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10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 102 of 133 4652 (JGK), 2012 WL 99089, at *7 (S.D.N.Y. Mar. 26, 2012) (acknowledging the importance of “prevent[ing] dissipation of the debtor’s assets before orderly distribution to creditors can be effected”) (internal quotation omitted). In December 2009, Luxalpha’s liquidators filed an action in Luxembourg against, inter alia, AML, Delandmeter, Littaye, the Moving UBS Defendants and UBS AG (the “Luxembourg Action”) for damage caused to Luxalpha as a result of the fraud perpetrated by Madoff and enabled and/or facilitated by each of the named defendants. (Pergament Decl. Ex. 172.) On or around May 12, 2010, AML, Delandmeter, and Littaye filed the Luxalpha Third Party Writ which named the Trustee, on behalf of the BLMIS estate, as a third party defendant through an impleader in the Luxembourg Action. (Pergament Decl. Ex. 173.) The Luxalpha Third Party Writ alleges that the BLMIS estate is responsible for any judgment rendered against the Third Party Plaintiffs in the Luxembourg Action. 43 (Id. at Conclusion Section.) The Luxalpha Third Party Writ is expressly aimed at the BLMIS estate and specifically targets this Court and therefore this forum, and unquestionably affects the administration of the estate. Moreover, by impleading the Trustee as representative of the BLMIS estate and seeking to recover assets from the BLMIS estate, AML, Delandmeter, and Littaye have expressly aimed their conduct at the United States and must therefore reasonably anticipate being haled into this Court. See Calder, 465 U.S. at 789–90. The motions to dismiss on personal jurisdiction grounds filed by AML and Delandmeter must be rejected for this additional reason. 43 The Trustee has filed an action before this Court seeking to enforce the automatic stay and enjoin AML, Delandmeter, and Littaye from litigating the Luxalpha Third Party Writ against the Trustee as a representative of the BLMIS estate. See Memorandum of Law in Support of Trustee’s Application for Enforcement of Automatic Stay and Injunction Against Patrick Littaye, Pierre Delandmeter, and Access Management Luxembourg S.A., Picard v. Access Management Luxembourg S.A., No. 12-01563 (BRL) (Bankr. S.D.N.Y. Apr. 19, 2012) [ECF No. 1.] AML, Delandmeter, and Littaye have moved to withdraw the reference. [ECF No. 14.] Meanwhile, briefing on the Trustee’s motion to enforce the automatic stay and enjoin AML, Delandmeter, and Littaye from proceeding with the Third Party Writ will proceed. [ECF No. 13.] 82
10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 103 of 133 IV. ALL MOVING DEFENDANTS WAIVED PERSONAL JURISDICTION DEFENSES BY PARTICIPATING IN THE INSTANT AND RELATED PROCEEDINGS Participatory factors support finding the Moving Defendants’ waiver of any objection to personal jurisdiction in this adversary proceeding. See Cohmad, 418 B.R. at 81 (citing In re Deak & Co., Inc., 63 B.R. 422, 431 (Bankr. S.D.N.Y. 1986)). In Cohmad, this Court found that the defendants “effectively consented to personal jurisdiction by purposefully availing themselves of the protections afforded by United States bankruptcy law.” Id. The Moving UBS Defendants, Moving Access Defendants, Delandmeter, and Luxalpha waived any objection to personal jurisdiction by seeking affirmative relief in the District Court by moving to withdraw the reference in June and July 2011. [S.D.N.Y. ECF No. 1, 6, 8.] See Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61 (2d. Cir. 1999) (defendant forfeited challenge to personal jurisdiction where he “joined with other defendants” in seeking transfer of case to another district court); Deak, 63 B.R. at 431–32 (defendant waived personal jurisdiction “when he filed his notice of appearance”); Herbst Gaming, Inc. v. Insurcorp. (In re Zante, Inc.), No. 10 cv 00231 (RCJ) (RAM), 2010 WL 5477768, at *7 (D. Nev. Dec. 29, 2010) (noting that Defendants submitted to jurisdiction by filing a motion to withdraw the reference and motion for summary judgment, “which act constituted a general appearance”). The Moving UBS Defendants, Moving Luxalpha Director Defendants, Moving Access Defendants, and Delandmeter then sought and received affirmative relief in the District Court to dismiss the common law claims for lack of standing. [S.D.N.Y. ECF No. 17, 20, 36.] The District Court’s November 1, 2011 decision in favor of each of the Moving Defendants’ interests is now on appeal before the Second Circuit, where it has been opposed by counsel for the Moving 83
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