Jacobs, as Liquidating Trustee of the Dewey & LeBo v. Terpitz

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x 	FOR PUBLICATION
In re: 	:
:
DEWEY & LEBOEUF LLP, et al., 	: 	Chapter 11
: 	Case No. 12-12321 (MG)
:
Debtor. 	:
---------------------------------------------------------------x
ALAN M. JACOBS, as Liquidating Trustee of 	:
the Dewey & LeBoeuf Liquidation Trust, 	:
:
Plaintiff, 	:
: 	Adv. Proc. No. 14-01991 (MG)
v. 	:
:
JOCHEN TERPITZ, 	:
:
Defendant. 	:
---------------------------------------------------------------x
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS
A P P E A R A N C E S:
DIAMOND McCARTHY LLP
Attorneys for Alan M. Jacobs, Liquidating Trustee
for the Dewey & LeBoeuf Liquidation Trust
620 Eighth Avenue, 39th Floor
New York, New York 10018
By: 	Allan B. Diamond, Esq.
Howard D. Ressler, Esq.
909 Fannin Street, 15th Floor
Houston, Texas 77010
By: 	Mark Jay Krum, Esq.
Christopher R. Murray, Esq. (pro hac vice)
Daniel Meyler, Esq.
JONES & ASSOCIATES
Attorneys for Jochen Terpitz
One Rockefeller Plaza, 10th Floor
New York, New York 10020
By: 	Roland Gary Jones, Esq.
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LAW OFFICES OF ADRIENNE WOODS, P.C.
Attorneys for Jochen Terpitz
One Penn Plaza, Suite 6153
New York, New York
By: 	Adrienne Woods, Esq.
MARTIN GLENN
UNITED STATES BANKRUPTCY JUDGE
Before the Court is Jochen Terpitz’s (“Terpitz”) motion to dismiss (the “Motion,” ECF
Doc. # 13-2)1 the Complaint (the “Complaint,” ECF Doc. # 1) filed by Alan M. Jacobs, as the
Liquidating Trustee for the Dewey & LeBoeuf Liquidation Trust (the “Trustee”).2 Terpitz
argues that the Complaint must be dismissed for lack of personal jurisdiction and, alternatively,
based on forum non conveniens asserting Germany as the adequate alternative forum. The
Trustee filed an opposition to the Motion (the “Opposition,” ECF Doc. # 15),3 and Terpitz filed a
reply (the “Reply,” ECF Doc. # 17). The Court heard argument on December 11, 2014.
Terpitz was a partner in Dewey & LeBoeuf LLP (the “Debtor” or “Dewey”), a limited
liability partnership (“LLP”) registered under the laws of the state of New York. From the time
he became a partner in 2011 until he left the firm in 2012, he was a resident of Germany and
worked solely in Dewey’s Frankfurt, Germany office only for European clients. The Trustee
filed this adversary proceeding against Terpitz to claw back distributions Dewey made to Terpitz
and tax payments made on his behalf pursuant to the firm’s partnership agreement, both on
account of Terpitz’s status as an equity partner in the firm. The challenged transfers allegedly
originated in New York and were made when Dewey was insolvent prior to filing for
bankruptcy.
1 	Unless indicated otherwise, all references to “ECF Doc. # __” are to documents filed on the docket of Adv.
Proc. No. 14-01991.
2 	The Motion is supported by the declaration of Jochen Terpitz (the “Terpitz Decl.,” ECF Doc. # 13-3).
3 	The Opposition is supported by the declaration of Joanne Valentine (the “Valentine Decl.,” ECF Doc. 15-
1), an employee of the Dewey & LeBoeuf Liquidation Trust.
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As explained below, the Court concludes that it has specific jurisdiction over Terpitz and
this Court is the more appropriate forum to adjudicate this case. The Motion is therefore
DENIED in its entirety.
I. 	BACKGROUND
A. 	The Debtor: Dewey & LeBoeuf LLP
Before its bankruptcy filing on May 29, 2012 (the “Petition Date”), Dewey was a
prestigious New York City-based law firm that traced its roots to the 2007 merger of Dewey
Ballantine LLP and LeBoeuf, Lamb, Green & MacCrae LLP. (Compl. ¶¶ 10, 13–14.) Dewey
was a registered LLP under the New York Partnership Law and was governed by the Dewey &
LeBoeuf LLP Partnership Agreement (the “DLPA”), effective as of October 1, 2007, and
amended twice. (Id. ¶¶ 11–12.) At its peak, more than 1,300 lawyers worked at the firm in
numerous domestic and foreign offices. Hundreds of these lawyers—partners and associates
alike—fled shortly before the firm collapsed.
On February 27, 2013, the Court confirmed the Debtor’s second amended chapter 11 plan
of liquidation (the “Confirmed Plan”). (See Chapter 11 Case No. 12-12321, ECF Doc. # 1144.)
Pursuant to the Confirmed Plan, Alan M. Jacobs was appointed as the Trustee. Since his
appointment, he has brought adversary proceedings against former partners and employees of the
Debtor in an effort to claw back transfers made by Dewey while it was insolvent prior to the
bankruptcy filing. This is one of those actions.
B. 	Partnership Compensation
Pursuant to the DLPA, Dewey’s Compensation Committee allocated shares of the firm’s
net profits among the firm’s equity partners. (Id. ¶ 15.) The firm used participation targets to
project a partner’s profits if Dewey achieved its projected net income, or to allocate profits to the
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partner if the firm failed to meet projections. (Id. ¶¶ 15–17.) The Complaint alleges that in early
2008, Dewey adopted participation targets that would require the Debtor to “immediately
perform at a higher level from a fiscal standpoint.” (Id. ¶¶ 18–19.) The Complaint further
submits that Dewey hired new lateral partners who were given high participation targets that “did
not reflect the firm’s economic reality . . . .” (Id. ¶ 20.) As a result of Dewey’s consistent failure
to meet its projected income, the equity partners did not reach their participation targets from
2008 through the Petition Date. (Id. ¶ 21.)
