “request” for a hearing. See ECF No. 178, at 65 n.37. Given that the District
Court had already granted a stay of discovery following a hearing and argument on
the subject, JA 351, Plaintiffs’ unreasoned footnote was a particularly inadequate
way of asking that the stay be lifted and discovery reopened.
Regardless, the District Court reasonably declined to order new discovery. “A
district court has wide latitude to determine the scope of discovery.” Frontera Res.
Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393, 401 (2d Cir.
18
For similar reasons, Plaintiffs are wrong that the District Court erred by
supposedly “ignor[ing]” its foreign-law expert and “credit[ing] without explanation
Vitek’s expert” over Plaintiffs’. Br. 55. Declarations about the meaning of foreign
law are not “evidence” that must be accepted as true or weighed for credibility. See
Euromepa S.A. v. R. Esmerian, Inc., 154 F.3d 24, 28 n.2 (2d Cir. 1998); Curtis v.
Beatrice Foods Co., 481 F. Supp. 1275, 1285 (S.D.N.Y.), aff’d, 633 F.2d 203 (2d
Cir. 1980) (table) (mem.). The District Court properly evaluated the competing
affidavits and reached its own “independent interpretation” of what foreign law
means. Bugliotti, 952 F.3d at 414.
53
2009) (citation omitted). In deciding a motion to dismiss on forum non conveniens
grounds, like other threshold motions under Rule 12(b)(1), “a district court normally
relies solely on the pleadings and affidavits.” Martinez v. Bloomberg LP, 740 F.3d
211, 216 (2d Cir. 2014). Indeed, “[r]equiring extensive investigation would defeat
the purpose” of both the forum non conveniens and abstention doctrines, by requiring
defendants to undergo the very burdens those doctrines are designed to prevent.
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 258 (1981); see Transunion, 811 F.2d at
130 (finding no abuse of discretion where court denied discovery prior to deciding
forum non conveniens motion).
The District Court did not abuse its discretion by declining to depart from that
standard practice here. Plaintiffs claim that they “sought” discovery regarding
certain documents that they believe might have revealed peripheral connections
between the alleged fraud and the United States. Br. 57. But Plaintiffs never
informed the District Court that they sought those documents (or any others). And
the ancillary facts Plaintiffs belatedly speculate discovery might have unearthed
would not plausibly alter the District Court’s conclusion that the balance of interests
weighs decisively in favor of allowing this litigation to proceed in Luxembourg. See
SPA 31-32.
54
D. The Case Was Properly Dismissed Without Prejudice.
As a final argument, Plaintiffs claim that the District Court erroneously
dismissed their case with prejudice, and that they must be given an opportunity to
“replead or refile.” Br. 58-59. They are wrong on both counts. The District Court’s
decision was a dismissal without leave to amend—it directed the clerk to “close this
case,” SPA 32-33—but that is “not the same thing as a dismissal with prejudice.”
Holcombe v. Ingredients Sols., Inc., 797 F. App’x 630, 634 (2d Cir. 2020) (citation
omitted). Because the district court did not decide the case “on the merits” and did
not state that its dismissal was with prejudice, its dismissal was “without prejudice.”
Verret v. Elliot Equip. Corp., 734 F.2d 235, 238 (5th Cir. 1984); see Georgia Advoc.
Off., Inc. v. Camp, 172 F.3d 1294, 1299 (11th Cir. 1999) (same); cf. Stern v. Gen.
Elec. Co., 924 F.2d 472, 477 n.7 (2d Cir. 1991) (assuming dismissal with prejudice
was intended because case was dismissed on the merits “for failure to state a claim
upon which relief can be granted” (citation omitted)).
Dismissal “without prejudice,” however, “does not mean that [Plaintiffs] must
be granted leave to amend.” Holcombe, 797 F. App’x at 634. By losing a motion
to dismiss on non-merits grounds, Plaintiffs did not gain the power to file a second
amended complaint (or, what amounts to the same thing, the power to refile) without
satisfying the requirements for filing new pleadings under Rules 15, 59, and 60. See
In re Buckskin Realty, Inc., No. 19-3828-bk, 2021 WL 1081480, at *2 (2d Cir. Mar.
55
22, 2021) (explaining that post-judgment motions to amend are subject to
“heightened standards” and should be denied when amendment would be “futile”).
Plaintiffs make no showing that they satisfy those requirements here. They
have not provided a “proposed second amended complaint” or other concrete
demonstration that they can cure the jurisdictional defects in their case on a third try.
See Denny v. Barber, 576 F.2d 465, 470-471 (2d Cir. 1978); see also Malin v. XL
Cap., Ltd., 312 F. App’x 400, 403 (2d Cir. 2009) (rejecting plaintiffs’ request for
leave to replead, including for failure to “proffer an amended pleading”); In re Am.
Express Co. S’holder Litig., 39 F.3d 395, 402 (2d Cir. 1994) (similar). Instead, they
summarily assert that their new pleadings would allege that “Vitek and his co-
conspirators took steps to subvert law enforcement investigations in the Czech
Republic and elsewhere.” Br. 59. But by adding more European events to their
allegations, Plaintiffs would simply reinforce the conclusion that this case belongs
in Europe.
56
CONCLUSION
For the foregoing reasons, the judgment should be affirmed.
Dated: April 16, 2021
Respectfully submitted,
/s/ Michael C. Hefter

