it leaves a court i am been reading with me as cliff growing we practice with carlton to us what's the status of the new york case it is i understand your honor it went up to the intermediate appellate court it was reversed right and they are awaiting  discretionary review by the i guess it's the court of appeals that's the case where your client may have to dismiss based on forum no convenience grounds that he resides there in new york but no my nygaard international reside in canada or casually of the homes in doesn't have a residence also in new york the company does not the individuals your honor we believe in this case that as a court as is aware there were two sets of litigation at the lower court consider there's our case which was which we pled in the rico matter and then there was two there are two cases in the bahamas we believe that the lower court got off track in the beginning when she had a misconception that the law the facts and the evidence in the bahamas case would be the same as the law facts and evidence in this case and once she did that she applied all the standards for for not inconvenience all attest to affectively the bahamas case and not to the united states a rico case that we brought our case is a rico case which deals with the process of attempting to pay witnesses to obtain illegally influence testimony the case in the bahamas and they make sure i understand this so the subject of this complaint is an alleged conspiracy that operated in the bahamas no sort of operate in the united states principl what did it not obtain false statements in the bahamas one statement was obtained in the bahamas but your out of the difference is under the about alleged harassment in the bahamas there were cases about that but that's not part of our case in case the statements about the alleged harassment in the bahamas is just not as not part of that whether they were part of that conspiracy and according to this complaint that's correct what the conspiracy we're talking about was the payment the bribery under do new york statute to fifteen years u s c nine hundred fifty six is to pay for influence testimony neither of those statues require that the influence testimony ultimately be granted  cite the ising case for the new york and o'connor case for the for the u s c so the district court looked at what was happening in the bahamas and it doesn't matter what happened there in the sense of whether or not they actually went through that in fact  about the first is that the rico case is based on facts and law that are principally united states based and there about six types of evidence that the lower court frankly didn't consider in deciding the lower court considered what the ultimate what ultimately happened in the bahamas which is not part of the rico case first the parties of course we have a united states plaintiff and two canadian who do business in the united states as a lower court for him and we have two florida residents the witnesses and this is when the court went through all the criteria about the private factors there are eight witnesses and they all have u s connections that would be material there's mr bacon and his law firm there's mr de palo and his organization there is mr pella dina another investigation firm and his organization their california based and there's miss cummings and while she was in the bahamas originally she was moved based on pleading she was moved to the united states by mr bacon after the events happened the only connection of in terms of witnesses are mr board and mr de ville mark and they gave twelve statements and one was in the bahamas they gave four statements in the united states and they they're from the bahamas they're in the bahamas yester those two they gave they came to united states and gave four statements they gave five statements in the dominican republic they gave two in canada so when you consider the witnesses that are material in this case the witnesses are almost exclusively except for those two in the united states the enterprise a new york resident created it florida defendants developed directed and carried it out and the conspiracy to do this was clearly done in the united states between the new york folks and the florida folks the funds for the enterprise were shipped from new york to florida and then used around in other places and finally mr bacon as i mentioned moved one of the extortion folks into the united states that's the second that's the second or third rather the use of the testimony of the affidavits the first use was in the new york litigation and secondly the use was on the internet which resulted in it being in the world world wide web if you will the influenced testimony the damage occurred entirely in the united is an american corporation and the lower court found that mr nygaard and nike and his international company both did business in the united states there's there's evidence or there's an allegation that a bank with through a line of credit that mr and i already had for many years and that money was going to be used to develop further the american market so the the use of the influence your assumption that the private factors were were misconstrued by the court jester but the real gist of your argument is law as i understood from from your brief is number one the court erred in in not giving deference to the plaintiff's choice that they used the wrong presumption this or that and then the second one really goes more to the court did not adopt the plaintiffs are the plaintiff's theory of the case that's correct ok so so i'm really interested in those two because i see those is really the the real foundation of your appeal to what i just what i just pointed out those six types about yes those all go to the fact that the judge did not apply any of those because she accepted the plaintiff's theory that what happened in the bahamas was important and it matters and whether or not they made the statements filed the statements with the bahamian court she even talked about needing a jury view for instance as she didn't give that a lot of credit so all of that was an example of the court adopting the plaintiffs i'm sorry the defendant's view of the case the our view of the case as alleged in contains what i've just gone through as far as the evidence i was going to then move to the second area that relates to this and that is what is actually required to violate the two predicate acts neither statute requires that the ultimate bad act happen new york section code section two fifteen and we cite ice and case in the people versus bell it only requires that there be an offer of a benefit with the understanding that the testimony would be influenced a likewise has no requirement it says that the only required that the funds be transmitted with the intent to carry on unlawful activity transferred from the us to somewhere else and there's no requirement that it actually happens  unlawful activity in this case it would be bribery which is one of the one of the designated the statute refers back to the rico list of rico crimes and one of the would be bribery now be unlawful activity so court