In 2008, the firm missed its projections by approximately $140 million. (Id. ¶ 26.)
Given this failure, in early 2009, Dewey proposed participation targets for 2009 that included
bonuses based on the 2008 shortfall. (Id. ¶ 27.) After the firm fell short of projections in 2009
and 2010, Dewey proposed make-up bonuses in 2010 and 2011 as well. (Id. ¶ 28.) Despite its
intentions, Dewey was never able to make up for its previous compensation shortfalls, even with
the bonuses. (Id. ¶ 29.)
C. 	Terpitz’s Relationship with Dewey
The Complaint alleges that Terpitz was and held himself out to be a partner and equity
interest holder of Dewey from at least February 16, 2011. (Id. ¶¶ 9, 38–39.) The Complaint
further alleges that under the DLPA, Terpitz was required to make certain capital contributions
to Dewey as a partner. (Id. ¶ 40.) The Complaint also alleges that:
Upon information and belief, Defendant is a resident of Germany.
Defendant is an individual who may be served with process by any
manner of service authorized by Rule 7004 of the Federal Rules of
Bankruptcy Procedure.
(Id. ¶ 9.)
By way of declaration, the Trustee provides evidence establishing that: (1) Terpitz was
hired by Dewey, a New York LLP, as a partner in the firm’s Frankfurt, Germany office, via
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Dewey’s Chairman, Steven Davis, who was based in New York (Valentine Decl. Ex. A); (2)
Terpitz’s compensation was set by individuals in Dewey’s New York office (id.); (3) Terpitz
corresponded with David Rodriguez of the New York office regarding tax and capital
contribution obligations Terpitz owed to Dewey on account of his partnership interest in the firm
(id. Exs. B–C); (4) Terpitz worked and corresponded with partners in the New York office in
relation to Dewey’s energy practice (id. Exs. D–E.); and (5) Terpitz corresponded and worked
with partners in the New York office to manage Dewey’s “Global Renewables” practice,
including by suggesting and setting billing rates for the practice and seeking to hire new
associates (id. Exs. F–H).
In his declaration, Terpitz alleges that on February 10, 2011, Philipp von Ilberg, a
representative of Dewey’s Frankfurt branch, gave him a letter signed by Davis, inviting him to
join the Frankfurt office (the “Offer Letter”). (Terpitz Decl. ¶ 3 (citing Ex. A).)4 Terpitz
executed and returned the letter to Mr. von Ilberg in Frankfurt and began working in Dewey’s
Frankfurt office on or about May 13, 2011. (Id.) Terpitz alleges that he severed his involvement
with Dewey on May 15, 2012 and at all relevant times, his principal place of work was Dewey’s
Frankfurt office and none of the cases and projects in which he participated were for any of the
Debtor’s United States (“U.S.”) based clients. (Id. ¶¶ 9–10.) Terpitz further alleges that he does
not solicit business in the U.S., does not have any bank accounts in the U.S., and does not lease
or own any real property in the U.S. (Id. ¶ 11.) Terpitz provides copies of two tax-related
documents: (1) an “Election to Participate in Group Nonresident State Tax Returns New
Elections for 2011” in which Terpitz indicated that he was a resident of Germany, not of any
state in the U.S. where Dewey had an office (id. Ex. B); and (2) an Internal Revenue Service
4 	The Offer Letter submitted as Exhibit A to the Terpitz Declaration is the same document that the Trustee
submitted as Exhibit A to the Valentine Declaration. (Compare Terpitz Decl. Ex. A, with Valentine Decl. Ex. A.)
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Form 8805, which was filed by Dewey on Terpitz’s behalf stating that he is a foreign partner
with a German address (id. Ex. C).
D. 	The Challenged Payments from Dewey to Terpitz
The Trustee seeks to claw back cash distributions Dewey made to or for the benefit of
Terpitz in the amount of $193,106.00 in 2011 and $131,860.00 in 2012. (Id. ¶¶ 41–42.) Under
the DLPA, Dewey also paid at least $78,969 in personal income tax obligations on behalf of
Terpitz that the Trustee seeks to recover. (Id. ¶¶ 43–44.) As a New York LLP, Dewey was a
pass through entity for tax purposes. (Id. ¶ 43.) As such, individual partners, such as Terpitz,
were obligated to pay taxes based on their allocated share of Dewey’s income. (Id.) Dewey
made certain tax payments on behalf of its partners with the expectation of reimbursement, but
Terpitz has not reimbursed Dewey for such payments as of yet. (Id.)
In total, the Trustee seeks judgment against Terpitz in the amount of not less than
$403,936 plus interest, fees, and costs. (Id. ¶ 3.) The Complaint alleges that Dewey made these
transfers from its headquarters in New York. (Id. ¶ 5.)
Terpitz alleges “on information and belief” that he received payments from Dewey’s
German branch, from accounts maintained by Dewey’s Frankfurt office in the German banks
HSBC Tinkaus & Burkhardt AG and Commerzbank AG. (Terpitz Decl. ¶ 7.) Terpitz further
alleges “on information and belief” that the German bank accounts were funded by payments
from clients of Dewey’s German office and did not form part of Dewey’s cash management
system in the U.S. (Id. ¶ 8.)
E. 	The Motion
Terpitz’s Motion to dismiss is based on two grounds. First, Terpitz argues that the Court
does not have personal jurisdiction over him. (Motion at 3–9.) Terpitz asserts that to resolve
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questions of personal jurisdiction, “a district court [] must conduct a two-part inquiry . . . [f]irst,
it must determine whether the plaintiff has shown that the defendant is amenable to service of
process under the forum state’s laws; and second, it must assess whether the court’s assertion of
jurisdiction under these laws comports with the requirements of due process.” (Id. at 4 (quoting
China Nat’l Chartering Corp. v. Pactrans Air & Sea, Inc., 882 F. Supp. 2d 579, 598 (S.D.N.Y.