JACK A. GORDON MICHAEL C. HEFTER
JOSHUA B. KATZ SETH M. COHEN
KENT, BEATTY & GORDON, LLP ANDREW M. HARRIS
Eleven Times Square HOGAN LOVELLS US LLP
New York, NY 10036 390 Madison Avenue
(212) 421-4300 New York, NY 10017
Attorneys for Defendant-Appellee (212) 918-3000
Pavel Spanko
MITCHELL P. REICH
SCOTT M. KESSLER HOGAN LOVELLS US LLP
AKERMAN LLP 555 Thirteenth St., N.W.
1251 Avenue of the Americas, 37th Washington, DC 20004
Floor (202) 637-5800
New York, NY 10020 Attorneys for Defendants-Appellees
(212) 880-3800 Radovan Vitek, CPI Property Group,
Attorney for Defendant-Appellee Rene S.A., Milada Mala, and Martin
Foltan Němeček
CARL W. OBERDIER TIMOTHY G. CAMERON

KELLEN G. RESSMEYER JOHN D. BURETTA
OBERDIER RESSMEYER LLP CRAVATH, SWAINE & MOORE LLP
665 Third Avenue, Floor 28 825 Eighth Avenue
(212) 659-5141 (212) 474-1000
Attorneys for Defendants-Appellees Attorneys for Defendant-Appellee

Tomáš David and Petr Sekanina Rothschild & Co
57
BLAINE BORTNICK, ESQ. ANDREW H. SCHAPIRO

JAMES W. HALTER, ESQ. QUINN EMANUEL URQUHART &
RASCO KLOCK PEREZ & NIETO, LLC SULLIVAN, LLP
555 Fifth Avenue 51 Madison Avenue, Floor 22
17th Floor New York, NY 10010
New York, NY 10017 (212) 849-7000
(646) 970-4770 Attorney for Defendant-Appellee Jean-
Attorneys for Defendant-Appellee Jan Francois Ott
Gerner
DAVID W. RIVKIN
STAN CHELNEY MAEVE O’CONNOR
CHELNEY LAW GROUP PLLC DEBEVOISE & PLIMPTON LLP
28 Liberty Street, 6th Floor 919 Third Avenue
(212) 653-0022 (212) 909-6000
Attorney for Defendant-Appellee Julius Attorneys for Defendants-Appellees
Strapek J&T FINANCE GROUP SE, J&T
BANKA, a.s., and Postova banka, a.s.
58
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type volume requirements of Federal Rule
of Appellate Procedure 32(a)(7)(B)(i) and Local Rule 32.1(a)(4) because it contains
13,848 words, excluding the parts of the document exempted by Fed. R. App. 32(f).
2. This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the typestyle requirements of Federal Rule of
Appellate Procedure 32(a)(6) because it has been prepared in a proportionally spaced
typeface using Microsoft Word for Office 365 in Times New Roman 14-point font.

Michael C. Hefter
CERTIFICATE OF SERVICE
I certify that the foregoing Brief for Defendants-Appellees was filed with the
Clerk using the appellate CM/ECF system on April 16, 2021. All counsel of record
are registered CM/ECF users, and service will be accomplished by the CM/ECF
system.

Michael C. Hefter

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Case 20-3406, Document 76, 04/16/2021, 3079921, Page1 of 73

Appeal from the United States District Court for the

BRIEF FOR DEFENDANTS-APPELLEES

MITCHELL P. REICH MICHAEL C. HEFTER

(Additional counsel listed on inside cover)

JACK A. GORDON TIMOTHY G. CAMERON

SCOTT M. KESSLER ANDREW H. SCHAPIRO

CARL W. OBERDIER DAVID W. RIVKIN

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, counsel

for Defendants-Appellees state as follows:

CPI Property Group, S.A. (“CPIPG”) is a Luxembourg joint stock company,

J&T FINANCE GROUP SE (“J&T Finance”) does not have a parent

10% or more of J&T Banka’s or Postova’s stock.

owns more than 10% of Rothschild & Co SCA’s share capital.

No other Defendant-Appellee is a nongovernmental corporate party.

CORPORATE DISCLOSURE STATEMENT ..........................................................i

TABLE OF AUTHORITIES ....................................................................................iv

STATEMENT OF THE CASE .................................................................................. 3

A. The Kingstown Plaintiffs ................................................................. 3

B. The Investhold Plaintiffs .................................................................. 5

C. The Luxembourg Action .................................................................. 6

D. Proceedings Below ........................................................................... 7

E. The District Court’s Opinion ........................................................... 9

SUMMARY OF ARGUMENT ............................................................................... 11

I. THE DISTRICT COURT DID NOT ABUSE ITS

A. The District Court Did Not Abuse Its Discretion By

B. The District Court Did Not Abuse Its Discretion By

1. Luxembourg Permits Litigation of the Subject

2. Defendants Are Amenable to Process in

C. The District Court Did Not Abuse Its Discretion In

1. The Private Interest Factors Weigh Heavily in

2. The Public Interest Factors Weigh Heavily In

II. THE DISTRICT COURT DID NOT ABUSE ITS

A. “Parallel Proceedings” Are Pending In Luxembourg .................... 38

B. The District Court Did Not Abuse Its Discretion In

III. THE DISTRICT COURT DID NOT ABUSE ITS

A. The District Court Did Not Abuse Its Discretion By

B. The District Court Did Not Abuse Its Discretion By

C. The District Court Did Not Abuse Its Discretion By

D. The Case Was Properly Dismissed Without Prejudice .................. 55

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