GIBSON DUNN
May 15, 2013
VIA OVERNIGHT COURIER
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166-0193
Tel 212.351.4000
www.gibsondunn.com
Robert F. Serio
Direct: +1 212.351.3917
Fax: +1 212.351.5246
RSerio@gibsondunn.com
Client: 04979-00001
The Honorable Andrew W. Klein
Chief Clerk and Legal Counsel to the Court
State of New York Court of Appeals
20 Eagle Street
Albany, New York 12207
Re: Mashreqbank PSC v. Ahmed Hamad Al Gosaibi & Bros. Co.
and
Ahmed Hamad Al Gosaibi & Bros. Co. v. Maan Abdulwaheed Al-Sanea,
No. APL-2013-00007
Dear Mr. Klein:
Third-Party Defendant-Appellant Maan Abdul Wahed Al-Sanea ("Mr. Al-
Sanea") respectfully submits this letter pursuant to Rule of Practice 500.11(e) and
requests that the Court accept this submission in further support of his appeal in
this action, which the Court, on its own motion, has designated for alternative
review pursuant to Rule of Practice 500.11. In its opposition papers, Defendant-
Third-Party Plaintiff-Respondent Ahmad Hamad Algosaibi & Bros. Co.
("AHAB") raises new issues about Mr. Al-Sanea's appellate standing and
introduces a number of factual distortions, misrepresentations, and errors that
warrant response and clarification.' This reply brief endeavors to provide it.
For the reasons explained here, in Mr. Al-Sanea's opening letter submission
dated April 8, 2013, and in his papers submitted below, the Decision and Order of
the Appellate Division should be reversed, and this action should be remanded
Mr. Al-Sanea's opening letter brief in this Court is referred to herein as "Br." AHAB's letter
in opposition to Mr. Al-Sanea's opening brief is referred to as "Opp. to Sanea." AHAB's
letter in opposition to the opening brief of Plaintiff-Appellant Mashreqbank PSC is referred
to as "Opp. to Mashreq." AHAB's opening brief in the Appellate Division is referred to as
"AHAB App. Div. Br." Mr. Al-Sanea's opposition brief in the Appellate Division is referred
to as "Al-Sanea App. Div. Br."
Brussels Century City Dallas Denver Dubai Hong Kong London Los Angeles Munich New York
Orange County Palo Alto Paris San Francisco Sao Paulo Singapore Washington, D.C.
GIBSON DUNN
The Honorable Andrew W. Klein
May 15, 2013
Page 2 of 10
with directions to reinstate the judgment of dismissal entered on August 11, 2010
or, at a minimum, to enter a judgment dismissing AHAB's third-party complaint.
PRELIMINARY STATEMENT
AHAB's opposition briefs in this Court are only the latest in its persistent
course of self-serving reversals of position, disingenuous descriptions of both the
trial court proceedings below and the law that governs them, and calculated
mischaracterizations of its own allegations-all in an effort to avoid a single,
inescapable fact: that the claims AHAB pleaded against Mr. Al-Sanea are, on their
own terms, centered in Saudi Arabia, not New York. AHAB has shown itself
willing to advance any spurious contention that might plug the leaks in its New
York case enough to keep it afloat.
Among other things, AHAB now resorts to the baseless contention that Mr.
Al-Sanea lacks appellate standing to challenge the reinstatement of the underlying
lawsuit that gave rise to AHAB' s third-party claims against him even though the
Clerk of this Court neither sought nor was persuaded by AHAB's position on that
issue, and even though the law squarely refutes it. There is no question that Mr.
Al-Sanea has standing to pursue this appeal in its entirety, nor is there any question
that the trial court's dismissal of this case should have been affirmed.
Any honest assessment of the facts pertinent to this case compels dismissal
on forum non conveniens grounds. Put simply, this case has no business being
litigated in New York, just as many other cases with only tangential connections to
this state have no business being litigated here because, even if "jurisdictionally
sound," they "would be better adjudicated elsewhere." Islamic Republic of Iran v.
Pahlavi, 62 N.Y.2d 474, 479 (1984). If affirmed, the Appellate Division's sharply
divided decision below would substantially undermine this Court's forum non
conveniens precedents by requiring adjudication in New York whenever
"jurisdiction[]" is predicated on the ministerial involvement of New York's
banking system, regardless of where the material facts at issue transpired and,
thus, regardless of where the case is "better adjudicated." Id That decision was
manifestly erroneous, and nothing in AHAB's opposition papers can save it.
