Norex Petroleum Limited, Appellant,v.Leonard Blavatnik, et al., Respondents.

Brief

N.Y.May 6, 2014

To be Argued by: OWEN C. PELL (Time requested: 30 minutes) APL-2013-00263 New York County Clerk’s Index No. 650591/11 Court of Appeals of the State of New York NOREX PETROLEUM LIMITED, Plaintiff-Appellant, – against – LEONARD BLAVATNIK, VICTOR VEKSELBERG, SIMON KUKES, ACCESS INDUSTRIES, INC., ALFA GROUP CONSORTIUM, RENOVA, INC., OAO TYUMEN OIL COMPANY, TNK-BP LIMITED and BP PLC, Defendants-Respondents. JOINT BRIEF FOR DEFENDANTS-RESPONDENTS WHITE & CASE LLP Attorneys for Defendants-Respondents OAO Tyumen Oil Company and TNK-BP Limited 1155 Avenue of the Americas New York, New York 10036 Tel.: (212) 819-8200 Fax: (212) 354-8113 Date Completed: December 24, 2013 (For Continuation of Appearances See Inside Cover) HOGUET NEWMAN REGAL & KENNEY, LLP Attorneys for Defendant-Respondent Simon Kukes 10 East 40th Street New York, New York 10016 Tel.: (212) 689-8808 Fax: (212) 689-5101 SULLIVAN & CROMWELL LLP Attorneys for Defendant-Respondent BP PLC 125 Broad Street New York, New York 10004 Tel.: (212) 558-4000 Fax: (212) 558-3588 – and – 1701 Pennsylvania Avenue, NW Washington, DC 20006 Tel.: (202) 956-7500 Fax: (202) 293-6330 PATTERSON BELKNAP WEBB & TYLER LLP Attorneys for Defendant-Respondent Renova, Inc. 1133 Avenue of the Americas New York, New York 10036 Tel.: (212) 336-2000 Fax: (212) 336-2222 AKIN GUMP STRAUSS HAUER & FELD LLP Attorneys for Defendant-Respondent Alfa Group Consortium One Bryant Park New York, New York 10036 Tel.: (212) 872-1000 Fax: (212) 872-1002 CURTIS, MALLET-PREVOST, COLT & MOSLE LLP Attorneys for Defendant-Respondent Leonard Blavatnik 101 Park Avenue New York, New York 10178 Tel.: (212) 696-6000 Fax: (212) 697-1559 REED SMITH LLP Attorneys for Defendant-Respondent Victor Vekselberg 599 Lexington Avenue New York, New York 10022 Tel.: (212) 521-5400 Fax: (212) 521-5450 QUINN EMANUEL URQUHART & SULLIVAN, LLP Attorneys for Defendant-Respondent Access Industries, Inc. 51 Madison Avenue, 22nd Floor New York, New York 10010 Tel.: (212) 849-7000 Fax: (212) 849-7100 COURT OFAPPEALS OF THE STATE OF NEW YORK NOREX PETROLEUM LIMITED, Plaintiff-Appellant, -against- LEONARD BLAVATNIK; VICTOR VEKSELBERG; SIMON KUKES; ACCESS INDUSTRIES, INC.; ALFA GROUP CONSORTIUM; RENOVA, INC.; OAO TYUMEN OIL COMPANY; TNK-BP LIMITED; and BP PLC, Defendants-Respondents. APL-2013-00263 Index No. 650591/11 STATEMENTS PURSUANT TO 22 N.Y.C.R.R. § 500.1(f) Pursuant to Rule 500.1(f) of the Rules of Practice of the Court of Appeals of the State of New York, certain of the Defendants-Respondents state as follows: OAO TYUMEN OIL COMPANY AND TNK-BP LIMITED Defendants-Respondents OAO Tyumen Oil Company (“TNK”) and TNK- BP Limited (“TNK-BP”) state as follows: 1. The legal successor to TNK is OJSC RN Holding, which is 84.67% owned by Novy Investments Limited (“Novy”), a Cyprus corporation. Novy is indirectly wholly-owned by OJSC Rosneft Oil Company, a publicly held Russian corporation. 2 2. TNK-BP has been renamed Rosneft Limited, which is 100% owned by OJSC Rosneft Oil Company, a publicly held Russian corporation. BP p.l.c. Defendant-Respondent BP p.l.c. states that it has no parents or affiliates. BP p.l.c. has no publicly held direct subsidiaries. RENOVA, INC. Defendant-Respondent Renova, Inc. states that it is a wholly-owned subsidiary of Renova Management AG and that it has no subsidiaries. Neither Renova, Inc. nor Renova Management AG has any publicly traded securities. ACCESS INDUSTRIES, INC. Defendant-Respondent Access Industries, Inc. states that it has no parents and no publicly held direct subsidiaries or affiliates. Access Industries, Inc. also states that its affiliates own interests larger than 10% in the following publicly traded companies: LyondellBasell Industries N.V. and Perform Group plc. ALFA GROUP CONSORTIUM Defendant-Respondent Alfa Group Consortium states that it is neither a corporation nor an independent legal entity. Rather, it is an unregistered association of related companies. Those related companies are ABH Holdings S.A.; ABH Russia Ltd.; ABH Ukraine Ltd.; ABH Kazakhstan Ltd.; Amsterdam Trade Bank N.V.; ZAO Alfa-Bank Belarus; Alfa Finance Holdings, S.A.; OJSC 3 AlfaStrakhovanie; Alfa Asset Management Holdings Ltd.; Alfa Private Equity Holdings Ltd.; CTF Holdings, Ltd.; X5 Retail Group N.V.; Pyaterochka; Petekrestok; Karusel; E5.RU; Ventrelt Holdings Ltd.; Rosvodokanal Group; A Common Holdings Ltd.; and A1 Group Limited. i NEWYORK 9055776 TABLE OF CONTENTS COUNTER-STATEMENT OF QUESTIONS PRESENTED .................................. 1 PRELIMINARY STATEMENT ............................................................................... 2 COUNTER-STATEMENT OF THE CASE ............................................................. 7 Norex’s Russian Litigation with TNK. ........................................................... 8 A. 1. Russian Lawsuits Over Norex’s Attempts to Completely Control Yugraneft. .............................................................................................. 8 Valuing Norex’s Interest in Yugraneft: The Know-How Case. ........... 9 2. The Russian Lawsuit Over Norex’s Right to Yugraneft 3. Dividends.. ........................................................................................... 11 Norex’s U.S. Federal Lawsuit Over Yugraneft. ............................................ 11 B. The Original RICO Complaint. ........................................................... 11 1. Norex’s Amended Federal Complaint. ............................................... 13 2. Norex’s New York State Action. ................................................................... 14 C. ARGUMENT ........................................................................................................... 16 IN RULING THAT NOREX’S CLAIMS ARE TIME-BARRED, THE I. COURTS BELOW CORRECTLY APPLIED THIS COURT’S PRECEDENT AND HARMONIZED CPLR §§ 202 AND 205 ................... 16 A. Norex Cannot Avoid the Settled Precedent of This Court Under Which Norex’s Claims are Time-Barred. ........................................... 17 B. CPLR § 205(a) Was Not Designed to Save Norex’s Claims, Which Were Always Subject to CPLR § 202. .................................... 20 1. The Logic Behind CPLR § 202 Has Provided a Clear and Consistent Way To Harmonize the Borrowing Statute with Related Tolling Provisions. ....................................................... 20 2. The First Department’s Holding Does Not Conflict With Global Financial. ...................................................................... 23 3. There Is No Basis To Distinguish CPLR § 205(a) From New York’s Other Tolling Provisions. .............................................. 26 4. Norex Is Forum Shopping. ........................................................ 27 ii NEWYORK 9055776 5. This Court’s Clear and Consistent Instructions on How the Borrowing Statute Is Harmonized with State Tolling Provisions Has Yielded Consistent Results in the Courts in New York and Elsewhere. ................................................................................. 31 C. Because Norex’s Federal Action Ultimately was Dismissed on the Merits, the First Department Also Correctly Held that CPLR § 205(a) Did Not Save Norex’s Claims. ................................................ 35 II. BY ITS EXPRESS TERMS SECTION 1367(d) CANNOT SAVE NOREX’S OTHERWISE TIME-BARRED CLAIMS ................................. 36 A. Norex Repeatedly Ignored Section 1367(d) As To All Its Claims. .... 37 B. Section 1367(d) Could Only Have Applied To Two Supplemental Russian Law Claims Asserted In Federal Court, Thus Barring Norex’s New York Law Claims Entirely. ........................................... 38 C. There Is No Basis for Running the 30-Day Re-Filing Period From Issuance of a Mandate or for Norex’s “Suspension” Theory.............. 42 D. Section 1367(d) Does Not, In Any Event, Override the Operation of New York Law. ............................................................................... 46 CONCLUSION ........................................................................................................ 53 iii NEWYORK 9055776 TABLE OF AUTHORITIES CASES Antone v. Gen. Motors Corp., 64 N.Y.2d 20 (1984) ...................................... 18, 31-32 Baker v. Cohn, 266 A.D. 236 (1st Dep’t 1943) ......................................................... 26 Barnett v. Conn.Light & Power Co., No. 11-cv-1037, 2013 WL 4813083 (D. Conn. Sept. 9, 2013) ....................................................................................... 39 Berke v. Buckley Broad. Corp., 821 A.2d 118 (N.J. Super. Ct. App. Div. 2003), cert. denied, 832 A.2d 322 (N.J. 2003) ................................................................ 45 Besser v. Squibb & Sons, Inc., 146 A.D.2d 107 (1st Dep’t 1989), aff’d without opinion, 75 N.Y.2d 847 (1990) ................................................................... 4, 21, 22 Bittner v. Cummings, 188 A.D.2d 504 (2d Dep’t 1992) ............................................ 42 Bd. of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478 (1980) ............... 47 Campbell v. City of N.Y., 4 N.Y.3d 200 (2005) ......................................................... 26 Childs v. Brandon, 60 N.Y.2d 927 (1983) ..................................................... 18, 30, 32 Dahl v. Eckerd Family Youth Alternatives, 843 So.2d 956 (Fla. Ct. App. 2003) ..... 45 Faile v. Upjohn Co., 72 F.3d 137 (10th Cir. 1995) ................................................... 34 Fitzgerald v. Thompson, 187 A.D.2d 557 (2d Dep’t 1992) ....................................... 31 Frombach v. Gilbert Associates, Inc., 236 A.2d 363 (Del. 1967) ....................... 33, 34 George v. Douglas Aircraft Co., 332 F.2d 73 (2d Cir. 1964) .................................... 29 George v. Mt. Sinai Hospital, 47 N.Y.2d 170 (1979) ................................................ 27 Global Fin. Corp. v. Triarc Corp., 93 N.Y.2d 525 (1999) ........................ 4, 17, 24, 25 Global Reins. Corp.-U.S. Branch v. Equitas Ltd., 18 N.Y.3d 722 (2012) ................ 16 GML, Inc. v. Cinque & Cinque, P.C., 9 N.Y.3d 949 (2007) ......................... 29, 30, 31 iv NEWYORK 9055776 Goldstein v. N.Y. State Urban Dev. Corp., No. 08-7064, Reply Brief for Petitioners-Appellants, 2009 WL 3810849 (Sept. 25, 2009) ............................... 44 Goldstein v. N.Y. State Urban Dev. Corp., 13 N.Y.3d 511 (2009) .................... passim Graham v. Ferguson, 593 F.2d 764 (6th Cir. 1979) .................................................. 35 Graziano v. Pennell, 371 F.2d 761 (2d Cir. 1967) .................................................... 29 Great Plains Trust Co. v. Union Pac. R.R. Co., 492 F.3d 986 (8th Cir. 2007) ......... 34 Greenblatt v. N.Y. Sur. Co., 246 A.D.2d 385 (1st Dep’t 1998) ................................. 44 Harter v. Vernon, 532 S.E.2d 836 (N.C. Ct. App. 2000), review denied, 546 S.E.2d 97 (N.C. 2000), cert. denied, 532 U.S. 1022 (2001) .......................... 45 Hikers Indus., Inc. v. William Stuart Indus. (Far East) Ltd., 640 F. Supp. 175 (S.D.N.Y. 1986) .................................................................................................... 52 Hishon v. King & Spalding, 467 U.S. 69 (1984) ....................................................... 35 Hollins v. Yellow Freight Sys., Inc., 590 F. Supp. 1023 (N.D. Ill. 1984) .................. 35 Hunter Innovations Co. v. Travelers Indem. Co. of Conn. 753 F. Supp. 2d 597 (E.D. Va. 2010) ................................................................... 35 Hyowon Kim v. Cruz, 94 A.D.3d 820 (2d Dep’t 2012) ............................................. 26 Icelandic Airlines v. Canadair, Ltd., 104 Misc. 2d 239 (Sup. Ct., N.Y. Co. 1980) ................................................................................ 25-26 In re Asbestos Litig. (Lillian Gray v. Georgia Pacific Corp.), No. 06C-04-230 (Del. Super Ct. Dec. 19, 2008) ............................................................................. 34 Jinks v. Richland Cnty., S.C., 538 U.S. 456 (2003) ............................................... 5, 40 John Galliano, S.A. v. Stallion, Inc., 15 N.Y.3d 75 (2010) ....................................... 15 Kat House Productions, LLC v. Paul, Hastings, Janofsky & Walker, LLP, No. 106781/2008, 2009 WL 1032719 (Sup. Ct., N.Y. Co. 2009), aff’d, 71 A.D.3d 580 (1st Dep’t 2010) ............................................................................................. 26 Kight v. Turner, Brief of States as Amici Curiae in Support of Petitioners, 556 U.S. 1181, 2009 U.S. LEXIS 3037 (2009) ................................................................... 45 v NEWYORK 9055776 Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) ................................. 49 Kontrick v. Ryan, 540 U.S. 443 (2004) ...................................................................... 35 Lehman Bros. v. Hughes Hubbard & Reed, 92 N.Y.2d 1014 (1998) ............ 