Golden Horn Shipping Co. Ltd. v. Volnas Shipping Company Limited et al

Filing 104

OPINION AND ORDER: re: 72 MOTION for Summary Judgment filed by Norvik Banka, 63 MOTION to Dismiss filed by Norvik Banka, 67 MOTION for Judgment as a Matter of Law filed by Golden Horn Shipping Co. Ltd., 85 MOTION to Strike Document No. [Docs. # 68-1 thru 68-33, etc] filed by Norvik Banka. For the foregoing reasons, Norvik's motion to dismiss pursuant to forum non conveniens is GRANTED, subject to the conditions that a Latvian court is willing to hear the case and that defenda nts waive any jurisdictional defenses and any defenses based upon statute of limitations that may have arisen since the filing of the case in this forum. The remaining pending motions are DENIED as moot. This Court will retain jurisdiction to enforce any Latvian judgment that Golden Horn might obtain against Norvik against the funds attached here by Golden Horn. Therefore, this action is hereby STAYED pending resolution of the Latvian proceedings. The parties are directed to provide the Court a status update within ninety days of the date of this Opinion and Order. The Clerk of Court is directed to close the motions at Docket Numbers 63, 67, 72, and 85. SO ORDERED., Case stayed. (Signed by Judge J. Paul Oetken on 8/16/2017) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GOLDEN HORN SHIPPING CO. LTD.,
Plaintiff,
-v-

14-CV-2168 (JPO)

VOLANS SHIPPING CO. LTD. and NORVIK
BANKA,
Defendants.

OPINION AND ORDER

J. PAUL OETKEN, District Judge:
Plaintiff Golden Horn Shipping Company Limited (“Golden Horn”) brings this
admiralty action against Defendants Volans Shipping Company Limited (“Volans”) and Norvik
Banka (“Norvik”) for breach of a charter agreement for the M.V. Apus (“the Vessel”). Currently
pending before the Court are a motion to dismiss under the doctrine of forum non conveniens
filed by Norvik (Dkt. No. 63); a motion for summary judgment filed by Golden Horn (Dkt. No.
67); a motion for summary judgment filed by Norvik (Dkt. No. 72); and a motion to strike
certain evidence submitted by Golden Horn in its motion for summary judgment (Dkt. No. 85).
For the reasons that follow, Norvik’s motion to dismiss pursuant to forum non conveniens is
granted and the remaining motions are denied as moot.
I.

Background
Familiarity with the facts of this case and this Court’s prior opinions is presumed. See

Golden Horn Shipping Co. v. Volans Shipping Co., No. 14 Civ. 2168, 2015 WL 6684518
(S.D.N.Y. June 30, 2015); Golden Horn Shipping Co. v. Volans Shipping Co., No. 14 Civ. 2168,
2014 WL 5778535 (S.D.N.Y. Nov. 6, 2014).
Golden Horn initiated this litigation on March 27, 2014, alleging breach of the charter
agreement and seeking issuance of a Process of Maritime Attachment and Garnishment, pursuant

