Archangel Diamond Corporation Liquidating Trust v. OAO Lukoil

Filing 50

ORDER Denying 34 Plaintiff's Motion to Compel Defendant to Disclose Whether It is "Subject to Jurisdiction in Any States Court of General Jurisdiction" Pursuant to Fed. R. Civ. P. 4(k)(2). Denying 41 Plaintiff's Motio n for Leave to Take Personal Jurisdictional Discovery Regarding DS Engineering, Inc. and Expedited Briefing. Denying 43 Plaintiff's Motion for Leave to Take Personal Jurisdictional Discovery. Discovery is STAYED pending ruling on Defendant's Motion to Dismiss 29 . Each party pay their own attorney fees and costs for these motions. By Magistrate Judge Michael J. Watanabe on 5/10/2012.(mjwcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.

12-cv-00041-PAB-MJW

ARCHANGEL DIAMOND CORPORATION LIQUIDATING TRUST,
Plaintiff(s),
v.
OAO LUKOIL,
Defendant(s).

ORDER REGARDING:
[1] PLAINTIFF’S MOTION TO COMPEL DEFENDANT TO DISCLOSE WHETHER IT
IS “SUBJECT TO JURISDICTION OF ANY STATE’S COURT OF GENERAL
JURISDICTION” PURSUANT TO FED. R. CIV. P. 4(K)(2) (DOCKET NO. 34);
[2] PLAINTIFF’S MOTION FOR LEAVE TO TAKE PERSONAL JURISDICTIONAL
DISCOVERY REGARDING DS ENGINEERING, INC. AND EXPEDITED BRIEFING
(DOCKET NO. 41);
AND
[3] PLAINTIFF’S MOTION FOR LEAVE TO TAKE PERSONAL JURISDICTIONAL
DISCOVERY (DOCKET NO. 43)

Entered by Magistrate Judge Michael J. Watanabe

This matter is before the court on [1] Plaintiff’s Motion to Compel Defendant to
Disclose Whether It is “Subject to Jurisdiction in Any State’s Court of General
Jurisdiction” Pursuant to Fed. R. Civ. P. 4(k)(2) (docket no. 34), [2] Plaintiff’s Motion for
Leave to Take Personal Jurisdictional Discovery Regarding DS Engineering, Inc. and
Expedited Briefing (docket no. 41), and [3] Plaintiff’s Motion for Leave to Take Personal
Jurisdictional Discovery (docket no. 43). The court has reviewed the subject motions

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(docket nos. 34, 41, and 43), the response to the motion to compel (docket no. 48) and
the reply in support of the motion to compel (docket no. 49). In addition, the court has
taken judicial notice of the court file and has considered applicable Federal Rules of
Civil Procedure and case law. The court now being fully informed makes the following
findings of fact, conclusions of law, and Order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That each party has been given a fair and adequate opportunity to
be heard;

2.

That D.C.COLO.LCivR 7.1 C states, in pertinent part, “[N]othing in
this rule precludes a judicial officer from ruling on a motion at any
time after it is filed;”

3.

That litigation between the parties in the Colorado state courts and
this court has been ongoing for over ten (10) years, and litigation
continues in both forums to date;

4.

That my Minute Order (docket no. 25) entered on March 6, 2012,
vacated the Rule 16 Scheduling Conference that was set on
March 15, 2012. I did not set a new date for a Rule 16 Scheduling
Conference since I found that this court [namely, Judge Brimmer]
should first address the personal jurisdiction and forum non
conveniens issues before consideration on the merits. See docket
no. 25;

5.

That on March 22, 2012, Defendant OAO Lukoil [hereinafter

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Defendant] filed its Motion to Dismiss (docket no. 29). On May 2,
2012, Plaintiff Archangel Diamond Corporation Liquidating Trust
[hereinafter Plaintiff] filed its Opposition to Defendant OAO Lukoil’s
Motion to Dismiss and Request for Oral Argument (docket no. 47).
The Opposition brief is 44 pages plus 91 attachments. The
Opposition brief and attachments total 1,856 pages;
6.

That Defendant’s Motion to Dismiss (docket no. 29) argues that
Plaintiff’s claims fail because: (1) they violate the prohibition on
claim splitting, (2) this court does not have personal jurisdiction
over Defendant, (3) the forum non conveniens doctrine supports
dismissal, (4) Plaintiff’s claims fail to state a claim under Fed. R.
Civ. P. 12(b)(6), and (5) Plaintiff has no standing to bring its RICO
claims;

7.

That in the companion state case, Plaintiff is currently arguing
before the Colorado Court of Appeals (Case No. 11CA2452) that
Colorado’s long arm statute confers jurisdiction over Defendant in
Colorado. See Notice of Appeal, attached as Exhibit 1 to the
Motion to Dismiss (docket no. 29). At the same time, Plaintiff is
making a contradictory argument before this court. In essence,
Plaintiff is arguing in the Colorado state courts that jurisdiction is
proper in Colorado while arguing to this court that it is not. It should
be noted that if the Colorado Court of Appeals rules that the state
court does have personal jurisdiction over Defendant, then Plaintiff

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would fail to meet the second requirement of Fed. R. Civ. P. 4(k)(2).
The court takes judicial notice that the answer brief is due in the
Colorado Court of Appeals on May 22, 2012, and the reply is due
21 days thereafter; and
8.

That discovery is unnecessary to resolve the jurisdictional issues
under these facts. See Base Metal Trading, Ltd. v. OJSC
“Novokuznetsky Aluminum Factory”, 283 F.3d 208 (4th Cir. 2004).
The jurisdictional issues are pending before both the Colorado
Court of Appeals and Judge Brimmer. Plaintiff has failed to
establish a compelling need for any discovery at this stage of the
litigation. Judge Brimmer can determine the jurisdictional issues as
well as the other grounds for dismissal as cited above without any
discovery by the parties. Lastly, Plaintiff has addressed all of the
grounds for dismissal in its Opposition brief (docket no. 47) and
attachments which total 1,856 pages.
ORDER

WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Plaintiff’s Motion to Compel Defendant to Disclose Whether It
is “Subject to Jurisdiction in Any State’s Court of General
Jurisdiction” Pursuant to Fed. R. Civ. P. 4(k)(2) (docket no. 34) is
DENIED;

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2.

That Plaintiff’s Motion for Leave to Take Personal Jurisdictional
Discovery Regarding DS Engineering, Inc. and Expedited Briefing
(docket no. 41) is DENIED;

3.

That Plaintiff’s Motion for Leave to Take Personal Jurisdictional
Discovery (docket no. 43) is DENIED;

4.

That Discovery is STAYED pending ruling by Judge Brimmer on
Defendant’s Motion to Dismiss (docket no. 29); and

5.

That each party shall pay their own attorney fees and costs for
these motions.

Done this 10th day of May 2012.
BY THE COURT

s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE