UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

______________________________________

GUY CARPENTER & COMPANY, LLC and 

MARSH & McLENNAN COMPANIES, INC.,

Plaintiffs,

v.

JULIAN SAMENGO-TURNER, RON 

WHYTE, and MARCUS HOPKINS,

Defendants.

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Case No. 07 – CV – 3580 (DC)

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION TO STAY 

ALL PROCEEDINGS IN THIS CASE OR, ALTERNATIVELY, FOR 

RECONSIDERATION OF THE COURT’S MAY 24, 2007 ORDER OR

TO STAY OPERATION OF THAT ORDER OR, IN THE FURTHER 

ALTERNATIVE, TO AMEND THE MAY 24 ORDER 

PURSUANT TO 28 U.S.C. §1292(b)

John P. Barry (JB 6489)

Mark A. Saloman (MS 5764)

Proskauer Rose LLP

One Newark Center, 18th Floor

Newark, New Jersey 07102

973.274.3200

973.274.3299 (Fax)

Attorneys for Ron Whyte

Case 1:07-cv-03580-DLC Document 24 Filed 06/12/2007 Page 1 of 28
i

TABLE OF CONTENTS

 Page

TABLE OF AUTHORITIES.......................................................................................................ii

PRELIMINARY STATEMENT .................................................................................................1

PROCEDURAL HISTORY AND STATEMENT OF FACTS ....................................................4

I. THE NEW YORK ACTION ...........................................................................................4

II. THE U.K. ACTION.........................................................................................................5

ARGUMENT..............................................................................................................................9

I. THE NEW YORK ACTION SHOULD BE STAYED IN DEFERENCE 

 TO THE PENDING EXPEDITED PROCEEDINGS BEFORE THE 

 HIGH COURT OF JUSTICE IN ENGLAND...................................................................9 

II. RECONSIDERATION OF THE COURT’S MAY 24 ORDER IS WARRANTED........17

III. EXPEDITED DISCOVERY SHOULD BE STAYED BASED 

 UPON THE PENDING U.K. ACTION AND TO PERMIT THE COURT 

 ADEQUATE TIME TO REVIEW, ADDRESS, AND RESOLVE THE 

 PENDING DISPOSITIVE MOTION TO DISMISS PLAINTIFFS’ COMPLAINT ........19

IV. THE DISTRICT COURT SHOULD CERTIFY THIS MATTER AS 

 APPROPRIATE FOR IMMEDIATE INTERLOCUTORY APPEAL.............................21

V. CONCLUSION..................................................................................................................22

Case 1:07-cv-03580-DLC Document 24 Filed 06/12/2007 Page 2 of 28
ii

TABLE OF AUTHORITIES

CASES

Advanced Portfolio Technologies, Inc. v. Advanced Portfolio Technologies Ltd.,

No. 94 Civ. 5620, 1994 WL 719696 (S.D.N.Y. Dec. 28, 1994)............................................17

Allen v. Lloyd's of London,

94 F.3d 923 (4th Cir. 1996) .................................................................................................10

Ayyash v. Bank Al-Madina,

233 F.R.D. 325 (S.D.N.Y. 2005) .........................................................................................21

Base Metal Trading SA v. Russian Aluminum,

253 F. Supp. 2d 681 (S.D.N.Y. 2003) aff’d, 2004 U.S. App. LEXIS 8547 (2d Cir. 

2004)...................................................................................................................................11

Brinco Mining Ltd. v. Federal Ins. Co.,

552 F. Supp. 1233 (D.D.C. 1982) ........................................................................................13

British Midland Airways Ltd. v. International Travel, Inc.,

497 F.2d 869 (9th Cir. 1974) ...............................................................................................10

Chase Manhattan Bank, N.A. v. Turner & Newall, PLC,

964 F.2d 159 (2d Cir. 1992) ................................................................................................22

Clarkson Co. v. Shaheen,

544 F.2d 624 (2d Cir. 1976) ................................................................................................13

Crown Crafts, Inc. v. Aldrich,

148 F.R.D. 151 (E.D.N.C. 1993) .........................................................................................17

D.A. Elia Constr. Corp. v. U.S. Fid. & Guaranty Co.,

94-CV-0190E(H), 1997 U.S. Dist. LEXIS 5610 (W.D.N.Y. April 16, 1997) .......................18

Estate of Nunez-Polanco v. Boch Toyota,

Civ. No. 3:03cv2251 (WWE), 2004 U.S. Dist. LEXIS 18411 (D.Conn July 21, 2004).........21

Evergreen Marine Corp. v. Welgrow Int’l Inc.,

954 F. Supp. 101 (S.D.N.Y. 1997).........................................................................................9

Goldhammer v. Dunkin’ Donuts, Inc.,

59 F. Supp. 2d 248 (D.Mass. 1999) .....................................................................................13

Haynsworth v. The Corporation,

121 F.3d 956 (5th Cir. 1997) ...............................................................................................10

Case 1:07-cv-03580-DLC Document 24 Filed 06/12/2007 Page 3 of 28
iii

In re Houbigant,

914 F. Supp. 997 (S.D.N.Y. 1996).........................................................................................9

Independent Order of Foresters v. Donald, Lufkin & Jenrette, Inc.,

157 F.3d 933 (2d Cir. 1998) ................................................................................................21

Jacques v. DiMarzio, Inc.,

200 F. Supp. 2d 151 (E.D.N.Y. 2002)..................................................................................18

Martin v. New York State Department of Mental Hygiene,

588 F.2d 371 (2d Cir. 1978) ................................................................................................18

MLC (Bermuda) LTD. v Credit Suisse First Boston Corporation,

46 F. Supp. 2d 249 (S.D.N.Y. 1999).............................................................................Passim

Murray v. British Broad. Corp.,

81 F.3d 287 (2d Cir. 1996) ..................................................................................................13

New York v. Almy Brothers, Inc.,

90-CV-818, 1998 U.S. Dist. LEXIS 5469 (N.D.N.Y. April 15, 1998)..................................18

Notaro v. Koch,

95 F.R.D. 403 (S.D.N.Y. 1982) ...........................................................................................17

R. Maganlal & Co. v. M.G. Chem. Co., Inc.,

942 F.2d 164 (2d Cir. 1991) ................................................................................................11

Richards v. Lloyd’s of London,

135 F.3d 1289 (9th Cir. 1998) cert. denied 142 L. Ed. 2d 301, 119 S. Ct. 365 (1998) ..........10

Ronar v. Wallace,

649 F. Supp. 310 (S.D.N.Y. 1986).........................................................................................9

Rosecliff, Inc. v. C3, Inc.,

No. 94 Civ. 9104, 1995 WL 3024 (S.D.N.Y. Jan. 3, 1995) ..................................................17