26, 37, 44 Lewis v. Rosenfeld, 138 F. Supp. 2d 466 (S.D.N.Y. 2001) ....................................... 32 Martin v. Dierck Equip. Co., 43 N.Y. 2d 583 (1978) .................................... 18, 25, 32 Matter of Allstate Ins. Co. (Stolarz), 81 N.Y.2d 219 (1993) ..................................... 24 Matter of Smith Barney, Harris Upham & Co. v. Luckie 85 N.Y.2d 193 (1995) ............................................................................... 18, 27, 32 Modi Enters. v. ESPN, Inc., No. 600060/01, 2004 WL 6035961 (Sup. Ct., N.Y. Co. Jan. 16, 2004) ........................................................................................................ 33 Monahan v. N.Y.C. Dep’t of Corrections, 214 F.3d 275 (2d Cir. 2000) ................... 16 Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 130 S. Ct. 2869 (2010) ........ 13, 49 National Surety Co. v. Ruffin, 242 N. Y. 413 (1926) ................................................ 26 Nederlandse Ertstankersmaatschappij, N.V. v. Isbrandtsen Co., 339 F.2d 440 (2d Cir. 1964) ........................................................................................................ 52 Norex Petroleum Ltd. v. Access Indus., Inc., 304 F. Supp. 2d 570 (S.D.N.Y. 2004), vacated and remanded, 416 F.3d 146 (2d Cir. 2005) ........................................... 12 Norex Petroleum Ltd. v. Access Indus., Inc., 631 F.3d 29 (2d Cir. 2010) ................. 13 Norex Petroleum Ltd. v. Blavatnik, 2012 N.Y. Misc. LEXIS 6123 (N.Y. Sup. Ct. June 13, 2012) ....................................................................................................... 15 Norex Petroleum Ltd. v. Blavatnik, 963 N.Y.S.2d 644 (1st Dep’t 2013) ........... passim Portfolio Recovery Assoc., LLC v. King, 14 N.Y.3d 410 (2010) ............. 18, 27-28, 31 Posner v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 469 F. Supp. 972 (S.D.N.Y. 1979) ..................................................................................................................... 32 PRC Harris, Inc. v. Boeing Co., 700 F.2d 894 (2d Cir. 1983) .................................. 16 vi NEWYORK 9055776 Raygor v. Regents of the University of Minnesota, 534 U.S. 533 (2002) .................................................................................................. 40, 46, 48, 49 Rescildo v. R.H. Macy’s, 187 A.D.2d 112 (1st Dep’t 1993) ..................................... 19 Schultz v. Texaco Inc., 127 F. Supp. 2d 443 (S.D.N.Y. 2001) .................................. 26 Simonoff v. Kaplan, Inc., No. 10-cv-2923, 2010 WL 4823597 (S.D.N.Y. Nov. 29, 2010) ..................................................................................................................... 43 Singer v. Lilly & Co., 153 A.D.2d 210 (1st Dep’t 1990) ........................................... 22 Smith v. Russell Sage Coll., 54 N.Y.2d 185 (1981) ................................................... 36 Strange v. Montefiore Hosp. & Med. Ctr., 59 N.Y.2d 737 (1983) ............................ 35 Thompson v. Paul, 657 F. Supp. 2d 1113 (D. Ariz. 2009) ........................................ 39 United States v. Locke, 471 U.S. 84 (1985) ............................................................... 42 Vincent v. Money Store, 915 F. Supp. 2d 553 (S.D.N.Y. 2013) .......................... 22, 32 Weinrib v. Duncan, 962 So.2d 167 (Ala. 2007) ........................................................ 45 Williams v. State of N.Y., 235 A.D.2d 776 (3d Dep’t 1997) ...................................... 42 Yatauro v. Mangano, 17 N.Y.3d 420 (2011) ............................................................. 20 Yonkers Contr. Co. v. Port Auth. Trans-Hudson Corp., 93 N.Y.2d 375 (1999) .............................................................................................................. 36, 38 STATUTES AND RULES 18 U.S.C. §§ 1961-1968 ............................................................................................ 11 23 U.S.C. § 131(l) ...................................................................................................... 43 28 U.S.C. § 1350 ........................................................................................................ 49 28 U.S.C. § 1367 .................................................................................................... 5, 49 28 U.S.C. § 1367(a) ................................................................................................... 39 28 U.S.C. § 1367(d) ............................................................................................ passim vii NEWYORK 9055776 28 U.S.C. § 1367(e) ................................................................................................... 49 42 PA. CONS. STAT. § 5535 (1995) ............................................................................ 24 1986 N.Y. 682, § 4 ..................................................................................................... 21 CPLR § 202 ......................................................................................................... passim CPLR § 203(f) ...................................................................................................... 41, 42 CPLR § 204 ................................................................................................................ 27 CPLR § 205(a) .................................................................................................... passim CPLR § 207 .................................................................................................... 23, 27, 30 CPLR § 208 .................................................................................................... 19, 23, 27 CPLR § 209 ................................................................................................................ 23 CPLR § 210 ................................................................................................................ 23 Ct. App. Rule 500.23(a)(3) ........................................................................................ 46 DEL. CODE. ANN. 10, § 8118 (1995) .......................................................................... 24 EDPL § 207 .......................................................................................................... 40, 43 Fed. R. App. P. 4(a)(1) ............................................................................................... 43 Fed. R. App. P. 41(d)(2)(A) ....................................................................................... 37 Fed. R. Civ. P. 12(b)(1) and (b)(6) ...................................................................... 13, 35 MISCELLANEOUS Thomas M. Mengler, Stephen B. Burbank, & Thomas D. Rowe, Jr., Congress Accepts Supreme Court’s Invitation to Codify Supplemental Jurisdiction, 74 JUDICATURE 213 (1991) ................................................................................... 46 David D. Siegel, New York State Law Digest, No. 602 (February 2010) ................ 51 H.R. Rept. No. 101-734 (1990), reprinted in 1990 U.S.C.C.A.N. 6860 ................... 50 1 NEWYORK 9055776 COUNTER-STATEMENT OF QUESTIONS PRESENTED 1. Did the Appellate Division correctly apply this Court’s rulings in Portfolio Recovery and Smith Barney in holding non-resident Plaintiff’s claims time-barred under New York’s borrowing statute (N.Y. C.P.L.R. (“CPLR”) § 202), which requires New York courts borrowing a foreign jurisdiction’s law on limitations also to borrow foreign tolling rules, if any, instead of New York’s tolling rules, where it is not disputed that (i) the foreign jurisdiction where non- resident Plaintiff’s claims accrued does not have any tolling rule like CPLR § 205(a); and (ii) the non-resident Plaintiff filed in New York court more than seven years after the foreign jurisdiction’s applicable two-year limitation period ran? 2. Did the Appellate Division correctly hold that 28 U.S.C. § 1367(d) (“Section 1367(d)”)—which requires that supplemental claims be re-filed in state court within 30 days of a federal dismissal—does not save non-resident Plaintiff’s two Russian law claims where Section 1367(d): (i) requires by its express terms that any new action be commenced within 30 days of “dismissal,” which non- resident Plaintiff failed to do; (ii) does not by its terms affect the operation of New York’s borrowing statute (CPLR § 202), including as to the use of foreign law; and (iii) expressly defers to the law of a State that “provides for a longer tolling period,” which New York does in CPLR § 205(a)? 2 NEWYORK 9055776 DEFENDANTS-RESPONDENTS’ BRIEF ON APPEAL Defendants-Respondents submit this joint brief in response to the Brief for Plaintiff-Appellant Norex Petroleum Limited (“Norex” and the “Norex Br.”).1 PRELIMINARY STATEMENT Having lost on the merits in Russian courts, and U.S. federal court, this Court is non-resident Norex’s latest stop in its attempt to relitigate its loss in the Russian courts of shareholder control over and dividends from Yugraneft—a non- party Russian oil company doing business entirely in Russia. It is undisputed that Norex initiated this dispute in Russia and participated in numerous Russian proceedings and appeals that decided the issues of shareholder ownership and dividends. After losing in Russia, Norex chose not to challenge—even to Russian appellate courts that it never accused of corruption—the Russian judgments that Norex now claims were corrupt, notwithstanding its right to do so. Instead, Norex 1 This Brief is submitted by Defendants OAO Tyumen Oil Company and TNK-BP Limited (collectively, the “TNK Defendants”) on behalf of Defendants Leonard Blavatnik; Victor Vekselberg; Simon Kukes; Access Industries, Inc.; Alfa Group Consortium; Renova, Inc.; and BP p.l.c. (collectively, the “Defendants”). While not relevant to this appeal, Defendant OAO Tyumen Oil Company is now named OJSC RN Holding and Defendant TNK-BP Limited is now named Rosneft Limited. The record on appeal before the Appellate Division, First Department (the “First Department” or “Appellate Division”) is referred to throughout as the “Record” or “R.” Justice Bransten’s Order, signed on June 13, 2012 and entered on September 17, 2012, appears in the Record at R. 34-56, and is referred to as “Bransten Order.” The joint brief filed by the Defendants before the Supreme Court on September 16, 2011 is referred to as “Defs’ Supreme Ct. Br.” The joint brief filed by Defendants before the First Department on January 2, 2013 is referred to as “Defs’ 1st Dep’t Br.” Norex’s opening brief filed before the First Department is referred to as “Norex’s 1st Dep’t Br.” The First Department’s decision is cited throughout in its published form at Norex Petroleum Ltd. v. Blavatnik, 963 N.Y.S.2d 644 (1st Dep’t 2013). 3 NEWYORK 9055776 came to the United States, where it filed a federal action seeking to relitigate its Russian law claims. In federal court Norex chose never to assert a single claim under New York law, instead relying on a RICO claim and two supplemental Russian law claims. Norex then lost again, including in the Second Circuit Court of Appeals which dismissed Norex’s action on the merits for failure to state a claim, based on a finding that Norex’s claims lacked U.S. domestic content. Only after more than a decade of litigating and losing in Russian and U.S. federal courts did Norex file this action, recasting the same stale Russian law claims and attempting to assert for the first time New York law claims. It is undisputed that Norex is a non-resident plaintiff whose claims accrued over a decade ago in Alberta, Canada, its principal place of business. As such, Norex is subject to CPLR § 202, which seeks to prevent non-residents like Norex with claims that accrued outside of New York from shopping for more favorable limitations and tolling provisions in New York. On this Record, both the trial court and the Appellate Division held that Norex’s claims are time-barred under CPLR § 202 and cannot be saved by CPLR § 205(a). The Appellate Division followed the well-settled precedent of this Court in holding that under CPLR § 202 New York courts borrow all of the foreign jurisdiction’s limitation laws, including any foreign tolling rules. Here, it is 4 NEWYORK 9055776 undisputed that Alberta law does not have a tolling provision similar to CPLR § 205(a). Accordingly, all of Norex’s claims are time-barred as, even under the most generous calculation of when its claims accrued, Norex’s Complaint was years late under Alberta law—and Norex does not dispute that. In so holding, the Appellate Division properly harmonized CPLR § 202 and § 205(a), aptly recognizing the legislative decision embodied in CPLR § 202 that non-resident plaintiffs with non-New York claims are held to different standards than New York residents. See, e.g., Besser v. Squibb & Sons, Inc., 146 A.D.2d 107 (1st Dep’t 1989), aff’d without opinion, 75 N.Y.2d 847 (1990). Thus, Norex’s novel theory, advanced on this appeal, that CPLR § 202 only serves a notice function which is fulfilled once the suit is commenced (such that foreign tolling rules need not apply) finds no support in the text of CPLR § 202, the policies underlying CPLR § 202 or in the rulings of this Court, which have repeatedly and definitively applied foreign tolling principles as part of the CPLR § 202 analysis. Contrary to Norex’s assertion, nothing in this Court’s decisions holds that the tolling of CPLR § 205(a) may trump CPLR § 202, including, in particular, the dicta in Global Financial Corp. v. Triarc Corp., 93 N.Y.2d 525 (1999), in which no CPLR § 205(a) issue even was presented. Regardless, even if applicable, the Appellate Division correctly held that Norex could not use CPLR § 205(a) because the Second Circuit dismissed its federal action on the merits. 