2012) (citing Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996)
(alteration and internal quotation marks omitted); accord Savin v. Rainer, 898 F.2d 304, 306 (2d
Cir. 1990))).) Terpitz then addresses these two prongs in turn. Terpitz argues that New York
Civil Practice Law and Rules (“CPLR”) sections 301 and 302 control and the Trustee has not
alleged any factual bases for jurisdiction under either provision. (Id. at 4–7.) Terpitz then
asserts that the Trustee fails to establish that Terpitz has sufficient “minimum contacts” with the
U.S. to permit this Court to exercise jurisdiction over him under federal standards. (Id. at 7–9.)
According to Terpitz, he did not “purposefully avail” himself to the laws of the forum state by
way of executing the Offer Letter or receiving funds from Dewey. (Id. at 8.) Terpitz further
contends that there is no “conduct [alleged that can be construed as] purposefully directed at” the
U.S. because Terpitz only worked in Germany for European clients. (Id.) Terpitz asserts that the
receipt of funds from Dewey is insufficient on its own because those funds were paid from
German bank accounts maintained by Dewey’s Frankfurt office, not the New York office. (Id. at
9.)
Second, Terpitz argues that the doctrine of forum non conveniens calls for the dismissal
of the Complaint in favor of litigation in Germany, the proffered alternative forum. (Id. at 9–17.)
Terpitz asserts that the balance of public and private interest factors considered in a forum non
conveniens analysis weigh heavily in favor of dismissing the current action. (Id. at 11–17.)
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In terms of private interests, Terpitz argues that: (1) access to proof would be costly and
cumbersome in New York because evidence (a) concerning the challenged payments to Terpitz
needs to be obtained from German banks and (b) concerning the work that Terpitz performed for
the benefit of Dewey “may have to be obtained from German and other European companies”
beyond the subpoena power of this Court (id. at 12); (2) trial of this action in New York would
potentially require the testimony of foreign witnesses to prove his defenses, who cannot be
compelled to testify by this Court (id. at 12–13); and (3) the cost of bringing witnesses from
Europe to New York is prohibitive (id. at 13). Terpitz further asserts that any judgment by this
Court or any other U.S. court would not be recognizable and enforceable in Germany pursuant to
section 328 paragraph 1 number 1 of the German Code of Civil Procedure, or
Zivilprozessordnung (“ZPO”), since Terpitz does not have property located in New York. (Id. at
14–15 (citing Wolfgang Wurmnest, Recognition and Enforcement of U.S. Money Judgments in
Germany, 23 BERKELEY J. INT’ L LAW 175, 189 (2005); Airflow Catalyst Sys., Inc. v. Huss Techs.
GMBH, No. 11-CV-6012, 2011 WL 5326535, at *7 n.12 (W.D.N.Y. Nov. 3, 2011)).)
As for public interests, Terpitz asserts that: (1) there are several administrative
difficulties that favor trial in Germany, such as (a) New York being “thousands of miles away
from” potential evidence located in Germany and European witnesses who would need to be
convinced, but could not be compelled, to fly to New York to testify (id. at 13–14); (b) the
enforcement of a New York judgment against Terpitz requiring the Trustee to commence a
recognition and enforcement action in Germany that Terpitz submits he will adamantly oppose
(id. at 14–15); (c) any judgment of this Court not being enforceable in Germany (id. at 15); and
(d) the potential submission to the process of the Hague Convention on the Taking of Evidence
Abroad in Civil or Commercial Matters to enforce any necessary subpoenas if any foreign third-
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parties refuse to produce evidence (id. at 15–16); (2) court congestion in New York weighs in
favor of trial in Germany (id. at 14–15); and (3) the core fraudulent conveyance allegation in the
Complaint sounds in breach of contract or unjust enrichment, and presents damages claims that
have been dismissed by courts on forum non conveniens grounds where the alternative forum is
abroad (id. at 16–17). Terpitz further asserts that he believes the Trustee has previously
instructed German counsel to collect money from debtors of the Frankfurt branch and to
represent the Debtor in the secondary insolvency proceedings before the local court of Frankfurt
am Main. (Id. at 16.) Thus, requiring the Trustee to present this case before the German courts
would not present any additional burden. (Id.)
F. 	The Opposition
The Trustee argues that the Court has specific jurisdiction over Terpitz, similar to the
specific jurisdiction the Court held it could exercise over defendant Scott Brodsky; Brodsky’s
motion to dismiss a separate adversary proceeding for lack of personal jurisdiction was denied.
(Id. at 3–5.) See also Order Granting in Part and Denying in Part Defendant’s Motion to
Dismiss, Jacobs v. Brodsky (In re Dewey & LeBoeuf), Adv. Proc. No. 14-01985 (MG) (Bankr.
S.D.N.Y. Oct. 29, 2014), ECF Doc. # 21. The Trustee asserts that the underlying causes of
action arise out of Terpitz’s position as a partner of Dewey, a New York LLP, evincing
purposely directed activities at the U.S. (Id.) The Trustee recites the contacts between Terpitz
and the U.S., namely New York, documented by evidence, asserting that there are certainly
“minimum contacts” sufficient to justify the exercise of this Court’s jurisdiction. (Id. at 4–5.)
The Trustee then argues that the exercise of personal jurisdiction over Terpitz is “reasonable”
because Terpitz knowingly accepted a position as a partner in a New York LLP, making it
foreseeable that he could be haled into a New York court. (Id. at 5.)
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The Trustee also refutes Terpitz’s forum non conveniens argument, asserting that
dismissal is not warranted in this case. (Id. at 5–8.) The Trustee argues that as a domestic
plaintiff, the Trustee’s choice of forum should be afforded great deference. (Id. at 5.) According
to the Trustee, the plaintiff’s choice of forum should be upset only if the defendant can
demonstrate: “(1) that an adequate alternative forum exists; and (2) that, considering relevant
private and public interest factors, the balance of convenience tips strongly in favor of trial in the
alternative forum.” (Id. at 5–6 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981))
(emphasis added).) The Trustee does not dispute that Germany is an “adequate alternative
forum.” (Id. at 6.) The Trustee does dispute, however, Terpitz’s argument that the private and
public interest factors weigh in favor of trying the case in Germany. (Id. at 6.)
In terms of private interests, the Trustee argues that: (1) access to proof in the New York
forum is more convenient than in Germany because nearly all documents and key witnesses
relating to Terpitz’s status as a partner of Dewey are in the Trust’s possession and are located in
the U.S. (id. at 7); (2) there is pending related litigation, namely the Dewey bankruptcy and other
claw back adversary proceedings, in this Court that are “relevant with respect to access to
sources of proof” (id. (quoting Rahl v. Bande, 328 B.R. 387, 406 (S.D.N.Y. 2005))); (3) the key
issue of insolvency in this case is the same remaining controlling issue in the other pending
adversary proceedings and will be decided based on expert testimony, the costs (and other
discovery-related costs) of which Terpitz has the opportunity to split with other claw back
defendants only if the case remains in New York (id.); and (4) the cost to Terpitz for air travel to
New York should be given minimal weight (id. (citing Rahl, 328 B.R. at 407)). The Trustee also
argues that the enforceability of a U.S. judgment in German courts is unclear, but this factor
alone does not warrant dismissal. (Id. at 7–8 n.4 (citing Great N. Ins. Co. v. Constab Polymer-
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Chemie GmbH & Co., No. 5:01-CV-0882, 2007 WL 2891981, at *13 (N.D.N.Y. Sept. 28,
2007)).)
As for public interests, the Trustee argues that: (1) this Court has the resources to
adjudicate complex litigation (id. at 8 (citing Rahl, 328 B.R. at 408)); (2) this case is centered in
New York because Dewey was a New York LLP, the firm was managed in New York, and the
firm’s bankruptcy is being adjudicated in New York (id.); (3) U.S. bankruptcy law, Second
Circuit precedent, and New York law are the applicable laws in this case, not German law (id.);
and (4) the last two public interest factors are inapplicable because there are no conflict of laws
issues in this case and Terpitz has not requested a jury trial (id.).
G. 	The Reply
Terpitz reaffirms his personal jurisdiction argument first by asserting that the Trustee’s
reliance on the Court’s prior decision in Brodsky is misplaced because it is distinguishable.
(Reply at 1–5). According to Terpitz, the Brodsky case is inapposite because: (1) Terpitz had no
authority to hire or fire associates and was subordinate to the actions of the “local policy
committee” (id. at 2–3); (2) Terpitz’s compensation was not dependent on his foreign office’s
income (id. at 3–4); and (3) Terpitz did not render any work to any of Dewey’s U.S. clients (id.
at 4–5). Terpitz then asserts that his contacts with Dewey are insufficient to fulfill the
“minimum contacts” requirement for this Court’s exercise of jurisdiction over him. (Id. at 5–8.)
Terpitz argues that the contacts between Dewey and Terpitz were created by Dewey and are
therefore insufficient to establish personal jurisdiction—contacts must be those that the
defendant initiates. (Id. at 6–7.) Terpitz further argues that the Trustee’s evidence is insufficient
to show the presence of other contacts between Terpitz and the U.S. apart from Dewey. (Id. at
7–8.) According to Terpitz, each of the emails the Trustee provided, despite being between
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Terpitz and New York-based partners, did not discuss U.S. projects or relate to U.S. clients. (Id.
at 5 n.7–10.)
Finally, Terpitz argues in the alternative that limited jurisdictional discovery may be
appropriate in this case to resolve the question of whether sufficient contacts exist between
Terpitz and the U.S. for this Court to exercise personal jurisdiction. (Id. at 9–10.) Terpitz does
not address his forum non conveniens argument in his Reply.
II. 	DISCUSSION
A. 	Personal Jurisdiction
On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2), a plaintiff bears
the burden of making a prima facie showing “through its own affidavits and supporting
materials” that personal jurisdiction exists. Picard v. Cohmad Sec. Corp. (In re Bernard L.
Madoff Inv. Sec. LLC), 418 B.R. 75, 79 (Bankr. S.D.N.Y. 2009) (citing Marine Midland Bank,
N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981)); see also Robertson Ceco Corp., 84 F.3d at 566
(“[T]he plaintiff bears the burden of showing that the court has jurisdiction over the defendant.”).
When the issue of personal jurisdiction is addressed, as it is here, on affidavits or declarations,
“all allegations are construed in the light most favorable to the plaintiff and doubts are resolved
in the plaintiff’s favor, notwithstanding a controverting presentation by the moving party.” A.I.
Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79–80 (2d Cir. 1993) (citing Hoffritz for Cutlery,
Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir. 1985); Ball v. Metallurgie Hoboken-Overpelt, S.A.,
902 F.2d 194, 196–98 (2d Cir. 1990) (discussing procedure for challenging personal
jurisdiction)).
If a foreign defendant has not consented to jurisdiction by filing a proof of claim in the
bankruptcy case, the plaintiff must demonstrate that “the foreign defendant has the requisite
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minimum contacts with the U.S. at large” to satisfy the due process clause of the Fifth
Amendment.5 Picard, 418 B.R. at 79–80 (internal quotation marks and citations omitted). The
court must also determine whether exercising personal jurisdiction over the foreign defendant
would be “reasonable” such that it would not offend “traditional notions of fair play and
substantial justice.” Asahi Metal Indus. Co., Ltd. v. Super. Ct. Cal., Solano Cnty., 480 U.S. 102,
113 (1987); Robertson-Ceco Corp., 84 F.3d at 568.
Two theories support a court exercising personal jurisdiction—general jurisdiction or
specific jurisdiction. See Daimler AG v. Bauman, 134 S. Ct. 746, 754–56 (2014); Waldman v,
Fiore, 134 S. Ct. 1115, 1121 n.6 (2014). Here, the Trustee only seeks to base personal
jurisdiction on specific jurisdiction so that is the only basis for personal jurisdiction addressed by
the Court.