Spencer Trask Software & Info. Servs., LLC v. RPost Int’l Ltd.,

206 F.R.D. 367 (S.D.N.Y. 2002) .........................................................................................20

Springer v. Singer,

No. 88 Civ. 2484 (MJL), 1990 U.S. Dist. LEXIS 11862 (S.D.N.Y. Aug. 29, 1990) .............18

The Irish Lesbian and Gay Org. v. Giuliani,

918 F. Supp. 728 (S.D.N.Y. 1996).......................................................................................16

Transunion Corp. v. PepsiCo, Inc.,

811 F.2d 127 (2d Cir. 1987) ................................................................................................20

Case 1:07-cv-03580-DLC Document 24 Filed 06/12/2007 Page 4 of 28
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Twentieth Century Fox Film Corp. v. Mow Trading Corp.,

749 F. Supp. 473 (S.D.N.Y. 1990).......................................................................................17

STATUTES

28 U.S.C. §1292(b) ...............................................................................................................3, 22

OTHER AUTHORITIES

Fed. R. Civ. Proc. 4...................................................................................................................18

Fed. R. Civ. Proc. 12(b)(2)........................................................................................................18

Fed. R. Civ. Proc. 12(b)(6)........................................................................................................21

Fed. R. Civ. Proc. 26(c).............................................................................................................20

Fed. R. Civ. Proc. 54(b) ............................................................................................................17

L.R. 6.3 .....................................................................................................................................17

Case 1:07-cv-03580-DLC Document 24 Filed 06/12/2007 Page 5 of 28
PRELIMINARY STATEMENT 

On May 29, 2007, English counsel for Ron Whyte, Julian Samengo-Turner, and Marcus 

Hopkins (collectively “Defendants”) filed a Claim against Guy Carpenter & Company, LLC 

(“GC”) and Marsh & McLennan Companies, Inc. (“Marsh” and collectively “Plaintiffs”), and 

Marsh Services Ltd. (“MSL”), in the High Court of Justice in London (the “U.K. Action”). That 

Claim seeks, among other things, a declaration that the High Court has exclusive jurisdiction 

over Plaintiffs’ claims in the case at bar. Ron Whyte, therefore, respectfully requests that the 

Court stay all proceedings in this case until the High Court has resolved the jurisdictional issues 

which are central to this matter. 

In the alternative, Whyte respectfully requests that the Court reconsider its May 24, 2007 

Order, which directs that Defendants comply with expedited written discovery demands and 

appear for depositions in England. Remarkably, Plaintiffs have submitted factual declarations in 

the U.K. Action which fundamentally contradict their prior submission here. Indeed, the very 

premise upon which Plaintiffs claimed to be entitled to expedited discovery―that Defendants, as 

employees of Plaintiffs, were violating their employment contracts, Bonus Contracts, and 

common law duties of loyalty by soliciting their U.K. colleagues to leave their employment with 

Plaintiffs for a U.K. competitor ―is now known to be inaccurate. Plaintiffs now confirm that 

Defendants do not and have not ever worked for Plaintiffs and that the alleged failure to comply 

with their post-separation obligations cannot harm Plaintiffs. To the contrary, Plaintiffs now 

admit that all alleged improper solicitation by Defendants (which is denied) allegedly harm a 

company not a party to this case. Thus, the May 24 Order was obtained under false pretenses.

Indeed, the litany of misstatements proffered in the Plaintiffs’ Complaint, memo of law, 

and supporting Declaration, which resulted in the May 24 Order, include the following:

Case 1:07-cv-03580-DLC Document 24 Filed 06/12/2007 Page 6 of 28
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 Defendants were referenced dozens of times as Plaintiffs’ “employees”; in the 

U.K. action, however, Plaintiffs contend that Defendants are not their employees 

but actually work for MSL, a company incorporated in Great Britain and 

registered in England and Wales. 

 Plaintiffs argued that Schedule II.D. of the Defendants’ Bonus Contracts was a 

central piece to the application for expedited discovery because that provision 

allegedly gave rise to separate non-solicitation obligations which Plaintiffs 

claimed had been violated by Defendants (albeit in England);1

 in the U.K. action, 

however, Plaintiffs contend that Schedule II.D. (which contains the English nonexclusive jurisdiction clause and separate definition of “Detrimental Activity”) is 

inapplicable to Defendants. 

 Plaintiffs referred numerous times to Defendants’ U.K. employment contracts― 

and their alleged breach of those contracts―as grounds for emergent relief 

through expedited discovery; in the U.K. action, however, Plaintiffs contend that 

Defendants’ employment contracts are wholly irrelevant. 

 Marsh and GC were presented as being interchangeable and, during off-the-record 

discussions before the Honorable Denise Cote, U.S.D.J., Plaintiffs’ counsel 

represented that all of Marsh’s subsidiaries were included within the Bonus 

Contract’s broad definition of “company” and that “MMC” referred to 

“subsidiaries or affiliates”;2 in the U.K. action, however, Plaintiffs contend the 

corporate entities are entirely separate and distinct. 

In short, the facts and argument presented by Plaintiffs in support of their application for 

expedited discovery, when compared to their submissions in the U.K. Action,

3

are, at best, 

hopelessly contradictory and, at worst, so grossly inaccurate as to suggest a failure to conduct a 

rudimentary investigation before filing the Complaint, as required by the Federal Rules. In either 

case, the Plaintiffs’ renouncement of this critical information is sufficient for the Court to 

reconsider, and vacate, its May 24 Order. 

 

1

 Plaintiffs’ counsel also addressed Schedule II.D. during off-the-record discussions with the 

Court and contended that the Court was fully equipped to apply English law. See Declaration of 

John P. Barry (“Barry Decl.”), ¶13, submitted herewith and incorporated herein by reference.

2

 Barry Decl., ¶12.

3

 For a side-by-side comparison of Plaintiffs’ contradictory assertions, see pp. 6-8, infra. 

Case 1:07-cv-03580-DLC Document 24 Filed 06/12/2007 Page 7 of 28
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In the alternative to reconsideration, sufficient grounds are present for the Court to stay 

operation of its May 24 Order. To compel Defendants, two of whom still have not been served 

with the Complaint, to participate in expedited discovery―including depositions which are not 

permitted in the U.K.4―before either the U.K. Action or the potentially dispositive challenges to 

personal jurisdiction and venue pending before this Court are resolved is manifestly unjust.5

As explained in the U.K. filing and the pending motion to dismiss, Defendants are U.K. residents 

and neither they, nor this litigation, have a material connection to the United States or to New 

York. Indeed, not only are the Defendants, the witnesses, and all of the claims deeply rooted in 

England, but Plaintiffs have availed themselves of the U.K. courts by seeking in England the 

same relief at issue here. Whyte, therefore, respectfully requests that the Court stay the order for 

expedited discovery until (i) the pending U.K. Action, between the same parties and involving 

the same facts and circumstances, has been resolved; and/or (ii) the Court decides the pending 

dispositive motion to dismiss the Complaint on the grounds of lack of personal jurisdiction and 

based upon the doctrine of forum non conveniens.

