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VTB Bank v. Navitron Projects Corp.

Court of Chancery of Delaware

April 28, 2014

VTB BANK, Plaintiff,
v.
NAVITRON PROJECTS CORP. and DEVELOPMENT MAX, LLC, a Delaware limited liability company, Defendants.

Date Submitted: January 10, 2014

Steven L. Caponi, Esquire and Elizabeth A. Sloan, Esquire of Blank Rome LLP, Wilmington, Delaware, Attorneys for Plaintiff.

Vincent J. Poppiti, Esquire, Carl D. Neff, Esquire, and Austen C. Endersby, Esquire of Fox Rothschild LLP, Wilmington, Delaware, and Ely Goldin, Esquire of Fox Rothschild LLP, Blue Bell, Pennsylvania, Attorneys for Defendants.

MEMORANDUM OPINION AND ORDER

John W. Noble Vice Chancellor

Plaintiff VTB Bank ("VTB") filed this action against Defendants Navitron Projects Corp. ("Navitron") and Development Max, LLC ("Development Max, " and together with Navitron, the "Defendants") alleging, among other claims, that the equitable appointment of a receiver for Development Max is warranted due to its "fraud, gross mismanagement and/or positive misconduct."[1] In the Complaint, VTB denominates five causes of action: (i) appointment of a receiver; (ii) intentional fraudulent transfers; (iii) constructive fraudulent transfers; (iv) unjust enrichment; and (v) constructive trust.[2] The Defendants moved to dismiss the Complaint under Court of Chancery Rule 12(b) for lack of personal jurisdiction and insufficiency of service of process as to Navitron, for failure to state a claim, for failure to plead fraud with particularity, and on forum non conveniens grounds.

The Court concludes that it lacks personal jurisdiction over Navitron. The Court also concludes that Development Max cannot be said to face overwhelming hardship if required to defend against VTB's cognizable claims in this forum. Finally, the Court defers ruling on the other aspects of the motion to dismiss.

I. BACKGROUND[3]

A. The Parties

VTB is a Ukrainian bank and company located in Ukraine.[4] Navitron is a Panamanian corporation and was, during the period at issue in this action, the managing member[5] of Development Max, a Delaware limited liability company.[6]Although Development Max was formed in 1999, Navitron did not become its managing member until 2008.[7] Before then, the managing members of Development Max were Dmitriy Sviatash ("Sviatash") and Vasiliy Poliakov.[8]

B. VTB's Loans to the AIS Group

As of February 2006, the Defendants were co-owners of AutoInvestStroy LLC, which VTB describes as the "umbrella entity" for a corporate family it calls the "AIS Group." The Defendants also "owned and controlled the majority of companies which were part of the AIS Group."[9] The AIS Group sold and serviced cars through a network of regional centers, many of which were owned by Development Max, throughout Ukraine.[10]

In 2008, VTB entered into separate, 364-day credit line agreements (the "Loans") with two entities of the AIS Group (the "AIS Borrowers"). The Loans would allow the AIS Group to purchase cars and sell them to Ukrainian consumers at its regional sale centers.[11] As a condition of the Loans, VTB required the AIS Group to execute suretyship agreements and pledge both real and personal property as collateral (the "Collateral").[12] By January 2009, the AIS Borrowers had borrowed approximately $63 million under the Loans.[13]

C. The Loans are Not Repaid, and the Collateral is Transferred to the Defendants

VTB alleges that the AIS Group transferred the cars it purchased with the proceeds of the Loans "through its network of shell companies using a series of fraudulent transfers." After the cars were sold to consumers in Ukraine, most of the sale proceeds "remained with Development Max and/or were funneled through shell companies back to Development Max and Navitron."[14]

In February and March 2009, Sviatash met with representatives of VTB to discuss "restructuring of the debt" and "prepar[ing] a repayment plan for the loans." The meetings do not appear to have resulted in any firm plans.

