PRIMUS PACIFIC PARTNERS LP v. GOLDMAN SACHS GROUP INC (2019)

Appeal from order, Supreme Court, New York County (O. Peter Sherwood, J.), entered November 17, 2017, which granted defendants' motions to dismiss the complaint based on forum non conveniens, deemed an appeal from the judgment, same court and Justice, entered December 22, 2017, dismissing the complaint, and, so considered, said judgment unanimously affirmed, without costs.

This action involves the betrayal by a Singapore entity (defendant Goldman Sachs [Singapore] Pte. [GSS] ) of its Malaysian client (nonparty EON Capital Sdn. Bhd.) to curry favor with the Malaysian Prime Minister.

The action was properly dismissed on forum non conveniens grounds, given the unduly burdensome inquiry involved in determining personal jurisdiction in these circumstances and the balance of the forum non conveniens considerations (see Sinochem Intl. Co. Ltd. v. Malaysia Intl. Shipping Corp., 549 U.S. 422, 436, 127 S.Ct. 1184, 167 L.Ed.2d 15 [2007] [if the court “can readily determine that it lacks jurisdiction over the ․ defendant, the proper course would be to dismiss on that ground․ But where ․ personal jurisdiction is difficult to determine, and forum non conveniens considerations weigh heavily in favor of dismissal, the court properly takes the less burdensome course”] ). The decision whether the court had jurisdiction over GSS because GSS was a mere department of New–York–based Goldman Sachs Group, Inc. (GSG) would involve an “arduous inquiry” (id. [internal quotation marks omitted] ) into whether GSG controlled GSS's finances, interfered with the selection and assignment of executive personnel, and failed to observe corporate formalities, and whether defendant Tim Leissner had sufficient contacts with New York.

Plaintiff's causes of action for fraud and breach of fiduciary duty lack a substantial nexus with New York (see e.g. Bluewaters Communications Holdings, LLC v. Ecclestone, 122 A.D.3d 426, 428, 996 N.Y.S.2d 232 [1st Dept. 2014]). Furthermore, plaintiff is a Cayman Islands partnership, not a New York resident (see Bacon v. Nygard, 160 A.D.3d 565, 566, 76 N.Y.S.3d 27 [1st Dept. 2018]). Finally, Malaysia has a greater interest than New York in whether one Malaysian bank (nonparty Hong Leong Bank) corruptly took over another Malaysian bank (EON) (see e.g. Hanwha Life Ins. v. UBS AG, 127 A.D.3d 618, 619, 8 N.Y.S.3d 180 [1st Dept. 2015], lv denied 26 N.Y.3d 912, 2015 WL 7376060 [2015]; Bluewaters, 122 A.D.3d at 428, 996 N.Y.S.2d 232; Millicom Intl. Cellular v. Simon, 247 A.D.2d 223, 668 N.Y.S.2d 591 [1st Dept. 1998]).

Contrary to plaintiff's contention, New York law does not require an alternative forum to be available (see e.g. Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478, 480–484, 478 N.Y.S.2d 597, 467 N.E.2d 245 [1984], cert denied 469 U.S. 1108, 105 S.Ct. 783, 83 L.Ed.2d 778 [1985]; Norex Petroleum Ltd. v. Blavatnik, 151 A.D.3d 647, 648, 59 N.Y.S.3d 11 [1st Dept. 2017], lv denied 30 N.Y.3d 906, 2017 WL 5560554 [2017]).

We have considered plaintiff's remaining arguments (e.g., that New York public policy will require the application of this state's law instead of Malaysian law and that the court should have allowed plaintiff to take discovery before granting defendants' motions) and find them unavailing.