6

 

 

4

 Indeed, Plaintiff’s counsel advised on May 29, 2007, that―the expedited nature of the 

discovery notwithstanding―Plaintiffs would not agree to limit the scope or duration of the 

depositions and insisted on nothing less than full, seven-hour depositions of each Defendant as 

permitted by the Federal Rules. (Barry Decl., ¶14).

5

 For the Court’s convenience, a copy of the pending motion to dismiss is attached as Exhibit A 

to the Barry Decl.

6

 By the filing of this motion, none of the Defendants waive, and each specifically reserves, all 

available grounds for dismissal of this action.

Case 1:07-cv-03580-DLC Document 24 Filed 06/12/2007 Page 8 of 28
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PROCEDURAL HISTORY AND STATEMENT OF FACTS

I. The New York Action

On May 4, 2007, GC and Marsh filed this action against Defendants. To date, the 

Complaint still has not been served upon Messrs. Samengo-Turner or Hopkins. (Barry Decl., 

Exh. A at 053 to 065 and ¶10). 

Despite Plaintiffs’ awareness of this lack of service of process, they filed an Order to 

Show Cause on Tuesday, May 15, which sought to compel all Defendants to respond to 

Plaintiffs’ discovery requests and be deposed in New York on an expedited basis. U.S. counsel 

for Defendant Whyte received a copy of Plaintiff’s application via e-mail at approximately 4:00 

p.m. EST that afternoon. Although no briefing schedule had been set by the Court concerning 

Plaintiffs’ application, Whyte delivered a memorandum and supporting declaration at 

approximately 4:30 p.m. on Thursday, May 17, to alert the Court to numerous defects in 

Plaintiffs’ application, including the lack of service of process over the two other Defendants, 

Plaintiffs’ questionable claim of personal jurisdiction over any of the Defendants, and the 

significant inconvenience and prejudice which Defendants would suffer if forced to litigate in 

New York. (Barry Decl., Exhibit B). 

Before it addressed the critical service/personal jurisdiction/venue issues, however, the 

Court ordered on May 18 that all three Defendants must (1) comply with Plaintiffs’ expedited 

written discovery demands by June 1 and (2) present themselves for depositions in England no 

later than June 15, 2007. (Barry Decl., Exhibit C). Defendants were subsequently permitted to 

file a motion to dismiss on forum non conveniens and “additional” grounds. (Barry Decl., Exh.

C, Tr. 2:7-14). The Court’s May 18 ruling was then memorialized in an Order dated May 24, 

2007. (Barry Decl., Exhibit D). 

Case 1:07-cv-03580-DLC Document 24 Filed 06/12/2007 Page 9 of 28
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That same day, Whyte filed a motion to dismiss Plaintiffs’ Complaint based upon the 

Court’s lack of personal jurisdiction and, alternatively, pursuant to the doctrine of forum non 

conveniens. (Barry Decl., Exh. A). 

II. The U.K. Action

On May 29, 2007, Defendants’ U.K. counsel filed a Claim against Plaintiffs, as well as 

MLS, in the High Court, Queen’s Bench Division in London. (Barry Decl., Exh. E). That 

application seeks, among other things:

1. A Declaration that any claims against them by any of the [Plaintiffs] arising 

out of or connected with their employment by the same and/or arising out of 

and/or connected with the [U.K. Contracts and/or Bonus Contracts] are subject to 

the exclusive jurisdiction of the Courts of England and Wales pursuant to Section 

5 of Council Regulation (EC) 44/2001; and/or subject to an exclusive 

alternatively non-exclusive jurisdiction clause in favour of the jurisdiction of the 

Courts of England and Wales contained in and/or evidenced by the Bonus 

Contracts; and/or 

2. A declaration that the jurisdiction clause(s) in the Bonus Contracts purporting 

to confer jurisdiction on the county of New York, USA is/are invalid pursuant to 

Section 5 of Council Regulation (EC) 44/2001; and/or

3. A permanent worldwide anti-suit injunction restraining each and any of the 

[Plaintiffs] from the commencement, prosecution and/or continuance of 

proceedings arising out of or connected with the employment of [Defendants] . . . 

and/or arising out of or connected with any of the contracts [between Plaintiffs 

and Defendants] anywhere other than the jurisdiction of England and Wales, 

including in particular the proceedings commenced by [Plaintiffs] in the United 

States District Court Southern District of New York (Index Number 07 Civ 3580).

(Barry Decl., Exh. E at 1-2). 

On June 1, 2007, Plaintiffs filed a cross-application requesting that Defendants be 

compelled to provide the information and documents specified by the May 24 Order because (i) 

it would be expedient to compel compliance with that Order; (ii) another clause in the Bonus 

Contracts provide for the production of such information under English law; and/or (iii) the 

Defendants have “implied obligations” to produce such documents and information “under their 

Case 1:07-cv-03580-DLC Document 24 Filed 06/12/2007 Page 10 of 28
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respective employment contracts.” (Barry Decl., Exhibit F at 14-16). Plaintiffs then filed a 

“Witness Statement” from Ms. Mansfield and a legal memorandum (“Pl. Skeleton”) in response 

to the Defendants’ application for an anti-suit injunction. (Barry Decl. Exhibit G).

Without a plausible explanation, however, Plaintiffs’ submissions in the U.K. Action 

contain a litany of statements which materially and directly contradict the position they 

advocated in the case at bar, including:

Plaintiffs’ Statement In New York Action Plaintiffs’ Statement In U.K. Action

“Defendants . . . have been employed by Guy 

Carpenter in the facultative reinsurance group 

since, respectively, September 23, 1991, 

September 20, 1988, and April 10, 2000.”7

“the employer of each of the [Defendants] is 

Marsh Services Limited (“MSL”). They are not 

employed by any other company.”8

“Defendants’ employment with Guy Carpenter 

was, and continues to be, governed by 

agreements between each defendant and Guy 

Carpenter.”9

“By the terms of their respective employment 

contracts with MSL . . .”10

“By the terms of their respective employment 

agreements, defendants are required to provide 

six (6) months notice of termination, meaning 

that they remain employed by Guy Carpenter, 

continue to receive their full salaries and

continue to have all the fiduciary and related 

duties and obligations to [Marsh and Guy 

Carpenter] that are associated with such 

employment.”11

“By the terms of their respective employment 

contracts with MSL, the [Defendants] are 

required to provide six (6) months’ notice of 

termination, meaning that they remain 

employed by MSL, continue to receive their full 

salaries and continue to have all the fiduciary 

and related duties and obligations as employees 

that are associated with such employment.”12

 

7

 Barry Decl., Exhibit I: May 10, 2007 Declaration of Lynsey Mansfield (“Mansfield Decl.”), at 

¶5. Accord Barry Decl., Exh. A, 053 to 065: Complaint, ¶¶11, 12, 13, 14, 15, 16, 18, 28, 36, 39.