Apparently, "VTB did not hear from Sviatash or the AIS Group" again.[15]

Soon thereafter, the AIS Borrowers failed to make payments when the Loans were due in 2009.[16] VTB then initiated litigation in Ukraine to foreclose on the Collateral, but it claims that the AIS Group "intentionally delayed the court proceedings" by "failing to appear on many occasions."[17] In the meantime, the Defendants purportedly "relied upon forged and fictitious documents to facilitate the transfer of the Collateral" to separate entities that VTB believes to be under the Defendants' ownership or control.[18] VTB insists the transfers of the Collateral subject to its suretyship liens must have used forged documents because, under Ukrainian law, "property subject to a lien may only be transferred if a notary certifies there are no liens on the assets or the lien holder consents to the transfer, " and VTB did not give its consent.[19]

VTB contends that the fraudulently transferred Collateral "resided" with the Defendants, who were also unjustly enriched by retaining the proceeds of the Loans.[20] As a result of the transfers, VTB is allegedly unable to foreclose on the Collateral and has consequently suffered damages of approximately $60 million.[21]VTB also asserts, upon information and belief, that the Defendants have renamed certain AIS Group entities in order "to repeat their fraudulent conduct of transferring funds and assets to the detriment of creditors."[22]

Of note, it is not alleged that the formation of Development Max in 1999 was in contemplation or in furtherance of the fraudulent scheme, which is not alleged to have begun until at least 2008. In other words, although VTB insists that Development Max engaged in fraudulent transfers, the Complaint does not allege that the formation of Development Max as a Delaware limited liability company was for fraudulent purposes.

II. ANALYSIS

A. Personal Jurisdiction over Navitron

Navitron moved to dismiss VTB's claims for, among other reasons, lack of personal jurisdiction under Court of Chancery Rule 12(b)(2). The Court should determine whether it has personal jurisdiction over Navitron before addressing the other grounds for dismissal.[23]

As the plaintiff, VTB bears the burden of showing by affirmative proof— that is, by more than conclusory assertions[24]—that the Court may exercise personal jurisdiction over Navitron, a nonresident defendant.[25] If this jurisdictional question is raised without the benefit of an evidentiary hearing, as it was here, then VTB must "point to sufficient evidence in the record to support a prima facie case that jurisdictional facts exist."[26] Specifically, VTB must establish two elements for the Court to exercise jurisdiction over Navitron: "(1) a statutory basis for service of process; and (2) the requisite 'minimum contacts' with the forum to satisfy constitutional due process."[27] For jurisdictional purposes, the Court may look beyond the pleadings to affidavits and "any discovery of record."[28]

In the Complaint, VTB alleges that the Court has personal jurisdiction over Navitron pursuant to 10 Del. C. § 3104 and 6 Del. C. § 18-109.[29] The Court addresses each statutory basis in turn.

1. The Long-Arm Statute

Delaware's long-arm statute, 10 Del. C. § 3104, provides for personal jurisdiction over nonresidents who engage in certain enumerated acts that relate to the State of Delaware.[30] Navitron contends that long-arm jurisdiction is unavailable because its only contact with Delaware, as alleged in the Complaint, is that it is the managing member of Development Max.[31] In its answering brief, VTB did not cite once to 10 Del. C. § 3104. Instead, the only apparent reference to the long-arm statute was a brief quotation of this Court's discussion of the statute's constitutional due process limitations, not its list of enumerated acts authorizing jurisdiction.[32] At oral argument, even after Navitron repeatedly asserted that VTB had waived this jurisdictional basis, VTB still did not defend its merits.[33]

A party's failure to address in its responsive brief an opposing party's asserted grounds for dismissal, coupled with its failure to cure that omission at the corresponding oral argument, can lead to the Court's deeming the underlying issue waived.[34] By not briefing or arguing the merits of personal jurisdiction over Navitron pursuant to 10 Del. C. § 3104, VTB waived that issue.[35]

2. The Limited Liability Company Act

Delaware's Limited Liability Company Act (the "LLC Act") authorizes service of process on the managers of Delaware limited liability companies in actions "involving or relating to the business of the limited liability company or a violation by the manager . . . of a duty to the limited liability company or any member of the limited liability company.[36] Under the LLC Act, a manager is a "person who is named as a manager of a limited liability company in, or designated as a manager of a limited liability company pursuant to, a limited liability company agreement."[37]

