MEMORANDUM & ORDER
Plaintiffs Matías Erausquin, Enrique Erausquin, Liliana Controne, and Yolanda Frischknecht bring this putative class action against Defendants Notz, Stucki Management (Bermuda) Limited (“Notz Stucki Bermuda”), Notz, Stucki & Cie S.A. (“Notz Stucki & Cie” and with Notz Stucki Bermuda, the “Notz Stucki Defendants”), UBS (Luxembourg) S.A. (“UBS Luxembourg,” and together with the Notz Stucki Defendants, the “Foreign Defendants”), and Frank DiPascali, Jr. (“DiPascali”). The Complaint includes twenty-two counts of fraud, misrepresentation, negligence, breach of fiduciary duty, breach of contract, and unjust enrichment arising from Plaintiffs’ investment in Plaza Investments International Limited (“Plaza” or the “Fund”), an investment fund in the British Virgin Islands. Plaza’s assets were invested with Bernard L. Madoff Investment Securities LLC (“BMIS”) and lost after Bernard Madoffs (“Madoff’) Ponzi scheme was revealed to the world.
The Notz Stucki Defendants and UBS Luxembourg move to (1) sever the claims against DiPascali, (2) dismiss the Complaint on forum non conveniens grounds, and (3) dismiss Counts 5 through 7, 9, 14 through 16, and 22 for lack of standing. UBS Luxembourg moves separately to dismiss the Complaint for lack of personal jurisdiction. For the following reasons, Defendants’ motion to sever and dismiss on forum non conveniens grounds is granted. Accordingly, this Court need not reach Defendants’ other arguments.
BACKGROUND
I. The Parties & Relevant Third-Parties
Plaintiffs are foreign citizens who reside in Argentina. (Amended Class Action Complaint dated Nov. 24, 2010 (“Compl.”) ¶¶ 8-11; Plaintiffs’ Declaration Concerning Their Choice of Forum dated Mar. 2011 ¶ 2.) Plaintiffs invested in Plaza and lost their investments after Madoffs fraud was uncovered. (Compl. ¶¶ 8-11.)
Plaza is an investment company with its principal place of business in the British Virgin Islands. (Compl. ¶ 18.) Since its inception in 1996, Plaza invested 100% of its assets with BMIS.
Notz Stucki & Cie is an asset management company with its principal place of business in Switzerland. (Compl. ¶ 13.) It is the “flagship” company of a group of Notz Stucki entities that specialize in managing investments for private individuals and institutions (the “Notz Stucki Group”). (Compl. ¶ 13(a).) Among other things, Notz Stucki & Cie marketed Plaza to potential investors, solicited investments from Plaintiffs, and “purported to oversee, control and manage those investments.” (Compl. ¶ 14(c).)
UBS Luxembourg is a bank with its principal place of business in Luxembourg. In April 2002, UBS Luxembourg and Plaza entered into an agreement appointing UBS Luxembourg custodian of Plaza’s assets. (Compl. ¶ 15; Ex. 13: Custodian Agreement, art. II — III.) Plaza’s offering documents advertised UBS Luxembourg’s role, stating that it had been “engaged as Custodian to hold and maintain all cash, currency and investments of [Plaza].” (See, e.g., Compl. Ex. 1: Information Memorandum at 8; see also Compl. ¶ 52.)
DiPascali was BMIS’s Chief Financial Officer and helped perpetrate Madoffs fraud by fabricating account statements and trading confirmations for BMIS’s fictional investments. On August 11, 2009, DiPascali pled guilty to ten felony counts and consented to the imposition of a $170.25 billion judgment against him. (See Stipulation & Order ¶¶ I — III, United States v. DiPascali, 09 Cr. 764(RJS) (S.D.N.Y. June 16, 2010), ECF No. 64). DiPascali is a resident of New Jersey and is currently released on bail pending sentencing. (Compl. ¶ 17(a).)
