An American lawyer representing U.S oilman, Jack Grynberg in a bribery case brought against Grenada's Agriculture and Energy Minister, Gregory Bowen has scoffed at the move made by the Number Two Man in St. George's to seek immunity from prosecution.
Daniel Abrams was responding to the defense put forward by attorney, Jeb Johnson who sought immunity from prosecution for Bowen on the grounds that he was the deputy prime minister in the Spice Isle.
Last year, Legal Advisor to Cabinet Hugh Wildman appeared with Minister Bowen at a hurriedly called press conference in St. George''s to announce that the minister had won his case in New York against Grynberg.
The case arose from allegations made by Grynberg that Bowen had accepted substantial bribes from a group of Russians to interfere with his oil and gas agreement reached with the Grenada government in 1996.
The U.S oilman also claims in court documents filed in New York that one of the Russians allegedly paid the college fees for the daughter of Minister Bowen.
Following is an edited version of Abrams reply to submissions made on behalf of the Grenada deputy prime minister:
Defendant Gregory Bowen's (Bowen") motion for reconsideration is moot, and in any event without merit.
Bowen may or may not be correct when he claims that the Court did not consider his futility argument, as we do not know the nature of the Court's deliberations.
Either way, the Court's finding of no suggestion of futility in the record was accurate. And at this juncture any legal arguments should be addressed to the Third Amended Complaint, which Plaintiffs filed prior to Bowen making this motion.
1. The Motion to Reconsider Has Been Mooted By Plaintiffs' Filing of The Third Amended Complaint
The Court's February 19 Order did nothing more and nothing less than permit plaintiffs to file an amended complaint alleging civil conspiracy against Gregory Bowen. And Plaintiffs have done just that.
Bowen did not seek a stay of the Order, and the mere filing of Bowen's motion for reconsideration did not disturb the Order's application. Thus, Plaintiffs have interposed a cause of action against Gregory Bowen consistent with the Order. And the Order has no further ramifications.
Motions for reconsideration are denied on mootness grounds where the relief sought subsequently becomes academic.
The same principle applies here. Moreover, since Bowen's motion to reconsider post-dated the service and filing of the Third Amended Complaint, any legal arguments by Mr Bowen should be directed towards the Third Amended Complaint, and not a hypothetical pleading based on prior proceedings.
Bowen provides no precedent for obtaining dismissal of an active case on the grounds that a court erred in allowing Plaintiff to amend a previous pleading.
Similarly, Plaintiffs' counsel is unaware of any such precedent. If Bowen believes he has a valid threshold legal defense to the Third Amended Complaint, the only appropriate vehicle is a motion to dismiss.
II. Plaintiffs' Amendment Was Not Futile
We have previously briefed the issue of futility, and will not re-invent the wheel here.
Attached as Exhibit A to this brief is Plaintiff's' Reply Memorandum in Support of the original Motion to Amend, which undermines any suggestion of futility.
And attached as Exhibit B is Plaintiffs' Opposition To Bowen's Motion to Dismiss the initial Complaint, which includes a discussion of why personal jurisdiction and the Foreign Sovereign Immunities Act did not bar the lawsuit against Bowen as it pertained to the allegations in the initial complaint.
Plaintiffs will provide additional argument in the context of an opposition brief if Bowen files a motion to dismiss the Third Amended Complaint.
In a nutshell, Bowen's futility argument does not withstand scrutiny. Bowen does not challenge the sufficiency of the conspiracy allegations against him.
Bowen's primary futility argument as stated in his opposition to the motion to amend was that the civil conspiracy case against him was time-barred because the underlying tort claims were time-barred.
This argument fails because Judge Cote has already ruled that RSM's tortious interference claims against at least one of Bowen's co-conspirators are not time-barred, at least for purposes of a motion to dismiss.
As stated in more detail and with case citations in the attached Reply Brief submitted in support of the Motion to Amend, civil conspiracy causes of action are a vehicle for inculpating additional parties who have agreed with a tortfeasor regarding the commission of a tort and who have, pursuant to that agreement, taken some act in furtherance of the tort.
There is no requirement that each and every conspirator be liable for the underlying tort. Civil conspiracy causes of action would be rendered largely superfluous if such a requirement existed.
Therefore, if RSM can state a timely tortious interference claim against one or more of Bowen's co-conspirators, it follows that RSM can state a claim against Bowen for civil conspiracy.
It is improper to raise new arguments in connection with a motion for reconsideration.
Even if the Court were to consider these arguments, the correct conclusion would be that personal jurisdiction was properly alleged in the initial complaint, and that, inter alia, the "commercial activity" exception to the Foreign Sovereign Immunities Act applied to the initial complaint.
Even more significantly, Bowen offers no analysis of how his futility arguments may apply to the Third Amended Complaint.
The Third Amended Complaint contains a new legal claim against Bowen, and new factual allegations specific to Bowen, including the allegations that in furtherance of the conspiracy co-defendant Lev Model improperly paid the college tuition of Bowen's daughter.
The appropriate vehicle for Bowen to respond would be a motion to dismiss the pending Third Amended Complaint. And Bowen will have ample opportunity to present these arguments.
