209(a)(2). This rule applies even if the tortious act occurs elsewhere. Janmark, Inc. v. Reidy, 132
F.3d 1200, 1202-03 (7" Cir. 1997), The fact that Cleary’s alleged injury occurred in Illinois is
sufficient for purposes of establishing personal jurisdiction. Id.
Tl. Venue

Sterenbuch contends this case should be dismissed on improper venue grounds, pursuant to
28 U.S.C. § 1391(a). However, § 1391(a) does not apply because Sterenbuch removed this action
to federal court. See Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665 (1953) (§ 1391 does not
apply to a removed action). “The venue of removed actions is governed by 28 U.S.C. § 1441 (a).
Id. Section 1441(a) provides that proper venue for removed actions is “the district court of the
United States for the district and division embracing the place where such action is pending.” 28
U.S.C. § 1441 (a). Sterenbuch removed this action to federal court from the Circuit Court of Cook
County, Illinois. Therefore, this court is the proper venue.
IV. Indispensable party

A party should be joined in an action when joinder is essential for the litigants’ complete
relief or the protection of all parties’ interests. Fed.R.Civ.P. 19(a). Ifa party is necessary, a court
must balance four factors to determine whether the case can proceed in the party’s absence. The four
factors are: (1) potential prejudice to the absent party; (2) the court’s ability to fashion a judgment
in the party’s absence; (3) the court’s ability to enter an adequate judgment in the party’s absence;
and (4) the plaintiff's ability to obtain an adequate remedy if the case is dismissed. Fed.R.Civ.P.
19(b); Boulevard Bank National Association v. Philips Medical Systems International B.V., 15 F.3d
1419, 1423, n. 5 (7 Cir, 1994),

Sterenbuch contends Hoch is an indispensable party because Cleary seeks to adjudicate


pee eres 1 2 Ne

tortious interference claim are located either in Ilinois or Maryland, Cleary Aff. at 931. The court
must assume Cleary’s representations are true for purposes of a motion to dismiss.

Sterenbuch further contends that besides himself and Cleary, Hoch is the only other witness.
Liechtenstein is a more convenient forum for Hoch. However, the convenience of one witness does
not outweigh the factors favoring this forum.

Finally, Sterenbuch points out that because Hoch plans to give the disputed funds to the
Liechtenstein court, it would be more economical and efficient for that court to resolve the dispute.
Sterenbuch fails to give any reasons in support of this argument.

Public interest factors weigh in favor of this forum. Sterenbuch asserts this court has little
interest in resolving the dispute because: (1) Cleary voluntarily chose to place his funds in a
Liechtenstein bank; (2) Cleary retained a Liechtenstein attorney; and (3) the funds currently are held
in a Liechtenstein trust account. These arguments are unpersuasive. Illinois clearly has an interest
in ensuring its residents obtain adequate redress for fraud. Similarly, the state has an interest in
ensuring that its residents obtain relief for tortious conduct. The citizens of Liechtenstein have no
interest in this dispute. Accordingly, dismissal is not warranted on forum non conveniens grounds.
VI. ‘Failure to state a claim

Sterenbuch contends the complaint fails to state a tortious interference with contractual
relations claim because he was a party to the contract at issue. However, as discussed above,
Cleary’s complaint is based on an alleged agreement exclusively between Cleary and Hoch. This
agreement was made subsequent to the Sterenbuch-Cleary agreement. Read in alight most favorable

to Cleary, his complaint states a claim for tortious interference with contractual relations.


Sterenbuch’s fees. Sterenbuch contends Hoch was referring to his own fees. Cleary asserts he and
Hoch reached a mutually acceptable payment agreement and Hoch is witholding funds solely
because of Sterenbuch’s fee entitlement claims. Read ina light most favorable to Cleary, the letter
refers to the dispute over Sterenbuch’s fees.
DISCUSSION

1 Motion to dismiss standard

Inruling on a motion to dismiss, the court considers “whether relief is possible under any set
of facts that could be established consistent with the allegations.” Pokuta v. Trans World Airlines,
Inc., 191 F.3d 834, 839 (7" Cir. 1999) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). A
claim may be dismissed only if there is no set of facts that would entitle the plaintiff to relief based
on the allegations in the complaint. Vonderohe v. B & S of Fort Wayne, Inc., 36 F. Supp. 2d 1079,
1081 (7" Cir. N.D. Ind. 1999). A motion to dismiss tests the sufficiency of the complaint, not its
merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7" Cir. 1990).
IL Personal jurisdiction

Sterenbuch contends this court does not have jurisdiction over him because he had no contact
with Illinois as a result of his agreement with Cleary and Hoch. However, Cleary asserts he entered
into a fee agreement with Hoch independent of any earlier agreement he had with Sterenbuch.
Cleary did not intend for this subsequent agreement to amend his earlier agreement with Sterenbuch.
It is this later agreement on which Cleary bases his tortious interference with contractual relations
claim.