The Supreme Court in Waldman recently addressed the standards for exercising specific
jurisdiction. The Court explained the applicable principles as follows:
This case addresses the minimum contacts necessary to
create specific jurisdiction. 	The inquiry whether a forum State
may assert 	specific jurisdiction 	over 	a 	nonresident 	defendant
focuses on the relationship among the defendant, the forum, and
the litigation. 	For a State to exercise jurisdiction consistent with
due process, the defendant’s suit-related conduct must create a
substantial connection with the forum State. 	Two related aspects
of this necessary relationship are relevant in this case.
First, the relationship must arise out of contacts that the
defendant himself creates with the forum State. Due process limits
on the State’s adjudicative authority principally protect the liberty
of the nonresident defendant—not the convenience of plaintiffs or
5 	Terpitz’s initial focus on New York’s long-arm statute and the CPLR is misplaced. “Personal jurisdiction
is based on Bankruptcy Rule 7004(a), which applies to all core and non-core cases in bankruptcy court, even if
reference is withdrawn, because jurisdiction is derived from the Bankruptcy Code and not as a result of diversity of
jurisdiction or some non-bankruptcy federal source.” J.T. Moran Fin. Corp. v. Am. Consol. Fin. Corp. (In re J.T.
Moran Fin. Corp.), 124 B.R. 931, 944 (S.D.N.Y. 1991) (“[T]he district court need not reexamine the basis for
personal jurisdiction over the defendants in the context of the long-arm provisions expressed in New York C.P.L.R.
§ 302(a)(1).”).
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third parties. We have consistently rejected attempts to satisfy the
defendant-focused minimum contacts inquiry by demonstrating
contacts between the plaintiff (or third parties) and the forum State.
. . . .
Second, 	our 	minimum 	contacts 	analysis 	looks 	to 	the
defendant’s 	contacts 	with 	the 	forum 	State 	itself, 	not 	the
defendant’s contacts with persons who reside there. 	Accordingly,
we have upheld the assertion of jurisdiction over defendants who
have 	purposefully reach[ed] 	out 	beyond 	their 	State 	and 	into
another by, for example, entering a contractual relationship that
envisioned continuing and wide-reaching contacts in the forum
State . . . . 	And although physical presence in the forum is not a
prerequisite to jurisdiction, physical entry into the State—either by
the defendant in person or through an agent, goods, mail, or some
other means—is certainly a relevant contact.
But the plaintiff cannot be the only link between the
defendant and the forum. Rather, it is the defendant’s conduct that
must form the necessary connection with the forum State that is the
basis for its jurisdiction over him. 	To be sure, a defendant’s
contacts 	with 	the 	forum 	State 	may 	be 	intertwined 	with 	his
transactions or interactions with the plaintiff or other parties. But a
defendant’s relationship with a plaintiff or third party, standing
alone, is an insufficient basis for jurisdiction. Due process requires
that a defendant be haled into court in a forum State based on his
own affiliation with the State, not based on the random, fortuitous,
or attenuated contacts he makes by interacting with other persons
affiliated with the State.
Waldman, 134 S. Ct. at 1122–23 (internal quotation marks and citations omitted).
The Complaint and the evidence submitted by the Trustee in opposition to the Motion,
which should be accepted as true for purposes of the Motion, establish a prima facie basis for the
Court to exercise specific jurisdiction over Terpitz at this stage of the case. The Complaint
alleges that Terpitz became a partner of Dewey, a New York LLP, by signing the Offer Letter
issued by Dewey’s New York office (Compl. ¶¶ 5, 9, 38–39), Terpitz was required to make
certain capital contributions to Dewey pursuant to the DLPA (id. ¶ 40), Dewey paid distributions
to Terpitz and made certain tax payments for Terpitz on account of his partnership interest (id.
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¶¶ 41–44), and the payments to Terpitz were made by Dewey from its headquarters in New York
(id. ¶ 5).
The Trustee, as well as Terpitz, submitted the Offer Letter as evidence supporting their
respective arguments. (See Valentine Decl. Ex. A; Terpitz Decl. Ex. A.) The Offer Letter states
in pertinent part:
We are pleased to offer you the opportunity to join Dewey
& LeBoeuf LLP (the “Firm”) as a partner in our Corporate
Department resident in the Frankfurt office. . . . Your admission as
partner shall be governed by the terms set forth in the Firm’s
Partnership Agreement dated October 1, 2007, as amended, April
12, 2010 (the “Agreement”). . . .
Your initial Participation Target shall be at the annual rate
of 	400,000 	for 	2011, 	assuming 	that 	you 	fulfill 	the 	normal
expectation of a partner by devoting your full time and attention to
the practice of law and partnership activities for the Firm. 	Your
Participation Target is divided into two components: 	(i) a draw
paid monthly at a rate of 240,000 annually; and (ii) an excess
target over draw (“Distribution(s)”) payable from time to time as
warranted by the Firm’s cash flow. 	Your Participation Target for
2011 shall be prorated based upon the actual number of days from
your Start Date through December 31, 2011.
Your 2012 Participation Target shall be established based
upon your contributions to the Firm and its clients as determined
by the Firm’s Executive Committee.
As a partner in the Firm, your compensation may be subject
to tax in any jurisdiction in which the Firm maintains an office,
depending upon your individual circumstances. . . .
As a partner you will be required to contribute capital to the
Firm (the “Capital Contribution”). . . . At your election, you may
pay the Firm directly, have it deducted proportionately from your
draws and distributions over the course of the year in which you
join the Firm, or utilize the optional loan program the Firm has
negotiated. . . . If you are interested in exploring the loan program,
please contact David Rodriguez [the Firm’s Partner Relations
Specialist].
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(Valentine Decl. Ex. A; Terpitz Decl. Ex. A.) At the bottom of the letterhead of the Offer Letter,
it states that “Dewey & LeBoeuf LLP is a New York Limited Liability Partnership.” (Id.)