GIBSON DUNN
The Honorable Andrew W. Klein
May 15, 2013
Page 3 of 10
ARGUMENT
I. Mr. Al-Sanea Has Standing to Raise All the Issues in This Appeal
AHAB's eleventh-hour attempt to challenge Mr. Al-Sanea's appellate
standing-which it never bothered to raise in opposing his motion for leave to
appeal-is unfounded lawyer makeweight that this Court should summarily
disregard. AHAB disingenuously argues that Mr. Al-Sanea is not "aggrieved" by
the "disposition of the first-party action," and so has no standing to appeal it, Opp.
to Mashreq at 10, even though it argued precisely the opposite below: that
dismissal of the claims against Mr. Al-Sanea depends on "disposition of the first-
party action," id. See AHAB App. Div. Br. at 21-22. This patent gamesmanship
should be rejected for multiple reasons.2
First, AHAB claims that Mr. Al-Sanea is not aggrieved by reinstatement of
the first-party proceedings because he "is not a party to the first-party claims,"
Opp. to Mashreq at 9, but that contention is refuted by the plain language of the
CPLR, which provides that a "third-party defendant shall have the rights of a party
adverse to the other parties in the action, including the right to counter-claim,
cross-claim and appeal." CPLR 1008. Indeed, the first-party and third-party
proceedings are not even separate "actions," as AHAB's argument assumes; rather,
"it has been held that the third-party proceeding 'is not separate' from the
plaintiff's original action." Reese v. Harper Surface Finishing Sys., 129 A.D.2d
159, 164 (2d Dep't 1987) (quoting Rogowski v. Royce W. Day Co., 130 Misc. 2d
801, 802 (Sup. Ct. Albany Cnty. 1986)).
Second, AHAB baldly-and falsely-claims that Mr. Al-Sanea could not be
"aggrieved by any disposition of the first-party action." Opp. to Mashreq at 10.
2 AHAB already raised all of its standing arguments in connection with a jurisdictional inquiry
by the Clerk's office, and the Clerk was not persuaded to act on them. See Letter from Court
of Appeals to Parties dated Jan. 25, 2013 (initiating inquiry); Letter from Court of Appeals to
Parties dated Mar. 12, 2013 (terminating inquiry). Both Mr. Al-Sanea and Mashreqbank
clearly have standing for all of the reasons stated in the parties' jurisdictional letters, which
Mr. Al-Sanea incorporates by reference herein. See Letter from Mashreqbank to Court of
Appeals dated Jan. 31, 2013; Letter from Maan Abdul Wahed Al-Sanea to Court of Appeals
dated Feb. 15, 2013.
GIBSON DUNN
The Honorable Andrew W. Klein
May 15, 2013
Page 4 of 10
That claim is inconsistent with both the facts of this case and the very nature of
third-party practice-the sine qua non of which is a claim by a defendant against
"a person not a party who is or may be liable to that defendant for all or part of the
plaintiff's claim against that defendant."3 CPLR 1007 (emphasis added). "[T]he
liability sought to be imposed upon a third-party defendant must arise from or be
conditioned upon the liability asserted against the third-party plaintiff in the main
action." BBIG Realty Corp. v. Ginsberg, 111 A.D.2d 91, 93 (1st Dep't 1985)
(emphasis added). Thus, the dismissal or reinstatement of the first-party claims in
this case necessarily impacts Mr. Al-Sanea's interests, because his potential
liability to AHAB as a third-party defendant is premised on the notion that AHAB
may be held liable on Mashreq's first-party claims. In fact, courts routinely hold
that third-party claims should be dismissed in cases where a defendant/third-party
plaintiff succeeds in defeating the plaintiff's first-party claims. See, e.g., Langan v.
Cabela, 289 A.D.2d 377, 378 (2d Dep't 2001); DeLuca v. Lett, 173 A.D.2d 760,
762-63 (2d Dep't 1991).
AHAB cites to Duffy v. Horton Memorial Hospital, 66 N.Y.2d 473 (1985)
(cited at Opp. to Mashreq at 10), but that case provides no support for its argument.
The Duffy Court found that a defendant/third-party plaintiff lacked standing as an
aggrieved party to appeal from the dismissal of a claim that the plaintiff had
asserted directly against the third-party defendant (pursuant to CPLR 1009). Id. at
475 & nn.2-3. That circumstance-which involved a claim between the plaintiff
and the third-party defendant that could not possibly affect the rights of the
defendant/third-party plaintiff-differs starkly from cases such as this, in which a
third-party defendant seeks to appeal from a ruling on the first-party claim that is
the very source of his potential liability to the defendant/third-party plaintiff. For
that reason, the court in Schieve v. IBM Corp., 157 A.D.2d 924, 925-26 (3d Dep't
1990), rejected the very argument AHAB advances here by reference to Duffy.
