OPINION
I. Introduction
This is the fifth civil action filed in an international struggle among the children of Gunter and Ingeborg Diedenhofen over the ownership and control of the family’s assets. The five Diedenhofen children and their mother are
Gesells-chafber,
or partners, in EVA Eifeler Ver-mogensanlagen (“EVA”). EVA is a
Ge-sellschaft burgerlichen Rechts,
a German
Through this lawsuit, the plaintiffs seek a full accounting of the assets under Ul-rike’s control, the imposition of a constructive or resulting trust on those assets, and money damages to rectify alleged fiduciary and contractual breaches. In addition, they also request a declaratory judgment that Ulrike’s authority to manage, invest, or control the assets was validly and effectively terminated by EVA and the individual plaintiffs. The plaintiffs sued Ulrike in Delaware, they say, because she is a resident of this State, and conducts many of her activities regarding the North American assets in question from her home here.
At this stage in the proceedings, Ulrike has moved to dismiss or stay this case in favor of the earlier-filed actions already pending in the courts of Germany, Canada, and California. In support of that motion, Ulrike argues, among other things, that the well-known McWane 1 doctrine justifies a stay of the proceedings in this court.
In this decision, I grant Ulrike’s motion. The plaintiffs’ complaint in this case trailed a lawsuit filed in Canada, one pending in California, and two initiated in Germany. All of those actions involve substantially the same parties, and address substantially the same issues. They each put into question what assets are owned by EVA and ask for a determination of the rights and obligations of the family members with regard to the family’s assets. Rather than add this court to the list of tribunals considering those issues, I conclude that a stay is warranted to allow these prior pending cases to run their course.
Moreover, given the nature of this dispute, more complete, and, in my view, superior justice could be had by the parties in the German courts. It is undisputed that all of the dealings among the partners in EVA were conducted in German, and that all of the partners except for Ulrike live in that nation. Indeed, the EVA Partnership Agreement specifically contemplates that the courts in Gerolstein, Germany would be a fitting venue for resolving disputes among the partners. Finally, the plaintiffs base their claims on the proposition that an oral understanding was reached by the EVA partners whereby the Diedenhofens’ North American assets would be titled in writing in the individual names of the family members but the equitable ownership would ultimately rest in EVA. They further contend that this practice is common, well-understood, and legitimate as a matter of German business law and custom.
I am an American-trained judge who speaks English. As such, it would be hubristic for me to conclude I would somehow do a better job of deciding this dispute than the German courts, whose jurists are steeped in German law and business context, and actually understand the witnesses in the case and the key documents. Rather, in addressing a case
Given that the German action predated this one, given that the plaintiffs here all reside within the jurisdiction of the German court in which the prior pending action was filed, and given that complete and superior justice can be done there, the McWane doctrine requires that a stay issue. In so concluding, it is also worth noting that McWane is a doctrine grounded in concepts of comity, not just efficiency. Of all the states of the union, Delaware should be most sensitive to the need to afford comity to the courts of the jurisdiction that charters an entity. As is well understood, it is more than the statutory words on paper that give life to a system of entity law. Much often depends on the extent to which specific disputes are consistently handled by courts, thus giving businessmen predictable guidance by which to order their relations. In a situation when a German court can efficiently and expertly resolve a dispute involving partners to a German partnership, it would display precious little comity for this court to proceed with an expensive, inefficient, burdensome, error-hazarding, and unnecessary attempt to decide which German speakers and experts were telling the truth about business dealings conducted in German and about German laws, documents, and cultural and business understandings.
Furthermore, given that the plaintiffs themselves have filed prior pending actions in both California and Canada that address an important subset of the identical issues that the plaintiffs seek to litigate here, McWane also supports the entry of a stay in favor of those actions. These courts are as well positioned as this court to address the parties’ overall dispute. Moreover, even if those actions do not address all the issues among the parties, the completion of those actions would substantially narrow any issues that remain to be litigated here.