5 NEWYORK 9055776 The Appellate Division also correctly held that Section 1367(d), which only applies to supplemental claims actually asserted in a federal action, could not save Norex’s two remaining Russian law claims (the only supplemental claims Norex asserted in federal court and not even against all defendants). Norex’s belated resort to Section 1367(d) to save its claims and its attempt now to frame the Appellate Division’s unanimous opinion as “nullifying” Section 1367(d) and an affront to principles of federalism is unavailing: • First, Norex missed the 30-day window provided by Section 1367(d), raising this issue only as an afterthought following the motion to dismiss briefing and argument below. • Second, by its express terms Section 1367(d) only could apply to the two Russian law claims actually asserted in the federal action, a result endorsed by Jinks v. Richland Cnty., S.C., 538 U.S. 456 (2003) and Goldstein v. N.Y. State Urban Dev. Corp., 13 N.Y.3d 511 (2009), in which only claims previously asserted in a federal action were at issue. Thus, the express terms of Section 1367 preclude Norex from saving six untimely New York claims never asserted in federal court and preclude Norex from saving any claims against defendant BP, against whom it asserted no supplemental claims. • Third, Norex can provide no compelling rationale for deviating from Congress’ express language that the 30-day re-filing period runs from the dismissal order entered by the Second Circuit in September 2010, not the issuance of a federal appellate mandate. It is undisputed that Norex missed this 30-day period. • Fourth, Section 1367(d) does not, in any event, override the operation of New York law, including with respect to the use of foreign law. Section 1367(d) was not intended to federalize the law on limitations and tolling, nor was Section 1367(d) intended to apply where state law provides more time than in the statute, which is the case here. 6 NEWYORK 9055776 Nothing about the results below was unfair or absurd. Norex’s claims did not lapse solely because of the 30 days (or six months) that passed before Norex re-filed in state court. Norex’s claims lapsed because Norex took none of the right steps to assert and preserve its non-federal claims: (i) Norex ignored the operation of CPLR § 202 and the long-established precedents of this Court in assessing the limitations and tolling provisions that might apply to its claims; (ii) Norex ignored that the Second Circuit’s dismissal on the merits made CPLR § 205(a) and Section 1367(d) inapplicable to all of Norex’s claims; (iii) Norex chose never to assert its New York claims in the federal action as supplemental claims making Section 1367(d) inapplicable to those claims; and (iv) Norex undisputedly then failed to re- file within 30 days of the federal dismissal on the merits, again making Section 1367(d) inapplicable even to Norex’s supplemental Russian law claims. Thus, Norex was not denied a benefit conveyed by any statute, and applying CPLR § 202 is consistent with both New York law and Section 1367(d). Norex, at any time, could have calculated when it needed to file its New York or Russian claims in New York state court in order to preserve those claims under both CPLR § 202 and Section 1367(d). The fact that Norex made the mistake of not doing so does not now justify rewriting the law to suit Norex’s needs. Norex seeks to replace the clear and well-settled authority that guided the Appellate Division’s unanimous opinion with rulings designed to allow Norex to 7 NEWYORK 9055776 escape its own faulty litigation decisions, and once again shop its claims—which have nothing whatsoever to do with New York. While beneficial to Norex, the changes in law advocated would upset years of settled precedent on how CPLR § 202 operates, including with respect to foreign tolling principles. With regard to Section 1367(d), Norex would materially alter the words chosen by Congress and have federal law override all state limitations and tolling regimes—a result already rejected by the Supreme Court. Having lost repeatedly on merits-based decisions in Russia and federal court, Norex is forum shopping by trying to take advantage of New York’s more lenient limitation and tolling provisions. New York courts should not become the last resort of non-resident plaintiffs asserting claims that accrued outside of New York. The claims here have nothing to do with New York or New York law and accrued in Alberta. There is no legal or policy rationale for bailing out Norex from its own strategic decisions over the past thirteen years. The Appellate Division’s unanimous decision should be affirmed. COUNTER-STATEMENT OF THE CASE Norex is a non-U.S. company headquartered in Alberta, Canada. (R. 97). This action ignores 11 years of litigation in Russian and U.S. federal courts which Norex initiated and then actively litigated to gain or maintain control of a Russian oil company, Yugraneft—and lost. The results of those cases conclusively show 8 NEWYORK 9055776 that Norex litigated its alleged loss of control of Yugraneft on multiple occasions, and had every opportunity to assert elsewhere the claims now asserted here. Remarkably, Norex mentions only one of the dozens of Russian court proceedings—and wholly ignores all the proceedings initiated by Norex. Norex’s Russian Litigation with TNK. A. Norex and a Russian state-owned oil company named Chernogorneft founded Yugraneft in Russia in the early 1990s. (R. 103, 776-77). Norex received 60% of Yugraneft’s charter capital, based largely on an alleged contribution of technical know-how, and Chernogorneft held 40%. (R. 103, 776-77).2 After being privatized, Chernogorneft filed for bankruptcy in Russia. (R. 779). In 1999, Norex held a series of shareholder meetings to pass resolutions so as to gain control of over 97% of Yugraneft. (R. 104, 777-78). This tactic, later invalidated by Russian courts, left Chernogorneft with less than 3% of Yugraneft. (R. 104, 777-78). In 1999, TNK purchased Chernogorneft, including its interest in Yugraneft, in an auction overseen by a Russian bankruptcy court. (R. 777, 779). Russian Lawsuits Over Norex’s Attempts to Completely Control 1. Yugraneft. TNK subsequently sued in Russian courts to reacquire Chernogorneft’s 40% stake in Yugraneft. Norex appeared in that action through Yugraneft (which at the 2 The information in the Record on Norex’s litigation of its claims in Russia is based on public pleadings that Norex did not dispute below. Although the Russian court rulings show that all of the TNK Defendants’ interests in Yugraneft were held through TNK-NV, another non-party here, for ease of reference, that entity will be referred to as “TNK.” 9 NEWYORK 9055776 time Norex controlled) and litigated the case. (R. 777). The Russian court rejected Norex’s actions and readjusted Chernogorneft’s (now TNK’s) interest in Yugraneft back to 40%. (R. 777-78). Norex appealed this decision and lost. (R. 777). TNK was then forced to file another lawsuit to compel the Norex-controlled management of Yugraneft to actually register TNK’s shares. (R. 778). The Russian courts ruled in TNK’s favor, ordering that TNK’s shares be registered and recognized at Yugraneft shareholder meetings. (R. 778). Notwithstanding these Russian rulings, Norex filed lawsuits in Russia claiming that it had a right to own 100% of Yugraneft. (R. 780-81). The Russian courts disagreed, holding that Chernogorneft (including as to its interest in Yugraneft) was properly sold to TNK. (R. 780-81). Norex appealed one of these decisions and lost. (R. 780). Norex never claimed that any of these actions were affected by corruption (as later alleged in its U.S. federal litigation and the case at bar). Norex also has never claimed that the Russian appellate process is in any way tainted. Valuing Norex’s Interest in Yugraneft: The Know-How Case. 2. The crux of Norex’s current Complaint is a challenge to the outcome of the so-called “Know-How Case.” In 2001, TNK asked a Russian court to examine the value of Norex’s original know-how contribution to Yugraneft that justified Norex’s shareholdings. (R. 781). TNK requested that the Russian court attach some of Norex’s shares in Yugraneft (to prevent a transfer) and appoint an 10 NEWYORK 9055776 independent expert to value Norex’s know-how contribution. (R. 781-82). Norex admits it received actual notice of this proceeding. (R. 105-06, 782). Despite an opportunity to do so, Norex did not appeal the attachment of its Yugraneft shares. (R. 781-82). Rather, Norex attempted to intervene in the Know- How Case on behalf of Yugraneft through its formerly appointed representative at Yugraneft. The Russian court rejected this. (R. 782-83). Norex also informed the Russian court as to where service should be directed. (R. 782). The Russian court then appointed an independent expert to value Norex’s purported know-how contribution to Yugraneft. (R. 783). Norex received notices of all this from both the Russian court and TNK—receipts of which were filed with the Russian court where they were checked by Norex’s counsel in Russia. (R. 782-84). In January 2002, the Russian court ruled that Norex had been served. (D. 784). Based on independent expert findings, the Russian court held that Norex had not contributed know-how to Yugraneft sufficient to justify its 60% share ownership. Rather, based on the expert findings, the court ruled that Norex was entitled to 20% of Yugraneft’s shares. (See R. 767-68, 807-08). Norex chose not to appeal the Know-How Case in Russia. (R. 786-88). Norex also could have challenged the Know-How Case in Russia on the basis of the corruption alleged in its U.S. complaints—but, Norex did not do that. (R. 787- 11 NEWYORK 9055776 88, 796-98). Instead, two days after its time to appeal in Russia lapsed, Norex began its U.S. federal action. (R. 101). The Russian Lawsuit Over Norex’s Right to Yugraneft Dividends. 3. Norex then actively defended an unjust enrichment action in Russia while pursuing its federal court action. Following the result in the Know-How Case, Yugraneft sued Norex for dividends paid since 1992 based on Norex’s improper 60% interest in Yugraneft. (R. 788). In 2004, a Russian appeals court affirmed the holding that Norex was not entitled to receive dividends on more than 20% of Yugraneft’s shares. (R. 789). Thus, the Russian courts, in a proceeding in which Norex actively participated, decided the dividends to which Norex was entitled, part of what Norex now wants New York courts to decide. Norex’s U.S. Federal Lawsuit Over Yugraneft. B. The Original RICO Complaint. 1. In February 2002, Norex filed a federal complaint against some of the Defendants in this action, amongst others, under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968. The essential allegations—that what occurred in Russia had wrongfully affected Norex’s interests in Yugraneft— were identical to those here. (R. 96-97, 489-90). Defendants moved to dismiss on multiple grounds, and in 2004, the case was 12 NEWYORK 9055776 dismissed for forum non conveniens.3 Focusing on the locus of Norex’s claim being in Russia, the District Court held that Norex’s claims relating to Russian entities and Russian corporate assets “is obviously largely dependent on a demonstration that activities which took place in Russia were illegitimate.” Norex, 304 F. Supp. 2d at 581. As for Norex’s attempt to manufacture a U.S.-based conspiracy, the court noted that the conspiracy allegations were “conclusory.” Id. at 580-81. Contrary to Norex’s Complaint (R. 101), on appeal, the Second Circuit did not hold that New York was the appropriate forum. Rather, while agreeing that “Russia has a greater interest in the subject matter of this dispute than the United States” (Norex, 416 F.3d at 156), the court vacated the dismissal due to the unavailability of an adequate alternative forum (i.e., Norex had allowed its time to appeal to run in the Know-How Case). Id. at 156, 159. Also contrary to the Complaint (R. 101), the court did not hold that Norex had been denied its rights in the Know-How Case or that other Russian decisions lacked preclusive effect. Rather, the court expressly reserved on these issues.4 Id. at 162. 