Citing Duffy, the plaintiff in Schieve challenged a third-party defendant's standing
to appeal a summary judgment ruling in the first-party proceedings because
"summary judgment was not granted against [the third-party defendant] and the
Indeed, AHAB's claims against Mr. Al-Sanea here seek only recovery of "the full amount of
any judgment entered against AHAB, [as well as] any and all fees and costs incurred by
AHAB in its defense of Plaintiffs claims against it" (and, in some instances, punitive
damages). R.116-120.
GIBSON DUNN
The Honorable Andrew W. Klein
May 15,2013
Page 5 of 10
validity of the third-party complaint [wa] s not at issue," but the court held that the
third-party defendant faced indemnity claims arising out of the defendant's
potential liability to the plaintiff and, therefore, was "vitally concerned with any
finding of liability against [the defendant/third-party plaintiff]." Id. The same is
true here, and Mr. Al-Sanea is equally aggrieved by the Appellate Division's
reinstatement of the first-party claims in this case.
Third, and perhaps most importantly, AHAB's argument on appellate
standing contradicts the very positions AHAB itself has taken on the merits of
these appeals. AHAB argued below that the third-party complaint could not be
dismissed because (1) the trial court's dismissal of the first-party proceedings
supposedly was an improper sua sponte act, and (2) the third-party complaint is
"inseparably connected" to the first-party claims and cannot be severed from them
and litigated separately. AHAB App. Div. Br. at 18-22; Dkt. No. 112 (AHAB
Response) at 3-4. In other words, AHAB argued that Mr. Al-Sanea could not
possibly be entitled to forum non conveniens dismissal of the third-party complaint
unless he also obtained dismissal of the first-party case. Yet now, in contradiction,
AHAB claims that Mr. Al-Sanea is not "aggrieved by any disposition of the first-
party action," Opp. to Mashreq at 10-and, thus, that he supposedly cannot seek
dismissal of it. This blatant procedural gamesmanship by AHAB, designed to
foreclose any review of the merits of Mr. Al-Sanea's appeal, should be summarily
rejected. If, as AHAB contends, Mr. Al-Sanea cannot obtain dismissal of the third-
party complaint without also securing dismissal of the first-party proceedings, then
undoubtedly he is aggrieved by the Appellate Division's ruling reinstating the first-
party proceedings.
II. The Trial Court Properly Dismissed the First-Party Action
AHAB also resorts to revisionist history and procedural gamesmanship in
arguing that the trial court undertook some sort of improper sua sponte action
below. Contending that dismissal of the first-party action was a surprise ruling by
the trial court, AHAB now disingenuously claims to have been ignorant of the fact
that "a dismissal of the main case was at issue" during the forum non conveniens
briefing below. Opp. to Mashreq at 13 (emphasis added). That is an astonishing
assertion, and it is patently false. AHAB argued at length in the trial court that the
first-party action should not be dismissed on forum non conveniens grounds,
contending that "New York is the proper forum for all aspects of this dispute," that
GIBSON DUNN
The Honorable Andrew W. Klein
May 15, 2013
Page 6 of 10
"the documentation that Mashreq contends controls the relationship between
Mashreq and AHAB is all in English," that "[t]he critical transaction on which
Mashreq's breach of contract claim and AHAB's tort claim depend is the transfer
of $150 million to a Bank of America account in New York nominally belonging
to AHAB," and that "the key witnesses to this transaction are English speakers."
Dkt. No. 112 at 2 (emphasis added). AHAB would have had no reason to make
these arguments had it not understood that "a dismissal of the main case was at
issue," Opp. to Mashreq at 13, and its self-serving profession to this Court of
ignorance of that fact defies credulity.
Indeed, it could not be more clear that all parties in the trial court understood
forum non conveniens dismissal of the entire case including the first-party
action-to be at issue below. See Br. at 28-30. Contrary to AHAB's new-found
complaint that there was no formal motion, Mr. Al-Sanea's request for relief
forthrightly sought "such other and further relief as the Court deems just and
proper," R.65-66, and he clearly has authority under CPLR 1008 to move for
dismissal of the entire case. AHAB even concedes that Mr. Al-Sanea argued that
"Mashreq's claim could be litigated in 'more convenient fora . . . and thus, should
be dismissed . . . ."' Opp. to Sanea at 6 (quoting Dkt. No. 105 at 8). Indeed, Mr.