Terpitz does not dispute, and his counsel conceded, that Terpitz was a partner in Dewey,
the New York LLP. (Dec. 11, 2014 Hrg. Tr. 15:3–17, ECF Doc. # 18.) Rather, Terpitz disputes
the extent of his partner status, asserting that he had an individualized compensation agreement
with Dewey, much like an annual salary and unlike a typical partner’s share in the partnership’s
profits. (Id. 21:8–24:14.) Terpitz’s counsel provided the Offer Letter in support of this argument
at the hearing, opining that the terms regarding participation targets for 2011 and 2012 in the
Offer Letter were individualized. (See id.) The Court disagrees. The actual language of the
Offer Letter in conjunction with the allegations in the Complaint regarding partner compensation
under the DLPA completely undermines this assertion. (See Compl. ¶¶ 15–21.) The Offer
Letter clearly establishes that Terpitz was a partner in the New York LLP, submitted to the
partnership’s governing document—the DLPA—and was compensated as a partner through a
share of the profits with a set participation target, not through an annual salary. (Terpitz Decl.
Ex. A; Valentine Decl. Ex. A.) By executing that Offer Letter, Terpitz agreed to become a
partner in the New York LLP and in turn agreed to submit to the laws of New York, which
govern the DLPA. (Terpitz Decl. Ex. A; see Comp. ¶¶ 10–12.) See also Rahl, 328 B.R. at 401
(“It is well-settled that where a choice of law provision is expressly set forth in an agreement, it
is presumed to be the parties’ intent, and New York courts will enforce it.”). This submission
coupled with Terpitz’s correspondence with Rodriguez, specifically relating to Terpitz’s
compensation and tax withholdings (id. Exs. A–C)—the payment of which from 2011 through
2012 is specifically at issue in this case (see Compl. ¶¶ 41–44)—establish that Terpitz knew, or
should have had reason to know, that such correspondence and resulting payments could confer
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personal jurisdiction over him in New York, see Burger King Corp. v. Rudzewicz, 471 U.S. 462,
472 (1985) (concluding that specific personal jurisdiction exists where a foreign defendant
“purposefully direct[s] his activities at residents of the forum,” and the underlying cause of
action “arise[s] out of or relate[s] to those activities”).
Terpitz fails to rebut this knowledge and instead focuses on his contacts with and the
challenged payments’ connection to Germany. First, Terpitz emphasizes that he is a resident of
Germany who only worked in Dewey’s Frankfurt office for European clients. (Terpitz Decl.
¶¶ 2–6, 10–11.) Terpitz also submits tax forms that state he is a German resident and worked in
Dewey’s Frankfurt office. (Terpitz Decl. Exs. B–C.) The Trustee does not dispute these facts
and does not need to—these allegations and documentary evidence do not speak to the Trustee’s
allegations and evidence establishing specific jurisdiction, let alone provide a “controverting
presentation.” A.I. Trade Fin., Inc., 989 F.2d at 79–80 (concluding that questions of fact or
“doubts are to be resolved in the plaintiff’s favor, notwithstanding a controverting presentation
by the moving party”) (citations omitted).
Second, Terpitz testifies that “on information and belief” the payments challenged in the
Complaint were made from Dewey’s German bank accounts to his personal German bank
accounts and did not pass through New York. (Terpitz Decl. ¶ 7.) Terpitz does not provide any
evidence in support of this allegation and the Trustee correspondingly does not provide
documentary evidence proving that the transfers were made from Dewey’s New York bank
accounts. The Complaint alleges, however, that the payments were made from Dewey’s
headquarters in New York. (Compl. ¶ 5.) At the hearing, the Trustee also represented that the
transfers, though they did pass through German bank accounts, originated in and were wired
from Dewey’s New York bank accounts. (Dec. 11, 2014 Hrg. Tr. 26:19–27:2 (“[T]he money
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that went to the Frankfurt office was wired from New York. The amounts that partners in
Frankfurt were paid were controlled by the debtor’s accounting staff and the debtor’s finance
staff in New York. [Terpitz’s] money came locally from a local German bank, but in that bank,
it came from New York.”).) Given that the allegations in the Complaint are to be taken as true
and “doubts are to be resolved in the plaintiff’s favor,” see A.I. Trade Fin., Inc., 989 F.2d at 79–
80, the Trustee plausibly establishes at this stage of the case that the challenged payments have at
least some connection to New York.
The fraudulent transfer claims asserted against Terpitz, alleging that he was an equity
partner in the New York LLP, seeking to recover transfers and payments of tax withholdings that
he allegedly received while Dewey was insolvent, specifically relate to Terpitz’s alleged forum-
related conduct, i.e., his execution of a New York LLP’s partnership agreement governed by
New York law, acceptance of a position as an equity partner in that LLP, and receipt of transfers
derived from that LLP’s New York office. It is Terpitz’s alleged conduct that forms the
connection with the forum and satisfies the requirements for the exercise of specific jurisdiction.
See Waldman, 134 S. Ct. at 1123 (“[I]t is the defendant’s conduct that must form the necessary
connection with the forum State that is the basis for its jurisdiction over him.”).
The Court concludes that the exercise of personal jurisdiction over Terpitz in this
fraudulent transfer action is “reasonable.” Picard, 418 B.R. at 81–82 (finding personal
jurisdiction over foreign defendant was reasonable because the U.S. has a “strong interest” in a
fraudulent transfer action under the Bankruptcy Code).
The Motion to dismiss for lack of personal jurisdiction is therefore DENIED.