3 Defendants had also moved to dismiss based on other defenses including lack of subject matter jurisdiction, failure to state a claim, res judicata, comity, and because the claims were barred under Russian law. The District Court held that its dismissal on forum non conveniens mooted these other grounds. Norex Petroleum Ltd. v. Access Indus., Inc., 304 F. Supp. 2d 570, 584 (S.D.N.Y. 2004), vacated and remanded, 416 F.3d 146 (2d Cir. 2005). 4 While the Second Circuit stated that Norex’s decision to bring suit in New York was “informed of genuine convenience” based on the narrow issue before the court (Norex Br. at 2 n.2), the 13 NEWYORK 9055776 Norex’s Amended Federal Complaint. 2. On remand, Norex amended its complaint in late 2005. (R. 395). Not limiting itself to federal claims, Norex, for the first time, asserted two supplemental Russian law claims for violation of specific articles of the Russian Civil Code. (R. 454-64). Norex chose not to assert any New York law claims.5 In September 2007, the case was again dismissed because all of Norex’s allegations were beyond the reach of RICO, and the federal district court also ruled that it was unable to exercise supplemental jurisdiction over Norex’s Russian law claims. (R. 511-12). Norex appealed only the RICO dismissal, choosing not to appeal the dismissal of its supplemental claims. On September 28, 2010, the Second Circuit affirmed the dismissal, but did so under Federal Rule of Civil Procedure (“FRCP”) 12(b)(6) for failure to state a claim, relying on Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247 (2010). See Norex Petroleum Ltd. v. Access Indus., Inc., 631 F.3d 29, 33 (2d Cir. 2010). Significantly, although Norex argued that it pled a domestic fraud scheme with particularity, the Second Circuit held that “[t]he slim contacts with the United States alleged by Norex are insufficient to Second Circuit made clear in its ultimate dismissal on the merits (discussed infra) that Norex’s action had no domestic—let alone New York—connections whatsoever. (R. 517). 5 The amended complaint added BP p.l.c. (“BP”) as a co-defendant in four RICO-related claims, but not the Russian law claims. (R. 454-64). BP had entered into a joint venture with TNK, the two companies together forming a company which controlled Yugraneft. (R. 404). No supplemental claims that could be affected by Section 1367(d) were ever asserted against BP. 14 NEWYORK 9055776 support extraterritorial application of the RICO statute,” and that it “considered the remainder of Norex’s claims and [found] them without merit.”6 Id. In January 2011, the Second Circuit denied a Norex request for an en banc rehearing (R. 4482), but then granted Norex’s motion to stay the mandate. In seeking to delay issuance of the mandate, Norex cited only to CPLR § 205(a). (R. 4482-83). Norex then waited until March 2011 to file this action, hurrying to serve all parties by March 28, 2011—exactly six months (i.e., under CPLR § 205(a)) from the Second Circuit’s September 28, 2010 dismissal order. (R. 63-66). Norex later filed a petition for certiorari, but then voluntarily dismissed it, such that the Second Circuit issued its mandate in July 2011. (R. 519-22). Norex’s New York State Action. C. Having waited six months from the Second Circuit’s dismissal decision (R. 63-64), Norex’s complaint alleged that “[f]or purposes of statutes of limitations, these claims are treated as commenced on February 26, 2002 (the date on which its federal action was commenced) pursuant to CPLR § 205(a).” (R. 69). Norex completely ignored Section 1367(d). For the first time, this New York state court action asserted New York claims in place of the failed RICO claims—and restated 6 On December 8, 2010, the Second Circuit issued a slightly amended opinion, providing a one- sentence clarification requested by the United States. (R. 514). 15 NEWYORK 9055776 the Russian Civil Code claims from the federal action.7 All causes of action are asserted against all Defendants. (R. 108-13). Defendants moved to dismiss the Complaint as (i) time-barred under CPLR § 202 and Alberta law; (ii) not saved by CPLR § 205(a) because of the prior dismissal of Norex’s federal case on the merits; (iii) barred by the preclusive effects of the prior Russian and U.S. proceedings; (iv) failing to state a claim; and (v) belonging, if anywhere, in Russia. (R. 315-19). Only after oral argument did Norex move to supplement the record to raise Section 1367(d), which it claimed was controlling notwithstanding the time that had passed. (R. 4423). Justice Bransten’s Decision and Order dismissed Norex’s Complaint as time-barred under Alberta law and denied Norex’s motion to supplement the record as to Section 1367(d). (R. 40-56). See Norex Petroleum Ltd. v. Blavatnik, 2012 N.Y. Misc. LEXIS 6123 (N.Y. Sup. Ct. June 13, 2012). The First Department unanimously affirmed the dismissal. Norex, 963 N.Y.S.2d at 645. This Court granted Norex’s motion for leave to appeal.8 7 Some months later Norex filed a First Amended Complaint (the “Complaint” in this action), which again ignored Section 1367(d), added one more New York law claim, and dropped certain non-New York claims. (R. 96). 8 The Record and briefing below also supported dismissal on other independent grounds. (R. 337-58, 3760-77; Defs’ 1st Dep’t Br. at 46-50). For example, Norex’s claims are barred by the preclusive effect of various Russian court decisions. See John Galliano, S.A. v. Stallion, Inc., 15 N.Y.3d 75, 81-82 (2010) (where defendant had knowledge of the proceedings and an opportunity to be heard, foreign proceedings must be granted comity; technical requirements of service are not a basis for ignoring a foreign judgment where defendant had notice and an opportunity to be heard). Norex’s claims also are barred by the preclusive effect of the federal action, which 16 NEWYORK 9055776 ARGUMENT IN RULING THAT NOREX’S CLAIMS ARE TIME-BARRED, THE I. COURTS BELOW CORRECTLY APPLIED THIS COURT’S PRECEDENT AND HARMONIZED CPLR §§ 202 AND 205 In arguing that its claims are not time-barred, Norex contends that CPLR § 202 somehow lapsed when its purpose was “fully served” upon Norex’s filing of its federal complaint. (Norex Br. at 4). This novel argument finds no support in the text of CPLR § 202 and ignores this Court’s teaching that CPLR § 202 requires the borrowing of all foreign law, including as to tolling which, by necessity, may apply long after an action is filed. Thus, Norex could not choose to wait nine years (from 2002 to 2011) to assert its claims in New York state court because Norex had always been subject to the limits imposed by Alberta law based on the operation of CPLR § 202. The First Department not only properly applied CPLR § 202 and the well-settled precedents of this Court, but also thereby upheld the policies behind CPLR § 202 which do not allow non-New York parties with non- New York claims, like Norex, to shop the more lenient provisions of New York law for limitations purposes. resulted in a dismissal on the merits, involved the parties now in the state action, and bars claims that could have been raised in that prior action. See Monahan v. N.Y.C. Dep’t of Corrections, 214 F.3d 275, 285 (2d Cir. 2000) (on preclusive effect); PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 896 n. 1 (2d Cir. 1983) (federal law governs the preclusive effect of federal judgment). Finally, the Record shows that this is a dispute about shareholdings in a Russian company, and that Norex is attempting to sue for wrongs attributable to a Russian company in Russia relating to the non-payment of dividends or alleged improper transactions in Russia. (R. 350-53, 792-94, 3728-31). None of this, as the Second Circuit held, has any New York connection, such that there is no basis for the extraterritorial application of New York common law. Cf. Global Reins. Corp.-U.S. Branch v. Equitas Ltd., 18 N.Y.3d 722, 735 (2012). 17 NEWYORK 9055776 A. Norex Cannot Avoid the Settled Precedent of This Court Under Which Norex’s Claims are Time-Barred. The First Department held that “New York’s borrowing statute requires the courts to apply Alberta’s limitations period,” citing CPLR § 202 and Global Financial Corp. v. Triarc Corp., 93 N.Y.2d 525, 529 (1999).9 Norex v. Petroleum Ltd. v. Blavatnik, 963 N.Y.S.2d 644, 645 (1st Dep’t 2013). In Global Financial, this Court observed that causes of action alleging purely economic harm (as Norex’s claims do) accrue where the plaintiff “sustains the economic impact of the loss.” Global Fin., 93 N.Y.2d at 529 (citing Matter of Smith Barney, Harris Upham & Co. v. Luckie, 85 N.Y.2d 193, 207 (1995)). It is undisputed in the Record that Norex’s claims accrued in Alberta, Canada, where it has its principal place of business and where its alleged economic damages were sustained. (R. 97); Norex, 963 N.Y.S.2d at 644. Under CPLR § 202 then, Norex’s action here always had to be timely under the shorter of New York and Alberta law. See Global Fin., 93 N.Y.2d at 528 (“When a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely 9 CPLR § 202 provides: An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply. 18 NEWYORK 9055776 under the limitation periods of both New York and the jurisdiction where the cause of action accrued.”). Well-settled precedent—which Norex seeks to downplay (Norex Br. at 23 nn. 17-18)—directs that when CPLR § 202 applies, New York courts borrow all of the non-New York (i.e., Alberta) limitations law, including any extensions and tolling rules of the foreign jurisdiction. Here, there is no dispute that Alberta has no applicable tolling provision. (R. 47-50, 732-33, 3974-77). Norex, 963 N.Y.S.2d at 645; (Norex. Br. at 31). Nearly two decades ago this Court, echoing earlier authority,10 held that “[i]n borrowing the foreign statute, ‘[a]ll the extensions and tolls applied in the foreign state must be imported with the foreign statutory period, so that the entire foreign statute of limitations . . . applie[s], and not merely its period.’” Smith Barney, 85 N.Y.2d at 207 (emphasis in original). The principle was recently reaffirmed in Portfolio Recovery Assoc., LLC v. King, 14 N.Y.3d 410, 416 (2010). There is no dispute (R. 722-33; 3458-63; 3971-77) that Alberta law provided two years for Norex to bring its claims after they accrued in Russia. See Norex, 963 N.Y.S.2d at 645 (citing Alberta statute of limitations); (Norex Br. at 17). As such, it is undisputed that Norex’s state action is untimely under Alberta law. It also is undisputed that Alberta law “does not have a provision that would toll the 10 See Antone v. Gen. Motors Corp., 64 N.Y.2d 20, 31 (1984); Childs v. Brandon, 60 N.Y.2d 927, 929 (1983); Martin v. Dierck Equip. Co., 43 N.Y. 2d 583, 592 (1978). 19 NEWYORK 9055776 limitations period in favor of a previously filed action.” See id. Given the absence of any applicable Alberta tolling rules (which the courts below were obliged to borrow), Norex’s claims are time-barred.11 Norex knew or should have known that when it filed its federal RICO action in February 2002, any related non-federal causes of action it may have wished to later assert in New York would be subject to CPLR § 202 and thus governed by the limitations laws and tolling rules of Alberta. Norex also was on notice that Alberta law would not “toll the limitations period in favor of a previously filed action,” (i.e., the federal RICO action), as statutes under New York or U.S. federal law might have allowed. Norex, 963 N.Y.S.2d at 645. In any event, whether calculated from February 2002 (when Norex began its RICO action after allegedly losing unfairly in Russia) or December 2005 (with respect to Norex’s two Russian law claims asserted against defendants other than BP), Norex’s New York action was barred by either 2004 or 2007. As a non-resident with claims accruing elsewhere, Norex had no reason to believe that it could wait until March 2011 to commence a New York action. 11 Oddly, Norex cites Rescildo v. R.H. Macy’s, 187 A.D.2d 112 (1st Dep’t 1993) in support of its argument that the First Department’s decision leads to “absurd results.” (Norex Br. at 36-37). However, in Rescildo, which was decided before Smith Barney, Norex’s counsel here argued successfully for one of the defendants that all of Connecticut’s limitations law, including tolling rules, had to be applied under CPLR § 202, even though Connecticut law lacked tolling for infancy that was available in New York under CPLR § 208. See id. at 115-17 (citing Antone, Childs, Martin, and Besser). 20 NEWYORK 9055776 B. CPLR § 205(a) Was Not Designed to Save Norex’s Claims, Which Were Always Subject to CPLR § 202. Norex claims that in failing to apply CPLR 205(a)12 to save its claims the First Department was “manifestly incorrect” and in conflict with Global Financial (Norex Br. at 23, 30-32). This argument, however, ignores this Court’s teaching on how these laws live together, the specific reasoning of Global Financial, the respective goals of CPLR §§ 202 and 205(a), and numerous decisions by courts in New York (and other states). There was and is no basis for saving Norex from the effects of Alberta law by allowing the tolling provided by CPLR § 205(a) to displace CPLR § 202. 