Al-Sanea introduced evidence that there were at least two other jurisdictions
capable of adjudicating all of the first- and third-party claims in this action-
Dubai, where all three parties were embroiled in litigation already, and Saudi
Arabia, R.1119, R.1467; Al-Sanea App. Div. Br. at 42-43-although Mr. Al-
Sanea also demonstrated as a matter of law that there was no need for those claims
to all be litigated in a single forum, Al-Sanea App. Div. Br. at 24-26. The trial
court ordered briefing on the issue of dismissal applied to the entire action before
Mr. Al-Sanea's motion to dismiss had even been fully briefed and submitted to the
court. See Br. at 29. Both AHAB and Mashreqbank filed briefs addressing it. Id.
And when oral argument was held on the forum non conveniens motion, AHAB
acknowledged the "two parts" of Mr. Al-Sanea's application, and argued against
dismissal both "as to everybody" and as to Mr. Al-Sanea alone. R.1473-74; see
Br. at 30. At no point did AHAB object that dismissal "as to everybody" had not
been properly raised, and it cannot be heard to say so now. See, e.g., Sosa v.
Cumberland Swan, Inc., 210 A.D.2d 156, 157 (1st Dep't 1994) (party waives
objection by not raising it in trial court).
GIBSON DUNN
The Honorable Andrew W. Klein
May 15,2013
Page 7 of 10
III. AHAB Mischaracterizes Both the Evidence and Its Own Pleading
in an Attempt to Avoid Dismissal
AHAB's letter submission also repeatedly distorts the record on the merits
of the forum non conveniens analysis that led the trial court to dismiss this action-
and that should have compelled the Appellate Division majority to sustain that
ruling. For example, AHAB disingenuously recasts its claims as somehow raising
a dispute that has a central "New York nexus" when, in fact, nothing could be
further from the truth. Only by ignoring the vast bulk of the allegations of its own
complaint is AHAB able to contend that New York is "central[]" to its third-party
claims. Opp. to Sanea at 7. Indeed, AHAB complains repeatedly of Mr. Al-
Sanea's supposed "mischaracteriz[ation]" of this dispute, id. at 5, yet its letter
submission contains not even a single citation to its own pleading. There can
hardly be more damning evidence that AHAB has seized on an opportunistic
recasting of its own allegations to portray this as a dispute over an alleged "theft in
New York" when, in reality, AHAB has pleaded a worldwide fraud centered in
Saudi Arabia (perhaps to get discovery of the entire "scheme"), with only a
marginal New York connection.
Even a brief review of the allegations actually pleaded in AHAB's third-
party complaint reveals that New York has (at most) a tangential connection to this
dispute. See Br. at 21-24. By AHAB's own admission, the key components to
Mr. Al-Sanea's alleged misconduct were his efforts in Saudi Arabia to enter into
"unauthorized transactions" in AHAB's name, to "direct" AHAB's Saudi
employees to take "unauthorized" action and "conceal" the true facts from
AHAB's Saudi principals, and to "misappropriate" the proceeds of those
"unauthorized" transactions by transferring them to Awal Bank in Bahrain.
R.104-07, R.115-20. These events took place (if at all) in Saudi Arabia and the
United Arab Emirates, not in New York, and AHAB cites no allegation in its
complaint to the contrary.4
4 AHAB attempts to avoid this by baldly contending that New York's banks were an
"indispensable" component of Mr. Al-Sanea's alleged scheme, claiming now that it "could
not [have been] carried out" without U.S. dollars or "through any other banking system."
Opp. to Sanea at 6-9. Of course, AHAB cites nothing whatsoever to support its ipse dixit
assertions-and it alleged nothing of the kind below. Not could it have: The transactions
(Cont'd on next page)
GIBSON DUNN
The Honorable Andrew W. Klein
May 15,2013
Page 8 of 10
Many of AHAB's positions on the factors relevant to forum non conveniens
hinge on this self-serving mischaracterization of the allegations in its third-party
complaint. For example, the supposedly "key" documents that AHAB asserts are
in New York (Opp. to Sanea at 18-19) have little relevance to the Saudi-centered
scheme alleged in its pleading. See R.738-43 (AHAB list of documents). And
Mr. Al-Sanea introduced extensive proof that the central witnesses to his dispute
with AHAB as framed by the third-party complaint are located principally in Saudi
Arabia and the UAE. See R.1296-1304. Indeed, AHAB tellingly does not contend
that any of the "key" witnesses (Opp. to Sanea at 17-18) is in New York, instead
falsely asserting that Mr. Al-Sanea's evidentiary submission below "made no effort
to show what knowledge, if any, most these purported witnesses have concerned
the f/x fraud or show that they were available to even competent to testify." Id. at
18. The record flatly belies these assertions. Not only did Mr. Al-Sanea explicitly
detail what topics each witnesses could testify to, R.1296-1304, he conclusively
demonstrated-and AHAB did not dispute-that Saudi law imposed no bar to their
testimony and allowed it to be secured even outside Saudi Arabia through the Gulf
Cooperation Council Agreement and 28 U.S.C. 1782. See R.951; R.952
(admitting that Saudi rule cited by AHAB as limiting witness competence merely
requires "corroboration" of potentially conflicted testimony); R.1104-05
(discussing Saudi rules regarding competence to testify). In fact, quite to the
contrary, Mr. Al-Sanea demonstrated that the "key" witnesses to AHAB's claims
cannot be compelled to testify in New York. Al-Sanea App. Div. Br. at 30-31 &
n.11. These factors strongly favor forum non conveniens dismissal.' See, e.g.,
(Cont'd from previous page)
alleged by AHAB merely require currencies that are "pegged" to one another, Opp to Sanea
at 8, and dozens of other currency pairings (including UAE dirhams and Saudi riyals) could
have served the same purpose.
5 AHAB also falsely asserts that "[t]here is no real dispute as to two [forum non conveniens]
factors" (Opp. to Sanea at 15 n.3) and that "the Appellate Division dissenters did not take
issue with the majority's conclusion that New York law would apply to this dispute," id. at
19. Neither is true. The dissenters below were explicit in their opinion that "resolution [of
this dispute} likely requires the applicable of foreign law." Decision at 29 (Andrias, J.,
dissenting). And it is absurd to claim-as AHAB does-that, although "[t]he parties .. .
remain under a travel ban" in Saudi Arabia, Opp. to Sanea at 18, this somehow "poses" no
(Cont'd on next page)
GIBSON DL NN
The Honorable Andrew W. Klein
May 15, 2013
Page 9 of 10
World Point Trading PTE, Ltd. v. Credito Italiano, 225 A.D.2d 153, 161 (1st Dep't
1996).
This case is the perfect example of why the Appellate Division's rule cannot
stand. Even if the tangential New York banking contact made AHAB's case
"jurisdictionally sound," the dispute, which concerns alleged misconduct by an
executive of a Saudi business operating overseas, "would be better adjudicated
elsewhere." Pahlavi, 62 N.Y.2d at 479. The Appellate Division's rule would
foreclose this result by deeming this tangential contact "just as important to the
[forum non conveniens] analysis as it is to personal jurisdiction, comity, or choice
of law." Opp. to Sanea at 11 (emphasis added). If such a contact has the same
overwhelming weight in both analyses, then there is little (if any) room for this
state's courts to decline jurisdiction on convenience grounds when jurisdiction is
predicated on the involvement of New York banks, however much the dispute-
like this one might turn on events and evidence overseas. This Court's precedent
is otherwise.6 See, e.g., Pahlavi, 62 N.Y.2d at 479 (observing that forum non
conveniens justifies dismissal even when a case is "jurisdictionally sound," and
emphasizing the doctrine's "flexibility," in which "No one factor is controlling").
(Cont 'd from previous page)
"excessive" "hardship" for them (id. at 15 n.3) even though it means that (at best) they could
not testify live at trial in their own cases if they continue here.
6 For that reason-as well as others-AHAB's reliance on Licci v. Lebanese Canadian Bank,
SAL, 20 N.Y.3d 327 (2012), does not support AHAB's position. Licci was a personal
jurisdiction case, not a forum non conveniens case, that in any event concerned a bank's
alleged financing of terrorist activities through New York bank transfers. See id. at 334.
GIBSON DUNN
The Honorable Andrew W. Klein
May 15, 2013
Page 10 of 10
CONCLUSION
For the reasons discussed here, in Mr. Al-Sanea's opening letter submission
dated April 8, 2013, and in Mr. Al-Sanea's papers below, which he has
incorporated by reference in his opening letter submission, the Decision and Order
should be reversed and this case should be remanded with directions to reinstate
the judgment of dismissal entered below on August 11, 2010 or, at a minimum, to
enter a judgment dismissing AHAB' s third-party complaint.
Respectfully submitted,
GIBSON, DUNN & C
By
TCHER LLP
Robert F. Serio
Gabriel Herrman
Christopher Muller
200 Park Avenue
New York, New York 10166
Telephone: 212.351.4000
Facsimile: 212.351.4035
Attorneys for Third-Party Defendant-Appellant
Maan Abdul Wahed Al-Sanea
cc: All counsel of record