II. The Claims
The Complaint’s core allegations are that Defendants deceived Plaintiffs and/or breached their duties with respect to the performance, custody, and oversight of Plaza’s investments with BMIS. (See Compl. ¶¶ 161-79, 203, 216, 240-45, 298-303.) Plaintiffs bring their claims against each Defendant individually, with the exception of their claim for unjust enrichment, which is pled against all Defendants together. As such, the unjust enrichment claim is the only claim with the potential for joint and several liability. (Compl. ¶ 332.)
As to the Notz Stucki Defendants, the Complaint alleges that they “induced Plaintiffs to invest in Plaza on the basis of uniform false and misleading representations and omissions set forth in [Plaza’s offering documents].” (Compl. ¶¶ 161.) These included false statements concern
III. Witnesses and Evidence
The Complaint identifies various individuals with responsibility for selecting and monitoring investments in BMIS. Christian Stucki (“Stucki”), the co-founder of Notz Stucki & Cie, served on the board of directors of both Notz Stucki & Cie and Notz Bermuda.
Marc Hoegger (“Hoegger”), originally a defendant in this action before being dropped from the Complaint, is the managing director of Notz Stucki & Cie and served as a director for both Notz Stucki Bermuda and Notz Stucki & Cie at various times between 2001 and 2008. (Compl. ¶ 96; Hoegger Decl. ¶ 1.) Hoegger was also a director of Plaza from 2000 to 2008. (Compl. ¶ 96.) He resides in Switzerland. (Hoegger Decl. ¶ 25.) On July 24, 2009, investors in Plaza
Another former Notz Stucki & Cie employee, Manuel Echevarria (“Echevarria”), is featured in the Complaint. (See Compl. ¶¶ 97-117, 132-42.) Echevarria joined Notz Stucki & Cie in July 2008 after serving as the Chief Executive Officer of Optimal Investment Services (“OIS”), a hedge fund unit of Banco Santander, S.A. (“Santander”), a global financial institution headquartered in Spain. (Compl. ¶ 97.) While at Santander, Echevarria met with Madoff several times a year and received internal reports highlighting significant
The Notz Stucki Defendants identify numerous additional individuals with potential discoverable information, including:
® Hilmi Unver, a Notz Stucki & Cie senior manager (Hoegger Deck ¶ 21.);
® Cedric Dingens, a Notz Stucki & Cie employee responsible for risk management (Hoegger Deck ¶ 21);
® Bernard Tracewski, a former Notz Stucki & Cie senior manager responsible for administration matters (Hoegger Deck ¶ 25);
« Sanda Win, a former Notz Stucki & Cie employee who worked on oversight and administration matters related to Plaza (Hoegger Deck ¶ 25);
® Yu Shang, a former Notz Stucki & Cie employee who analyzed Plaza’s financials (Hoegger Deck ¶ 25);
® Patrick Piralla, a Notz Stucki & Cie employee who participated in communications related to Plaza (Hoegger Deck ¶ 25);
« Anne Castro, a former Notz Stucki & Cie employee who monitored BMIS’s investments (Hoegger Deck ¶ 25); and
• Sebastian Poiret, a Notz Stucki & Cie manager who participated in communications related to Plaza (Hoegger Deck ¶ 25).
All of these individuals reside in Switzerland.
Notwithstanding the Complaint’s identification of various Notz Stucki employees relevant to this dispute, it is silent as to UBS Luxembourg employees responsible for carrying out UBS Luxembourg’s Plaza-related duties.