8

 Barry Decl., Exh. G, 01 to 10: 1 June 2007 Witness Statement of Lynsey Mansfield 

(“Mansfield Stat.”), at ¶7.

9

 Mansfield Decl., ¶8. Accord Complaint, ¶14.

10 Mansfield Stat., ¶20.

11 Mansfield Decl., ¶9. Accord Complaint, ¶15.

12 Mansfield Stat., ¶20.

Case 1:07-cv-03580-DLC Document 24 Filed 06/12/2007 Page 11 of 28
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“by the terms of their respective employment 

agreements with [Guy Carpenter and Marsh], 

defendants are not permitted for specific 

periods of time during and after their notice 

period to solicit, entice, induce, or encourage 

any of [Guy Carpenter’s and Marsh’s] 

employees to leave [Guy Carpenter and Marsh] 

and join a company that competes with [Guy 

Carpenter and Marsh].”13

“The terms of [Defendants’] contracts of 

employment with MSL are not referred to or 

relied upon in the New York Proceedings.”14

“Defendants also continue to have a panoply of 

obligations to their employer, Guy Carpenter, 

including their obligation to make themselves 

available during business hours to provide 

important information.”15

 

“The terms of [Defendants’] contracts of 

employment with MSL are not referred to or 

relied upon in the New York Proceedings.”16

“There are two applicable non-solicitation 

provisions in the Agreements. First, 

defendants agreed in Schedule II.D of the 

Agreements . . .”17

“Schedule II D is . . . only applicable after 

termination of the Claimants’ employment and 

is accordingly not yet applicable.”18

Defendants must “provide information” to Guy 

Carpenter and Marsh “in accordance with 

defendants’ contractual obligations (which are 

entirely consistent with their ongoing duties of 

loyalty as employees).”19

 

“The New York Proceedings are not seeking to 

enforce or rely on the provisions of 

[Defendants’] contracts of employment.”20

“Guy Carpenter is surely entitled to [obtain 

information from Defendants] to know if this 

“The purpose of seeking information . . . would 

be to assist [Marsh] in discovering whether a 

 

13 Complaint, ¶16.

14 Barry Decl., Exh. G, 18 to 42: Pl. Skeleton, ¶35.

15 Pl. Memo in support of motion for expedited discovery, May 15, 2007 (“Pl. Memo”), at 13.

16 Pl. Skeleton, ¶35.

17 Mansfield Decl., ¶23. Accord Complaint, ¶¶26, 27, 28, and 29.

18 Pl. Skeleton, ¶23.

19 Pl. Memo at 12.

20 Pl. Skeleton, at ¶43.

Case 1:07-cv-03580-DLC Document 24 Filed 06/12/2007 Page 12 of 28
8

assault on its business has been conducted by 

lawful means―or not. . .”21

 

senior executive to whom an Award has been 

paid has been complying with his obligations 

under the Plan.”22

Plaintiffs have no intention of seeking relief in 

England.23

Marsh’s intends to stop any allegedly improper 

acts of Defendants “by, inter alia, seeking 

injunctive relief against the parties involved in 

the UK courts.”24

On June 5, Defendants submitted a Skeleton Argument and Witness Statement in reply to 

Plaintiffs’ opposition. (Barry Decl., Exhibit H). That submission also notes the litany of 

contradictory assertions raised by Plaintiffs in the two actions. (Id. at 2-5).

Defendants’ application for an anti-suit injunction in the U.K. was denied, but 

Defendants’ declaratory judgment action and Plaintiffs’ application for discovery is pending.

In addition to the foregoing, Defendants rely upon the facts previously presented to the 

Court in Whyte’s opposition to Plaintiffs’ motion for expedited discovery and in support of his 

motion to dismiss Plaintiffs’ Complaint due to lack of personal jurisdiction and forum non 

conveniens. (Barry Decl., Exh. A at 009 to 013 and 033 to 034; and Exh. B at 05 to 12). 

Defendants only add that Plaintiffs have, to this day, still failed to serve the Complaint upon 

Messrs. Samengo-Turner or Hopkins. (Barry Decl., ¶10). 

 

21 Pl. Memo at 12.

22 Pl. Skeleton, at ¶25.

23 Barry Decl., ¶11. 

24 Barry Decl., Exh. F, ¶25. 

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ARGUMENT

I. THE NEW YORK ACTION SHOULD BE STAYED IN DEFERENCE TO THE 

PENDING EXPEDITED PROCEEDINGS BEFORE THE HIGH COURT OF 

JUSTICE IN ENGLAND

“A court has inherent power to dismiss or stay an action based on the pendency of a 

related proceeding in a foreign jurisdiction.” MLC (Bermuda) LTD. v Credit Suisse First Boston 

Corporation, 46 F. Supp. 2d 249, 251 (S.D.N.Y. 1999) (citing Evergreen Marine Corp. v. 

Welgrow Int’l Inc., 954 F. Supp. 101, 103 (S.D.N.Y. 1997)); accord In re Houbigant, 914 F. 

Supp. 997, 1003 (S.D.N.Y. 1996); Ronar v. Wallace, 649 F. Supp. 310, 318 (S.D.N.Y. 1986). 

In determining whether to act in deference to a pending foreign action, “a court will consider 

such factors as the similarity of parties and issues, the adequacy of the alternative forum, the 

convenience of the parties, the promotion of judicial efficiency, the possibility of prejudice, and 

the temporal sequence of filing.” Applying these factors to this case, a stay of the proceedings 

here in favor of the U.K. Action is warranted.

First, there is substantial identity of the parties in the two actions. With the exception of 

MSL, the U.K. company whose “ultimate parent” is Marsh, each of the parties properly before 

the Court is currently a party to the U.K. Action. Indeed, all three Defendants have now 

consented to the jurisdiction of the High Court for the purposes of allowing Plaintiffs to assert 

against them in London the very claims they have asserted in this Court. (Barry Decl., Exh. E). 

Conversely, only Whyte has been served with the Complaint in the New York Action and he has 

raised significant challenges to the Court’s exercise of personal jurisdiction over him, as well as 

the propriety of the forum. See MLC, 46 F. Supp. 2d at 251 (dismissal favored where no 

obstacles to maintenance of entire action in London); Evergreen, 954 F. Supp. at 104 

(defendant’s consent to jurisdiction favors dismissal where it creates potential for complete 

identity of parties between the two actions). 