II. Factual Background
The Diedenhofen family consists of Gun-ter and Ingeborg Diedenhofen and their five children: Eleanore, Volker, Gotz, Ru-diger and Ulrike. Since 1980, the family has owned EVA, with Ingeborg holding a 5/15 ownership stake and each of the five children holding a 2/15 interest. When EVA was formed, Gunter was named a partner with voting rights but without any equity in EVA. Until his death in 2005, Gunter managed EVA and held powers of
Over the years, various assets in Europe, the United States, and Canada were accumulated by the Diedenhofen family. The precise ownership of those assets is the issue the plaintiffs wish to litigate. According to them, most of EVA’s investments were in real estate, and all were made through single purpose entities organized under the laws of the nation in which the properties (or other assets) were located. For various legal and tax reasons, the plaintiffs say that the ownership structure of these entities did not always mirror EVA’s structure. For example, Ulrike allegedly did not participate in certain of the European entities because she resided in the United States, and Ingeborg did not participate in some of the U.S. entities because of her German citizenship and other reasons. Most important, certain assets the plaintiffs claim are equitably owned by EVA are titled in the individual names of the Diedenhofen family members, though not in the same proportions as their ownership interests in EVA. Ul-rike apparently disputes the plaintiffs’ arguments, contending that the titling of the various assets reflects the economic reality intended by the family.
As Gunter grew older, his children assumed greater responsibility in managing EVA. In the early 1970s, Ulrike left Germany and moved to the United States to attend college, ultimately settling in Newark, Delaware. In the mid-1980s, UMke assumed responsibility for administering the North American assets of EVA because of her residence in this country. 2 Back in Germany, Ulrike’s brothers, Gotz and Volker, also allegedly took on increased roles, beginning to assist in the management of EVA in 1996. Despite this assistance, Gunter Diedenhofen remained the managing partner of EVA until his death in April 2005.
Upon his father’s death, Gotz filled the role of managing partner of EVA. The Diedenhofens also acted to ratify Ulrike’s ability to administer the family’s assets in North America by executing a Trust Agreement, i.e., the Treuhandvertrag. That Agreement was signed in May 2005 by the members of the Diedenhofen family and was backdated to January 1989 to retroactively authorize Ulrike’s actions and empower her in the future. The Trust Agreement was drafted in German, but indicates that it was made in Newark, Delaware. It does not contain any choice of law or jurisdictional provisions. 3
During the next year, tensions escalated within the Diedenhofen family concerning access to information about EVA and the family’s holdings. At that time, Gotz and the other plaintiffs hoped to restructure
On May 23 and May 24, 2006, the partners of EVA held a meeting in Cologne, Germany. At that meeting, Ulrike’s failure to account for or transfer the assets was discussed. Following that discussion, the plaintiffs claim that Ulrike’s attorney promised to provide the information within two weeks. Also at that meeting, two more specific resolutions were allegedly adopted by the majority of the EVA partners. The first required Ulrike to transfer approximately CAD $1 million from Canada back to Germany, and the second instructed Ulrike to cease investment in the El Banco Vineyards business in California. Allegedly, Ulrike complied with neither.
As a result of these acts, the plaintiffs filed suit against Ulrike in Canada on September 21, 2006. In the “Canadian Action,” the plaintiffs assert that the individual family members’ interests in Maare Holdings Ltd., a Canadian entity, were purchased with funds belonging to EVA, and therefore equitably owned by EVA. On October 3, 2006, Ulrike filed a counterclaim seeking a declaration that her shares in Maare, which were titled in her name only, were free of any claims, encumbrances, or equitable obligations to EVA or her siblings.
A week after filing her counterclaim in the Canadian Action, Ulrike filed suit in Germany. Ulrike’s first suit, or Klage, sought an accounting by EVA for its 2005 performance under the terms of the EVA Partnership Agreement as well as relief based on alleged mismanagement of funds. That lawsuit was filed on October 10, 2006 in Landgericht Trier, which is the court of appropriate jurisdiction for Gerolstein, Germany, and seems on its face to comport with a provision in the Partnership Agreement, which has been translated by Ulrike to read: ‘Venue of jurisdiction and place of performance for all obligations resulting from this agreement is Gerolstein.” 4
The first “German Action” was followed by a second filed on November 23, 2006 in the same court. Like the first, the second Klage sought various remedies under the EVA Partnership Agreement and principles of German law. The crux of this action was an interest-swap transaction that Ulrike claimed was related to EVA, but that her other siblings said was not. As such, the ownership interests of EVA were again implicated.
