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10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 130 of 133 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)). 110
10-04285-brl Doc 127 Filed 08/17/12 Entered 08/17/12 14:29:55 Main Document Pg 131 of 133 bankruptcy law, exercising its exclusive jurisdiction over BLMIS’s estate, and maximizing the recovery and redistribution of Customer Property. It need not subjugate those interests by dismissing the Trustee’s adversary proceeding against multiple Defendants in deference to Luxalpha’s foreign liquidation. The authority relied upon by Luxalpha does not suggest otherwise. 3. The Trustee Has Sought an Injunction Preventing His Impleader into the Luxembourg Action The Trustee’s inclusion in the Luxembourg Action is a violation of the automatic stay, various stay orders of the District Court, SIPA, and the Barton doctrine, which precludes actions against trustees. The Third Party Writ further threatens the Trustee’s recovery of estate property, and impairs this Court’s exclusive jurisdiction over the debtor’s 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.]; see also Maxam, 460 B.R. at 116, aff’d, No. 11 Civ. 8629 (JPO), 2012 WL 1570859 (S.D.N.Y. 2012). The Trustee, therefore, has sought to enforce the automatic stay and enjoin AML, Delandmeter, and Littaye from their attempt to implead the Trustee as a third-party defendant in the Luxembourg Action. Id. Accordingly, Luxalpha’s forum non conveniens and comity arguments—which presuppose that the Trustee will participate in the Luxembourg Action—are unpersuasive. The Luxembourg Action does not render Luxembourg a more convenient forum for this dispute. Nor does it warrant comity or deference from this Court. See JP Morgan Chase Bank, 412 F.3d at 418 (“[D]eference to the foreign court is appropriate so long as the foreign proceedings . . . do not contravene the laws or public policy of the United States.” (internal citation omitted)). 111
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