Although allegedly central to this dispute, DiPascali is mentioned just two times in the nearly 200 paragraphs of background allegations in the Complaint. (Compl. ¶¶ 17, 135.) Paragraph 17 briefly describes his participation in the underlying fraud and the criminal proceedings against him. (Compl. ¶ 17.) Paragraph 135 alleges that the Notz Stucki Defendants should have known of Madoff s fraud by July 2008 because of a civil complaint filed against DiPascali by the United States Securities and Exchange Commission. (Compl. ¶ 135.) The only other references to DiPascali are in the substantive counts against him for fraud, aiding and abetting fraud, and aiding and abetting negligent misrepresentation. Those counts allege that DiPascali falsely represented BMIS’s investments as legitimate, administered BMIS’s fraudulent trading strategy, and aided and abetted the Foreign Defendants’ fraud. (Compl. ¶¶ 315-30.) DiPascali has invoked the Fifth Amendment in response to each allegation. (Answer to Amended Class Action Compl., Erausquin v. Notz Stucki Mgm’t (Bermuda) Limited, No. 09 Civ. 7846,
As to documentary evidence, the Foreign Defendants submit that the vast majority of relevant documents are located in Switzerland and Luxembourg. Specifical
During jurisdictional discovery, UBS Luxembourg produced approximately 300 pages of documents reflecting communications primarily with DiPascali. (Ellman Decl. ¶¶2-4.) Nearly all of those documents are in English. (Ellman Decl. ¶ 5.) The parties do not describe the quantity of documents produced by the Notz Stucki Defendants. According to Plaintiffs, BMIS’s and Madoffs records, which are located in the United States, are the most relevant documents in this litigation.
IV. Relevant Procedural History
On September 11, 2009, Plaintiffs commenced this action against eleven defendants, including the Foreign Defendants, DiPascali and Madoffs sons, Peter, Andrew, and Mark Madoff. By order dated January 26, 2010, this Court permitted limited discovery on the issue of personal jurisdiction. Over the next nine months, the parties were embroiled in a dispute over the scope of that order and Defendants’ reliance on foreign privacy laws allegedly preventing them from producing documents located overseas. On the eve of oral argument, however, the parties resolved their dispute, obviating any need for this Court to decide the foreign privacy law question.
On November 24, 2010, Plaintiffs filed an amended complaint dropping seven of the original defendants, including Madoffs sons. Their dismissal was prompted by an application by Irving H. Picard (the “Trustee”), the trustee for Madoffs estate and BMIS’s consolidated liquidation, to enjoin litigation against Madoffs sons on the grounds that it violated the automatic stay in the BMIS bankruptcy proceeding (the “Bankruptcy”). As memorialized in a January 24, 2011 stipulation, the Trustee agreed to withdraw his request for an injunction following the filing of the amended complaint in this action removing Madoffs sons as defendants. (Stip. of Dismissal and Amendment of Caption dated Jan. 24, 2011, Sec. Investor Protection Corp. v. Madoff, 10 Civ. 3268(BRL), ECF No. 34.)
Both the original and amended complaints invoked subject matter jurisdiction under the Class Action Fairness Act (“CAFA”). 28 U.S.C. § 1332(d). In actions where the plaintiffs are all foreign citizens, CAFA requires, inter alia, that at least one defendant be a citizen of the United States. 28 U.S.C. § 1332(d)(2)(B). In this case, as the only Defendant who is a citizen of a State, DiPascali is the lynchpin of this Court’s subject matter jurisdiction.
V. The Trustee Actions
On November 23, 2010, the Trustee initiated two adversary proceedings in the Bankruptcy (the “Trustee Actions”), bringing claims for preferential transfer, conversion, and unjust enrichment related to Madoffs fraud against, inter alia, Plaza, Notz Stucki Bermuda, and UBS Luxembourg. (Complaint ¶¶ 120-89,199-207, Picard v. Plaza Invs. Int’l Ltd., Adv. Pro. No. 10-4284 (S.D.N.Y. Bankr.), ECF No. 1; Complaint ¶¶ 259-319, 344-52, Picard v. UBS AG, Adv. Pro. No. 10-4285 (S.D.N.Y.Bankr.), ECF No. 1.) All three entities moved to withdraw the reference to the Bankruptcy and have the Trustee’s actions decided by the district court. (See Mot. Withdraw the Bankruptcy Reference, Picard v. UBS Fund Servs. (Luxembourg)
In the adversary proceedings, Notz Stucki Bermuda and Plaza produced to the Trustee thirty-nine documents totaling approximately 2000 pages. (Ellman Decl. Ex. 12: Letter from S. Selden to A. Ell-man dated Mar. 14, 2011 at 1.) UBS Luxembourg produced approximately 56,000 pages. (Ellman Decl. Ex. 14: Letter from M. King to A. Ellman dated Mar. 14, 2011 (“King Letter”) at 1.) According to UBS Luxembourg, the “search and review that led to this production was not targeted at locating documents relating to Plaza.” (King Letter at 1.)