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B. 	Forum Non Conveniens
Terpitz also moves to dismiss the Complaint on grounds of forum non conveniens,
asserting that Germany is the more appropriate forum. (Motion at 9–17.) The doctrine of forum
non conveniens “is a discretionary device permitting a court in rare instances to ‘dismiss a claim
even if the court is a permissible venue with proper jurisdiction over the claim.’” Wiwa v. Royal
Dutch Petroleum Co., 226 F.3d 88, 100 (2d Cir. 2000) (citation omitted). The Second Circuit
has articulated a two-step process for evaluating a motion to dismiss on these grounds: the court
must first determine whether an adequate alternative forum exists, and if so, the court must then
balance a series of private and public interest factors set forth in Gulf Oil Corp. v. Gilbert, 330
U.S. 501 (1947). Wiwa, 226 F.3d at 100. The defendant bears the burden of establishing both
that an adequate forum exists and that “the pertinent factors ‘tilt[] strongly in favor of trial in the
foreign forum.’” Id. (citation omitted). The Court may consider pleadings, affidavits, and
exhibits in making its determination. Airflow Catalyst Sys., 2011 WL 5326535, at *1 n.2 (citing
Kitaru Innovations, Inc. v. Chandaria, 698 F. Supp. 2d 386, 389 (S.D.N.Y. 2010) (“In
considering Defendant’s motion to dismiss on . . . forum non conveniens grounds, this Court
may consider affidavits, affirmations and exhibits submitted in connection with the motion.”)
(citation omitted)).
The Supreme Court has articulated that
a plaintiff’s choice of forum should rarely be disturbed. However,
when an alternative forum has jurisdiction to hear the case, and
when trial in the chosen forum would ‘establish . . . oppressiveness
and vexation to a defendant . . . out of all proportion to plaintiff’s
convenience,’ 	or 	when 	the 	‘chosen 	forum 	[is] 	inappropriate
because of considerations affecting the court’s own administrative
and legal problems,’ a court may, in the exercise of its sound
discretion, dismiss the case.
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Piper Aircraft Co., 454 U.S. at 241 (quoting Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518,
524 (1947)). Thus, “[a]bsent proof that plaintiff’s choice of a U.S. forum was motivated by
forum-shopping reasons, factors relating to convenience or expense generally weigh heavily in
favor of the plaintiff’s choice.” Rahl, 328 B.R. at 411–12. But the plaintiff’s choice of forum is
not dispositive.
Here, the parties agree that Germany is an “adequate alternative forum” to try the case.
(See Motion at 10–11; Opp. at 6 (citing JW Oilfield Equip., LLC v. Commerzbank AG, 764 F.
Supp. 2d 587, 598 (S.D.N.Y. 2011) (assuming Germany is an adequate alternative forum).) See
also Airflow Catalyst Sys., Inc., 2011 WL 5326535, at *5 (concluding that Germany is an
adequate alternative forum where plaintiff did not dispute the issue).
The Court’s analysis then turns on whether Terpitz has met his burden in establishing that
the Gilbert factors weigh “strongly” in favor of dismissing the case. See Wiwa, 226 F.3d at 100.
The Gilbert factors fall within two categories: (1) private interests of the litigants; and (2) public
interests. Gilbert, 330 U.S. at 508–09.
The private interest factors include:
1. 	the relative ease of access to sources of proof;
2. 	the availability of compulsory process for attendance of unwilling witnesses;
3. 	the cost of obtaining attendance of willing witnesses;
4. 	issues concerning the enforceability of a judgment; and
5. 	all other practical problems that make trial of a case easy, expeditious, and
inexpensive.
Id. In assessing the private interest factors, “courts should examine the specifics of the claims:
rather than simply characterizing the case as one in negligence, contract, or some other area of
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law, the court should focus on the precise issues that are likely to be actually tried.” Airflow
Catalyst Sys., Inc., 2011 WL 5326535, at *4. Here, Terpitz fails to establish that the five private
interest factors weigh in favor of dismissing the case.
First, although the parties dispute the location of the relevant documents and necessary
witnesses, factor one more strongly favors the Trustee since the Trustee’s documents are located
in the U.S., see id. at *7 (“[T]he Court finds that [the first two private interest factors] do not
strongly favor Defendant, since Plaintiff’s documents and witnesses are located here.”), and
there are similar and related adversary proceedings pending in this Court, see Rahl, 328 B.R. at
406 (related litigation is relevant to private interest factor one though not controlling on its own).
To the extent documents for Terpitz’s defense or otherwise are located outside of the U.S.,
“absent an explanation by [the defendant] as to ‘how transporting the documents or copies of
them would be “oppressive” or “vexatious,”’ less weight should be accorded to factor one in
determining whether the existing alternative forum is more appropriate.” Rahl, 328 B.R. at 406
(citation omitted). Terpitz did not provide such an explanation thereby failing to demonstrate
that factor one weighs in his favor.
Second, Terpitz argues under factor two that there are foreign witnesses necessary for his
defense, who may be unwilling, but cannot be compelled, to testify in New York by this Court.
(Motion at 12–13.) Terpitz argues that as a result, he would potentially be forced to rely solely
on depositions in proving his defense, which has been held as insufficient. (Id. at 13 (citing
Gilbert, 330 U.S. at 511 (“To fix the place of trial at a point where litigants cannot compel
personal attendance of witnesses and may be forced to try their cases by deposition, is to create a
condition not satisfactory to court, jury, or mots litigants.”)).) Although Terpitz may be correct
about the Court’s authority to compel the foreign witnesses to testify, factor two does not weigh
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strongly in either party’s favor. Dismissing the New York case and forcing the Trustee to go to
Germany with his U.S.-based witnesses would be equally inconvenient. See Wiwa, 226 F.3d at
107 (“The additional cost and inconvenience to the defendants of litigating in New York is fully
counterbalanced by the cost and inconvenience to the plaintiffs of requiring them to reinstitute
litigation in England.”). Terpitz also ignores this Court’s prior holding that a partner in Dewey is
not entitled to a “fair consideration” defense to a New York Debtor and Creditor Law section
277 claim seeking to claw back partner distributions made under the DLPA. Jacobs v. Altorelli
(In re Dewey & LeBoeuf LLP), 518 B.R. 766, 778–84 (Bankr. S.D.N.Y. 2014). Count IV of the
Complaint asserts a section 277 claim. (Compl. ¶¶ 75–84.) Consequently, Terpitz may not need
his foreign witnesses because he may not in fact have an affirmative defense to prove.