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to Federal Rule of Civil Procedure Supplemental Admiralty Rule B, against Norvik’s property
found within this district. (Dkt. No. 2 (“Compl.”).) On March 31, 2014, a writ of attachment
was served on Deutsche Bank Trust Company Americas (“Deutsche Bank”) in New York. (Dkt.
No. 91 ¶ 6.) On April 16, 2014, Deutsche Bank confirmed that Norvik had an account in New
York and restrained funds belonging to Norvik in the amount of $3,960,693.20. (Id. ¶ 8.) This
Court denied Norvik’s subsequent motion to vacate the attachment of those assets. See Golden
Horn Shipping, 2014 WL 5778535.
Golden Horn is organized and exists pursuant to the laws of Russia. (Compl. ¶ 4.)
Volans is organized and exists pursuant to the laws of Belize. (Id. ¶ 7.) Norvik is organized and
exists pursuant to the laws of Latvia. (Id. ¶ 12.) On July 1, 2013, Volans and Golden Horn
entered into a charter for the Vessel. (Id. ¶¶ 22–23; Dkt. No. 2-2.) On July 8, 2013, Norvik
invoiced Golden Horn for $400,000 so that Norvik could use the funds to repair and upgrade the
Vessel before delivering it to Golden Horn. (Compl. ¶¶ 34–35.) On August 30, 2013, Golden
Horn applied to have the Vessel registered under the Russian flag 1 and hired officers, crew, fuel
and supplies, for the Vessel, which was located in Lithuania. (Id. ¶¶ 36–40.)
However, the ship was never delivered to Golden Horn—it was instead delivered to
another party. (Id. ¶¶ 41–56.) The parties engaged in arbitration in London to determine
whether the charter was cancelled by mutual agreement or whether Volans wrongfully
repudiated the charter. The arbitrator found that “Volans wrongfully repudiated the Bareboat
Charter as of 28 January 2014.” (Dkt. No. 51-2 ¶ 141.) Golden Horn then filed a complaint in
this district, seeking to attach Norvik’s property pursuant to Rule B of the Supplemental Rules

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The application was not successful and the ship remains under the flag of Belize.
(See Compl. ¶ 47.)
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for Certain Admiralty or Maritime Claims and Asset Forfeiture Actions, alleging a breach of
maritime contract by Volans, and seeking damages in the amount of $3,960,693.20. (Compl.
¶¶ 89–93, 100–01.) Norvik is liable for breach of the maritime contract, Golden Horn alleges,
because it is the alter ego of Volans. (Id. ¶¶ 94–97.) Whether Norvik is the alter ego of Volans
is the primary legal issue pending before this Court. (See Dkt. No. 67; Dkt. No. 72.)
In January 2015, Golden Horn moved to amend its complaint and moved for an order to
deposit the attached funds. (Dkt. No. 20; Dkt. No. 23.) On February 6, 2015, Norvik filed a
notice pursuant to Federal Rule of Civil Procedure 44.1 regarding its intent to raise issues of
Latvian law. (Dkt. No. 36.) On June 30, 2015, the Court denied both of Golden Horn’s motions.
See Golden Horn Shipping, 2015 WL 6684518.
In its current motion, Norvik argues that this Court is not the proper forum for judicial
resolution of this issue and asks the Court to dismiss the proceedings pursuant to forum non
conveniens in favor of the Latvian courts, except to the extent required to enforce any Latvian
judgment that Golden Horn might obtain against Norvik. (See Dkt. No. 64.)
II.

Discussion
The doctrine of forum non conveniens permits dismissal of an action when “a court

abroad is the more appropriate and convenient forum for adjudicating the controversy.”
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 425 (2007). The doctrine is,
“essentially, a supervening venue provision, permitting displacement of the ordinary rules of
venue when, in light of certain conditions, the trial court thinks that jurisdiction ought to be

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declined.” Id. at 429–30 (quoting Am. Dredging Co. v. Miller, 510 U.S. 443, 453 (1994))
(internal quotation marks omitted).
“The defendant bears the burden of proof on all elements of the motion,” Bank of Credit
& Commerce Int’l (Overseas) Ltd. v. State Bank of Pakistan, 273 F.3d 241, 246 (2d Cir. 2001),
and “[a]ny review of a forum non conveniens motion starts with ‘a strong presumption in favor
of the plaintiff’s choice of forum,’” Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146,
154 (2d Cir. 2005) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981)). Indeed,
“unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should
rarely be disturbed.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).
In Iragorri v. United Technologies Corp., 274 F.3d 65 (2d Cir. 2001) (en banc), the
Second Circuit outlined a three-step analysis for motions to dismiss for forum non conveniens.
The standard requires: (1) determining the degree of deference to be afforded to the plaintiff’s
choice of forum; (2) examining whether an adequate alternative forum exists; and (3) balancing
the private and public factors implicated in the choice of forum. See id. at 73–74.
A.

Deference to Plaintiff’s Choice of Forum

The “first level of inquiry” in the analysis is an assessment of the level of deference owed
to a plaintiff’s choice of forum. Iragorri, 274 F.3d at 73. “The degree of deference to which that
choice is entitled ‘varies with the circumstances’: ‘great deference’ is owed where the plaintiff is
suing in her home forum, while ‘less deference’ attaches when foreign plaintiff selects a United
States forum for her suit.” Chigirinskiy v. Panchenkova, No. 14 Civ. 4410, 2015 WL 1454646,
at *7 (S.D.N.Y. Mar. 31, 2015) (quoting Iragorri, 274 F.3d at 71)). In assessing the level of
deference to be paid to a plaintiff’s choice of forum, the Court utilizes a “sliding scale” approach.
Iragorri, 274 F.3d at 71. “[T]he greater the plaintiff’s or the lawsuit’s bona fide connection to

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the United States and to the forum of choice and the more it appears that considerations of
convenience favor the conduct of the lawsuit in the United States, the more difficult it will be for
the defendant to gain dismissal for forum non conveniens.” Id. at 72 (footnote omitted).
Golden Horn’s choice of forum here is, at best, “entitled to a relatively low degree of
deference” because Golden Horn is “a foreign business entity with no ties to the United States”
and its choice of forum “seemingly bears no ‘bona fide connection’ to the events giving rise to
this lawsuit.” Aracruz Trading Ltd. v. Japaul Oil & Mar. Servs., No. 08 Civ. 3511, 2009 WL
667298, at *4 (S.D.N.Y. Mar. 16, 2009). Indeed, Golden Horn concedes that its “choice of a
New York forum deserves less deference than it would if Golden Horn [were] a domestic
plaintiff.” (Dkt. No. 90 at 6.)
Here, the only apparent connection to the United States is Norvik’s maintenance of an
account with Deutsche Bank in New York. In this case, “[t]he connections to the United States
alleged by plaintiffs . . . are insubstantial in light of the fact that the vast majority of the activities
alleged in the complaint were committed by foreign nationals on foreign soil.” Acosta v.
JPMorgan Chase & Co., 219 F. App’x 83, 86 (2d Cir. 2007). Therefore, Golden Horn has
“fail[ed] to allege a bona fide connection that justifies granting substantial deference to their
choice of forum.” Id. “However, this reduced weight ‘is not an invitation to accord a foreign
plaintiff’s selection of an American forum no deference since di[s]missal for forum non
conveniens is the exception rather than the rule.’” R. Maganlal & Co. v. M.G. Chem. Co., 942
F.2d 164, 168 (2d Cir. 1991) (quoting Lacey v. Cessna Aircraft Co., 862 F.2d 38, 46 (3d Cir.
1988)).

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In deciding what level of deference to pay to Plaintiff’s choice of forum, the Court
weighs factors 2 that tend to indicate convenience against factors that tend to indicate forum
shopping. Norex Petroleum, 416 F.3d at 155–56. The Court’s analysis is “holistic.”
Chigirinskiy, 2015 WL 1454646, at *7.
Golden Horn argues that its choice of forum “rested with its ability to attach assets of the
defendant in this district pursuant to Admiralty Rule B.” 3 (Dkt. No. 90 at 6.) Maritime
attachments are authorized in part because of “the ‘peripatetic’ nature of maritime parties, the
‘transitory’ status of their assets, and the need for parties to obtain security ‘[i]n a world of
shifting assets, numerous thinly-capitalized subsidiaries, flags of convenience and flows of
currencies.’” Blue Whale Corp. v. Grand China Shipping Dev. Co., 722 F.3d 488, 499 (2d Cir.
2013) (citations omitted). In this case, Norvik is a well-established bank in Latvia—not a typical
maritime defendant whose assets might sail away. (See Dkt. No. 64 at 14–15.) Golden Horn’s
argument for convenience does not hold water.

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The “convenience factors” weighing against dismissal include “[1] the
convenience of the plaintiff’s residence in relation to the chosen forum, [2] the availability of
witnesses or evidence to the forum district, [3] the defendant’s amenability to suit in the forum
district, [4] the availability of appropriate legal assistance, and [5] other reasons relating to
convenience or expense.” Norex Petroleum, 416 F.3d at 155 (quoting Iragorri, 274 F.3d at 72)
(internal quotation marks omitted). The “forum-shopping factors,” which weight against giving
deference to a plaintiff’s choice of forum, include “[1] attempts to win a tactical advantage
resulting from local laws that favor the plaintiff’s case, [2] the habitual generosity of juries in the
United States or in the forum district, [3] the plaintiff’s popularity or the defendant’s
unpopularity in the region, or [4] the inconvenience and expense to the defendant resulting from
litigation in that forum.” Id. (quoting Iragorri, 274 F.3d at 72) (internal quotation marks
omitted).
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Golden Horn also argues that it chose this forum to “obtain jurisdiction over
Norvik Banka.” (Dkt. No. 90 at 6.) However, as discussed below, because Norvik conditions
dismissal pursuant to forum non conveniens on a Latvian court’s retaining jurisdiction of this
case, and because Golden Horn does not argue that it will be unable to obtain jurisdiction over
Norvik in the foreign tribunal, the Court gives little weight to this justification. Golden Horn can
obtain jurisdiction over Norvik in Latvian courts.
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Golden Horn provides no other compelling reason why the U.S. courts are convenient,
but Norvik does: “U.S. maritime law has a relatively low veil-piercing liability threshold versus
other jurisdictions around the world.” (Dkt. No. 99 at 5.) Golden Horn’s attempt to win a
tactical advantage by choosing this forum and advocating for the application of U.S. maritime
law to its claims weighs against giving deference to its choice of forum.
Given the lack of ties to the United States, the at-best shaky reasoning given by Golden
Horn for its choice of forum, and the likely tactical advantage Golden Horn has under U.S.
maritime law, the Court affords little deference to Golden Horn’s choice of forum.
B.

Adequate Alternative Forum

Second, the district court “asks if there is an alternative forum that has jurisdiction to hear
the case.” Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 46 (2d Cir. 1996). Indeed, the Second
Circuit has “clarif[ied] that a case cannot be dismissed on grounds of forum non conveniens
unless there is presently available to the plaintiff an alternative forum that will permit it to
litigate the subject matter of its dispute.” Norex Petroleum, 416 F.3d at 159 (2d Cir. 2005). “An
alternative forum is adequate if the defendants are amenable to service of process there, and if it
permits litigation of the subject matter of the dispute.” Pollux Holding Ltd. v. Chase Manhattan
Bank, 329 F.3d 64, 75 (2d Cir. 2003).
Norvik is willing to condition dismissal on a Latvian court’s exercising jurisdiction over
Golden Horn’s claims, and represents that it will not assert a jurisdictional defense based upon
any statute of limitations. (Dkt. No. 64 at 16–17.) In light of this, Golden Horn concedes that
the Latvian courts are an adequate alternative forum. (Dkt. No. 90 at 7.) Therefore, this factor is
satisfied so long as any dismissal is conditioned upon a Latvian court’s willingness to hear the
case, “and upon all defendants effectively waiving any jurisdictional defenses or any defenses

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based upon statute of limitations that may have arisen since the filing of the case in the present
forum.” Niv v. Hilton Hotels Corp., 710 F. Supp. 2d 328, 338 (S.D.N.Y. 2008), aff’d, 358 F.
App’x 282 (2d Cir. 2009).
C.

Gilbert Factors

Finally, the Court determines, based on “the Gilbert factors,” which forum would be the
“most convenient” and “best serve the ends of justice.” Peregrine Myanmar, 89 F.3d at 46
(citing Gilbert, 330 U.S. at 508–09). “In weighing the Gilbert factors, the court starts with a
presumption in favor of the plaintiff’s choice of forum . . . . The defendant has the burden of
overcoming this presumption by establishing that the Gilbert factors ‘tilt strongly in favor of’ the
alternative forum.” Id. (alternation omitted) (citing R. Maganlal, 942 F.2d at 167).
The Court weighs both the five “private interest” factors and the four “public interest”
factors. DiRienzo v. Philip Servs. Corp., 294 F.3d 21, 29–31 (2d Cir. 2002).
1.

Private Interest Factors

The “private interest” Gilbert factors include “(1) ease of access to evidence; (2) the
availability of compulsory process for the attendance of unwilling witnesses; (3) the cost of
willing witnesses’ attendance; (4) if relevant, the possibility of a view of premises; and (5) all
other factors that might make the trial quicker or less expensive.” Id. at 29–30. In this case,
“[t]he sole issue to be determined is whether Norvik is the alter ego of Volans.” (Dkt. No. 64 at
19.)
First, the bulk of the evidence that must be adduced to resolve this issue is located in
Latvia. (See id. (arguing that the evidence regarding the sale of Volans and Norvik’s relationship
to Volans, both of which are Latvian companies, is located in Latvia).) Moreover, certain
evidence that may shed light on the commingling of assets between Norvik and Volans—which

8

is relevant to an alter-ego analysis—“cannot be disclosed in this proceeding absent a Latvian
court order.” (Id.) The concentration of evidence in Latvia favors dismissal. See Palacios v.
Coca-Cola Co., 757 F. Supp. 2d 347, 361 (S.D.N.Y. 2010) (“In this case, the concentration of
evidence in Guatemala weighs heavily in favor of dismissal.”), aff’d, 499 F. App’x 54 (2d Cir.
2012).
Second, Golden Horn has identified a number of individuals and entities from which it
seeks the production of documents. (See Dkt. No. 64 at 20.) Yet Norvik points out that “none of
these individuals or entities are subject to the jurisdiction of this Court” and that “the majority of
these individuals and entities are subject to the jurisdiction of a Latvian court.” (Id. (italics,
bolding, and underlining omitted).) Golden Horn disputes that witnesses are necessary to
demonstrate corporate separateness. (Dkt. No. 90 at 9.) But Norvik “would like to proffer
witnesses.” (Dkt. No. 64 at 20.)
To the extent that Norvik seeks to proffer witnesses, some of those witnesses are
unwilling to come to the United States to testify, and Golden Horn does not dispute that a
Latvian court could compel their testimony. (Dkt. No. 90 at 9 (noting that Norvik could obtain
testimony by “application to the Latvian court”).) “[T]he ‘availability of compulsory process for
unwilling witnesses’ weighs significantly in favor of” a foreign forum when “[m]ost of the
individuals and entities identified in the Complaint reside in . . . foreign jurisdictions outside the
Court’s subpoena power and cannot be compelled to give evidence in this case.” Banculescu v.
Compania Sud Americana De Vapores, SA, No. 11 Civ. 2681, 2012 WL 5909696, at *8
(S.D.N.Y. Nov. 26, 2012).
Third, the cost of willing witnesses’ attendance is considerable and includes the cost of
transportation from Latvia and translation services. “The expense of forcing Defendant’s

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employees to travel to New York for trial also weighs in favor of the [foreign] forum.” Hyundai
Merch. Marine Co. v. Mitsubishi Heavy Indus., Ltd., No. 14 Civ. 7965, 2015 WL 7758876, at *6
(S.D.N.Y. Dec. 1, 2015).
Golden Horn argues that Norvik’s delay in bringing this motion—filed more than two
and half years from the Complaint—undermines Norvik’s assertions that this forum is
inconvenient. (Dkt. No. 90 at 8.) The Second Circuit has held, however, that dismissal on forum
non conveniens grounds is not improper where “[t]he traditional public and private interest
factors weigh heavily” in favor of a foreign forum despite the fact that the parties had “conducted
significant discovery for three years.” Alfadda v. Fenn, 159 F.3d 41, 45, 48 (2d Cir. 1998). The
Court finds that Norvik’s delay does not tip the balance in Golden Horn’s favor.
Accordingly, the private interest factors favor dismissal.
2.

Public Interest Factors

The “public interest” factors include “(1) administrative difficulties associated with court
congestion; (2) the unfairness of imposing jury duty on a community with no relation to the
litigation; (3) the ‘local interest in having localized controversies decided at home;’ and (4)
avoiding difficult problems in conflict of laws and the application of foreign law.” DiRienzo,
294 F.3d at 31 (quoting Gilbert, 330 U.S. at 508–09)).
First, administrative difficulties related to court congestion do not appear to favor either
party. “[W]hile this district is one of the country’s busiest . . . there is no basis to assume how
congested or not the relevant [foreign] courts are.” Strategic Value Master Fund, Ltd. v. Cargill
Fin. Servs., Corp., 421 F. Supp. 2d 741, 774 (S.D.N.Y. 2006) (citations omitted).
As to the third factor (there is no jury demand in this case, so the second factor is
irrelevant) New York has next to no interest in this dispute. This case centers on whether a

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Latvian company acted—in Latvia—in such a way that its corporate protections should be
disregarded. Latvia has a more compelling interest in the resolution of this dispute than New
York.
Finally, there is a likelihood that this case will involve the application of foreign law. 4 In
Lauritzen v. Larsen, 345 U.S. 571 (1953), the Supreme Court set out a multi-factor test to
perform a maritime choice-of-law analysis. When addressing alter-ego claims under admiralty
jurisdiction, the Court employs the maritime choice-of-law analysis set forth in Lauritzen. See
Blue Whale, 722 F.3d at 498 (“[W]hen parties properly invoke admiralty jurisdiction, courts
apply federal maritime choice-of-law rules.”).
The Lauritzen test requires a court to consider seven factors to determine whether foreign
law should apply: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance or
domicile of the injured party; (4) the allegiance of the defendant shipowner; (5) the place of the
contract; (6) the inaccessibility of a foreign forum; and (7) the law of the forum. 345 U.S. at
583–92. In this case, the first, fourth and fifth factors favor the application of Latvian law. The
second and third favor neither party—the law of the Vessel’s flag is Belize and Golden Horn is a