DISCUSSION
I. Severance of the Claims Against DiPaseali
Rule 21 permits a court to “sever any claim against a party.” Fed.R.Civ.P. 21. “The decision whether to grant a severance motion is committed to the sound discretion of the trial court.” State of N.Y. v. Hendrickson Bros., Inc.,
(1) whether the claims arise out of the same transaction or occurrence; (2) whether the claims present some common questions of law or fact; (3) whether settlement of the claims or judicial economy would be facilitated; (4) whether prejudice would be avoided if severance were granted; and (5) whether different witnesses and documentary proof are required for the separate claims.
In re Merrill Lynch & Co., Inc. Research Reports Sec. Litig.,
The severance analysis begins with this Court’s observation that DiPaseali is essentially a nominal defendant in this action. In the nearly fifty pages of background allegations in the Complaint, DiPaseali is mentioned only twice in cursory fashion. (See Tr. at 31 (offering no rebuttal to Defendants’ argument concerning the scarcity of allegations as to DiPaseali).) He is also subject to a $170 billion judgment, rendering him effectively bankrupt and extinguishing any possibility of recovery by Plaintiffs even if they establish liability. In addition, Plaintiffs misleadingly assert that DiPaseali will be a critical witness in this litigation. DiPaseali is a defendant in at least seven other civil actions, and at argument his counsel equivocated as to his participation in those actions. Indeed, while DiPaseali will cooperate “to the extent he is able,” his counsel described various impediments to such cooperation, including that (1) DiPaseali is
With these considerations in mind, Plaintiffs’ arguments with respect to.the severance factors are largely illusory. Even if Plaintiffs’ claims all arise out of Madoffs fraud and present common issues of fact and law,
The claims against DiPascali also differ significantly from the claims against the Foreign Defendants. First, while Plaintiffs plead a variety of claims against the Foreign Defendants, including fraud, misrepresentation, and breach of fiduciary, the essence of each claim is the same: that the Foreign Defendants failed to monitor and maintain custody of Plaza’s assets and misled Plaintiffs about these facts. (See, e.g., Compl. ¶ 203 (alleging fraud for falsely representing, that “the Notz Stucki Defendants would conduct oversight and due diligence”); Compl. ¶ 244 (alleging breach of fiduciary duty for failing to “take all possible steps to oversee that the investments of [Plaintiffs’] assets ... were made and maintained in a prudent and professional manner”); Compl. ¶ 262 (alleging fraud for UBS Luxembourg’s failure to disclose that it “did not have custody and did not in fact hold and maintain all cash, currency, and investments of’ Plaza); Compl. ¶ 302 (alleging breach of fiduciary duty for UBS Luxembourg’s failure to “take all possible steps to oversee that the investment of the assets of Plaintiffs and the Class were held in its own custody”).) Consequently, the claims against the Foreign Defendants focus on conduct outside the United States, including due diligence operations in Switzerland and Luxembourg, fiduciary duties and oversight obligations established under foreign law, and representations made to Plaintiffs regarding their investments ip Plaza.
In contrast, the claims against DiPascali focus on his effectuation of BMIS’s fictitious “split-strike conversion strategy” in New York. (Compl. ¶¶ 316, 323, 328); see See. & Exchange Comm’n v. Pignatiello, No. 97 Civ. 9303(SWK),
Nor is this Court required to deny Defendants’ severance motion merely because there exist some common question of law and fact. The Court of Appeals has never required claims to be litigated together on that basis alone. Especially under these unique circumstances, this Court has broad discretion to sever the claims against DiPascali and may do so for a wide variety of reasons. See, e.g., Rice v. Sunrise Express, Inc.,
Ultimately, the dominant purpose served by DiPascali’s inclusion in this litigation appears to be the creation of subject matter jurisdiction under CAFA.