1. The Logic Behind CPLR § 202 Has Provided a Clear and Consistent Way To Harmonize the Borrowing Statute with Related Tolling Provisions. Far from holding that CPLR § 202 “displaces” CPLR § 205(a) (Norex. Br. at 23), the First Department actually followed this Court’s direction that the New York “[c]ourts must harmonize the various provisions of related statutes and . . . construe them in a way that renders them internally compatible.” Yatauro v. Mangano, 17 N.Y.3d 420, 427 (2011) (internal citation omitted). Thus, because 12 CPLR § 205(a) provides in relevant part that: If an action is timely commenced and is terminated in any other manner than by . . . a final judgment upon the merits, the plaintiff . . . may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period. 21 NEWYORK 9055776 Norex is subject to CPLR § 202, and the use of all of Alberta law is mandated, a non-resident like Norex does not get the benefit of tolling provisions designed for those parties not subject to the borrowing statute. This is not a new or controversial concept. In Besser v. Squibb & Sons, Inc., 146 A.D.2d 107, 115-16 (1st Dep’t 1989), aff’d without opinion, 75 N.Y.2d 847 (1990)—a case Norex misreads (Norex Br. at 27-29), the First Department harmonized a New York toxic-tort revival statute (1986 N.Y. 682, § 4), similar in its “remedial” function to CPLR § 205(a), with CPLR § 202. The plaintiff, a non-New York resident whose cause of action accrued in Pennsylvania, was diagnosed with a condition allegedly caused by her exposure to a chemical 20 years earlier. Plaintiff’s New York action was dismissed under a then applicable three-year statute of limitation. After the passage of New York’s revival statute, plaintiff started a second lawsuit. By then, however, the claims were time-barred under Pennsylvania law, which applied under CPLR § 202. Just like Norex here (Norex. Br. 17-23), the plaintiff argued that New York’s revival statute should save her claims. Rejecting this argument, Besser weighed and reconciled the policies underlying both CPLR provisions and found that non-residents do not get the same advantages in picking a forum as New York residents: The policy underlying the revival statute can be harmonized with the policies of the borrowing statute. 22 NEWYORK 9055776 The borrowing statute was primarily enacted to prohibit nonresident plaintiffs from forum shopping and to afford New York defendants the benefit of the shortest possible Statute of Limitations. By construing the revival statute so that revived claims are subject to the borrowing statute, the policies of each statute are afforded due regard. New York residents formerly subject to the harsh exposure-based Statute of Limitations will have access to the New York courts, while nonresident plaintiffs will be barred from forum shopping; moreover, New York defendants will be afforded the benefit of the shortest possible Statute of Limitations for claims accruing outside of the State. 146 A.D. 2d at 115-16.13 Accordingly, while recognizing the important policy behind a revival statute, Besser did not allow a non-resident plaintiff—like Norex here—who was subject to another state’s laws, to take advantage of a New York tolling statute. Besser rebuts Norex’s argument (Norex. Br. at 27) that the only way to “harmonize” CPLR §§ 202 and 205 is to allow New York’s tolling provision to trump Alberta’s limitations so as to protect Norex from its home jurisdiction’s limitations law. As importantly, there is no basis for distinguishing among tolling provisions where the Legislature did not itself do so. (Norex Br. at 32-34). Were Norex 13 That plaintiff in Besser was reasserting claims brought in a previous action did not change the court’s analysis that the claims were time-barred under the foreign jurisdiction’s law. Id. at 116. The same year that this Court affirmed Besser, Norex’s counsel here prevailed in another case where the reasoning of Besser was followed. See Singer v. Lilly & Co., 153 A.D.2d 210, 216 (1st Dep’t 1990) (emphasizing that the “rationale of Besser” was that the “borrowing statute limited the application of the revival statute”). This principle also was used in a federal case applying New York law, showing that these well-established rules are important and accepted. See Vincent v. Money Store, 915 F. Supp. 2d 553 (S.D.N.Y. 2013) (discussed infra). 23 NEWYORK 9055776 correct, then “harmonizing” any New York tolling provision—CPLR § 207 (for defendant’s absence from state or residence under false name); CPLR § 208 (for infancy or insanity); CPLR § 209 (tolling for war); or CPLR § 210 (based on death of claimant or person liable)—with CPLR § 202 would entail New York’s tolling statutes always being applied first notwithstanding the borrowing statute. This, however, not only ignores the principle that courts must apply all of the foreign jurisdiction’s law (tolling rules included), but also turns the important policy embodied in CPLR § 202—discouraging forum shopping—on its head. Norex has amply availed itself of other forums with respect to claims that lack any meaningful New York connection. As this Court recognized in affirming in Besser, the borrowing statute does not clash with tolling or revival provisions under New York law. Non-resident plaintiffs with claims accruing outside of New York have been treated differently by the Legislature. This includes being more limited in their access to New York courts. 2. The First Department’s Holding Does Not Conflict With Global Financial. Hoping to lead the Court away from its own settled precedent (i.e., Portfolio Recovery, Smith Barney, and earlier cases), Norex asserts that the lower courts have not followed this Court’s decision in Global Financial. (See Norex Br. at 4, 30-32). Norex, however, distorts dicta in Global Financial, a borrowing statute case that made only passing reference to CPLR § 205(a) and which certainly does 24 NEWYORK 9055776 not hold that a non-resident like Norex can use a New York tolling provision to trump the tolling rules of a foreign jurisdiction. Notably, the defendant in Global Financial did not challenge a foreign plaintiff’s ability to re-file its claims within six months of a federal dismissal. But, this had nothing to do with CPLR § 205(a) displacing CPLR § 202. Rather, as to the non-New York plaintiff, the laws of the foreign jurisdictions referred to under CPLR § 202 (Pennsylvania and Delaware) were virtually identical to CPLR § 205(a).14 Thus, in the absence of any conflict identified by the parties, this Court cited to CPLR § 205(a) —as opposed to the similar laws of Pennsylvania or Delaware—relating to plaintiff’s right to re-file, and the Court simply noted (without having to rule on the issue) that “[t]he parties do not dispute that this action is timely if the Federal action was timely when commenced.” Global Fin., 93 N.Y.2d at 527.15 As such, Global Financial made clear that no CPLR § 205(a) issue was presented. The CPLR § 202 question was where the non-New York plaintiff felt its injury. 93 N.Y.2d at 528-30. Global Financial held that under CPLR § 202 the plaintiff felt its injury either where it was incorporated (Delaware) or where it had its principal place of business (Pennsylvania, per the federal complaint). Id. at 14 See DEL. CODE. ANN. 10, § 8118 (1995); 42 PA. CONS. STAT. § 5535 (1995). 15 In Global Financial, CPLR § 205(a) was not even mentioned in the notice of appeal or pre- argument statement. Where there is no conflict brought to the court’s attention, New York law generally is applied. See, e.g., Matter of Allstate Ins. Co. (Stolarz), 81 N.Y.2d 219, 229 (1993). 25 NEWYORK 9055776 529-30. Finding that plaintiff’s claims were time-barred under both Pennsylvania and Delaware law, this Court did not even have occasion to apply New York’s longer six-year limitations period along with CPLR § 205(a)—since the borrowing statute requires that the claims be timely where they accrued. In a footnote, this Court noted that on appeal, defendant had alleged that plaintiff’s principal place of business was Florida, not Pennsylvania. Id. at 527 n.1. This, however, changed nothing because—just as between Delaware and Pennsylvania—“[i]t is unnecessary for us to choose between [Florida and Pennsylvania],” as plaintiff’s claims were time-barred under Florida law as well. Id. Unlike in Global Financial, where this Court determined that borrowing all of Delaware, Pennsylvania, or Florida law—i.e., limitations and tolling provisions—would have been outcome-neutral under CPLR § 202, here, use of all of Alberta law is outcome-determinative. As such, granting Norex the benefit of CPLR § 205(a) would run afoul of CPLR § 202 and the borrowing rules affirmed most recently in Portfolio Recovery.16 Accordingly, Norex’s reliance on Global Financial (Norex Br. at 30-31) is misplaced, and the First Department’s decision in no way diverges from this Court’s holding in Global Financial.17 16 Indeed, Global Financial cites this Court’s CPLR § 202 decisions requiring foreign tolling rules (if any) to be borrowed to the exclusion of New York tolling rules. See Global Fin., 93 N.Y.2d at 528-30 (citing Smith Barney, 85 N.Y.2d at 207; Antone, 64 N.Y.2d at 27-28 and Martin, 43 N.Y. 2d at 583). 17 Norex cites two other inapposite cases on this point. (See Norex Br. at 31). The lower court decision in Icelandic Airlines v. Canadair, Ltd., 104 Misc. 2d 239 (Sup. Ct., N.Y. Co. 1980), 26 NEWYORK 9055776 3. There Is No Basis To Distinguish CPLR § 205(a) From New York’s Other Tolling Provisions. New York law not only lends no support to Norex’s attempts to distinguish CPLR § 205(a) from other tolling provisions at issue in cases like Portfolio Recovery and Smith Barney, but Norex also misconstrues the cases on which it relies. (Norex Br. at 23-24 n.18, 48 n.33). Contrary to Norex’s claim (Norex Br. at 25, 32-34), there is no reason to treat CPLR § 205(a) differently from any other tolling provision. This Court and the lower courts routinely describe CPLR § 205(a) as just one of several tolling provisions available under New York law, providing no support for Norex’s claims to the contrary. See Campbell v. City of N.Y., 4 N.Y.3d 200, 202-03 (2005); Lehman Bros. v. Hughes Hubbard & Reed, 92 N.Y.2d 1014, 1015 (1998); see also Hyowon Kim v. Cruz, 94 A.D.3d 820, 821 (2d Dep’t 2012) (“CPLR 205(a) is a tolling provision…”); Schultz v. Texaco Inc., 127 F. Supp. 2d 443, 448 (S.D.N.Y. 2001) (listing § 205 among the “tolling principles” of CPLR only discussed CPLR § 205(a) in determining whether plaintiff had met the more generous New York limitations period in order to compare it with the Quebec limitations law applicable under CPLR § 202—in dismissing under Quebec’s shorter period, the court did not look at all to CPLR § 205(a). Id. at 244. In Kat House Productions, LLC v. Paul, Hastings, Janofsky & Walker, LLP, No. 106781/2008, 2009 WL 1032719 (Sup. Ct., N.Y. Co. 2009), aff’d, 71 A.D.3d 580 (1st Dep’t 2010), CPLR § 205(a) was never at issue; plaintiff’s claims were held to be time-barred under a one-year California statute applied under CPLR § 202. See 71 A.D.3d at 581. Norex’s cite to Baker v. Cohn, 266 A.D. 236 (1st Dep’t 1943), a 70-year old First Department decision, actually confirms the proposition that, decades before cases like Antone, Smith Barney and Portfolio Recovery, the policy against forum-shopping reflected in Civil Practice Act § 13 (predecessor to CPLR § 202) and National Surety Co. v. Ruffin, 242 N. Y. 413 (1926), restricted the application of an otherwise “remedial” provision like Section 23 of the Civil Practice Act (the predecessor to CPLR § 205(a)). See Baker, 266 A.D. at 240. 27 NEWYORK 9055776 §§ 204, 207, and 208). Even this Court’s most recent decision construing CPLR § 205(a)—a case on which Norex heavily relies (Norex Br. at 46-48)—refers to it simply as a “state tolling provision,” Goldstein, 13 N.Y.3d at 522, suggesting that its interplay with CPLR § 202 should be no different than as required under Portfolio Recovery and Smith Barney. Significantly, Smith Barney did not qualify its statement that “[a]ll extensions and tolls applied in the foreign state must be imported with the foreign statutory period, so that the entire foreign statute of limitations . . . applie[s], and not merely its period.” 85 N.Y.2d at 207. Norex would have this Court now make a distinction it has chosen not to make before, and can provide no basis for a non- New York plaintiff receiving an advantage the Legislature nowhere conveyed.18 4. Norex Is Forum Shopping. This Court observed in Portfolio Recovery that “one of the key policies underlying CPLR 202” is “to prevent forum shopping by nonresidents attempting to take advantage of a more favorable statute of limitations in this state.” 14 18 George v. Mt. Sinai Hospital is of no help to Norex (Norex Br. at 6, 18, 19, 34), as the issue before this Court only was “whether a prior action that has been improperly brought in the name of a dead plaintiff may nonetheless be a prior action within the ambit of CPLR 205.” 