Case 1:07-cv-03580-DLC Document 24 Filed 06/12/2007 Page 14 of 28
10

A stay is further warranted because both cases involve the same set of transactions, 

involve interpretation of the same employment contracts, and the essential controversies “are 

squarely before the British court” because the High Court has personal jurisdiction over the 

Defendants. MLC, 46 F. Supp. 2d at 251. Plaintiffs here concede as much by seeking relief 

from the English courts. See Barry Decl., Exh F and G. 

Second, “the Commercial Court is clearly an adequate forum to resolve [Plaintiffs’] 

claims. The competence of British courts to adjudicate commercial disputes is beyond question.” 

MLC., 46 F. Supp. 2d at 253.25 Defendants are U.K. residents and citizens, are amenable to 

process only in England, and are subject to the jurisdiction of English courts and to English law. 

See R. Maganlal & Co. v. M.G. Chem. Co., Inc., 942 F.2d 164, 167 (2d Cir. 1991) (“Ordinarily, a 

foreign forum will be adequate when the defendant is subject to the jurisdiction of that forum.”). 

Indeed, none of the Defendants are amenable to service of process in New York. England, 

therefore, is an adequate and appropriate alternative forum as a matter of law. See Breindel & 

Ferstendig v. Willis Faber & Dumas Ltd., 95 Civ. 7905 (SHS), 1996 U.S. Dist. LEXIS 10432 

(S.D.N.Y. July 22, 1996) (“England is an adequate alternative forum.”). Moreover, Plaintiffs 

have already filed an application in the U.K. proceeding seeking identical relief of the New York 

action.

Third, London is the most convenient forum. All of the known witnesses are in London. 

Although not named, Plaintiffs’ Complaint identifies 11 U.K. residents allegedly solicited and 

 

25 See, generally, Richards v. Lloyd’s of London, 135 F.3d 1289, 1296 (9th Cir. 1998) (British 

courts provide adequate relief in cases of fraud, negligent misrepresentation and breach of 

fiduciary duty), cert. denied 142 L. Ed. 2d 301, 119 S. Ct. 365 (1998); Haynsworth v. The 

Corporation, 121 F.3d 956, 969 (5th Cir. 1997) (same); Allen v. Lloyd's of London, 94 F.3d 923, 

929 (4th Cir. 1996) (same); British Midland Airways Ltd. v. International Travel, Inc., 497 F.2d 

869, 871 (9th Cir. 1974).

Case 1:07-cv-03580-DLC Document 24 Filed 06/12/2007 Page 15 of 28
11

recruited by Defendants in the U.K. to leave MSL and join Integro in the U.K. These 11 

witnesses, who presumably have knowledge (or can confirm a lack of knowledge) concerning 

Plaintiffs’ allegations of wrongdoing, are beyond the Court’s compulsory process powers. 

Likewise, Plaintiffs’ U.K. submission identifies two additional witnesses (Mark Newman and an 

unnamed “third party”), both of whom are only available in London. (Mansfield Stat., ¶¶28, 31).

It is, nonetheless, anticipated that all of these witnesses will support Defendants’ litany of 

defenses to both the pending claims in the lawsuit and the anticipated claims of unlawful 

solicitation and recruiting that Plaintiffs have intimated they will file in the U.K. See Base Metal 

Trading SA v. Russian Aluminum, 253 F. Supp. 2d 681, 710-11 (S.D.N.Y. 2003) (“In view of the 

plaintiffs’ allegations, which themselves appear to place most of these parties in Russia, the 

defendants argue persuasively that almost all of their likely witnesses are located in Russia or 

elsewhere, and that few, if any, are in the United States. And as third-parties to this action, the 

Court cannot compel such witnesses appear. Moreover, even if the Court could do so, the 

striking number of Russian parties and witnesses involved in the case demonstrates the extreme 

inconvenience of bringing this case to trial in the United States.”) (internal citations omitted), 

aff’d, 2004 U.S. App. LEXIS 8547 (2d Cir. 2004).

Moreover, Defendants are aware of no witnesses with relevant information who reside in 

New York, or anywhere else outside of England. Likewise, the three Defendants are based in the 

U.K. and most, if not all of Plaintiffs’ witnesses are London-based. 

Defendants, moreover, have no meaningful connection to New York but a strong 

connection to England. Unlike Plaintiffs, which are global conglomerates with a significant 

U.K. operation and presence, the Defendants are three individuals who never meaningfully 

availed themselves to suit, or expected to be sued, in New York. See also MLC, 46 F. Supp. 2d 

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at 254 (dismissal appropriate―even where key events “at the heart of” plaintiff’s claims took 

place in New York―where a preponderance of the key witnesses are located in London).

Fourth, a stay in favor of the English’s court’s resolution of its proceedings will promote 

judicial economy. See id. (“Where a single court is capable of fairly and competently 

adjudicating an entire controversy, there is little reason to divide the task between two courts.”). 

This point is underscored by the fact that this case has no meaningful connection whatsoever to 

New York. The Complaint concerns British citizens employed in London by a U.K. company 

who allegedly breached a contract in England when they purportedly failed to cooperate (in the 

U.K.) with a demand by U.K. counsel for information. In a claim that can only be brought in the 

U.K., Plaintiffs also accuse Defendants of allegedly breaching their U.K. employment contracts 

when they allegedly solicited and recruited (in England) other British employees of MSL to seek 

employment with a U.K.-based competitor. The nexus of the case could not be farther removed 

from New York. See Murray v. British Broad. Corp., 81 F.3d 287, 293 (2d Cir. 1996) (“The 

crux of the matter, therefore, involves a dispute between British citizens over events that took 

place exclusively in the United Kingdom. . . . The United States thus has virtually no interest in 

resolving the truly disputed issues.”); accord Saab v. Citibank, N.A., 00 Civ. 6784, 2001 WL 

1382577, at *5 (S.D.N.Y. Nov. 7, 2001) (FNC dismissal because of insufficient connection of 

the community to the litigation: “Although [defendant’s] headquarters are in New York, the 

other major players in this controversy are Lebanese businessmen and a Saudi Arabian bank. The 

actions in dispute occurred throughout Europe and the Middle East; moreover, the witnesses are 

nearly all foreign.”), aff'd, 50 Fed. Appx. 469, No. 01-9417, 2002 WL 31317708 (2d Cir. Oct. 

16, 2002). 

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Fifth, Plaintiff will not be prejudiced by the stay of the proceedings in favor of 

proceeding in England: “Because the United States and England share the same common law 

heritage, deference to British proceedings is consistent with notions of international comity.” 

