Mount Whitney Investments LLLP v. Goldman Morgenstern & Partners Consulting, LLC
1:15-cv-04479
S.D.N.Y.May 2, 2016Background
- Plaintiff Mount Whitney Investments (MWI), a Nevada LLP managed by Volker Tabaczek (a German resident), sues GoMoPa (a New York LLC) and three German individuals (Ritter, Elstermann, Schulte) for alleged extortion, defamation, RICO violations, tortious interference, and breach of contract based on publications and communications in 2014–2015.
- MWI alleges Ritter and Elstermann contracted to provide financial services, were paid advanced commissions, but lacked required licenses; Schulte allegedly demanded payment and threatened an online smear campaign if not paid.
- Defendants (through GoMoPa’s website and a separate site criminals.cc) allegedly published false statements and solicited complaints to regulators; MWI claims reputational harm and loss of a $5 million investment.
- GoMoPa moved to dismiss on forum non conveniens grounds, arguing Germany is the appropriate forum; GoMoPa is amenable to German jurisdiction and individual defendants are German domiciliaries.
- Court analyzed the three-step Iragorri/Norex framework: deference to plaintiff’s forum choice, adequacy of Germany as an alternative forum, and balancing private and public interest factors.
- Court denied GoMoPa’s motion: New York forum choice entitled to deference, Germany deemed an adequate alternative but private and public factors did not tilt heavily toward dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MWI’s choice of New York forum merits deference | Chose NY for jurisdiction over GoMoPa and access to U.S.-located digital evidence | No deference because operative facts occurred outside U.S. | Court afforded deference: choice motivated by convenience and jurisdiction over GoMoPa |
| Whether Germany is an adequate alternative forum | Germany lacks RICO, so cannot fully vindicate claims | Germany can adjudicate analogous criminal and civil claims; defendants are amenable | Germany is an adequate alternative (service and remedies available) |
| Whether private interest factors favor dismissal | Litigation in NY is convenient for plaintiff; evidence partly in U.S. | Witnesses and documents primarily in Germany; cost/burden of NY trial | Private factors do not weigh heavily for dismissal; GoMoPa failed to show oppressiveness |
| Whether public interest factors favor dismissal | NY has interest because GoMoPa is NY entity and evidence is partly in U.S. | Dispute is local to Germany (language, audience, parties) | Public factors do not tilt heavily to Germany; dismissal denied |
Key Cases Cited
- Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (U.S. 2007) (standard on forum non conveniens discretion)
- Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146 (2d Cir. 2005) (three-step Iragorri framework and sliding-scale deference)
- Iragorri v. United Tech. Corp., 274 F.3d 65 (2d Cir. 2001) (factors guiding deference to plaintiff’s forum choice)
- Piper Aircraft Co. v. Reyno, 454 U.S. 235 (U.S. 1981) (forum non conveniens principles; foreign law differences not dispositive)
- Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64 (2d Cir. 2003) (forum selection and deference when suing defendant in its home forum)