that's why i think the lower court believed in the council convince a lower court that that it all what matters is what happened in the bahamas the the floor the fact that the use of the statements and so forth but under under neither of the predi acts are we required to show that the bad acts the bahamas case basically is a defamation harassment environmental litigation violent acts totally unrelated to what we're claiming in this case so so where where we really are is that our rico case is about this scheme to bribe witnesses sensually and it all was planned and carried out and in fact except for the one statement that was taken in the bahamas all the statements were taken either in the u s or elsewhere and that's what our case is about our case is not about whether or not somebody actually committed all of these wrong acts and when the lower court went through all the witnesses for instance the plane the defendants in this case didn't even list mr bacon in their disclosures as somebody who has knowledge of the case and the lower court went through all these witnesses there are twenty four parties in those two bahamas cases and of the twenty four parties only two would be material to our case one is mr nygaard and one is mr bacon and the other twenty two witnesses that parties no witnesses parties  and didn't doesn't the complaint allege that louis bacon hard to pollo to obtain false statements yes or against the plaintiff's fault or these alleged false statements are about a dense that allegedly occurred in the bahamas but none of those acts have any bearing on the two predicate acts in this case they may be false and we believe they are false because they are scurrilous and the statute says that you just have to intend that someone give influenced testimony that's what that's the statute and then counsel can make your complaint with a surcharge that it's false just for absolutely and there may be some overlap in that case but but the bahamas court is not going to have none of those witnesses know anything about the scheme that we have alleged here and the under the rico statute now if i could use a scheme that may not be a scheme if the testimony was in fact tr and that that was the fundamental error to start with now the last question i was going to mention if i could respond to judge a hall's question about deference the third point is the court over and over said that was a foreign corporation and it's not and you can look at you can look at page twelve page thirteen she says that my guarding deserves less deference because it's foreign footnote six states that there's no dispute but that the plaintiffs are foreign to reversed a similar situation basically saying that is an adequate just to say ok not going to do it and alternative holding we said was inadequate i'm sorry he said an alternative of coding would not air no snow story what you said is the court room reversed th this motion even if it were to assume that the district court understood the proper standing there was no history that's different from the district court saying even if i given that deference good morning may it please the court based on the standard of review in this case which is clear abuse of discretion everything you've heard is dead wrong i want to start by going to the complaint not the trial court suppose it mistaken view of the complain but the complaint in this case paragraph fourteen the heart of the predicate acts the predicate act as alleged is money laundering sending money from new york for the purpose of committing crimes in the bahamas for which there is extradition so the district court was not off on a wild error in finding that this was based on the bahamas she was reading the plain it's a complaint secondly there was one affidavit before the district court on what was the litigation the bahamas and that was from maylands the one sworn affidavit listing witnesses the said deep issues in this case were identical in substance to what was painting in the bahamas they turned on whether the misconduct alleged in the depaul zero affidavit all in the bahamas happened so the facts were overwhelmingly in the bahamas and the witnesses to th whether or not these were true were overwhelmingly in the bahamas there were fourteen listed in mailings affidavit as the trial court found on on the point of witnesses with ample support in the record and she doesn't the court doesn't have to consider night guard an international is a is a delaware are not guard is delaware corporation with its headquarters in new york and then you know as your brother suggested give them different we admit we had that two of the three plaintiffs are four and the third is a citizen so we acknowledge she got that wrong ok it may be a right if they are come on if there's if nygaard in dispositive issue is is there are alternative whole yes clearly there was she said even if i gave even if i gave the highest deference to the plaintiffs as this court has done and i'll donna and judge prior's opinion in tazo when they're when the witnesses are not subject to compulsory process that are necessary that does meet the standard for for monica venus dismissal even for a u s citizen but there is one point judge martin i do want to raise in piper  piper versus piper aircraft versus rae no the supreme court said you look at the real party and interest the citizenship of that party and cases you have a good argument about that but the problem it seemed to me with that is if you're more charitable to the district court which would be which would in my view the court said listen the real plaintiff here is peter nygaard individually who by the way is the only plaintiff on the bahamian action the conspiracy to injure he is the only plaintiff there this is not nygaard inc is not a rico claim it's not a viable claim it's a claim of indirect harm because the owner of the company was allegedly libeled so so that's so i think that that it  is the district court's ruling that as a group they should be considered foreign is reasonable but this all true if she says i don't i don't want to i don't want to misstate what the court said and you could  i'm being charitable to the court maybe that's the standard of review of you know the presumption of correctness but what's so odd is that she makes it clear twice in her order that she understands that a delaware corporation with a record absolutely that's that's what i'm that's why i'm saying it's not it's not one way i'd read it was that what she was really saying is that they were a resident of the southern district of florida but that would that too would be legal error because it doesn't matter what matters is american citizenship looking at the looking at the findings that were made and that are not challenged i've talked about the witnesses and where they are and that's of course the dominant factor in the jurisprudence is the ability to compel witnesses secondly the court found on private interests every single factor weighs in favor of dismissal except for the plaintiffs choice that's the very holding that this court upheld consider the case load  i'm talking about that the court where did the court consider the caseload of the game in courts you know what i recall was she said all she said was south florida was very congested and didn't make a relative i don't think there was any no one made an argument on which was more in she did not address i don't believe so i don't believe so i believe that was only the florida congestion it was that was a reference so that's on private interests i think the court did make the sufficient finding secondly if we give the the plaintiffs every benefit of the doubt and look at public interests the court was within its discretion and this order will be affirmed just based on public interest the duplicate litigation the fact that this is already at issue in the bahamas the fact that the the issue is was a false affidavit filed in the bahamian court an issue that's already being litigated and a florida jury should not rule on whether reverend moss was firebombed in the bahamas by mr are not and all the other issues in the bahamas so i would say if you look at the the i'm just going to mention by name four cases which i think are very consistent with affirming the district court sign it can case from the from the u s supreme court said this is a textbook case for dismissal where there was an issue of whether a false filing had been made in china and whether the chinese court ruling was incorrect this cordon for versus brown held that dismissal was mandated in a similar case where there was an allegation of a conspiracy involving an american but the events occurred in hong kong and then all donna and all written by judge prior to cases that go through all the factors and talk about the importance of ability to compel witnesses so in essence this was a case where there was the record was sufficient the district court analyzed all the correct  all the law cited it made complete findings in the thorough order i agree there were one or two points there was another point where the chord got the parties wrong and the new york action you know said it correctly one time the second time there was a typographical error an injunction been issued in the harassment suit in the bahamas no my understanding is there has been no final ruling there was a hearing and it was to an evidentiary hearing was take i believe the court it was treated as essential as a summary judgment hearing was taken under advisement there's been no ruling so it's been it's been under advisement for us for four months waiting on their visit down there was was too narrow in in its analysis of the theory of the case and was focused more on what witnesses are needed to prove to prove the veracity of the paulo affidavit doesn't that suggest then that that she may have missed a universe of other witnesses that would address the other issues that are contained in the plaintiff's complaint in there their concern about the rico action and the money laundering predicate act i mean it seems to me that if if she's too narrow she's not looking at a large enough base if you would of potential witnesses and so that may have been an error to  do that well i think your honor if you look if when you read the district court's decision went through every witness that was a listed by any party and the record that was related to those witnesses this was addressed in the the proper proceeding is you look at the claims and you look at the defenses and what witnesses are relevant to both of them and that's exactly what the district court did here what what we are what is being alleged is court reporters where statements were taken or bank records where wires were sent those are not the important witnesses on which the issue the issues depend as the court found again this there is support for this in the record this cannot be reversed the district court said the every important witness in the case except for bacon and de paulo who are parties are available in the bahamas so that was that supports the that was the court's finding and supported by ample evidence in the record including the un contradicted malins affidavit there was no affidavit from the plaintiffs this is the witness that i need this is this witness is important for this reason or that reason but the court nonetheless considered every witness that that was mentioned in their papers in the every benefit of the doubt but still concluded that all that all of the witnesses with the exception of the parties that means she wanted to follow to be joined in the bahamas so with well the case law says formed on convenience it's intended to at the at the beginning of the litigation and there been other cases many cases where it's argued no i've already done discovery and that's a reason for avoiding the dismissal this was done right at inception and really the court said it's clear it's clear that not only is this already at issue in the bahamas you're alleging violations of the hammy in law and the witnesses are there and they're not here this case needs to be in the bahamas i we please the court on the question of discovery we had propounded discovery we had some call them bore plate responses we had a meet and confer we had agreed counsel had agreed to provide better answers and the very next day the court enter this order clearly did not give the highest deference certainly in the case of miss of my guard us he has this footnote yes or she said if i have if i had done it i would have it be the same result same result if she didn't do an analysis because she had not exam and for all the other reasons that are stated in this order yes or right yes or she she did do that and how we can evaluate that right well i think you need to look to what her analysis was and i mean if she in fact did any analysis using the higher standard what she dropped below the standard then we don't know what she would have done and there's no way to contest it at that point since she clearly did not apply the proper deference to nygaard inc your hon r the the the only issue the only issue that we discussed earlier was whether or not there the affidavit is true but all of the testimony all of the witnesses are going to talk about what happened at the at the hate  rallies and in the hit list and all those things have those witnesses have nothing to do with the rico client those witnesses all know anything about mr bacon and setting up this system hiring these people and telling them to go out and fi doing and it it basically has the whole scheme it says we want to give you we want to pay this and there's an affidavit saying it didn't matter whether we gave him true information or not they just wanted dirt and that entire day of recording of the whole meeting between mr de palo in the two alleged criminals lays the whole thing out and so it wasn't just do an investigation in fact at one point mr de palo said i was this is like a drug deal we need to see the stuff before we pay and go so tell me what you got on them before we give you the money and they gave him fifty thousand that day and they never denied that they gave him three to five million for the rest ok mr reed we have your case we understand it and we'll move to the last case for the day