Third, Terpitz fails to establish that the cost of flying willing foreign witnesses to New
York to testify would be “prohibitive” such that factor three weighs in his favor. (See Motion at
13.) See also Rahl, 328 B.R. at 407 (“[I]n light of the realities of modern transportation and
communications . . . [a] forum is not necessarily inconvenient because of its distance from
pertinent parties or places if it is readily accessible in a few hours of air travel.”). Terpitz also
overlooks the fact that both parties have attorneys located in New York. See JW Oilfield Equip.,
LLC, 764 F. Supp. 2d at 599 (concluding that “parties all hav[ing] attorneys based in New York”
to be relevant to private interest factors).
Fourth, Terpitz does not sufficiently establish that this Court’s judgment would not be
enforceable in Germany. (Motion at 14–15 (citing Wurmnest, 23 BERKELEY J. INT’ L LAW at
189; Airflow Catalyst Sys., Inc., 2011 WL 5326535, at *7 n.12).) The very case on which
Terpitz relies holds that the mere argument that there is a “risk” or “possibility that a German
court might not enforce any judgment which this Court issues [is not] a strong showing that this
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factor warrants dismissing the case.” Airflow Catalyst Sys., Inc., 2011 WL 5326535, at *7 &
n.12 (denying motion to dismiss on forum non conveniens grounds where defendant argued that
any judgment of the New York court may be unenforceable in Germany). At least one court has
held that the enforceability of this Court’s judgment in Germany is not necessarily nil. See Great
N. Ins. Co., 2007 WL 2891981, at *13.
Finally, the fifth factor regarding the practicalities of litigation in one forum over the
other weighs in favor of this Court. Although the Dewey bankruptcy and creation of the
Liquidating Trust in New York is irrelevant to the forum non conveniens analysis because the
bankruptcy is not presently at issue, Rahl, 328 B.R. at 408, “that discovery in this case can be
coordinated with discovery” in the other pending claw back proceedings is relevant, id. at 407,
412. Coordination of discovery “will reduce the potential for inconsistent adjudications and
allow for more efficient, non-duplicative discovery than would be possible if the [] litigations
were allowed to proceed in separate fora.” Id.
On balance, Terpitz fails to satisfy his burden that the private interest factors weigh
strongly in his favor.
Turning to the public interests, these factors include:
1. 	the administrative difficulties flowing from court congestion;
2. 	the local interest in having controversies decided at home;
3. 	the interest in having a trial in a forum that is familiar with the law governing the
action;
4. 	the avoidance of unnecessary problems in conflict of laws or in the application of
foreign law; and
5. 	the unfairness of burdening citizens in an unrelated forum with jury duty.
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Gilbert, 330 U.S. at 508–09. Terpitz again fails to meet his burden.
First, “it is well-established that the Southern District of New York has the resources to
adjudicate complex litigation.” Rahl, 328 B.R. at 408 (internal citation omitted). Terpitz’s
argument that this Court is too congested to handle this case is therefore unpersuasive. (See
Motion at 14–15.) Although Terpitz asserts several administrative difficulties relating to the
need for foreign witnesses and documents located abroad (id. at 13–16), these and similar
arguments were already addressed under the private interest factors and do not appear to tilt the
balance in favor of trying the case in Germany. The case would have the same administrative
difficulties if it were tried in Germany due to the need for U.S.-based evidence and witnesses.
See Wiwa, 226 F.3d at 107. Factor one does not weigh in Terpitz’s favor.
Second, Terpitz did not adequately assert that there is a local interest in Germany
favoring resolution of the case there. Terpitz merely asserts that other cases with similar causes
of action brought by U.S. plaintiffs seeking damages have been dismissed in favor of forums
abroad. (Motion at 16–17 (citing In re Alcon Shareholder Litig., 719 F. Supp. 2d 263 (S.D.N.Y.
2010); Sussman v. Bank of Israel, 801 F. Supp. 1068 (S.D.N.Y. 1992); In re Optimal U.S. Litig.,
837 F. Supp. 2d 244 (S.D.N.Y. 2011)).) While these cases support the authority of this Court to
dismiss damages actions on forum non conveniens grounds, they do not necessarily support the
dismissal of the instant case. Here, New York has a greater local interest in seeing this case
resolved because Terpitz was a partner in Dewey, a New York LLP (Valentine Decl. Ex. A;
Terpitz Decl. Ex. A), who received payments that originated in Dewey’s New York headquarters
(Compl. ¶ 5), and who contacted individuals in the New York office to discuss such payments
(Valentine Decl. Exs. A–C). That Dewey’s bankruptcy proceeding and related litigation remain
pending in this Court also weighs on the second public interest factor. Indeed, the real parties in
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interest in this adversary proceeding are the creditors who filed proofs of claim in the bankruptcy
case because the Trustee has brought this action on behalf of the Debtor’s creditors pursuant to
the powers conferred upon him by the Bankruptcy Code. See 11 U.S.C. § 544; see also Piper
Aircraft Co., 454 U.S. at 242 (concluding that where “[t]he real parties in interest were citizens”
of the alternative forum, the public interest factors weighed in favor of trial in that forum).
Terpitz also fails to establish that the third, fourth, and fifth public interest factors weigh
in his favor. The first two of these factors focus on the applicable law. Terpitz does not dispute
the fact that U.S. bankruptcy law and New York state law apply to this action. This forum is
therefore more familiar with the applicable law than the German forum and there is no conflict of
law issue or the risk of having to apply foreign law in this Court. Consequently, there is no risk
of burdening U.S. citizens with jury duty should Terpitz elect a jury trial because this Court is
not an “unrelated forum.”
Terpitz fails to demonstrate that the public interest factors weigh in his favor and further
fails to meet his burden overall in proving forum non conveniens. Terpitz’s Motion to dismiss
on forum non conveniens grounds is DENIED.
III. 	CONCLUSION
For the reasons stated above, the Motion to dismiss the Complaint is DENIED.
IT IS SO ORDERED.
Dated: December 22, 2014
New York, New York
_____Martin Glenn____________
MARTIN GLENN
United States Bankruptcy Judge
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