Under one interpretation, the disjunctive "or" in the phrase "involving or relating to the business . . . or a violation by the manager" in 6 Del. C. § 18-109(a) could imply a statutory basis for the Court to assert personal jurisdiction over a manager in any action that "involves or relates" to the limited liability company's business.[38] But, this Court has not subscribed to such a broad reading of this "implied consent" statute because doing so could lead to its unconstitutional application. For a plaintiff to invoke 6 Del. C. § 18-109(a) in a manner consistent with constitutional due process, the action should be similar to one in which "the allegations against [the manager] focus centrally on his rights, duties and obligations as a manager of a Delaware LLC."[39] Stated differently, the LLC Act's implied consent provision does not establish a statutory basis for personal jurisdiction over a manager where the claims do not relate to the "rights, duties and responsibilities" that the manager owes to the company or to the manager's involvement in the company's "internal business affairs" or "day-to-day operations."[40]

Navitron contends that VTB has failed to make a prima facie showing of personal jurisdiction based on this statute because the allegations in the Complaint do not relate to its managerial relationship with Development Max, let alone its involvement in Development Max's business affairs.[41] Instead, according to Navitron, the claims are based on purported duties that it owed to VTB.[42] In opposition, VTB argues that the Court may exercise jurisdiction over Navitron here on the theory that Navitron subjected itself to the Court's jurisdiction generally when it became the managing member of Development Max.[43]

The Court concludes that exercising personal jurisdiction over Navitron pursuant to 6 Del. C. § 18-109(a) in this action would be inconsistent with due process, and thus unconstitutional, because VTB did not assert claims related to Navitron's rights, duties, or responsibilities as a managing member of Development Max. For example, VTB has not alleged that it was harmed because of Navitron's conduct vis-à-vis Development Max; rather, VTB asserts it was harmed by the parallel conduct of Navitron and Development Max independent of their corporate structure.[44] Therefore, VTB's claims against Navitron must be dismissed under Rule 12(b)(2) for lack of personal jurisdiction.[45]B. The Claim for the Equitable Appointment of a Receiver

VTB's request for a receiver implicates this Court's fundamental role in overseeing the conduct of Delaware entities. It is a request that, under the internal affairs doctrine, is governed by Delaware law.[46] This Court has the inherent equitable power to appoint a receiver for a Delaware limited liability company even where this remedy is not expressly available by statute or under the operative company agreement.[47] Conduct that may justify the appointment of a receiver includes "a showing of fraud, gross mismanagement, positive misconduct by corporate officers, breach of trust, or extreme circumstances showing imminent danger of great loss which cannot otherwise be prevented."[48] Where the company is solvent, a "strong showing" is necessary[49] to invoke this "extraordinary remedy"[50] that should "not be resorted to if milder measures will give the plaintiff, whether creditor or shareholder, adequate protection for his rights."[51]

In Drob v. National Memorial Park, Inc., the Court described the appointment of a receiver as "a remedy of an auxiliary and incidental nature."[52]The teachings of Drob remain important in that this Court typically approaches the appointment of a receiver pursuant to its general equitable powers as a remedy, not as an independent cause of action. For example, in Carlson v. Hallinan, the Court concluded after trial that the plaintiffs had established breaches of fiduciary duty sufficient to warrant the equitable appointment of a receiver for a corporation, which they had requested as a remedy in their complaint.[53] Likewise, in Zutrau v. Jansing, the Court concluded at the motion to dismiss stage that there was a reasonably conceivable basis to support the plaintiffs' request for relief of a receiver for a corporation based on their allegations of breach of fiduciary duty and equitable fraud.[54]

In the Complaint, VTB listed the appointment of a receiver for Development Max as both an enumerated cause of action and a request for relief.[55] Development Max argues that VTB's receivership claim should be dismissed based on its position that the underlying fraudulent transfer claims must be dismissed for failure to state a claim under Rule 12(b)(6) or for failure to plead fraud with particularity under Rule 9(b).[56] Conversely, VTB contends that, regardless of the relevant pleading standard, it has sufficiently alleged positive misconduct and fraud to support its claim for the appointment of a receiver.[57]

