Grenada's deputy Prime Minister, Gregory Bowen has responded to moves made in the United States to drag him back in a high court case along with a group of Russians.
U.S lawyers representing Minister Bowen are contending that as a senior government figure, he is immune from prosecution in the United States.
Last week, an american judge ruled that Bowen, the Minister of Agriculture and Energy, would have to defend himself in the bribery case brought by U.S oilman, Jack Grynberg in relation to a 1999 oil and gas agreement signed with the Grenada government.
The Russian defendants implicated with the Grenada Number Two official are Mikhail Fridman, Len Blavatnik, Lev Korchagin and Lev Model who are all associated with a rival oil company known as Global Petroleum Group Ltd.
Grynberg is alleging that Minister Bowen accepted substantial bribe payments from the Russians in order to interfere with his oil agreement reached with the Grenada government.
The following is an edited version of the legal defense submitted on Bowen's behalf by the U.S law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP located in Manhattan, New York.
Preliminary Statement
Defendant Gregory Bowen asks that the Court reconsider its Opinion and Order dated February19, 2008, which granted plaintiffs leave to amend the complaint against Bowen by adding a new claim of civil conspiracy against him.
The effect of this decision is to drag the Deputy Prime Minister of Grenada back into a lawsuit in the U.S. Courts that is legally defective as against him, for a host of reasons that the Court's latest decision appears to have overlooked.
Where, as here, "a party direct(s) the court to an argument the party has previously raised but the court has overlooked," and that argument "might have reasonably altered the result," reconsideration is appropriate.
In reconsidering Judge Cote's prior decision and granting leave to amend, the court appears to have differed with the one ground Judge Cote chose to rely upon for denying the amendment - that plaintiffs were dilatory in moving to amend.
The Court reconsidered the logic of that particular determination, and went on to suggest there is nothing in the record to suggest futility...".
However, the Court appears to have overlooked the panoply of reasons that Minister Bowen had offered for why the proposed amendment would indeed be futile.
These reasons included such weighty legal defenses as the Foreign Sovereign Immunities Act and lack of personal jurisdiction. These defenses were invoked by Minister Bowen both in support of his motion to dismiss and in opposition to the motion to amend.
The Court, in its February 19th decision, did not address or even acknowledge these defenses. We respectfully submit that, had the court fully considered those defenses, the Court's most recent decision to permit plaintiffs leave to amend, and its finding that there was "nothing in the record to suggest futility," would and should be different.
As stated before, defendant Bowen is the Deputy Prime Minister of Grenada. For the host of legal reasons previously invoked, he should not be subject to suit in the U.S. Courts.
This Court had previously granted Bowen's motion to dismiss, had denied plaintiffs motion to amend to add a new claim against him, and had shut the door on plaintiffs' improper efforts to sue a senior official of a foreign government in our courts.
The effect of the Court's latest decision is to drag Minister Bowen back into this case, in the face of a panoply of those previously-invoked reasons why suit against him is legally defective. Minister Bowen asks that the Court reconsider this latest decision.
Facts
We submit that a brief review of the procedural history of this case is warranted. First, some background:
This lawsuit is a crude and improper attempt to pressure the Government of Grenada to settle a dispute over oil and gas exploration with these plaintiffs, by making a host of false and irresponsible allegations against the Government's Deputy Prime Minister in the U.S. Courts.
The lead plaintiff in this lawsuit is Jack Grynberg. It is no exaggeration to say that Grynberg is notorious on a national scale for filing baseless lawsuits and using litigation as a tactic to advance business interests and bully adversaries.
A search of Grynberg's name using Lexis/Nexis CourtLink identifies him as a plaintiff in well over 160 Federal and State actions, which include 73 separate qui tam actions under the False Claims Act against almost every company in the natural gas industry.
In dismissing almost all the claims in the qui tam actions, the Federal Court tin Wyoming referred to Grynberg's "odious tactics" and determined that he "deliberately" made "sweeping allegations of fraud ... based in large part on rank speculation".
Similarly, and even more recently, another of Jack Grynberg's lawsuits was dismissed in an opinion harshly condemning him for so much "spin" of and "taking substantial interpretive liberty" with the facts, that it was "difficult to characterise Plaintiff response brief as anything other than frivolous posturing".
The instant lawsuit is in the same category with all these others. Grynberg filed this action against Minister Bowen on November 1, 2006. In it, Grynberg asserted claims against Minister Bowen for tortious interference with contract and tortious interference with prospective business advantages.
The lawsuit also named Mikahil Fridman, Len Blavatnik and Lev Korchagin as defendants.
On April 30, 2007, Minister Bowen moved to dismiss the claims against him on the following three grounds, among others:
(i) the Court lacks subject-matter jurisdiction to hear the claims against him because he is immune from suit under the Foreign Sovereign Immunities Act;
(ii) the Court lacks personal jurisdiction over Minister Bowen because plaintiffs failed to allege facts sufficient to establish personal jurisdiction under New York law or the "minimum contacts" or "reasonableness" necessary to establish personal jurisdiction consistent with the U.S. Constitution;
(iii) the action is barred by the applicable statute of limitations.
On August 10, 2007, Judge Cote granted Minister Bowen's motion to dismiss, on the ground that the action was barred by the statute of limitations.
This was one of the several grounds invoked by Minister Bowen for dismissal and Judge cote expressly declined to rule on the others. Judge Cote stated that "the other grounds of Bowen's motion to dismiss need not be reached".