47 N.Y.2d 170, 174-75 (1979). Significantly, in finding CPLR §205(a) applicable, this Court stated that CPLR § 205(a) “will normally ‘involve situations in which a suit has been started but, due to an excusable mistake or a procedural defect or ineptitude of counsel or inability to obtain needed evidence, or some other cause that should not be fatal to the claim, the start has been a false one.” Id. at 179 (citing 1 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 205.03, at p. 2-134). As set forth infra, that is far from the situation here, where Norex was on notice of CPLR § 202 and the rulings of this Court on how non-New York tolling provisions are applied. 28 NEWYORK 9055776 N.Y.3d at 418. Norex asserts that it is not forum shopping because it “chose New York as its forum and gave notice of its suit well within any potentially applicable statute of limitations.” (Norex Br. at 34). But this begs the question. Whatever “notice” Norex may have given is not the issue. (Norex Br. at 22). Rather, the issue is Norex’s strategic decision first to litigate the merits of this dispute in Russia, and then after multiple actions there, initiate U.S. federal litigation—in which it asserted no New York law claims—before even considering New York state court as an option. Thus, Norex, a non-resident with claims that did not accrue in New York—and which the federal courts held lacked any meaningful U.S. connection—has chosen New York state court as its third stop and did so with full knowledge that all along Alberta law (including its tolling rules) would apply under CPLR § 202. This is just the type of forum shopping that the Legislature meant to prevent and which is prevented by this Court’s consistent approach to CPLR §§ 202 and 205. The sequence here is telling. From 2000 to 2002, Norex attempted to take control of Yugraneft in Russia, and actively participated in multiple Russian cases all designed to carry-out Norex’s strategy of seizing control of a Russian oil company. (R. 780-88). Even after it filed its federal RICO action in 2002 alleging that the Russian courts were corrupt, Norex participated in the dividends litigation in Russia, which decided certain issues that Norex now wants to relitigate here. 29 NEWYORK 9055776 (R. 788-90). Norex never bothered to assert any New York law supplemental claims in the federal action, waiting until 2005 to assert two Russian law claims as supplemental claims. (R. 463-65). When the federal district court ruled that it lacked jurisdiction over Norex’s claims, Norex chose not even to appeal the dismissal of the two Russian law supplemental claims. Thus, Norex never acted like a party relying on New York law for its claims—a decision confirmed by the Second Circuit, which held that the “slim contacts with the United States alleged by Norex” could not support a RICO claim. (R. 517). In now seeking to for the first time assert New York law claims and rely on CPLR § 205(a) to resuscitate its stale and adjudicated claims, Norex repeatedly stresses the “broad and liberal” purpose of CPLR § 205(a). (Norex Br. at 24, 26- 29). But, as the Second Circuit has recognized, the “broad and liberal purpose” of CPLR § 205(a), which is available to New York residents or parties whose injuries accrue in New York, is in no way contrary to “the much deeper policy embodied in New York’s statute of limitations”—discouraging forum shopping. Graziano v. Pennell, 371 F.2d 761, 764 (2d Cir. 1967); see also George v. Douglas Aircraft Co., 332 F.2d 73, 77 (2d Cir. 1964) (noting that CPLR § 202’s predecessor statute was intended to protect defendants situated similarly to the Defendants here). Norex relies on GML, Inc. v. Cinque & Cinque, P.C., 9 N.Y.3d 949 (2007) in contending that the First Department’s application of CPLR § 202 is 30 NEWYORK 9055776 inconsistent with the borrowing statute’s purpose. (Norex Br. at 35-36). But Norex misconstrues GML. In GML, this Court laid down the familiar CPLR § 202 rule that when “borrowing the [foreign jurisdiction’s] Statute of Limitations, its tolling statute is also borrowed.” 9 N.Y.3d at 951 (quoting Childs, N.Y.2d at 929). But GML then rejected arguments akin to those now advanced by Norex by refusing to favor the more liberal tolling rule. In GML the non-New York plaintiffs contended that because their claims accrued in Tennessee, otherwise time-barred claims as against New York defendants should be saved by a Tennessee tolling rule tied to a defendant’s absence from Tennessee. 9 N.Y.3d at 950. Rejecting this approach, this Court held that CPLR § 202 does not allow application of plaintiff-friendly foreign limitations and tolling rules where the claims otherwise would be time-barred under New York’s comparatively less generous limitations and tolling rules because CPLR § 202 mandates the shorter period of either New York or non-New York limitations law after accounting for all applicable tolls under either jurisdiction’s laws. Id. at 951. Thus, while the GML plaintiffs would have had an indefinite toll under Tennessee law (because defendants there were never present in Tennessee), they would have had no such toll under CPLR § 207 (the corresponding New York law) since defendants were New York residents. Accordingly, the borrowing statute 31 NEWYORK 9055776 required that New York’s shorter period instead of Tennessee’s infinitely longer period be applied, rendering plaintiffs’ claims time-barred. 9 N.Y.3d at 951. Nothing in GML undermines the First Department’s ruling here.19 Alberta law considered as a whole provides the shorter applicable time to Norex and so is the limit on Norex’s claims. That is, as noted in the briefing below, New York law may have provided Norex with three to six years, but Alberta law provided only two (with no tolling provision to save an expired claim). (R. 334-35).20 That result is neither “absurd” nor “unfair” (Norex Br. at 36, 40), given that CPLR § 202 requires that Norex’s claims be timely under the shorter limitations period. What would be absurd and novel is the blanket ruling sought by Norex which would allow CPLR § 205(a) to displace the borrowing statute rules at all times and open the door to wholesale forum shopping. 5. This Court’s Clear and Consistent Instructions on How the Borrowing Statute Is Harmonized with State Tolling Provisions Has Yielded Consistent Results in the Courts in New York and Elsewhere. As discussed above, this Court has had a clear and consistent approach to CPLR § 202 and how it is harmonized with applicable tolling provisions. See Portfolio Recovery, 14 N.Y.3d at 416; Smith Barney, 85 N.Y.2d at 207; Antone, 64 19 Nor does the result in Fitzgerald v. Thompson, 187 A.D.2d 557 (2d Dep’t 1992); (Norex Br. at 37). There, the court simply reaffirmed the principle that New York courts will not borrow a foreign state’s choice of law principles of renvoi so as not to allow a party to circumvent the borrowing statute. Id. at 558. 20 See Defs’ Supreme Court Br. at 10-11; Defs’ 1st Dep’t Br. at 15. 32 NEWYORK 9055776 N.Y.2d at 31; Childs, 60 N.Y.2d at 929; Martin, 43 N.Y. 2d at 592. This well- settled authority has provided clear guidance to the state and federal courts in New York, and has yielded consistent and predictable results. Where non-New York law does not provide a refiling grace period for a plaintiff’s foreign-accrued, time-barred claims, New York courts abstain from applying CPLR § 205(a) to save those claims. In a recent decision in a federal class action where the putative class included New York residents and non- residents, Judge Koetl, sitting in diversity, recognized that both CPLR §§ 202 and 205(a) applied. Vincent v. Money Store, 915 F. Supp. 2d 553, 562-67 (S.D.N.Y. 2013). In a carefully reasoned opinion that no party appealed, the court found that “whether the claims for each plaintiff are tolled [under CPLR § 205(a)] depends on the residence of each of the named plaintiffs under New York’s borrowing statute [CPLR § 202].” Id. at 561. Thus, while CPLR § 205(a) could apply to the claims of New York-resident plaintiffs, CPLR § 202 applied to and could lead to foreign law barring the claims of non-resident plaintiffs. Id. at 567. Vincent is just the most recent example of how federal courts have for decades harmonized CPLR §§ 202 and 205(a).21 21 See, e.g., Lewis v. Rosenfeld, 138 F. Supp. 2d 466, 474 (S.D.N.Y. 2001) (borrowing Texas statute of limitations and Texas savings provision, not CPLR § 205(a)); Posner v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 469 F. Supp. 972, 984 (S.D.N.Y. 1979) (applying Arkansas savings statute under CPLR § 202 instead of CPLR § 205(a)); Lehtonen v. E. I. DuPont DeNemours & Co., 389 F. Supp. 633, 634-35 (D. Mont. 1975) (diversity case transferred from 33 NEWYORK 9055776 These cases demonstrate that courts properly harmonize the two statutes as instructed by this Court when claims governed by CPLR § 202 are afforded only such “remedial” refiling tolls as the non-New York jurisdiction permits, if any.22 Far from “unprecedented” (Norex Br. at 3),23 such an application of the two statutes by the First Department properly recognized that Norex, a non-resident holding non-New York claims, does not get the same advantages as New York residents with New York claims.24 New York’s approach to harmonizing CPLR §§ 202 and 205 also is consistent with the practice of most other states. For example, in Frombach v. Gilbert Associates, Inc., 236 A.2d 363, 364-65 (Del. 1967), the Delaware Supreme Court reconciled Delaware’s borrowing and savings statutes (which are materially New York; applying Montana savings statute to the exclusion of CPLR § 205(a) based on CPLR § 202). 22 Unable to distinguish these decisions, Norex instead cites other federal cases (see Norex Br. at 39-40). Yet none of the cases cited by Norex even mentions CPLR § 205(a), let alone harmonizes it with CPLR §202 as Vincent and the other federal cases cited above do. 23 The decisions below were not unique. In Modi Enters. v. ESPN, Inc., No. 600060/01, 2004 WL 6035961, at *4 (Sup. Ct., N.Y. Co. Jan. 16, 2004), the court, having determined that it must borrow Indian limitations law under CPLR § 202, also borrowed India’s “savings provision,” which happened to be more generous to the Indian plaintiffs than CPLR § 205(a) would have been, had it applied. Citing the Smith Barney and Childs line of authority, the court held that the interplay of CPLR § 202 with CPLR § 205(a) was no different than with other New York tolling provisions. Modi, 2004 WL 6035961, at *4. Defendants cited Modi (and other federal decisions noted here) below, belying Norex’s claim that Defendants have not pointed to borrowing statute cases that also implicate the “remedial” objectives of CPLR § 205(a). (See Defs’ 1st Dept. Br. at 19-20; Norex Br. at 32-34). 24 That Norex initially filed suit in New York federal court does not help its cause. See Norex Br. at 38-39. Even assuming CPLR § 205(a) applied (which it does not since the federal action was dismissed on the merits), since Norex is a non-resident, the borrowing statute is applied notwithstanding CPLR § 205(a). Here, the borrowing statute points to Alberta law, which provides a shorter limitations period and contains no savings or other tolling provision that would excuse Norex’s decision first to pursue claims in federal court. 34 NEWYORK 9055776 analogous to CPLR §§ 202 and 205(a), respectively) under procedural circumstances very similar to those here. There, an action dismissed from federal court in Delaware for lack of diversity jurisdiction was refiled in Delaware state court, and Delaware’s borrowing statute looked to Pennsylvania limitations law, which (at the time) had no savings statute like that in Delaware. Id. at 365. After considering the policies underlying both statutes, Delaware’s top court barred the action because Pennsylvania law, not Delaware’s savings statute, applied under the Delaware borrowing statute. Id. at 366.25 At least three federal appellate courts applying state law (and other federal district courts) have held under various state borrowing statutes that the savings statute, if any, of the jurisdiction where the claims accrued should apply. See, e.g., Great Plains Trust Co. v. Union Pac. R.R. Co., 492 F.3d 986, 992-93, 998 (8th Cir. 2007) (under Missouri’s borrowing statute, the savings statute of Kansas, not Missouri, applied); Faile v. Upjohn Co., 72 F.3d 137 (10th Cir. 1995) (under Utah borrowing statute, Nevada’s limitations law, which lacked a savings statute, was 25 Frombach has been given a broad reading by the Delaware courts. See, e.g., In re Asbestos Litig. (Lillian Gray v. Georgia Pacific Corp.), No. 06C-04-230, at *4-5 (Del. Super Ct. Dec. 19, 2008) (“Where both the savings statute and borrowing statute are implicated, the borrowing statute will prevail. When the borrowing statute applies, it not only borrows the foreign statute of limitations, but also the foreign statute’s accoutrements. Such accoutrements include rules governing the time when causes of action accrue, and any savings statutes. When a foreign action arises in a jurisdiction that has no applicable savings statute, the Delaware savings statute will not apply to save the action.”) (citing Frombach, 236 A.2d at 366). 