This Court has recognized that a party may, on rare occasions, mistakenly plead a remedy as an enumerated cause of action.[58] In these situations, this Court has tended to permit the remedial claims to remain in the complaint, but it has generally excluded them from its analysis at the motion to dismiss stage. In effect, this Court treats remedial claims not as independent causes of action but instead "as having been included in [the] prayer for relief."[59]

VTB has pled two remedies as claims in the Complaint. A constructive trust is a remedy, [60] and VTB's claim for one is secondary to, and derivative of, its underlying unjust enrichment claim. Because the success of the constructive trust remedy turns entirely on the success of the unjust enrichment claim, the Court's analysis at this procedural stage will address only the latter, not the former.

Similarly, under Drob, Carlson, and Zutrau, VTB's claim for the equitable appointment of a receiver is another remedy styled as a claim.[61] VTB has not identified a decision of this Court clearly endorsing the equitable appointment of a receiver as an independent cause of action.[62] Contrary to VTB's assertions, [63] that Development Max may have overlooked this issue does not compel an unnecessary expansion of Delaware law. Therefore, whether VTB may prevail on its remedial, equitable receivership claim depends per force on whether it successfully proves its primary claims for fraudulent transfers.

Accordingly, although the Court does not now formally dismiss VTB's remedial claims for a constructive trust and an equitable receiver, the Court will generally not separately consider them in its analysis of whether the allegations supporting VTB's actual causes of action denominated in the Complaint—unjust enrichment and fraudulent transfers—should be dismissed based on the defenses asserted by Development Max, including its defense of forum non conveniens. That is not to say, however, that VTB's receiver request—one in which it invokes Delaware's strong interest in monitoring the conduct of Development Max as a Delaware entity—has no role in the Court's ultimate conclusion on the motion to dismiss.[64]

C. Forum Non Conveniens

The Court may dismiss a complaint on forum non conveniens grounds if the defendant demonstrates that it would face "overwhelming hardship" when defending itself in this forum. The Delaware Supreme Court recently reaffirmed and clarified the appropriate forum non conveniens inquiry in Martinez v. E.I. DuPont de Nemours & Co., Inc.[65]

Where there is no prior pending action in another jurisdiction, [66] the Court's forum non conveniens analysis is guided by the six Cryo-Maid[67] factors:

(1) the relative ease of access to proof;
(2) the availability of compulsory process for witnesses;
(3) the possibility of the view of the premises;
(4) whether the controversy is dependent upon the application of Delaware law which the courts of this State more properly should decide than those of another jurisdiction;
(5) the pendency or nonpendency of a similar action or actions in another jurisdiction; and
(6) all other practical problems that would make the trial of the case easy, expeditious and inexpensive.[68]

These factors represent a doctrinal framework from which the Court can conclude whether the defendant would suffer "overwhelming hardship" if required to litigate here.[69] The analysis is not one in which the Court should come to a conclusion based on a tally of which, or how many, factors favor the defendant; rather, the Court must "consider the weight of those factors in the particular case and determine whether any or all of them truly cause both inconvenience and hardship."[70] Similarly, the Court should not base its conclusion on whether it is more difficult to litigate in Delaware than in another jurisdiction, for the premise of forum non conveniens is whether the defendant would face overwhelming hardship in a Delaware forum.[71] That said, the public policy concerns regarding deference to a plaintiff's chosen forum are not as strong where, as here, the plaintiff does not reside in Delaware.[72] Guided by the Supreme Court's statements in Martinez, the Court approaches the overwhelming hardship standard as a "stringent" one, not a "preclusive" one.[73]

VTB contends that the Cryo-Maid factors, when considered both individually and collectively, do not demonstrate that Development Max would face the overwhelming hardship necessary to support dismissal on forum non conveniens grounds.[74] In opposition, Development Max contends that this action satisfies the stringent overwhelming hardship standard, particularly because litigating here would entail a cumbersome process for obtaining evidence, translating documents, and presenting witnesses, including Ukrainian law and real estate experts.[75] In its briefs, Development Max represents that it intends to argue, as an affirmative defense, that VTB is precluded from recovery in this action because it previously foreclosed upon certain commercial real estate in Ukraine in partial, if not full, satisfaction of the Loans. It also intends to challenge whether VTB acted in a commercially reasonable manner when doing so.[76] As appropriate, the Court evaluates the potential hardship these affirmative defenses may cause.