In between the filing of the first and second German Actions, the plaintiffs filed suit in California — the third jurisdiction to consider a dispute relating to EVA. The “California Action” commenced on November 16, 2006. The complaint in that case alleged that EVA was entitled to a portion of the proceeds from the sale of a real estate investment in California owned through the Office Building Crescent Heights Ltd. partnership. Again, EVA’s position was that it, rather than simply the owners identified in the titling documents, was an owner of the real estate invest
On December 1, 2006, the plaintiffs allegedly executed and delivered to Ulrike a “Termination of Authority.” Pursuant to that document, any implied or agreed trustee relationship between her and EVA was purportedly terminated. Moreover, her authority to act with respect to any and all of the EVA assets was revoked. The individual plaintiffs likewise withdrew their consents and authorizations allowing Ul-rike to act on their behalves.
Finally, on December 4, 2006, over two months after the plaintiffs’ first lawsuit was filed, this “Delaware Action” was filed. Here, the plaintiffs assert claims that are substantively identical to the breach of fiduciary duty and breach of contract claims that they put forth in the California and Canadian Actions. The only difference is that in the Delaware Action the plaintiffs purport to address all the North American assets Ulrike has administered for family members, regardless of location.
After this case was filed, Ulrike filed a third German Action, again in the courts encompassing Gerolstein. The third Klage was filed on June 11, 2007 and incorporated the claims already pending in California and Canada — i.e., that the assets in question in those cases are not owned by EVA. Ulrike did not implicate the full range of North American assets that have been put at issue in the Delaware Action in her third Klage. Through counsel, though, she has represented that she would subject herself to full jurisdiction as if she were a resident in Germany in that action and that she will comply with all applicable discovery rules. 5
Over the months since these actions were first filed, many events have transpired. With regard to the German Actions, judgment was entered in favor of Ulrike on May 15, 2007 in the first Klage, holding that an accounting was required under the EVA Partnership Agreement for the year 2005. The second Klage, which had requested an accounting for an interest swap transaction, was dismissed on May 23, 2007. In granting dismissal, the court determined that the defendants were improper because the EVA Partnership Agreement did not cover the swap transaction because it was conducted by non-EVA Diedenhofen family entities.
Regarding the cases in California and Canada, those actions have expanded to encompass a similarly large range of claims. For example, in the California Action, deposition questioning during discovery addressed numerous non-California assets allegedly owned by EVA as well as the obligations owed by Ulrike under the Trust Agreement. Upon objection by Ul-rike’s counsel, opposing counsel represented that these issues were relevant to the California Action regarding the pattern and custom of the parties. The Canadian Action also ballooned. New claims were added to the complaint, and EVA was added as a party in May 2007. As a result, the plaintiffs (in both this case and the Canadian Action) conceded that resolution of the issues in the Canadian Action
III. Legal Analysis
Ulrike has based her motion to dismiss or stay on several arguments. I concentrate my analysis only on her argument under the doctrine established by McWane Cast Iron Pipe Corp. v. McDowelVWell-man Engineering Co. 6 and its progeny. I find Ulrike’s arguments under McWane to be persuasive and grant her motion to stay on that basis.
The well-known McWane opinion states: [A] Delaware action will not be stayed as a matter of right by reason of a prior action pending in another jurisdiction involving the same parties and the same issues; that such stay may be warranted, however, by facts and circumstances sufficient to move the discretion of the Court; that such discretion should be exercised freely in favor of the stay when there is a prior action pending elsewhere, in a court capable of doing prompt and complete justice, involving the same parties and the same issues; that, as a general rule, litigation should be confined to the forum in which it is first commenced, and a defendant should not be permitted to defeat the plaintiffs choice of forum in a pending suit by commencing litigation involving the same cause of action in another jurisdiction of its own choosing; that these concepts are impelled by considerations of comity and the necessities of an orderly and efficient administration of justice. 7
Under this test, Ulrike argues that the Canadian, German, and California Actions all constitute prior-pending actions involving substantially the same parties and the same issues in courts capable of doing prompt and complete justice. The two key issues are whether the parties and claims in this case are substantially similar to those raised in any of the cases that were filed earlier. 8 The captions need not be exact replicas, nor must the counts in each complaint be identical. What is important is that the same individuals or entities be involved in each of the disputes and that the issues raised in each case arise out of a common nucleus of operative facts. 9
Both of those tests are met here. All of the pending actions involve the members of the Diedenhofen family and their partnership, EVA. Although other entities and individuals who have become involved in this family and partnership dispute are also named in the Actions based on their relationship to certain transactions, the same key players in Delaware are already gathered together in California, Canada, and Germany. Likewise, each of the Actions presents substantively the same claims and defenses that have been raised in this court. All are, in essence, lawsuits concerning the ownership status of certain assets in which the partners of EVA have an alleged interest of some sort. More specifically, all the disputes have a common question: did the Diedenhofen family intend the assets it acquired to be held for
To avoid the consequence of these findings, the plaintiffs attempt to distinguish the Delaware Action as more comprehensive than any of the other Actions in its substantive scope, but more limited in its selection of parties. For example, the plaintiffs say that substantial identity of parties and issues is not present because the Canadian and California Actions name some of the alleged subsidiaries of EVA and other individuals related to those companies who are not implicated in the fiduciary conduct raised in Delaware and not named as parties to the Delaware Action. The plaintiffs also state that they chose not to raise all their claims against Ulrike relating to EVA’s supposed North American assets in either California or Canada, preferring to use those actions as targeted ones addressing particular assets, and to use this last-filed Delaware Action as their omnibus North American litigation venture.