On August 14, 2007, plaintiffs moved to amend the complaint to add a claim of civil conspiracy against Minister Bowen, the effect of which would have been to drag him back into the case.
Minister Bowen opposed the amendment, by contending that it was futile for three separate and distinct reasons.
Minister Bowen argued that the proposed civil conspiracy claim:
(i) would not cure plaintiffs' statute of limitations problem,
(ii) would not cure the immunity accruing to him under the Foreign Sovereign Immunities Act, for the reasons already advanced in support of the motion to dismiss; and
(iii) would not cure the court's lack of personal jurisdiction, for the reason already advanced in support of the motion to dismiss.
On September 28, 2007, Judge Cote denied plaintiffs permission to amend.
Judge Cote's September 28th Order took note of Minister Bowen's arguments that the proposed amendment would be futile, stating, "Bowen asserts that the conspiracy cause of action is not meaningfully different from the time-barred tort causes of action, and that plaintiffs' efforts to repackage their dismissed claims should be rejected"
However, the court did not deny the motion on that ground. Instead, Judge Cote denied leave to amend on the grounds of "undue prejudice".
Judge Cote reasoned that plaintiffs had been aware, at the time they filed the complaint, of the alleged conspiracy that they were now moving to assert in a new claim against Minister Bowen, and yet had postponed bringing their motion to add that claim against Minister Bowen until after he had been dismissed from the lawsuit.
This was a ground for denial not argued by Minister Bowen in opposition to the motion.
On October 2, 2007, plaintiffs asked Judge Cote to reconsider the decision to deny the motion to amend.
Plaintiffs argued that Minister Bowen would not be prejudiced by the proposed amendment.
Plaintiffs noted, among other things, that Minister Bowen had opposed the amendment on the grounds of futility, but that he had not argued that the amendment would be prejudicial.
Minister Bowen opposed the motion for reconsideration, arguing that the court had properly exercised its discretion in denying leave to amend and that, therefore, plaintiffs had failed to demonstrate that they were doing more than disagreeing with the Court's conclusion.
On October 22, 2007, this action (along with the pending motion for reconsideration) was transferred from Judge Cote to Judge Wallach.
By letter dated October 31, 2007, counsel for Minister Bowen wrote to Judge Wallach, noted for Judge Wallach that Judge Cote had previously dismissed the case against Bowen, had previously denied the motion to amend and offered "to provide Your Honour with courtesy copies of any materials that the Court may need to rule on plaintiffs' pending motion. The Court never accepted this offer.
At a conference on November 26, the Court also indicated that oral argument would be heard on the pending motion for reconsideration but, in the end, none was heard.
In short, the Court granted the motion to amend, permitting plaintiffs to file a new claim against Minister Bowen, because it has reconsidered Judge Cote's sole ground for denying the motion, without any apparent consideration for the host of other previously-invoked grounds for why this new civil conspiracy claim against Minister Bowen is legally defective and futile.
Argument
Because the Court overlooked the futility of the proposed amendment, the Court should reconsider its decision to allow plaintiffs to amend the complaint
The Court's February 19th Order should be reconsidered, pursuant to Fed. R. Civ. P. 59 (e) and Local Civil Rule 6.3.
A motion for reconsideration "allows a party to direct the court to an argument the party has previously raised but the court has overlooked"
It is well-settled that:
(Reconsideration) is appropriate where the movant demonstrates that the Court has overlooked controlling decisions of factual matters that were put before it on the underlying motion, and which, had they been considered, might have reasonably altered the result before the court.
The February 19th order reconsiders and reverses Judge Cote' earlier refusal to allow plaintiffs to amend the complaint.
That Order correctly set forth the key criteria used in the Second Circuit for considering whether a party should be denied leave to amend a pleading:
A motion to amend should be denied only for such reasons as undue delay, bad faith, futility of the amendment, and perhaps most important, the resulting prejudice to the opposing party.
But, in applying these criteria, the Court failed to weigh the futility of the amendment argued by plaintiffs.
The February 19th order focused on the single rationale Judge Cote chose to rely upon for denying the amendment - that plaintiffs had unduly delayed proposing the amendment - and stated, in conclusory fashion, there is nothing in the record to suggest.... futility....".
However, while Judge Cote had no need to reach futility (having denied leave to amend on the grounds of prejudicial delay), the same cannot be said of the February 19th Order which granted leave to amend).
Because the February 19th Order arrived at the opposite conclusion finding that plaintiffs had not prejudicially delayed seeking the proposed amendment - the Court still had to consider the other criteria for denying leave to amend, before the Court could grant such leave.
Therefore, after reconsidering Judge Cote's decision and finding no prejudicial delay, the court should have then gone on to weigh defendant Bowen's arguments that the proposed amendment would be fatally futile.
Because the Court appears to have overlooked the futility arguments set out at length in the record, and such arguments might reasonably have resulted in a denial of leave to amend the complaint, we respectfully request that the Court reconsider its decision.
The Court should revoke plaintiffs' leave to amend because such amendment would be futile.
Conclusion
For the foregoing reasons, Gregory Bowen respectfully requests that the Court reconsider its February 19th order, revoke plaintiffs' leave to add a claim for civil conspiracy against Gregory Bowen, and provide such other and further relief as the Court may deem just and proper.