4

Golden Horn argues that a choice of law analysis should precede resolution of a
motion to dismiss pursuant to forum non conveniens, and that if U.S. law is found to apply, the
Court should retain jurisdiction. (Dkt. No. 90 at 1 (citing Thomas J. Schoenbaum, Admiralty &
Maritime Law § 21-12 (5th ed. 2011)).) The treatment of a choice-of-law analysis as a
prerequisite to dismissal pursuant to forum non conveniens is contrary to more recent decisions
in this Circuit—which this Court follows—that treat the potential application of foreign law as
merely one of many factors to be considered. See, e.g., LaSala v. TSB Bank, PLC, 514 F. Supp.
2d 447, 463 (S.D.N.Y. 2007) (“Courts often do not decide choice of law issues when performing
a forum non conveniens analysis, but sometimes they do undertake the analysis. The mere
likelihood of the application of foreign law weighs in favor of dismissal.” (citations omitted));
Monegasque de Reassurances S.A.M. (Monde Re) v. Nak Naftogaz of Ukraine, 158 F. Supp. 2d
377, 387 (S.D.N.Y. 2001), aff’d, 311 F.3d 488 (2d Cir. 2002) (“[C]ourts have a legitimate
interest in avoiding the difficulty with questions of conflicts of law and the application of foreign
law.”).
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Russian entity. The sixth and seventh factors favor Norvik: Latvia is an accessible forum and the
law that presumably governs Norvik’s corporate separateness is Latvian law.
Golden Horn argues that U.S. federal common law governs this dispute. It points to this
Court’s prior opinion, in which the Court noted that “[f]ederal common law governs a plaintiff’s
attempt to hold a parent company liable in an admiralty case,” Golden Horn Shipping, No. 14
Civ. 2168, 2014 WL 5778535, at *2, as well as to the Second Circuit’s opinion in Blue Whale.
First, the law of the case doctrine does not apply to the current situation because the
parties have not previously contested this issue on the merits. Under the law of the case doctrine,
“where litigants have once battled for the court’s decision, they should neither be required, nor
without good reason permitted, to battle for it again.” Virgin Atl. Airways, Ltd. v. Nat’l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting Zdanok v. Glidden Co., 327 F.2d
944, 953 (2d Cir. 1964) (internal quotation marks omitted)). The Court’s prior opinion applied
federal common law and determined that Golden Horn successfully made out a prima facie case
that Volans was Norvik’s alter ego. Golden Horn Shipping, No. 14 Civ. 2168, 2014 WL
5778535, at *2–6. However, the parties did not dispute, and the Court did not apply, the
Lauritzen factors to this case. The Court declines to apply the law of the case doctrine to an
issue that the parties have not previously briefed and argued in full.
Second, in Blue Whale the Second Circuit held that federal maritime choice-of-law
analysis—that is, application of the Lauritzen factors—determines the relevant substantive law to
apply when deciding a Rule B attachment case. Blue Whale, 722 F.3d at 495–500. But the
Court explicitly “reject[ed] the proposition . . . that federal common law automatically governs
the alter-ego claim.” Id. at 496. In that case, applying Lauritzen, the decision to apply U.S.
maritime law was in part due to the “unavailability of an alternative forum, and the absence of a

12

dominant foreign choice of law.” Blue Whale, 722 F.3d at 500. Here, Latvia is an adequate
alternative forum and has a stronger connection to this dispute than any other forum. As
described above, the Lauritzen factors appear to favor application of Latvian law—not federal
common law—in this case.
In any event, the Court need only conclude that there is a likelihood that foreign law
applies for the purposes of this motion. See LaSala, 514 F. Supp. 2d at 463 (S.D.N.Y. 2007)
(holding that “the mere likelihood of the application of foreign law weighs in favor of dismissal”
and collecting cases).
“Having considered all of the above, the district court should dismiss the action for forum
non conveniens ‘only if the chosen forum is shown to be genuinely inconvenient and the
[alternate] forum is significantly preferable.’” Chigirinskiy, 2015 WL 1454646, at *8 (S.D.N.Y.
Mar. 31, 2015) (quoting Iragorri, 274 F.3d at 74–75). Remaining “mindful that forum-shopping
considerations may motivate a defendant to press for dismissal as much as they drive a plaintiff
to resist it,” id., the Court concludes that dismissal is warranted.
III.

Conclusion
For the foregoing reasons, Norvik’s motion to dismiss pursuant to forum non conveniens

is GRANTED, subject to the conditions that a Latvian court is willing to hear the case and that
defendants waive any jurisdictional defenses and any defenses based upon statute of limitations
that may have arisen since the filing of the case in this forum. The remaining pending motions
are DENIED as moot.
This Court will retain jurisdiction to enforce any Latvian judgment that Golden Horn
might obtain against Norvik against the funds attached here by Golden Horn. Therefore, this
action is hereby STAYED pending resolution of the Latvian proceedings.

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The parties are directed to provide the Court a status update within ninety days of the date
of this Opinion and Order.
The Clerk of Court is directed to close the motions at Docket Numbers 63, 67, 72, and
85.
SO ORDERED.
Dated: August 16, 2017
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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