35 NEWYORK 9055776 applied); Graham v. Ferguson, 593 F.2d 764, 765-66 (6th Cir. 1979) (under Michigan’s borrowing statute, the limited savings statute of Tennessee applied).26 C. Because Norex’s Federal Action Ultimately was Dismissed on the Merits, the First Department Also Correctly Held that CPLR § 205(a) Did Not Save Norex’s Claims. In any event, the First Department recognized that by dismissing Norex’s case on the merits, the Second Circuit dismissal had res judicata effect, which precludes Norex from using CPLR § 205(a). That is because, by its terms, CPLR § 205(a) does not apply, inter alia, where an action “is terminated . . . by a final judgment upon the merits.” Norex’s federal claim was expressly dismissed by the Second Circuit under FRCP 12(b)(6) for failure to state a claim, which was a “dismissal on the merits.”27 (R. 516); Norex, 963 N.Y.S.2d at 645.28 This bars Norex from using CPLR § 205(a) to “bring[ ] the state claims that it alleges ‘are 26 See also Hunter Innovations Co. v. Travelers Indem. Co. of Conn., 753 F. Supp. 2d 597, 606 (E.D. Va. 2010) (Virginia borrowing statute caused D.C. limitations law to apply, and in the absence of any D.C. tolling provision the Virginia savings statute would not be applied); Hollins v. Yellow Freight Sys., Inc., 590 F. Supp. 1023, 1027 (N.D. Ill. 1984) (under Illinois borrowing statute, the limited savings statute of Indiana applied). 27 In suggesting that that it was somehow caught off guard by the Second Circuit’s dismissal (Norex Br. at 2, 14 n.8), Norex ignores earlier decisions in which the Supreme Court noted that certain procedural issues that are grounds for dismissal under Federal Rule 12(b)(1) (lack of jurisdiction) actually go to the merits of a claim under Rule 12(b)(6). See, e.g., Kontrick v. Ryan, 540 U.S. 443, 455 (2004) (noting that classifying certain procedural issues, like time prescriptions, as “jurisdictional” “can be confounding”); Hishon v. King & Spalding, 467 U.S. 69, 73 n.2 (1984) (noting issue that jurisdictional dismissal could fall under Rule 12(b)(6) for failure to state a claim). This is similar to New York law, where procedural dismissals, for example, by reason of the statute of limitations, nonetheless constitute dismissals on the merits. Smith v. Russell Sage Coll., 54 N.Y.2d 185 (1981). 28 A prior judgment need not “contain the precise words ‘on the merits’ in order to be given res judicata effect; it suffices that it appears from the judgment that the dismissal was on the merits.” Strange v. Montefiore Hosp. & Med. Ctr., 59 N.Y.2d 737, 739 (1983). 36 NEWYORK 9055776 based upon the same transaction or occurrence or series of transactions or occurrences it pled in its federal action,’” and thereby prevents Norex from making any claims flowing from the transactions alleged in the federal action, including the two Russian law claims. Norex, 963 N.Y.S.2d at 645 (quoting R. 69, 103).29 II. BY ITS EXPRESS TERMS SECTION 1367(D) CANNOT SAVE NOREX’S OTHERWISE TIME-BARRED CLAIMS Norex claims that the First Department somehow “nullified” Section 1367(d).30 (Norex Br. at 40-42). Norex itself, however, rendered Section 1367(d) inapplicable by repeatedly missing the statute’s express 30-day window (which at most only applied to the two Russian law claims—the only supplemental claims ever asserted in the federal action). Refusing to read words out of the statute, the courts below skirted no constitutional obligation by correctly holding that, on this Record, Section 1367(d) also could not revive Norex’s stale claims. 29 The First Department properly recognized the res judicata effect of the Second Circuit’s dismissal on the merits. See Yonkers Contr. Co. v. Port Auth. Trans-Hudson Corp., 93 N.Y.2d 375, 380 (1999) (“[t]he proviso in CPLR 205(a) that the toll is inapplicable when the prior action was dismissed on the merits is essentially a corollary of the principle of res judicata that ‘once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.’”) (emphasis in original; citations omitted). Norex’s Complaint avers that “[t]he claims filed herein are based upon the same transaction or occurrence or series of transactions or occurrences Norex pled in its federal action.” (R. 69, 103). 30 Section 1367(d) provides in relevant part that “[t]he period of limitations for any claim asserted under subsection (a) [i.e., a non-federal supplemental claim under Section 1367(a)] . . . shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” 28 U.S.C. § 1367(d) (emphases added). 37 NEWYORK 9055776 A. Norex Repeatedly Ignored Section 1367(d) As To All Its Claims. By its actions, Norex showed that it knew it had filed this action more than 30 days after the federal dismissal, such that Section 1367(d) never applied here. Indeed, Norex timed its filing and service of this state action precisely to comply only with CPLR § 205(a), and not the 30-day limit imposed by Section 1367(d). Norex’s conduct shows that Norex understood the Second Circuit to have dismissed its claims as of September 2010, rendering its March 2011 filing of this action well beyond the 30 days provided by Section 1367(d). In seeking to delay issuance of the Second Circuit’s mandate in January 2011—which came well after the Second Circuit dismissal of Norex’s claims— Norex cited only to CPLR § 205(a).31 (R. 4482-83). Norex then waited until March 2011—well over 30 days—to file this action and hurried to serve all parties by March 28, 2011, which was exactly six months (i.e., under CPLR § 205(a)) from the Second Circuit’s September 28, 2010 dismissal order.32 (R. 63-66). Thus, Norex knew exactly what “dismissal” meant in September 2010, and how to calculate filing deadlines. Had Norex sought in good faith to rely on 31 The Second Circuit then made no mention of CPLR § 205(a) in staying its mandate, relying only on Federal Rule of Appellate Procedure 41(d)(2)(A), which applied because Norex stated it was going to seek Supreme Court review (and which stay in no way tolled the finality of the dismissal or Norex’s time to petition the Supreme Court). (Defs’ 1st Dep’t Br. at 29). 32 Norex was apparently following this Court’s authority that CPLR § 205(a)’s six-month re- filing period is triggered upon exhaustion of nondiscretionary appeals, which occurred upon the Second Circuit dismissal in September 2010. See Lehman Bros., Inc. v. Hughes Hubbard & Reed., 92 N.Y.2d 1014, 1017 (1998). 38 NEWYORK 9055776 Section 1367(d), it would have re-filed its two Russian law claims either within 30 days of the District Court’s dismissal in 2007 of the two Russian law claims, or, at a minimum, within 30 days of the Second Circuit’s September 28, 2010 dismissal.33 Norex should not be allowed to escape the results of these calculated litigation decisions. Tellingly, conceding that it had missed the 30-day re-filing window, Norex did not rely on Section 1367(d) in its original (or amended!) Complaints in this action, citing only CPLR § 205(a) as a basis for the timeliness of its claims. (R. 69, 103). Norex never raised Section 1367(d) in opposing Defendants’ motions to dismiss, or at oral argument in December 2011—over a year after the Second Circuit’s dismissal. As such, Justice Bransten aptly noted that Norex “appears to have acknowledged” the non-applicability of Section 1367(d) “in its lack of citation to Section 1367(d) in prior filings.” (R. 54). B. Section 1367(d) Could Only Have Applied To Two Supplemental Russian Law Claims Asserted In Federal Court, Thus Barring Norex’s New York Law Claims Entirely. Norex continuously glosses over that only two of its eight claims here ever were asserted as supplemental claims in federal court. (Norex Br. at 2-3). The two Russian Civil Code claims added by Norex to its federal complaint in December 2005 were the only supplemental claims asserted. As the First Department 33 As noted above, however, insofar as the Second Circuit dismissed Norex’s federal action on the merits, Section 1367(d) could not apply here because these Russian law claims would have been barred under the doctrine of res judicata. See Yonkers Contr. Co., 93 N.Y.2d at 380. 39 NEWYORK 9055776 recognized, Section 1367(d) by its express terms only applies to supplemental claims actually asserted in federal actions.34 See Norex, 963 N.Y.S.2d at 645. 28 U.S.C. § 1367(a) provides a basis for federal supplemental jurisdiction over non-federal claims asserted in federal actions. Section 1367(d) then only relates to “any claim asserted under subsection (a).” 28 U.S.C. § 1367(d) (emphasis added). That is, one never can reach Section 1367(d) unless the claims now asserted in state court were supplemental claims that fall within Section 1367(a)—i.e., supplemental claims actually asserted in the federal court as part of the federal court’s supplemental jurisdiction. As the court below also observed, Norex presumably “knew it had [New York] state-law claims” no later than December 2005, when it amended its federal complaint. Id. But, Norex made a deliberate decision not to assert New York claims in federal court.35 In attempting now to rely on Section 1367(d), Norex apparently would have this Court ignore the express terms of the statute and extend Section 1367(d) to reach unasserted non- federal claims. (Norex Br. at 46-48). There is no basis for this. 34 No supplemental claims of any kind were asserted against BP, so Section 1367(d) can save no claims against BP. See Barnett v. Connecticut Light & Power Co., No. 11-cv-1037, 2013 WL 4813083, at *5 (D. Conn. Sept. 9, 2013) (Section 1367(d) does not toll the statute of limitations for claims not asserted in prior action). 35 Indeed, having failed to seek Second Circuit review of the lower court’s dismissal of its supplemental Russian law claims in 2007, by 2010 Norex could no longer have relied on Section 1367(d) to advance those Russian law claims given that more than 30 days had passed from the district court’s dismissal. Cf. Thompson v. Paul, 657 F. Supp. 2d 1113, 1125 (D. Ariz. 2009) (when a plaintiff fails to raise on appeal a district court’s disposition of its supplemental claims, the plaintiff may not count the 30 days of Section 1367(d) from the subsequent appellate adjudication). 40 NEWYORK 9055776 Neither Jinks v. Richland Cty., S.C., 538 U.S. 456, 459 (2003) nor Goldstein v. N.Y. State Urban Dev. Corp, 13 N.Y.3d 511 (2009)—the two cases on which Norex so heavily relies (Norex Br. at 47-48)—contemplates, let alone endorses, applying Section 1367(d) to non-federal claims that were never asserted in federal court. Jinks explained that Section 1367(d) only applies to “claims asserted under [Section] 1367(a)” that are “dismissed because the district court declines to exercise jurisdiction over them[.]” 538 U.S. at 459. That is, a federal court could not decline jurisdiction over claims never asserted in federal court. It is only “such supplemental claims” that a plaintiff may have “fruitlessly pursu[ed] . . . in federal court[.]” Id. Thus, the plaintiff in Jinks actually asserted wrongful death and survival claims under South Carolina law in federal court before re-filing those very same claims in state court. Id. at 460.36 Norex, however, never pursued in federal court the six New York law claims now asserted for the first time—and there is no basis in the language or logic of Section 1367(d) for attempting to include those claims in this appeal. Goldstein also cannot help Norex. That case involved a federal constitutional action where plaintiff asserted a supplemental New York law claim under EDPL § 207, and re-filed that exact same claim in New York court after the 36 Indeed, the Supreme Court in Jinks and Raygor v. Regents of the Univ. of Minn., 534 U.S. 533 (2002), consistently discusses the application of Section 1367(d) to certain “claims,” not to certain “plaintiffs” or to entire “cases.” See, e.g., Jinks, 538 U.S. at 466 (applicability of Section 1367(d) to “claims brought against a state’s political subdivision”); Raygor, 534 U.S. at 533 (applicability of Section 1367(d) to “claims against nonconsenting state defendants”). 41 NEWYORK 9055776 federal court declined supplemental jurisdiction. 