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10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document
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considerations which are not generally present as a result of parallel litigation . . . .”). Luxalpha
has shown neither that the Luxembourg Action is parallel to this action nor that exceptional
circumstances warrant a dismissal. 53 Thus, Luxalpha’s “first filed” argument is inapposite.
2. Luxalpha Misrepresents the Principle of Deferring to Foreign
Liquidations and Fails to Acknowledge Dispositive Distinctions
Luxalpha’s reliance on the international comity accorded foreign bankruptcy proceedings
is misplaced. (See Luxalpha Mot. at 19–20.) U.S. courts defer to foreign bankruptcies when a
creditor seeks to bypass that bankruptcy by initiating an action in the United States against that
foreign debtor or its property. JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. De C.V.,
412 F.3d 418, 424 (2d Cir. 2005) (“We have repeatedly held that U.S. courts should ordinarily
decline to adjudicate creditor claims that are the subject of a foreign bankruptcy proceeding.”
(emphasis added)). Indeed, each case cited by Luxalpha involved that distinct situation. See id.
(affirming dismissal of action initiated by creditor to collect funds from debtor in foreign
bankruptcy proceedings); Finanz AG Zurich v. Banco Economico S.A., 192 F.3d 240 (2d Cir.
1999) (same); In re Int’l Banking Corp. B.S.C., 439 B.R. 614 (Bankr. S.D.N.Y. 2010) (declining
foreign debtor’s motion in Chapter 15 proceedings for creditor to turn over foreign debtor’s
property which creditor had previously attached in the United States). This action involves the
Trustee of a U.S. debtor in a U.S. bankruptcy. Luxalpha, which filed claims in that bankruptcy,
is a purported creditor of the U.S. debtor. This Court has a substantial interest in enforcing U.S.
53 The actions are not parallel. Luxalpha’s claims against the defendants in the Luxembourg Action are not
substantially the same as the Trustee’s bankruptcy claims against Luxalpha and the other defendants in this action.
Nor will resolution of the Luxembourg Action dispose of all claims in this action. See AAR Int’l, Inc. v. Nimelias
Enter, S.A., 250 F.3d 510, 518 (7th Cir. 2001) (“The question is not whether the suits are formally symmetrical, but
whether there is a substantial likelihood that the foreign litigation will dispose of all claims presented in the federal
case.” (internal quotations omitted)). Nevertheless, dismissal is unwarranted even if the actions are parallel because
it is not “exceptional” for Luxalpha to litigate in two fora simultaneously. See, e.g., Kitaru Innovations Inc. v.
Chandaria, 698 F. Supp. 2d 386, 391 (S.D.N.Y. 2010) (“No exceptional circumstances exist here. Indeed, the
circumstances Defendants cite-for example, the similarity of the parties and issues presented and the burden of
litigating in two forums simultaneously-are commonly present when a parallel foreign proceeding is ongoing.
(internal citation omitted)).
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