1. The Relative Ease of Access to Proof

It is evident from the allegations of the Complaint that the vast majority of the evidence necessary for Development Max to defend the fraudulent transfer and unjust enrichment claims would be not in Delaware but rather in Ukraine, and most likely written in Ukrainian. VTB is located in Ukraine.[77] The conduct in which Development Max engaged—its role in a purported fraudulent scheme involving the AIS Group, a family of entities that operates a Ukrainian network of car centers—took place in Ukraine.[78] In jurisdictional discovery, VTB produced twenty-three commercial documents related to the Loans; not only are all written in Ukrainian and governed by Ukraine choice of law provisions, but the Loans and several suretyship agreements also include Ukraine forum selection clauses.[79] It is thus clear that VTB and the AIS Group contemplated that their relationship would be largely (if not entirely) based in Ukraine.

Because the evidence in Ukraine is beyond the Court's subpoena power, it would be very difficult for Development Max to access the proof necessary to litigate in this Court, much more difficult than it would be in a corresponding tribunal in Ukraine. According to Development Max's unrebutted affidavit from a Ukrainian lawyer, although Ukraine is a signatory to the Hague Convention on Taking of Evidence Abroad in Civil and Commercial Matters (the "Hague Convention"), it has "filed a reservation" regarding its authority to reject pre-trial discovery requests and regarding a requirement that oral examination of witnesses take place before a Ukrainian judicial officer and then be summarized by court personnel.[80] This process alone may not support a finding of overwhelming hardship, but it is evident that requiring Development Max to marshal its defense solely in reliance on the Hague Convention, subject to the reservations by Ukraine, would be a "circuitous route[] to accessing evidence."[81]

Development Max identified, with sufficient specificity, [82] a substantial number of classes of documents that would be necessary for its defenses but very difficult to access were the litigation to proceed in Delaware. These include documents related to the Loans and the purported defaults, documents related to the Collateral transfers certified by a Ukrainian notary purportedly in contravention of Ukrainian law, and documents related to VTB's foreclosure on commercial real estate, the value of that property, and VTB's potential disposition of it.[83] That Development Max submitted certain translated documents alongside its expert affidavits does not controvert the Court's conclusion that its access to proof in this forum would be cumbersome, inefficient, and extremely difficult. This Cryo-Maid factor strongly favors Development Max.

2. The Availability of Compulsory Process for Witnesses

It is further apparent that all relevant witnesses reside outside Delaware and, in all likelihood, in Ukraine, where the alleged conduct occurred. This is not an action in which the defendant or its agents are located in Delaware.[84] Rather, it is one where important, third-party witnesses are wholly outside the forum state, and, assuming they can even be subpoenaed to testify, there are travel and translation expenses "which when taken in totality could be quite burdensome."[85]

There may be other disadvantages peculiar to at least one claim asserted in the Complaint. VTB's claim for intentional fraudulent transfers would appear to implicate witness credibility. Relying on deposition testimony to alleviate the financial burdens of travel and translation associated with live testimony creates its own hardship for Development Max in the administration of justice for this claim because the Court, as "the fact finder[, ] loses the opportunity to effectively and contemporaneously evaluate the credibility of the witness."[86]

Although Development Max did not identify by name which particular witnesses or what factual testimony could not be presented live in Delaware, it did demonstrate, with sufficient specificity, [87] which kinds of important, third-party witnesses are likely not subject to the Court's compulsory process. They include employees and representatives of the AIS Borrowers, employees and representatives of third parties implicated in the Ukrainian lawsuits initiated by VTB, and persons with knowledge of the nature and value of the commercial real estate that are the subjects of those lawsuits.[88] This Cryo-Maid factor also strongly favors Development Max.