But precise identity of the parties and the issue is not required by McWane. 11 In the Canada Action, for example, all of the plaintiffs and Ulrike are parties. That substantial identity is more than sufficient. Moreover, the voluntary choice of the plaintiffs in the Canadian Action not to pursue broader relief against Ulrike there does not aid them. The plaintiffs’ penchant for claim-splitting does not substitute for a demonstrated attempt to press all their related claims against Ulrike in their earlier-chosen forums. 12 The gravamen of the plaintiffs’ theories in California and Canada is identical to that underlying their claims here, which is that EVA, and not the individual parties who hold paper title, is the actual owner of assets in North America. The plaintiffs have not convinced me that they could not address all their claims in one of their prior pending actions; in fact, given their argument that Ulrike acted for EVA in both California and Canada and the related nature of their arguments, it is by no means obvious that Ulrike would have any substantial grounds to object to having all the claims against her heard in one of those cases.
As important are the prior-pending German Actions that were filed by Ulrike before the Delaware Action. In her first German Action, Ulrike sought an accounting from EVA. The naturally-responsive arguments that the plaintiffs should have raised in the German Action were that it was Ulrike herself who needed to account to EVA for her use of its North American assets, and that she had improperly diverted EVA assets to her own personal use. In the German Action, Ulrike was before the court, and so were the plaintiffs and EVA. That Action was pending in the courts of Trier, the very German jurisdiction in which all of the plaintiffs reside,
By raising their arguments in that forum, the plaintiffs would have had their chance to make German law arguments through German lawyers and through witness testimony and written evidence in German addressed to a German judge. This would seem to be particularly fitting given that the partners in EVA, a German partnership, communicated orally and in writing in German, and held meetings of the partners in Germany. What could be better than to have a judge steeped in the relevant law and learned in the pertinent language hear from all the parties in the language of their common dealing and reach a reasoned decision about the facts and their legal consequences? Instead of taking advantage of the opportunity for such a decision, the plaintiffs chose to sue Ulrike in a fourth forum, here in Delaware.
Candidly, what seems to have motivated the plaintiffs is their desire for American-style discovery. They seek to bypass limitations they perceive in their own nation’s approach to litigation, and obtain the fulsome
14
discovery available in the United States. But that is no basis to deny Ulrike’s motion under
McWane.
EVA is a German partnership governed by German law. The Partnership Agreement clearly foresees the possibility of litigation in Germany regarding the partnership. The fact that in the German system the court has a stronger hand in directing evidence-gathering and submission does not mean that a court in Germany cannot do complete justice within the
McWane
sense. To conclude otherwise in a case that has at.its core questions of German business law and affecting a German partnership would be xenophobic and disrespectful. In that vein, I note that our own corporation law does not provide stockholders with an unlimited right to books and records,
15
nor do this court’s procedural rules provide an unlimited right to discovery.
16
Notably, Congress has adopted legislation in recent years greatly restricting discovery in securities class actions.
17
As discussed, judgments were entered in Ulrike’s first and second German Actions shortly before the oral argument on this motion, and her third Klage was not filed until after this litigation had commenced. That reality does not, however, aid the plaintiffs. Ulrike filed her motion to stay while the first two Klages were still pending and put the plaintiffs on notice that they should proceed in one of the previously implicated forums. Ulrike has now filed an additional action in Germany with additional claims and appears to seek to have adjudicated in Germany the plaintiffs’ claims pending in California and Canada. This is an admittedly confusing development but I do not believe it changes the appropriate outcome. 20 It remains indisputably clear that the German forum has been continually in use since the time this Action was filed. The plaintiffs’ preference for forum multiplication should not be rewarded. If, as they should have, the plaintiffs had brought their claims in the prior-pending German Action, those claims would be pending (or perhaps resolved) there now.