Goldhammer v. Dunkin’ Donuts, Inc., 59 F. Supp. 2d 248, 255 (D.Mass. 1999); see Clarkson Co. 

v. Shaheen, 544 F.2d 624, 629-30 (2d Cir. 1976) (recognition of a foreign judgment is most 

appropriate when alien jurisdiction is “a sister common law jurisdiction with procedures akin to 

our own”); Brinco Mining Ltd. v. Federal Ins. Co., 552 F. Supp. 1233, 1240 (D.D.C. 1982) 

(“Certainly, if this Court cannot extend comity to Canada, the comity principle has little vitality 

in our jurisprudence.”). Moreover, Defendants have provided multiple assurances that Plaintiffs 

will experience no harm whatsoever during the brief period of the stay of the New York 

proceedings. As explained below, Defendants have agreed to comply with all terms of their 

respective garden leaves and Plaintiffs have likewise made public statements that Defendants’ 

alleged acts did not, and will not, harm Plaintiffs in any way.

Specifically, Defendants’ London-based solicitors, Elborne Mitchell, confirmed to 

Plaintiffs on April 11, 2007―prior to the initiation of this lawsuit―that Defendants intended to 

abide by all of their obligations to their employer while on garden leave. (Barry Decl., Exh. B at 

214 to 215). On April 19, Elborne Mitchell further advised that Defendants “would be happy to 

sign written undertakings confirming that they will comply with their garden leave obligations,” 

and that they had no documentation or other property belonging to their former employer or its 

clients other than mobile telephone handsets which they offered to return. (Barry Decl., Exh. B 

at 217 to 219). Hearing no response, Elborne Mitchell wrote again concerning Defendants’ 

offer. (Barry Decl., Exh. B at 221). By letter dated May 3, Plaintiffs’ U.K. counsel wrote to 

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14

confirm its anticipated receipt of Defendants’ written undertakings “as soon as possible.” (Barry 

Decl., Exh. C at 26). The very next day, however, Plaintiffs filed this lawsuit. 

By letter dated May 17, 2007, Elborne Mitchell nonetheless reiterated its proposal to 

obtain a written undertaking from each of the Defendants which set forth, in pertinent part:

I confirm my agreement to remain an employee of Marsh Services Limited (“the 

Company”) until 2 October 2007 and to serve out my notice period on garden leave as 

requested by the Company. I undertake that while I remain an employee of the Company 

I will abide by my contractual duty of good faith and fidelity to the Company. I further 

undertake that during this period of garden leave I will not:

(A) Save for the purpose of obtaining legal advice, or save as required or 

permitted by law, or save with the express permission of the Company.

(1) disclose or permit to be disclosed to any person firm or company 

any confidential information of the Company or of any other member of 

the Group.

(2) disclose in any way, or use for my own or another’s advantage, any 

of the data, programmes or manuals, or any of the business methods or 

information of a confidential nature relating to the affairs of any group 

Company.

(B) be employed or engaged or otherwise provide services directly or 

indirectly, except as an employee of the Company, in the business of underwriting 

or as an insurance, reinsurance, or mortgage broker or agent without having first 

gained the written consent of the Company. 

(Barry Decl., Exh. C at 28 to 29). Defendants’ consistent representations through their English 

counsel confirm that they have no intention of committing any act to harm Plaintiffs in any 

way—irreparable or otherwise—during their respective garden leave periods. 

Moreover, uncontroverted evidence from Marsh’s senior-most officers dispels even the 

inference that Plaintiffs will experience harm of any kind attributable to Defendants if a brief 

stay of discovery is permitted. In a recorded public presentation delivered to the investment 

community on May 8, 2007—four days after its Complaint was filed—Marsh’s President and 

CEO, Michael Cherkasky, and its COO, Brian Storms, provided a dramatically different 

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15

characterization of the events portrayed in the Plaintiffs’ Complaint and motion for expedited 

discovery:

Marsh is now aggressively on the offensive, focusing a disproportionate amount 

of our effort, energy and resources on accelerating growth. We are actively 

recruiting industry leading talent. (COO Storms) (emphasis added).

Obviously, we did have a defection to Integro in the [sic] reinsurance. By the 

way, it’s so fascinating is [sic] we are not having defections in the brokerage 

business to Integro. In fact, they are coming the other way. I think this [defection 

to Integro in the reinsurance area] is a temporary blip. What is very rewarding is 

that we are attracting people in the reinsurance business. So it really isn't -- there 

is a war for talent but it’s going both ways and I think, because of Integro's 

position, they make more of a headline about it than maybe others. (President 

Cherkasky) (emphasis added).

* * *

We are, for the first time in a long time, as we get more and more proactive, 

aggressively recruiting. I say with great confidence we are winning the war for 

talent in the brokers business right now. Our business model, the success that 

we’re beginning to see -- we are winning the war for talent. It’s still a pretty 

irrational market out there; we are seeing competitors offering multi-year deals 

with lots of guarantees, things that any rational – we’re not going to do. But in 

terms of our ability to win the war for talent, it’s really going in our favor and as 

the year progresses, you will see the impact of that. (COO Storms) (emphasis 

added).

(Barry Decl., Exh. B at 31 to 33).

In view of Defendants’ repeated assurances that they will abide by their obligations 

during their garden leaves and the admission of Marsh’s own President that the loss of U.K. 

brokers in its U.K. business is nothing more than “a temporary blip” and the total absence of 

proof that Defendants had caused or intend to cause Plaintiffs any harm whatsoever, there is 

clearly no substantial risk that Plaintiffs will experience irreparable or other harm if a brief stay 

of the New York Action is permitted. 

More importantly, Defendants will be irreparably harmed if they are forced to proceed 

with the litigation of a case over which the Court likely lacks jurisdiction and which is 

proceeding in the improper venue. The irreparable harm to Defendants is magnified in light of 

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the single, calculated strategy evidenced by all of Plaintiffs’ actions in this case, to date: to 

bolster their future claims to be filed in England, Plaintiffs filed suit in New York, clearly the 

improper forum, to exploit American discovery rules to depose the Defendants; Plaintiffs then 

sought―and obtained―an order compelling the completion of that impermissible discovery 

before any of Defendants’ procedural challenges could be addressed or resolved. The irreparable 

harm which the Defendants will experience if the U.K. Action and New York Action are 

permitted to proceed simultaneously far outweighs even the possibility of prejudice to Plaintiffs 

if their extraordinarily improper tactics are condoned. See The Irish Lesbian and Gay Org. v. 