A defendant who tortiously interferes with an Illinois resident’s contractual relations is

subject to personal jurisdiction in Illinois under the state’s long arm statute. 735 ILCS § 5/2-


Hoch’s contractual rights. It is true that in order to prevail on a tortious interference claim, Cleary
must establish Hoch breached their agreement. However, even if the court finds Sterenbuch’s
actions caused Hoch to breach his contract with Cleary, this finding would not carry preclusive effect
against Hoch. Hoch is not an indispensable party because he would not be bound by the outcome
of the case. Maine v. Standard & Poor’s Corp., No. 88 C 4027, 1 988 WL 135455, at * 3 (N_D. Ill.
December 13, 1988).

Sterenbuch further contends Hoch is an indispensable party because he holds the funds at
issue. Sterenbuch’s contention that Hashop v. Federal Home Loan Mortgage Corp., 171 F.R.D.208,
211 (N.D. Ill. 1997), stands for this proposition is an oversimplification. The Hashop court found
the holder of disputed funds was an indispensable party because the party exclusively possessed
critical information about the funds. Jd. at 211-12. This information was necessary for resolving
the dispute. Jd. Furthermore, the Hashop court found the indispensable party would receive less
money and would be required to change its business practices if the plaintiff prevailed. Id In
contrast, Hoch does not exclusively possess critical fund information. Additionally, Hoch does not
appear to have substantial financial interests at stake. Hoch’s May 14" letter does not suggest that
Sterenbuch or Cleary defaulted on attorney’s fee payments. According to the letter, Hoch is willing
to send Cleary the recovered investment funds when Cleary resolves his dispute with Sterenbuch.
Accordingly, Hoch is not a necessary party. Even if he were a necessary party, he would not suffer
substantial prejudice from this case proceeding in his absence.

Vv. Forum non Conveniens
A court may dismiss a case on forum non conveniens grounds when doing so “best serves

the convenience of the parties and the ends of justice.” Kamel v. Hill-Rom Company, Inc., 108 F.3d


CONCLUSION

The motion to quash service and dismiss the complaint is denied.

September 6, 2001

United States District Judge


Minute Order Form (0697)

United States District Court, Northern District of Ulinois

Sameatasipet nae | Suzanne B. Conlon | Sting le fOr

CASE NUMBER 01 C5109 DATE 9/6/2001
CASE KEVIN CLEARY vs. MARTIN STERENBUCH
TITLE

of the motion being presented.)

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

dl) [For further detail see order attached to the original minute order.]

MOTION:

DOCKET ENTRY:

q@ a Filed motion of [ use listing in “Motion” box above.]

Q) im Brief in support of motion due

@) QO Answer brief to motion due___. Reply to answer briefdue___.

4 Oo Ruling/Hearingon_ssetfor at.

(5) 0 Status hearing[held/continued to] [set for/re-set for]on__——setfor___—_at

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor_ at.

7) a Trial[set for/re-set for]on___at

(8) o [Bench/Jury trial] [Hearing] held/continuedto__at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) CGeneral Rule21 CIFRCP41(a\(1) CFRCP41(a)(2).

ao) [Other docket entry] | The motion to quash service and dismiss the complaint [6-1] is denied.

Defendant shall answer the complaint by September 19, 2001. ENTER MEMORANDUM OPINION

AND ORDER. = B. Onalon.

No notices required, advised in open court,

No notices required. number of notices

V_| Notices mailed by judge’s staff SEP 1.0 200

Notified counsel by telephone.

date docketed

Docketing to mail notices.

Mail AO 450 form. @

docketing deputy initials

Copy to judge/magistrate judge.

91672001

courtroom Oi SEP -7 Pa 7 date mailed notice
SB deputy’s
initials

Date/time received in
central Clerk’s Office

mailing deputy initials

AS



799, 802 (7" Cir. 1997). An adequate alternative forum must be available. Jd. Sterenbuch contends
Liechtenstein is an available and adequate alternative forum that is more convenient for the parties.

“An alternative forum is available if all parties are amenable to process and are within the
forum’s jurisdiction.” Jd. at 803. Sterenbuch expressly consents to Liechtenstein jurisidiction.
Sterenbuch Affidavit, 14. Therefore, Liechtenstein is an available alternative forum if the country
recognizes jurisdiction consents. Jd. However, Sterenbuch fails to offer evidence Liechtenstein law
recognizes consents to jurisdiction.