Importantly, the Court of Appeals has approved severance of claims against collateral defendants to facilitate transfers of venue:
We believe that where the administration of justice would be materially advanced by severance and transfer, a district court may properly sever the claims against one or more defendants for the purpose of permitting the transfer of the action against the other defendants, at least in cases where ... the defendants as to whom venue would not be proper in the transferee district are alleged to be only indirectly connected to the manipulations which form the main subject matter of the action.
Wyndham Assocs. v. Bintliff,
Severance will also avoid the substantial impracticalities associated with litigating in a forum where most of the documents and witnesses do not reside. In addition, Plaintiffs fail to articulate any meaningful delay resulting from severance. Although this action is nearly two years old, the parties spent that time mired in disputes over jurisdictional discovery and briefing the current motions. Thus, this litigation is in its infancy. If Plaintiffs file an action in Switzerland, they will be free to use the discovery they have obtained thus far. Severance may even lead to settlement because class actions are not available in Switzerland, thereby eliminating the incentive to generate fees for class counsel. Accordingly, the claims against DiPascali are severed.
II. Forum Non Conveniens
While Defendants move to dismiss on forum non conveniens grounds, they also argue that this issue need not be reached because severance of the claims against DiPascali deprives this Court of subject matter jurisdiction. CAFA jurisdiction is a form of diversity jurisdiction under 28 U.S.C. § 1332, and the statute’s requirement that at least one defendant be a citizen of a State appears designed to prevent federal court jurisdiction over suits involving only aliens. 28 U.S.C.
In this Court’s view, however, a forum non conveniens analysis is warranted for several reasons, including (1) the claims against DiPascali are being severed largely to facilitate a forum non conveniens dismissal; (2) the destruction of subject matter jurisdiction under these circumstances appears to be an issue of first impression that was not briefed by the parties; and (3) CAFA jurisdiction is generally evaluated at the time the complaint is filed. See Blockbuster, Inc. v. Galeno,
“The doctrine of forum non conveniens is a discretionary device permitting a court in rare instances to dismiss a claim even if the court is a permissible venue with proper jurisdiction over the claim.” Carey v. Bayerische Hypo-Und Vereinsbank AG,
a court determines the degree of deference properly accorded the plaintiffs choice of forum. At step two, it considers whether the alternative forum proposed by the defendants is adequate to adjudicate the parties’ dispute. Finally, at step three, a court balances the private and public interests implicated in the choice of forum.
Norex Petroleum Ltd. v. Access Indus., Inc.,
a. Deference to Plaintiffs’ Choice of Forum
At step one, a court should compare the lawsuit’s bona fide connection to the forum against any indicia that the plaintiff was motivated by forum-shopping. Norex Petroleum,
On balance, Plaintiffs’ choice of this District appears to have been based more on forum shopping considerations than on legitimate reasons. New York is among the potential fora for an action arising out of Madoff s fraud, and Plaintiffs faced the understandable dilemma of choosing a forum to litigate against defendants located in more than one country. However, this Court cannot ignore the fact that (1) Plaintiffs are foreign citizens and have no connection to the United States, see Cromer Fin. Ltd. v. Berger,
In addition, the filing of this putative class action in New York was undoubtedly fueled by the potential for attorneys’ fees and the likelihood that a New York jury will be unsympathetic toward defendants in a Madoff-related action. See Iragorri,
b. Adequacy of Switzerland as a Forum
“The adequate alternative venue requirement of the forum non conveniens doctrine is ordinarily satisfied if (1) the defendants are amenable to service of process there, and (2) the forum permits litigation of the subject matter of the dispute.” Corporacion Tim, S.A. v. Schumacher,
First, the Foreign Defendants consent to jurisdiction in Switzerland. (UBS Luxembourg’s Br. at 1 n. 1; Hoegger Decl. ¶ 7.) And since the claims against DiPascali are severed, his consent is not required. Second, Switzerland permits litigation of Plaintiffs’ claims. (See Declaration of Maurice Harari dated Jan. 28, 2011 at ¶¶ 52-74) (discussing Swiss law regarding claims of tort, contract, and breach of fiduciary duty); see also Do Rosario Veiga v. World Meteorological Organisation,
The only potential challenges to Switzerland’s adequacy as a forum are Plaintiffs’ arguments that their claims are (1) barred by Switzerland’s one year statute of limitations, and (2) foreclosed by the dismissal of similar allegations in the Swiss Criminal Action. The first argument was rendered moot by the Foreign Defendants’ agreement not to raise defenses based on timeliness in an action in Switzerland.
c. Private and Public Interest Factors
At step three, Defendants must establish that a balancing of the “private and public interest factors tilts heavily in favor of the alternative forum.” Abdullahi,
As to the private interest factors, it is clear that litigation in Switzerland will facilitate greater access to the evidence needed to establish Plaintiffs’ claims. First, most, if not all, of the potential witnesses reside there or in nearby Luxembourg; indeed, at argument, Plaintiffs were unable to provide the name of a single witness in the United States other than DiPascali and Madoff, whose participation is speculative. (Tr. at 30.) And the ease and expense of transporting witnesses from Luxembourg to Switzerland will be far less burdensome than to New York. Plaintiffs’ contention that “the unwilling witnesses and evidence located in New York [are] quantitatively and qualitatively more important than [those] in Switzerland” (Pis.’ Br. at 37) is particularly unpersuasive: the Complaint’s most prominently featured individual, Echevarria, resides in Switzerland and, as a former Notz Stucki employee, is not subject to compulsory process in New York. See BlackRock, Inc. v. Schroders PLC, No. 07 Civ. 3183(PKL),
As to access to documentary evidence, Plaintiffs rely erroneously on the argument that New York is the proper forum because the documents produced to date are in English. Less than 60,000 documents have been produced thus far, which in a case spanning twelve years and involving several large corporations is likely to represent a tiny fraction of the pertinent documents in this litigation. Moreover, Plaintiffs fail to support their contention that the “majority of [all relevant] documents are in English.” (Pis. Opp’n at 40.) In view of the fact that Notz Bermuda delegated nearly all of its responsibilities to Notz Stucki & Cie, the majority of discovery will be taken from that firm in Switzerland. And Plaintiffs do not rebut Defendants’ assertion that many of Notz Stucki & Cie’s documents are in French. As Plaintiffs own declaration illustrates,
Moreover, there is no dispute that the vast majority of the Foreign Defendants’ documents are located in Switzerland and Luxembourg. See Online Payment Solutions Inc. v. Svenska Handelsbanken AB,
Plaintiffs also exaggerate the potential efficiencies achieved through joint coordination with the Trustee Actions. First, the survival of these actions is uncertain; a court in this District recently dismissed a similar action by the Trustee for lack of standing, and an identical motion is pending in the case against UBS Luxembourg.
As to the public interest factors, this Court notes first that New York has a relatively minimal interest in this litigation. While this action is peripherally related to New York through Madoff, his involvement alone does not give New York a substantial interest in this litigation. Neither Madoff nor his sons are defendants in this action, the claims against
Contrary to Plaintiffs’ contention, Switzerland does have an interest in the claims against UBS Luxembourg. • To the extent New York’s interest is premised on UBS Luxembourg’s relationship and cooperation with a New York entity (i.e., BMIS), Switzerland can be said to have a similar interest: UBS Luxembourg is alleged to have substantially assisted Notz Stucki & Cie’s fraud. As the Complaint recounts,
[UBS Luxembourg] provided substantial assistance to the Notz Stucki Defendants in the fraud and breaches of fiduciary duty that they perpetrated on investors.