Giuliani, 918 F. Supp. 728, 730 (S.D.N.Y. 1996) (expedited discovery permitted only after 

showing of irreparable injury to the moving party and evidence that “injury that will result 

without expedited discovery looms greater than the injury that the defendant will suffer if the 

expedited relief is granted.”) (citing Notaro v. Koch, 95 F.R.D. 403, 405 (S.D.N.Y. 1982)).26

 

Sixth, although the U.S. Action was filed first, the sequence of the filings is irrelevant. 

Indeed, only one Defendant has been served in the U.S. Action and he has contested jurisdiction 

and venue. In the U.K. Action, however, the Plaintiffs have been properly served and the 

propriety of jurisdiction and venue are beyond question. (Barry Decl., Exh. E, F, G, and H). See 

MLC, 46 F. Supp. 2d at 254 n4 (where Commercial Court called upon to interpret provisions of 

contracts, London action deemed to have progressed well beyond incipiency). 

 

26

 Accord Rosecliff, Inc. v. C3, Inc., No. 94 Civ. 9104, 1995 WL 3024, at *2 (S.D.N.Y. Jan. 3, 

1995); Advanced Portfolio Technologies, Inc. v. Advanced Portfolio Technologies Ltd., No. 94 

Civ. 5620, 1994 WL 719696, at *3 (S.D.N.Y. Dec. 28, 1994); Twentieth Century Fox Film Corp. 

v. Mow Trading Corp., 749 F. Supp. 473, 475 (S.D.N.Y. 1990); see also Crown Crafts, Inc. v. 

Aldrich, 148 F.R.D. 151, 152 (E.D.N.C. 1993) (adopting Notaro as “compelling”).

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II. RECONSIDERATION OF THE COURT’S MAY 24 ORDER IS WARRANTED

The Court’s May 24 Order compels two Defendants―who have not been served with the 

Complaint to this very day―to complete discovery in this action, including seven-hour 

depositions not permitted in England, by June 15. The Order, however, was entered before the 

Court had sufficient time or opportunity to review, address, and resolve significant challenges to 

personal jurisdiction and venue. Moreover, it is now apparent that Plaintiffs’ application for 

expedited discovery was based upon erroneous facts and an alleged erroneous interpretation of 

the Bonus Contracts. For these reasons, operation of the May 24 Order is manifestly unjust. 

Under L.R. 6.3, the Court may reconsider an order based upon matters which the Court 

may have overlooked. Likewise, Rule 54(b) provides the Court wide discretion to reconsider, 

and if appropriate, modify an interlocutory order or ruling at any time prior to a final judgment. 

See New York v. Almy Brothers, Inc., 90-CV-818, 1998 U.S. Dist. LEXIS 5469, at *5 (N.D.N.Y. 

April 15, 1998). Generally, an interlocutory order may be reconsidered when there is “an 

intervening change of controlling law, the availability of new evidence or the need to correct a 

clear error or prevent manifest injustice.” Almy Brothers, 1998 U.S. Dist. LEXIS 5469, at *5 

(quoting D.A. Elia Constr. Corp. v. U.S. Fid. & Guaranty Co., 94-CV-0190E(H), 1997 U.S. Dist. 

LEXIS 5610, at *9, n.10 (W.D.N.Y. April 16, 1997)); see e.g. Jacques v. DiMarzio, Inc., 200 F. 

Supp. 2d 151, 163 (E.D.N.Y. 2002) (reconsidering sua sponte denial of motion for summary 

judgment after learning of new circuit decision holding contrary to initial decision); see also D.A. 

Elia Constr. Corp., 1997 U.S. Dist. LEXIS 5610, at *9 (courts should grant motions to 

reconsider “as justice requires.”). 

Application of these principles is particularly appropriate here because, as an initial 

matter, the Order compels individuals not properly before the Court to complete discovery in a 

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lawsuit which has never been served upon them. “Absent a waiver, Rule 4 mandates that the 

defendant be served with the summons and complaint personally, or in accordance with one of 

several prescribed alternatives. A showing that the defendant has had actual notice of the lawsuit 

is not sufficient to bar a motion to dismiss under Rule 12(b)(2).” Martin v. New York State 

Department of Mental Hygiene, 588 F.2d 371, 373 (2d Cir. 1978); accord Springer v. Singer, 

No. 88 Civ. 2484 (MJL), 1990 U.S. Dist. LEXIS 11862, *6 (S.D.N.Y. Aug. 29, 1990). In the 

face of this undisputed procedural defect, the May 24 Order should not apply to Messrs. 

Samengo-Turner or Hopkins. 

In addition, the litany of “erroneous” assertions which have been renounced by the 

Plaintiffs in their June 1 and June 4 submissions in the U.K. Action warrant reconsideration of 

the Court’s Order. Nearly every material fact relevant to Plaintiffs’ original application for 

expedited discovery is disclaimed by their subsequent filing. Under these extraordinary 

circumstances, reconsideration is strongly warranted.

Finally, the pending dispositive motion raises legal challenges and factual issues which 

require resolution before the Defendants are forced to complete discovery in this case. As the 

original opposition to Plaintiffs’ motion for expedited discovery indicated, and the pending 

motion to dismiss fully demonstrates, the lack of a meaningful connection between the parties 

and the litigation to New York strongly warrants dismissal of the Complaint in its entirety due to 

lack of personal jurisdiction. This, and Plaintiffs’ unabashed forum shopping and clear attempt 

to exploit the American discovery rules to obtain in New York what they could not in England, 

illustrate that dismissal is also proper under the doctrine of forum non conveniens. (Barry Decl., 

Exh. A at 013 to 032, Exh. B at 03 to 17). Failure to reconsider the Order compelling expedited 

discovery will require the Defendants to needlessly engage in costly discovery proceedings, 

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including overseas depositions, based on the faulty premise that the Court can exercise personal 

jurisdiction over all Defendants and that New York is the proper forum for this litigation. In the 

alternative to staying the entire New York Action, therefore, the lack of proper service, the 

Plaintiffs’ admitted fundamental inaccuracies in their original application, and the pending 

motion to dismiss warrant reconsideration, and vacation, of the May 24 Order. 

III. EXPEDITED DISCOVERY SHOULD BE STAYED BASED UPON THE 

PENDING U.K. ACTION AND TO PERMIT THE COURT ADEQUATE TIME 

TO REVIEW, ADDRESS, AND RESOLVE THE PENDING DISPOSITIVE 

MOTION TO DISMISS PLAINTIFFS’ COMPLAINT

If, in the alternative, the Court declines to stay the New York proceedings or vacate its 

May 24 Order, a brief stay of that Order is appropriate based upon the pending U.K. Action and 

to allow for the resolution of the pending motion to dismiss. If either the U.K. Action or the 

motion to dismiss is successful, the Complaint will be disposed of in its entirety. This accords 

with Rule 26(c), which provides the Court with discretion to stay discovery “for good cause 

shown.” Fed.R.Civ.P. 26(c). “Good cause” is shown where, as here, “a party has filed a 

dispositive motion, the stay is for a short period of time, and the opposing party will not be 

prejudiced by the stay.” Spencer Trask Software & Info. Servs., LLC v. RPost Int’l Ltd., 206 

F.R.D. 367, 368 (S.D.N.Y. 2002) (citing Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94 Civ. 2120, 

1996 WL 101277, at *2 (S.D.N.Y. March 7, 1996) (collecting cases)); accord Transunion Corp. 

v. PepsiCo, Inc., 811 F.2d 127 (2d Cir. 1987) (affirming district court’s decision to stay 

discovery pending motion to dismiss based on forum non conveniens). Each of these factors 

strongly favors a stay of operation of the Court’s May 24 Order.