3. The Possibility of the View of the Premises

With the availability of video recording, this factor typically does not contribute to overwhelming hardship.[89] To the extent Development Max's affirmative defense regarding double recovery requires experts to value commercial real estate in Ukraine, it slightly favors Development Max. Otherwise, this factor is neutral.

4. Whether the Controversy is Dependent upon the Application of Delaware Law

Delaware courts follow the conflict of laws principles of the Restatement and apply the laws of the jurisdiction with the "most significant relationship" to the controversy for fraudulent transfer claims[90] and for unjust enrichment claims.[91] Under the Restatement approach, the Court should consider the relevant, enumerated factors and weigh them, as the circumstances demand, to determine the governing jurisdiction. Here, the only possible connection to Delaware for all of VTB's claims is that Development Max is a Delaware entity. All of Development Max's conduct and VTB's resulting injuries, as alleged in the Complaint, occurred in Ukraine, the jurisdiction where the AIS Borrowers entered into the Loans, where the AIS Group entered into the suretyship agreements providing the Collateral, and where their overall commercial relationship is centered.

Based on the limited allegations of the Complaint, [92] is evident that Ukraine, not Delaware, has the most significant relationship for the fraudulent transfer and unjust enrichment claims asserted by VTB. Hence, the Court would be asked to apply Ukrainian law. The mere application of foreign law is not dispositive of this factor in a forum non conveniens analysis, [93] but the Court may nonetheless weigh "a defendant's interest in having important issues of foreign law decided by the courts whose law governs the case."[94] Because VTB alleges systemic fraudulent transfers throughout a sizeable automobile retailer based in Ukraine, Development Max has a legitimate interest in having these serious claims arising under the laws of Ukraine decided before a Ukrainian tribunal. Accordingly, this Cryo-Maid factor too favors Development Max.

5. The Pendency of a Similar Action in Another Jurisdiction

In the Complaint, VTB acknowledges that this action is not the first that it has filed related to the Loans and the conduct of the AIS Group. It "initiated court proceedings in Ukraine, seeking to foreclose on the Collateral pledged as security by the AIS Group" in 2009.[95] Development Max contends that, of six prior Ukrainian lawsuits, at least one constitutes a pending, similar action for purposes of Cryo-Maid.[96] VTB rejects that contention, arguing that no prior lawsuit has been filed asserting these claims against Development Max.[97] Based on the submissions by the parties, the Court previously concluded that no similar action is pending in another jurisdiction.[98] This Cryo-Maid factor is neutral.

6. All Other Practical Problems That Would Make Trial of the Case Easy, Expeditious, and Inexpensive

The Delaware Supreme Court recognized in Martinez that this "Other Practical Considerations" factor of Cryo-Maid is "neither hollow in meaning nor rigid in application."[99] The Supreme Court elaborated, explaining that, in an appropriate case, a trial court "may weigh the efficient administration of justice and analogous considerations under the rubric of the 'Other Practical Considerations' Cryo-Maid factor."[100] Depending on the circumstances, it may be proper to weigh the cost of prosecution, [101] the operative rules of civil procedure, [102]and similar public interest considerations under this factor.[103]

In Martinez, an Argentine plaintiff initiated an action against a Delaware corporation headquartered in Delaware for injuries suffered by the plaintiff's deceased husband after alleged exposure to asbestos during his employment at the corporation's great-great grand-subsidiary in Argentina. In concluding that dismissal on forum non conveniens grounds was appropriate, the trial court noted that the alleged harm occurred in Argentina, the relevant witnesses would mostly speak Spanish, the relevant documents would mostly be written in Spanish and be located in Argentina, and the plaintiff's claims implicated novel and important questions of Argentine law, a civil code system. The Supreme Court affirmed that it was within the trial court's discretion to conclude, based on these and other practical considerations drawn from the record, that maintaining an action in Delaware would be "extraordinarily expensive, cumbersome, and inconsistent with the efficient administration of justice" for the defendant.[104]

