Kashef et al v. BNP Paribas SA et al

Filing 84

ORDER denying #76 Letter Motion for Discovery. When analyzing the motion to dismiss, the Court will assume the facts alleged by the Plaintiffs are true and will rely on the sources of law submitted by the parties in their briefing, including the competing foreign law expert affidavits, to ascertain the application of Sudanese law in this case. Under such a procedural posture, discovery is not warranted. For these reasons, Plaintiffs' request to depose Defendants' foreign law expert is denied. This resolves Docket Number 76, and as further set forth herein. (Signed by Judge Alison J. Nathan on 6/15/2017) (ras)

UNITED STA TES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDCSDNY
DCCUMENT
ELECTRONICALLY FILED
DOC#:

DATEF-IL-E-,D-:J~U~N-1~5-~~17,,..-

Entesar Osman Kashef et al.,
Plaintiffs,
16-cv-3228 (AJN)

-vORDER
BNP Paribas SA & BNP Paribas North America,
Inc.,
Defendants.

ALISON J. NATHAN, District Judge:
Before the Court is Plaintiffs' motion to lift the discovery stay so that Plaintiffs may take
the deposition of Defendants' foreign law expert. For the following reasons, the Court denies the
request.
In this lawsuit, Plaintiffs are Sudanese refugees who have sued BNP Paribas SA & BNP
Paribas No1ih America, Inc. (collectively "BNP Paribas"), alleging that BNP Paribas illegally
processed financial transactions on behalf of sanctioned Sundanese entities and, in doing so,
facilitated and supported the commission of widespread human rights violations by the Sudanese
Government. Dkt No. 49. Defendants have filed a motion to dismiss arguing, inter alia, that
Plaintiffs' claims are time-barred, that the act of state doctrine bars the claims, and that Plaintiffs
have failed to state a claim under Sudanese or Swiss law. Dkt No. 65. Plaintiffs have not yet
filed an opposition to this motion to dismiss; their opposition is due May 22, 2017. Dkt No. 73.
The Court subsequently stayed discovery pending resolution of the motion to dismiss. Dkt Nos.
24, 48.
In support of their motion to dismiss, Defendants rely on the declaration of Tayeb

Hassabo, an expert in Sundanese law. Dkt No. 67-1. Plaintiffs contend that their "understanding
of Sudanese law contrasts sharply with Mr. Hassabo's," and Plaintiffs anticipate filing their own
expert declaration in response. Dkt No. 76 at 2. On April 26, 2017, Plaintiffs filed a motion
asking the Court to lift the discovery stay "for the limited purpose of allowing Plaintiffs to take
the deposition of Defendants' expert on Sudanese law Tayeb Hassabo prior to filing their
opposition to the Defendants' Motion to Dismiss." Dkt No. 76. Defendants oppose the motion.
DktNo. 77.
"It is settled law that the sparring concerning preliminary issues should not be permitted

to degenerate into a full-blown trial on the merits." Base Metal Trading SA. v. Russian

Aluminum, No. 00 CIV.9627 JGK FM, 2002 WL 987257, *3 (S.D.N.Y. May 14, 2002).
Notwithstanding this principle, Plaintiffs contend that they should be granted limited relief from
the discovery stay in order to depose Defendants' foreign law expert in anticipation of their
opposition to the motion to dismiss. Plaintiffs cite three cases in support of this argument. Dkt
No. 76 (citing Alperin v. Vatican Bank, No. C-99-04941 MMC (EDL), 2006 WL 1663847 (N.D.
Cal. 2006); Base Metal, 2002 WL 987257; In re Bridgestone/Firestone, Inc. ATX, ATX II and

Wilderness Tires Products Liab. Litig., 131 F. Supp. 2d 1027 (S.D. Ind. 2001)).
In all three cases cited by Plaintiffs, a factual dispute needed to be resolved before the
Court could resolve an underlying dispositive motion. For example, in both Base Metal and In

re Bridgestone, there were pending motions to dismiss on forum non conveniens grounds. Base
Metal, 2002 WL 987257, at *3; In re Bridgestone, 131 F. Supp. 2d at 1029-30. Deciding a
motion to dismiss on forum non conveniens grounds involves "a fact-based inquiry." In re

Bridgestone, 131 F. Supp. 2d at 1029 ("[T]he district court is accorded substantial flexibility in
evaluating a forum non conveniens motion, and each case turns on its facts."' (quoting Van

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Cauwenberghe v. Biard, 486 U.S. 517, 529 (1988)). Similarly, Alperin involved a jurisdictional
issue, and jurisdictional discovery is permitted "where pertinent/acts bearing on the question of
jurisdiction are controverted ... or where a more satisfactory showing of the facts is necessary."
Alperin, 2006 WL 1663847, at *3 (emphases added) (quoting Wells Fargo & Co. v. Wells Fargo
Express Co., 556 F.2d 406, 430, n. 24 (9th Cir. 1977)). With this background in mind, the courts
in Base Metal and In re Bridgestone permitted the deposition of a foreign law expert because
"resolution of a motion to dismiss on the basis of forum non conveniens ... would likely depend
on the results of th[e] discovery." In re Bridgestone, 131 F. Supp. 2d at 1030; see also Base
Metal, 2002 WL 987257, at *4. The district court in Alperin denied the request for jurisdictional
discovery as premature. 2006 WL 1663847, at *3.
This case, in contrast, involves a different procedural posture. The motion to dismiss
filed in this case asserts that Plaintiffs have failed to state a claim under Sudanese law upon
which relief can be granted. It is axiomatic that, when deciding such a motion to dismiss, a court
must assume as true all facts alleged in the complaint. Pape lino v. Albany College of Pharmacy
of Union University, 633 F.3d 81, 85 n.l (2d Cir. 2011 ). In other words, the absence of factual
disputes makes the three cases Plaintiffs rely upon to justify their discovery request inapposite.
Additionally, the determination of foreign law is generally a question of law for the Court to
decide. !tar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 92 (2d Cir. 1998);
In re Lyondell Chemical Co., 543 B.R. 428, 443 (S.D.N.Y. Jan. 4, 2016). While the deposition
or testimony of a foreign law expert may be warranted if this case proceeds to discovery or trial,
the credibility of the experts is not at issue, especially at the early stage of this case. See Norwest
Fin., Inc. v. Fernandez, 86 F. Supp. 2d 212, 227 (S.D.N.Y. 2000) (noting that "it is not the
credibility of the experts [on foreign law] that is at issue, it is the persuasive force of the opinions

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they expressed") (quoting !tar-Tass, 153 F.3d at 92)). When analyzing the motion to dismiss,
the Court will assume the facts alleged by the Plaintiffs are true and will rely on the sources of
law submitted by the parties in their briefing, including the competing foreign law expert
affidavits, to ascertain the application of Sudanese law in this case. Under such a procedural
posture, discovery is not warranted.
For these reasons, Plaintiffs' request to depose Defendants' foreign law expert is denied.
This resolves Docket Number 76.

SO ORDERED.

~~

J.1,

Dated:.,
2017
New York, New York
United States District Judge

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