First, the U.K. Action and the pending motion to dismiss are potentially dispositive of the 

entire action on three independent grounds (British jurisdictional precedent, lack of personal 

jurisdiction, and forum non conveniens), each of which is based on undisputed facts and 

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substantial authority. If Defendants prevail in the U.K. Action or the motion is granted, the case 

will end and, consequently, no discovery―expedited or otherwise―will be necessary. When a 

motion is potentially dispositive and not unfounded in the law, courts should implement a stay of 

discovery. See In re Currency Conversion Fee Antitrust Litig., MDL No. 1409 M 21-95, 2002 

U.S. Dist. LEXIS 974, at *4 (S.D.N.Y. Jan. 22, 2002) (“a stay of discovery is appropriate 

pending resolution of a potentially dispositive motion where the motion ‘appear[s] to have

substantial grounds’.”) (alteration in original) (quoting Chrysler Capital Corp. v. Century Power 

Corp., 137 F.R.D. 209, 209-210 (S.D.N.Y. 1991)). Indeed, a “‘stay pending determination of a 

dispositive motion that potentially eliminates the entire action will neither substantially nor 

unduly delay the action, should it continue.’” Spencer Trask, 206 F.R.D. at 368 (S.D.N.Y. 

2002); see Independent Order of Foresters v. Donald, Lufkin & Jenrette, Inc., 157 F.3d 933 (2d 

Cir. 1998) (affirming district court’s stay of discovery pending motion to dismiss under Fed. R. 

Civ. Proc. 12(b)(6) and 9(b)). 

Remarkably similar issues were raised in Port Dock and Stone Corp. v. Oldcastle 

Northeast, Inc., CV 05-4294 (DRH) (ETB), 2006 U.S. Dist. LEXIS 94944 (E.D.N.Y. Mar. 31, 

2006). In that matter, two defendants argued that discovery should be stayed “because the 

plaintiffs lack[ed] personal jurisdiction over these defendants and because these defendants were 

not properly served.” Id. at *2. The district court entered a stay of discovery because, inter alia, 

“the defendants raise substantial issues with regard to the viability of plaintiffs’ complaint as 

against defendants . . . and defendants’ arguments do not appear to be frivolous or unfounded.” 

Id. at *5. Accord Estate of Nunez-Polanco v. Boch Toyota, Civ. No. 3:03cv2251 (WWE), 2004 

U.S. Dist. LEXIS 18411 (D.Conn July 21, 2004) (motion for protective order granted, precluding 

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depositions and staying discovery pending a ruling on defendants’ motion to dismiss for lack of 

personal jurisdiction). 

Second, only a brief stay is sought to permit the U.K. Action to conclude and/or to allow 

the Court adequate time to review and resolve the significant pending procedural challenges. 

The Court ordered that expedited discovery commence less than 55 hours after Whyte’s U.S. 

counsel received Plaintiffs’ motion papers. See Barry Decl., Exh. C, Tr. 8:20-23. Because the 

Court lacked the opportunity to thoroughly consider the personal jurisdiction or forum non 

conveniens challenges on May 18, a brief stay to allow the Court sufficient time to address these 

dispositive arguments is surely warranted. 

Third, as stated above, Defendants assurances and Plaintiffs’ public statements confirm 

that Plaintiffs will experience no prejudice if a brief stay is permitted. Compare, e.g., Ayyash v. 

Bank Al-Madina, 233 F.R.D. 325, 327 (S.D.N.Y. 2005) (expedited discovery appropriate where 

plaintiff proves that defendants have incentive and capacity to hide assets and will not defend the 

matter on the merits). 

Based upon the pending dispositive motion, a brief stay of discovery is warranted. 

Defendants’ prior representations and assurances, combined with Plaintiffs’ admissions, confirm 

that Plaintiffs will not experience any harm―let alone extraordinary prejudice―if the Court 

grants a stay of discovery pending resolution of the U.K. Action and the motion to dismiss. 

IV. THE DISTRICT COURT SHOULD CERTIFY THIS MATTER AS 

APPROPRIATE FOR IMMEDIATE INTERLOCUTORY APPEAL

In the further alternative, Whyte respectfully requests that the Court amend its May 24 

Order to certify this dispute as one appropriate for immediate interlocutory appeal. See, e.g., 

Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159, 162 (2nd Cir. 1992) 

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(certification pursuant to 28 U.S.C. §1292(b) provides jurisdictional basis for interlocutory 

review of pretrial discovery order). The Order that Whyte, and two other English residents not 

yet served with the Complaint, must complete expedited discovery―including lengthy 

depositions which are not permitted in England―in the face of a pending action in England and 

before the significant pending challenges to jurisdiction and venue are addressed “involves a 

controlling question of law as to which there is substantial ground for difference of opinion and 

that an immediate appeal from the order may materially advance the ultimate termination of the 

litigation.” 28 U.S.C. §1292(b). Accordingly, the Court is respectfully requested to amend its 

May 24 Order to add this §1292(b) certification.

CONCLUSION

Under the present circumstances, each of the relevant factors weighs in favor of the 

Court’s deference to the U.K. Action. Whyte, therefore, respectfully requests that all proceedings 

in this matter be stayed until such time as the pending, related proceeding in the High Court of 

Justice is resolved. In the alternative, Whyte respectfully requests that the Court reconsider, and 

vacate, its May 24 Order. In the further alternative, Whyte respectfully requests that all 

discovery in this matter be stayed until such time as the pending U.K. Action is resolved and the 

service of process, personal jurisdiction, and forum non conveniens challenges are adjudicated by 

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the Court. In the final alternative, Whyte respectfully requests that the Court amend the May 24 

Order to certify the matter appropriate for immediate interlocutory appeal.

Dated: June 6, 2007 /s/John P. Barry

John P. Barry (JB 6489)

Mark A. Saloman (MS 5764)

Proskauer Rose LLP

One Newark Center, 18th Floor

Newark, New Jersey 07102

973.274.3200

973.274.3299 (Fax)

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