Moreover, if the plaintiffs did not want to bring their claims in Germany, they should have tried to broaden their action in either Canada or California, instead of opening up yet another forum. Ulrike’s recent confusing action will not be rewarded by this court, of that the plaintiffs should and will be assured. But it does support her motion for a stay in an odd way because it highlights the inefficiency of having a fourth court involve itself in resolving a relatively discrete dispute among the members of a family partnership in Germany. Oddly, having a forum dispute simply over whether this family dispute should be heard in Germany or Canada would in fact be a modest improvement over the current situation.
Put simply, there is no rational justification for allowing this action to proceed in the face of prior pending litigation in Germany, Canada, and California. Obviously, the forum best equipped to handle this dispute is in Germany and one would hope that rational parties at odds with one another would at least be able to agree on having their dispute resolved in the court that has the best chance of efficiently, expertly, and accurately rendering a decision. But this court is also no better
Therefore, under McWane, this litigation should be stayed and the parties remitted to decide their dispute in one of the forums in which prior pending litigation among them existed. Those three forums can work out which gets the prize.
This conclusion is also bolstered by an assessment of the practical realities of this case. Consideration of such issues is relevant to the court’s “inherent discretion to control its own docket, subject only to statutory and rule constraints and the requirement to exercise its discretion rationally.” 21 To that end, the court may countenance notions of comity and efficient administration of justice. 22 For reasons already explained, the practical reality is that litigating under these circumstances in Delaware would be redundant, unnecessary, and wasteful.
Much of that unduly heavy burden would be borne by the citizens of this State. 23 But this State has no important interest at stake in this litigation. That Ulrike lives here is a minor consideration, given that she can be held accountable for her responsibilities to her partners in a German partnership in prior pending actions. Moreover, the plaintiffs face no cognizable prejudice by being required to press their claims in one of the previously implicated forums. As this court has explained, when a “plaintiff is a foreign citizen and is not suing in his or her home forum the presumption as to plaintiffs convenience in litigating in this forum is less reasonable, and thus the choice merits less deference.” 24 This is particularly so when an alternative is litigating in the plaintiffs’ home nation (i.e., Germany), as that has been regarded as imposing a manageable burden on the plaintiffs. 25
That said, the plaintiffs should not face any gamesmanship from Ulrike. Ulrike has expressly asked this court to stay this action under
McWane
in favor of the liti
Once the litigation in the other forums has been concluded, the plaintiffs can seek to lift the stay if there is some purpose for further proceedings here. The parties shall file a status report twice a year beginning January 15 to ensure that this action does not remain pending unless there is a necessity for that.
I need not and do not premise my ruling on forum non conveniens grounds. But Ulrike remains free to reiterate her forum non conveniens argument in the event that the plaintiffs move to lift the stay. If that argument has to be taken up in the future, an important issue of public policy will be at stake. The Delaware courts have long asserted that this state has a compelling interest in the efficient and consistent application of its laws governing business entities. For that reason, our courts have been far less willing to defer to tribunals in other states when unsettled issues of Delaware law are at stake.
26
These rulings have recognized the reality that it is often judicial decisions that give practitioners the practical guidance they need about how much discretion their clients have to act. Those rulings also suggest that Delaware has a related and equally important interest in affording comity to the courts of other jurisdictions when a dispute arises under foreign business law.
27
When a con
IV. Conclusion
For the foregoing reasons, Ulrike’s motion to stay is GRANTED. The parties shall bear their own costs. 28 Counsel shall craft and submit within 10 days a conforming order.
Notes
.
McWane Cast Iron Pipe Corp. v. McDowell-Wellman Engineering Co.,
. Those assets include: El Banco Vineyards, a California grape farming business; Verona Farming Partnership, a California crop farming business; Maare Holdings Ltd., an Ontario company invested in Canadian real estate; Real Property Company Club Village Madera, a California partnership that owns a shopping center; Office Building Crescent Heights, Ltd., a California partnership that owns a Los Angeles office building; Granite Beach Ltd., a California partnership that owns various real estate; Wild Meadows Ltd., a California partnership that makes agricultural land investments; Verona Oil and Gas L.P., a California limited partnership in the mining, oil, and gas extraction business; Orlando Outlet World, a Florida company that finances real estate; Secured Property Investors IV, L.P., a Virginia limited partnership that finances real estate; First Century Partnership II, III, L.P., a venture capital investment partnership; and Jamestown 18, L.P., Jamestown 19, L.P., Jamestown 20, L.P., and Jamestown 21, L.P., which are limited partnerships owning retail and office space in New York, Georgia, Virginia, and Massachusetts.
