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10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 106 of 133 inadequate. 45 (See [S.D.N.Y. ECF No. 18 at 1 n.1]; [S.D.N.Y. ECF No. 20 at 4.]) This approach is procedurally improper and has been rejected in the Southern District of New York. See, e.g., Bryant Park Capital v. Jelco Ventures, No. 05 Civ. 8702 (GEL), 2005 WL 3466013, at *1 (S.D.N.Y. Dec. 16, 2005) (“Defendants are mistaken in contending that they ‘do not waive’ any of the listed objections [by “assert[ing], in passing, that . . . they ‘do not waive’ any future objection” to personal jurisdiction]; the failure to properly raise a Rule 12(b)(2) motion for lack of personal jurisdiction at this juncture is preclusive.”). The Court should find that the Moving Defendants have waived their opportunity to challenge personal jurisdiction. V. ALL MOVING DEFENDANTS FAIL TO SHOW THAT THE EXERCISE OF PERSONAL JURISDICTION WOULD BE UNREASONABLE In addition to “minimum contacts,” which are met here for each Moving Defendant, due process considerations also require that the exercise of jurisdiction be “reasonable.” Int’l Shoe Co., 326 U.S. at 317; see also Maxam, 460 B.R. at 117. The Supreme Court has identified five factors in determining the “reasonableness” of the exercise of personal jurisdiction: (1) “the burden on the defendant;” (2) “the forum State’s interest in adjudicating the dispute;” (3) “the plaintiff’s interest in obtaining convenient and effective relief;”(4) “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies;” and (5) “the shared interest of the several States in furthering fundamental substantive social policies.” Burger King, 471 U.S. at 476–77 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)). Once the Trustee has made a prima facie showing that defendants have the requisite minimum contacts, the exercise of jurisdiction may be defeated only “where the defendant 45 Notably, Luxalpha failed to even purport to preserve any jurisdictional defenses until filing an April 15, 2012 brief in the Second Circuit opposing the Trustee’s appeal of the District Court’s November 1, 2011 decision [2d Cir. ECF No. 99.] 86
10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 107 of 133 presents ‘a compelling case that the presence of some other considerations would render jurisdiction unreasonable.’” Chloe, Inc., 616 F.3d at 165 (quoting Burger King, 471 U.S. at 477); see also Cohmad, 418 B.R. at 81. The reasonableness inquiry focuses on whether “[the court’s] exercise of jurisdiction will not offend ‘traditional notions of fair play and substantial justice.’” Chais, 440 at 278 (quoting Asahi Metal Indus. Co., Ltd. v. Super. Ct. Cal., 480 U.S. 102, 113 (1987)). This Court has previously held that the application of the reasonableness factors favors the exercise of jurisdiction over foreign defendants in connection with the Trustee’s efforts to recover BLMIS-related transfers. See Chais, 440 B.R. at 281–282 (“On the basis of [defendant’s] purposeful and profitable financial transactions in the United States, this Court certainly has jurisdiction to determine whether such transactions contributed to the massive losses suffered by victims of the BLMIS Ponzi scheme in the United States.” (internal citation omitted)). In so holding, this Court has determined that the significant interests implicated by the Trustee’s actions will justify even serious burdens placed on a foreign defendant. Cohmad, 418 B.R. at 81; Chais, 440 B.R. at 281; Maxam, 460 B.R. at 119–20; see also Apollo Techs. Corp. v. Centrosphere Indus. Corp., 805 F. Supp. 1157, 1187 (D.N.J. 1992) (“Jurisdiction cannot be defeated simply because the non-resident defendant is a foreign entity.) In any case, there is no serious burden “where [the defendant’s] counsel is in New York and there is a U.S. nexus to its economic activities, and given that ‘the conveniences of modern communication and transportation’ also militate against finding hardship based on lack of proximity.” Maxam, 460 B.R. at 119 (quoting Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 129 (2d Cir. 2002)). 87
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