Specifically, [UBS Luxembourg] assisted the Notz Stucki Defendants by receiving investments from Plaintiffs and the Class and transferring their funds to BMIS; consenting to the use of [UBS Luxembourg’s] name and the services it was ostensibly providing to be included in [Plaza’s] Information Memoranda and other documents; and recording the securities Madoff said he was holding. The Notz Stucki Defendants could not have perpetrated their fraud and breaches of fiduciary duty without this substantial assistance by [UBS Luxembourg],
(Compl. ¶¶ 75-76.) Switzerland’s interest in a Luxembourg entity that was used as an instrumentality for fraud by a Swiss corporation cannot be denied. For all of these reasons, this Court finds that Switzerland has a substantially greater interest in this action than New York.
The application of foreign law factor is neutral. Plaintiffs bring common law claims, which raise issues under the laws of various jurisdictions, including New York, Switzerland, and Luxembourg. The choice of law analysis is somewhat complicated, and none of the parties have presented a persuasive argument demonstrating that the law of any single jurisdiction will govern. See Pollux Holding Ltd. v. Chase Manhattan Bank,
On the question of court congestion, this District is “one of the busiest in the country, making it a paradigmatic ‘congested center’ of litigation alluded to in Gilbert.” Tel. Sys. Int’l Inc. v. Network Telecom PLC,
Finally, Plaintiffs’ argument that filing fees and bonds imposed by Swiss courts favor litigation in New York is misplaced. Plaintiffs not only exaggerate those fees, (see Harari Reply Decl. at ¶¶ 12-27), but also fail to demonstrate their inability to afford them. See Wilson v. ImageSat Int’l N.V., No. Civ. 6176(DLC),
Overall, a balancing of the private and public factors demonstrates that litigation in New York is “genuinely inconvenient” and that Switzerland is a “significantly preferable” forum. Iragorri,
CONCLUSION
For the foregoing reasons, the motion to sever the claims against Frank DiPascali and to dismiss the claims against Defendants Notz Stucki Bermuda, Notz, Stucki & Cie, and UBS Luxembourg on forum non conveniens grounds is granted. Defendants’ remaining motions are moot. The Clerk of the Court is directed to terminate all pending motions in this case. Plaintiffs and Frank DiPascali are directed to appear for a conference on September 9, 2011 at 11:30 a.m.
SO ORDERED.
Notes
. While the Complaint attributes the representations in the offering documents to UBS Luxembourg, the parties dispute this point. (See Transcript of Oral Argument dated June 28, 2011 (“Tr.”) at 46-47.) However, this issue need not be resolved to decide this motion.
. While the Complaint also includes allegations concerning co-founder Beat Notz, who made the initial decision to invest with Ma-doff, he died prior to the filing of this lawsuit. (Compl. ¶¶ 29-30; Hoegger Decl. ¶ 21.)
. The Swiss court's order does not identify the investors but states that they are residents of Argentina. It is unclear whether Plaintiffs or other investors filed that criminal complaint.
. These could include communications between DiPascali, the Foreign Defendants, and other entities, the custody of Plaza's assets, and damages calculations.
. At argument, Plaintiffs were unable to name a single witness in the United States apart from DiPascali. While the Complaint mentions David Friehling, a partner at Friehling & Horowitz, BMIS’s auditor, he also pled guilty to various charges, and the Complaint does not allege that he was familiar with the Foreign Defendants’ operations. (Compl. ¶¶ 49, 51.)
. This Court is not persuaded by Plaintiffs’ argument that severance should be denied to permit the possibility of joint and several liability on a single claim of unjust enrichment. Not only are there countervailing considerations, but it is far from clear that joint and several liability is available on that claim. Joint and several liability is a tort principle, but a claim for unjust enrichment is a quasi-contract claim. See, e.g., Beth Israel Med. Ctr. v. Horizon Blue Cross and Blue Shield,
. (See Tr. at 8-10.)
. (Ellman Deck ¶ 6 (recording the cost of translating a single 16-page document at approximately $1400).)
. Judge Rakoff, who dismissed the Trustee's action, recently accepted the Trustee's action against Plaza and Notz Stucki Bermuda as a related action.