. Amended Complaint, Ex. B.
. Amended Complaint, Ex. A at § 17.
. Transcript of Oral Argument on Defendant's Motion to Dismiss (June 20, 2007) (“O/A Tr.”) at 12-13 (representing that Ulrike "would be willing to ... respond to discovery, whatever is available in the German court typically against a German resident, without the need to go through the letters rogatory process”).
.
.
Id.
at 283 (emphasis added);
see also Chadwick v. Metro Corp.,
.
See Kurtin v. KRE, LLC,
. Id.
.
See Davis Int'l, LLC v. New Start Group Corp.,
.
E.g., Kurtin,
.
E.g., Cornerstone Technologies, LLC v. Conrad,
.I do not reach a decision on Ulrike's argument that the forum selection clause, which provides that venue for disputes resulting from the Partnership agreement “ist Gerol-stein," vests the German courts with exclusive jurisdiction. The exclusivity questions turns on the meaning of the contractual language of the Partnership Agreement, which was drafted in German and appears in a context in which an understanding of German law and custom is required to ascertain its proper meaning. That presents exactly the sort of issue that would infest the entirety of this litigation were it to continue here. This court would, quite literally, be put in the position of determining what the meaning of every "ist” is — a prospect that is wholly unmanageable given the reality that virtually every piece of evidence submitted would be in German. Fortunately, at this stage, it is sufficient to note that regardless of whether the affirmative and blunt “ist" establishes an exclusive jurisdiction or merely suggests Gerolstein as one approved by the parties, the forum selection clause illustrates that proceedings in Germany were expressly contemplated by the parties.
. A word that has more than one pertinent sense when used in reference to pre-trial discovery.
.
E.g.,
8 Del. C. § 220;
Highland Select Equity Fund, L.P. v. Motient Corp.,
.
E.g.,
Court of Chancery Rule 26(b)-(c);
Norman v. Paco Pharmaceutical Services, Inc.,
. See 15 U.S.C. § 78u-4 (Private Securities Litigation Reform Act of 1995).
. See 28 U.S.C. § 1782 (2007) (authorizing federal courts to order production of documentary or testimonial evidence for use in a proceeding before a foreign tribunal).
.
E.g., Intel Corp. v. Advanced Micro Devices, Inc.,
.Ulrike is not the only one who has been a tad inconsistent. Although the plaintiffs here claim that this court can do as good a job as a German court, they retreated behind the language barrier in the Canadian Action, arguing that certain written statements "cannot be clearly interpreted” from German to English, and that double negatives in cross examination questioning were difficult to translate into German. See, e.g., Defendant’s Opening Brief (Jan. 18, 2007), Ex. 21 at 67, 100 (cross examination of Gotz Diedenhofen).
.
Brudno v. Wise,
.
Id.; see also Schnell v. Porta Systems Corp.,
.
See Sumner Sports, Inc. v. Remington Arms Co., Inc.,
.
Miller v. Phillips Petroleum Company Norway,
.
See Sumner,
.
See, e.g., Sternberg v. O'Neil,
.
E.g., Topps,
. Ulrike argues that the sentence following the forum selection clause in § 17 of the Partnership Agreement justifies an award of costs. As translated, that line reads: "All costs tied to this agreement are borne by the partnership.” Amended Complaint, Ex. A at § 17. The plaintiffs’ counsel failed to respond at all to this request in briefing. At oral argument, their counsel admitted that the plain language of the translation supported Ulrike’s request but complained that the provision might not be given its English plain reading in the German legal context and that Ulrike had not submitted expert legal testimony on that point. O/A Tr. at 59-60, 67. I am uncomfortable hoisting the plaintiffs on their own petards, and I will not. I am not persuaded by the literal translation that the contractual language was intended to apply here and I will not penalize the plaintiffs for their inexplicable failure to make argument in their brief. I do note, however, that the plaintiffs’ belated argument on this point — that what seems plain in English might have a different meaning in the German language and law contexts and that expert evidence on such points is necessary for the court to render just decisions — cuts heavily against their own claim that this court is well-positioned to accurately and efficiently decide this family dispute.