“An alternative forum is adequate when the parties will not be deprived of all remedies or
treated unfairly.” Kamel, 108 F.3d at 802. Sterenbuch fails to establish Liechtenstein is an adequate
forum. He offers no evidence to show Liechtenstein law provides a remedy for tortious interference
with contractual relations. Jd.

Even if Liechtenstein were an available and adequate forum, that country would not be a
more convenient place to resolve the claims at issue. In determining convenience, courts place great
weight on a plaintiff's choice of forum. Id. In addition, private and public interest factors are
balanced. Jd. Private interest factors include: (1) access to evidence; (2) witness convenience; (3)
costs associated with witness attendance; and (4) “all other practical problems that make trial of a
case easy, efficient, and economical.” Jd. Public interest factors include the community’s interest
in the dispute’s resolution, avoidance of conflicts of laws, and the unfairness of requiring citizens
in an unrelated forum to serve on ajury. Id.

Private interest factors weigh in favor of this forum. Sterenbuch contends documents relating
to this dispute are either located in Maryland or Liechtenstein. However, Sterenbuch does not reveal

the content of these documents. Furthermore, Cleary testified that all documents related to his


DOCKETED

IN THE UNITED STATES DISTRICT COURT SEP 1 0 2001
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KEVIN CLEARY )
)
Plaintiff, ) | No. 015109
)
v. ) Suzanne B. Conlon, Judge
)
MARTIN STERENBUCH )
)

Defendant.

MEMORANDUM OPINION AND ORDER
Kevin Cleary sues Martin Sterenbuch for declaratory judgment (Count I); injunctive relief
(Count II); and tortious interference with contractual relations (Count IID. Clearly alleges
Sterenbuch is interfering with his recovery of funds from a fraudulent investment entity in
Liechtenstein. Sterenbuch moves to quash service and dismiss the complaint, pursuant to
Fed.R.Civ.P. 12(b)(2), (3), (6), and (7), Rule 19, and 28 U.S.C. § 1391(a).
BACKGROUND

For purposes of a motion to dismiss, the court accepts all well-pleaded allegations in the

complaint as true and draws all reasonable inferences in favor of the plaintiff. Stachon v. United
Consumers Club, Inc., 229 F.3d 673, 675 (7" Cir. 2000). In December 1998, Cleary invested
$350,000 in Global Trust Limited and Global Trust Bank (collectively “Global”). Global purported
to be an affiliate of Landesbank in Liechtenstein. Cleary and other investors subsequently learned
that Global was not a legitimate entity. They were the victims of a fraudulent investment scheme.

Sterenbuch, a Maryland attorney, represented some of the investors.


Cleary and Sterenbuch agreed to retain Hilmar Hoch, a Liechtenstein attorney, to pursue the
investors’ claims. Pursuant to the agreement, Cleary and Sterenbuch’s clients would share Hoch’s
fees 75%-25% respectively, in proportion to their investments. Between July and August 1999,
Cleary gave Sterenbuch $6,500 for Hoch’s fees. Shortly thereafter, additional investors retained
Hoch. As a result, Hoch and Cleary agreed that Cleary’s share of the fees would be reduced in
proportion to the interests of the other investors.

In February 2000, Sterenbuch started requesting that Cleary compensate him for his own
work in recovering the stolen funds. On November 17, 2000, Cleary’s counsel sent Sterenbuch a
letter explaining that Cleary never retained him and that Cleary made arrangements directly with
Hoch for the payment of fees. On November 28, 2000, Sterenbuch responded that unless Cleary
agreed to pay Sterenbuch for his services, the original agreement to pay Hoch 75%-25% respectively
would stand, even though additional investors retained Hoch.

Hoch eventually recovered a portion of the investors’ funds, including $165,879.60 for
Cleary. Sterenbuch instructed Hoch not to return Cleary’s funds and stated that Cleary owed him
attorney’s fees. On May 14, 2001, Hoch sent Cleary a letter explaining he could not release the
recovered funds until Cleary resolves his fee dispute with Sterenbuch. Specifically, the letter stated
in part:

Your individual share amounts to [$165,879.60] . . . I therefore urge

you to reach an agreement in your fee dispute with Martin Sterenbuch.

Before reaching a final settlement you may want to at least agree with

Martin Sterenbuch as to which amount of your share is undisputed and

I will then immediately transfer that amount to whatever bank you

indicate to me. As you know, I would have to hand over the disputed

amount to the court as soon as it became evident that no final

settlement could be reached.

The parties dispute whether Hoch’s letter refers to the dispute over his own fees or

2