At first blush, it appears, as in Martinez, that this factor favors the defendant, Development Max. There are glaring, practical difficulties to maintaining litigation in Delaware. VTB's claims arise under the laws of Ukraine, a civil code jurisdiction, not Delaware. The operative documents are most likely in Ukraine and written in Ukrainian, almost certainly not in Delaware or written in English. The fact witnesses most likely reside in Ukraine, almost certainly not Delaware. The pre-trial discovery process pursuant to the Hague Convention would be limited and cumbersome, and the delay and expense necessary to obtain witness testimony, if it is available at all, would be highly inefficient. Put simply, these significant, procedural limitations arising from litigating in Delaware would appear to undermine the Court's efficient disposition of the fraudulent transfer and unjust enrichment claims asserted against Development Max.

But, on closer examination, the Court must be mindful that a primary remedy that VTB seeks—the equitable appointment of a receiver—implicates this Court's fundamental and immutable responsibility to supervise the entities chartered and formed under Delaware law.[105] Employing a Delaware entity in fraudulent conduct can be considered an abuse of the laws of Delaware that is hard for this Court to ignore.

Delaware has a powerful interest of its own in preventing the entities that it charters from being used as vehicles for fraud. . . . If a Delaware entity engages in fraud or is used as part of a fraudulent scheme, that entity should expect that it can be held to account in the Delaware courts.[106]

One of the principal ways in which this Court upholds the integrity of Delaware law is to be an available forum to hear claims of gross misconduct alleged to have been committed by a Delaware entity and then to be willing, in the rare case where the remedy is justified, to exercise its inherent equitable power and appoint a receiver for that entity. Delaware's public interest in having this Court oversee and rectify the conduct of Delaware entities may be so compelling in a particular case that it may militate against dismissal on forum non conveniens grounds even where, as in this action, the defendant may otherwise suffer overwhelming hardship if required to litigate in Delaware.[107]

Like the other practical considerations in a Delaware trial court's forum non conveniens analysis, this public interest consideration should not be rigidly applied. There may be situations in which Delaware's interest in hearing a request for the equitable appointment of a receiver for a Delaware entity does not outweigh the hardship that litigating in Delaware would entail. Based on the allegations against Development Max, however, the Court cannot reach that conclusion here at this time. The allegations of Development Max's systemic and systematic fraudulent conduct, to the extent they may state reasonably conceivable claims for fraudulent transfers under Ukrainian law, may rise to a level at which they cannot be overlooked in the Court's forum non conveniens analysis.[108]

No one of these Cryo-Maid factors is dispositive of the Court's forum non conveniens analysis. But, after weighing the relevant private and public interest factors implicated in this context, the Court cannot conclude that Development Max would suffer overwhelming hardship if forced to litigate the fraudulent transfer and unjust enrichment claims in Delaware. It cannot be said to cause overwhelming hardship under these circumstances to require Development Max, an entity formed under the laws of the State of Delaware and alleged to have engaged in pervasive fraudulent conduct, to defend its actions before this Court. Therefore, Development Max's motion to dismiss on forum non conveniens grounds must be denied.[109]

When the parties briefed Development Max's motion to dismiss under Rule 12(b)(6) and Rule 9(b), they both assumed, or at least their arguments implied, that VTB's primary claims arose under Delaware law.[110] They do not. VTB's fraudulent transfer and unjust enrichment claims are governed by Ukrainian law. The parties did not present expert affidavits or testimony on these areas of Ukrainian law, and the Court cannot resolve whether the allegations of the Complaint state a claim or whether they are subject to (or satisfy) the particularity pleading standard without guidance from qualified, Ukrainian law experts.[111]Accordingly, the Court must defer ruling on the remaining grounds of the motion to dismiss.

III. CONCLUSION

For the foregoing reasons, Navitron's motion to dismiss VTB's claims under Rule 12(b)(2) is granted, without prejudice. Development Max's motion to dismiss VTB's claims on forum non conveniens grounds is denied. The Court defers ruling on the other aspects of Development Max's motion to dismiss.

The parties shall confer on a scheduling order to present those remaining issues.

IT IS SO ORDERED.


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