13 N.Y.3d at 518-19. Having held that plaintiff “had every right to litigate their federal claims in federal court and to include in their federal action a supplemental state law cause of action,” this Court also noted in dicta that Section 1367(d)’s 30-day re-filing period was hypothetically available with respect to that previously asserted supplemental claim. Id. at 522. Thus, at most, Goldstein made clear that Section 1367(d) could only apply to a supplemental claim that had been “include[d] in [a] federal action….” Id. Two concurring judges concluded that plaintiff missed the 30-day window as to that claim following the dismissal. Id. at 542-43. Significantly, no member of this Court suggested that Section 1367(d) could ever apply to claims that were never brought in federal court—such as Norex’s six New York law claims here. Left without any express statutory mandate or support under Jinks and Goldstein, Norex attempts to argue that its six New York law claims fall within New York’s “relation-back” doctrine under CPLR § 203(f). (Norex Br. at 54-56). The court below properly rejected Norex’s attempt to “avail itself of the relation- back doctrine to add six entirely new state-law claims eight years after filing the original federal complaint.” Norex, 963 N.Y.S.2d at 645. First, not only is there no support in Section 1367 for this, but there also is no basis to use state law to bootstrap a non-applicable federal law. Second, the First Department joined other 42 NEWYORK 9055776 Appellate Divisions in rejecting the idea that untimely claims filed for the first time in state court could somehow “relate back” under CPLR § 203(f) to prior federal pleadings. See Williams v. State of N.Y., 235 A.D.2d 776, 777 (3d Dep’t 1997) (“Inasmuch as the Federal action is a separate lawsuit in a different jurisdiction involving different causes of action, claimant may not rely upon it for the purpose of relating back his negligence claim pursuant to CPLR 203(b)”); Bittner v. Cummings, 188 A.D.2d 504, 506 (2d Dep’t 1992) (same). C. There Is No Basis for Running the 30-Day Re-Filing Period From Issuance of a Mandate or for Norex’s “Suspension” Theory. Notwithstanding the express use of the word “dismissal” in Section 1367(d), Norex asserts that “30 days after [a supplemental claim] is dismissed” is not to be understood literally. (See Norex Br. at 49-51). Norex contends that Section 1367(d) is triggered not by a federal dismissal (the word Congress used), but by the “issuance of a [federal] appellate court’s mandate” (which here occurred in July 2011—four months after this action was filed). (Norex Br. at 49-51). The First Department created no new law in refusing to deviate from the express terms of Section 1367(d). Norex, 963 N.Y.S.2d at 645. Section 1367(d) uses the word “dismissal.” “[W]ith respect to filing deadlines a literal reading of Congress’ words is generally the only proper reading of those words.” United States v. Locke, 471 U.S. 84, 93 (1985). Had Congress wished to make the 30-day tolling period commence upon “entry of a final 43 NEWYORK 9055776 judgment” or upon “issuance of a mandate,” it could and would have done so.37 “Where Congress knows how to say something but chooses not to, its silence is controlling[.]” Simonoff v. Kaplan, Inc., No. 10-cv-2923, 2010 WL 4823597, at *7 (S.D.N.Y. Nov. 29, 2010) (internal quotation marks omitted). Hence, the word “dismissal” controls. In response, once again, Norex relies on one line of dicta in Goldstein to argue that this Court somehow read “dismissal” out of Section 1367(d). (Norex Br. at 51). This Court did no such thing. Goldstein focuses on the interplay of EDPL § 207 with CPLR § 205(a)—which was the tolling provision relied upon there. It was only in passing that the Court commented on an argument only raised belatedly on reply, noting that “even without a state tolling provision, petitioners would have had the right under federal law to recommence their unadjudicated pendant state law claim in state court at the federal action’s conclusion.” 13 N.Y.3d at 522. This statement was dicta because the Court held that CPLR § 205(a) did in fact apply to save plaintiff’s state law claim. 13 N.Y.3d at 522-23. Norex fixates on the final four words of this dicta, arguing that “the federal action’s conclusion” 37The United States Code is replete with examples of deadlines triggered by the entry of a “final judgment.” See, e.g., 23 U.S.C. § 131(l) (“Within forty-five days of receipt of such order, the State may appeal such order to any United States district court for such State, and upon the filing of such appeal such order shall be stayed until final judgment has been entered on such appeal.”) (emphasis added). Indeed, stay of a mandate—for Norex a crucial event—does not even affect a party’s time to appeal to the Supreme Court, let alone create a basis for extending the date of “dismissal.” Fed. R. App. P. 4(a)(1). 44 NEWYORK 9055776 in cases appealed as of right “is marked by the issuance of the circuit court of appeal’s mandate.” (Norex Br. at 49). But Goldstein will not bear this weight. Nothing in Goldstein suggests that this Court intended the phrase “federal action’s conclusion” (i) to mean something other than dismissal; (ii) to extend to the issuance of an appellate mandate; or (iii) to reach an issue not presented on that appeal. Indeed, to the contrary, the Goldstein appellants’ reply brief argued that Section 1367(d) “afforded Appellants the federal right to reassert their state claims in state court until March 3, 2008 (30 days after the Second Circuit affirmed the dismissal of Appellants’ state law claims without prejudice).” Reply Brief for Petitioners-Appellants, Goldstein v. N.Y. State Urban Dev. Corp., No. 08-7064, 2009 WL 3810849, at *74 (Sept. 25, 2009) (emphasis added). Placed in a context that Norex ignores, Goldstein can only be understood to equate “dismissal” with the “federal action’s conclusion”—and to tie dismissal to the day when the Second Circuit “affirmed dismissal,” not the later date a mandate was issued.38 38 Indeed, the concurring opinion in Goldstein observes that plaintiffs “would not be helped . . . [by Section 1367(d)] because they did not commence this lawsuit [in state court] within 30 days after the federal District Court dismissed their [state law] claim.” 13 N.Y.3d at 542 (Read, J., concurring) (emphasis added) (citing Prof. David D. Siegel, Commentary on 1988 Revision, 28 U.S.C.A. § 1367, at 767) (“[T]he dismissal moment should be taken to be the moment of dismissal in the district court.”)). Under that interpretation, Norex should have re-filed its supplemental Russian law claims by October 24, 2007—thirty days after the district court’s September 24, 2007 dismissal of Norex’s RICO action. Also unavailing is Norex’s reliance (Norex Br. at 50) on Greenblatt v. N.Y. Sur. Co., 246 A.D.2d 385, 386 (1st Dep’t 1998). Greenblatt only involved the meaning of “termination” under CPLR § 205(a), not “dismissal” under Section 1367(d). In any event, this Court effectively overruled Greenblatt in Lehman Bros. 92 N.Y.2d at 1017. 45 NEWYORK 9055776 Realizing that the Goldstein dicta cannot cover for its repeatedly missing the 30-day window in Section 1367(d), Norex advances another theory based on a collection of non-New York cases. (Norex Br. at 52-54). This “suspension” theory would allow Norex to tack on whatever balance of time was left on its limitations periods as of Norex’s federal filing, in addition to the 30 days granted by Section 1367(d). But, once again, this argument would require legerdemain unsupported by the statute or jurisprudence to be sustained. First, this argument takes the word “pending” entirely out of context. Section 1367(d) states that a supplemental claim must be “pending” and then gets an additional 30 days from dismissal to be re-filed. In this context, pending can mean nothing more than still alive in the federal action. There is nothing in Section 1367(d) to suggest that Congress meant to use the statute to extend or supplement the limitations periods applicable to all non-federal claims.39 Norex would have this Court go beyond the express terms of an otherwise clear statute 39 Indeed, the majority of courts to consider this issue have rejected the “suspension” theory. See Weinrib v. Duncan, 962 So.2d 167 (Ala. 2007); Berke v. Buckley Broad. Corp., 821 A.2d 118 (N.J. Super. Ct. App. Div. 2003), cert. denied, 832 A.2d 322 (N.J. 2003); Dahl v. Eckerd Family Youth Alternatives, 843 So.2d 956 (Fla. Ct. App. 2003); Harter v. Vernon, 532 S.E.2d 836 (N.C. Ct. App. 2000), appeal dismissed and review denied, 546 S.E.2d 97 (N.C. 2000), cert. denied, 532 U.S. 1022 (2001). Moreover, the suspension theory has been criticized by the Attorneys General of 17 other states. See Brief of North Carolina, Alaska, Arkansas, Colorado, Delaware, Florida, Hawaii, Idaho, Kentucky, Massachusetts, Mississippi, Nevada, North Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina and Utah as Amici Curiae in Support of Petitioners, Kight v. Turner, No. 08-849, 556 U.S. 1181, 2009 U.S. LEXIS 3037 (2009). 46 NEWYORK 9055776 that provides only for a 30-day re-filing period.40 There is no support in logic, case law or policy to engraft on to express federal law some indeterminate intervening period that would need to be calculated differently in every action as to any supplemental claim.41 D. Section 1367(d) Does Not, In Any Event, Override the Operation of New York Law. Norex contends that the First Department violated the Supremacy Clause by not using Section 1367(d) to override CPLR § 202. (Norex Br. at 9-10). This not only ignores Norex’s failure to meet the 30-day re-filing requirement, but also runs counter to U.S. Supreme Court decisions making clear that nothing in Section 1367(d) was intended to override the operation of state borrowing statute regimes. 40 Moreover, Goldstein again can provide no cover because the appellants there never advanced a “suspension” theory, hence there is no way the Court’s dicta could have endorsed a concept that would create an indeterminate intervening period between federal and state actions. 41 While Norex’s Motion for Leave to Appeal was pending in this Court, in June 2013 three law professors filed a Motion for Leave to Appear Amici Curiae and a fourth law professor filed a separate Motion for Leave to Appear Amici Curiae (together, the “Amici Motions”). The Amici Motions related only to the First Department’s application of Section 1367(d). See Ct. App. Rule 500.23(a)(3). In any case, the Amici Motions are inapposite and ignore the Record. First, they do not address the teachings of the U.S. Supreme Court in Raygor, 534 U.S. at 544-46, which construed Section 1367(d) narrowly so as not to frustrate state interests (like the prevention of forum-shopping under CPLR § 202). Second, one of the Amici Motions relies on an article in which amici themselves state that Section 1367(d) only tolls claims “for 30 days after they are dismissed, unless state law provides a longer period.” Thomas M. Mengler, Stephen B. Burbank, & Thomas D. Rowe, Jr., Congress Accepts Supreme Court’s Invitation to Codify Supplemental Jurisdiction, 74 JUDICATURE 213, 216 (1991). Third, the Amici Motions completely ignore the Record, which establishes that Norex failed to assert its New York claims in federal court, had its federal action dismissed on the merits for failure to state a claim, and repeatedly missed the express 30-day period provided by Section 1367(d). (R. 63-66). As such, the Amici Motions ask this Court to address an issue not raised in this case. 47 NEWYORK 9055776 Section 1367(d) did not “federalize” the law on limitations and tolling, which have always been the province of state laws and related common law. In Board of Regents of University of State of New York. v. Tomanio, 446 U.S. 478, 491-92 (1980), a pre-Section 1367 case, plaintiff brought a federal civil rights claim after pursuing a related claim in New York state court. The Supreme Court held that the federal action was barred by New York’s statute of limitations and by New York’s tolling rules—which did not toll the limitations period during the pendency of the state court action. 446 U.S. at 487-89. Even though use of New York’s limitations and tolling regime undermined the federal remedy, this did not make New York law inconsistent with federal law. Id. at 488 (“[A] state statute cannot be considered ‘inconsistent’ with federal law merely because the statute causes the plaintiff to lose the litigation.”) (citing Robertson v. Wegmann, 436 U.S. 584 (1978)). The Court observed that “the application of the New York law of tolling is in fact more consistent with the policies of ‘federalism’ invoked by the [Second Circuit] than a rule which displaces the state rule in favor of an ad hoc federal rule.” Id. at 491-92. Thus, in addition to recognizing that when borrowing occurs it is of the whole law of the borrowed state, Tomanio recognized that state limitations and tolling regimes are not technicalities. Rather, they “have long been respected as fundamental to a well-ordered judicial system.” Id. at 487. 48 NEWYORK 9055776 In Raygor v. Regents of the University of Minnesota, 534 U.S. 533 (2002), the Supreme Court again made clear that a federal law like Section 1367(d) should not be presumed to override state limitations and tolling regimes. In Raygor, plaintiffs brought federal and state age discrimination claims in federal court. The claims were dismissed under the 11th Amendment, but when plaintiffs re-filed their state discrimination claims (in less than 30 days) in state court, Minnesota held that the federal action had not tolled Minnesota’s short limitations period on these types of claims. 534 U.S. at 539. In affirming, the Supreme Court held that there was no conflict between a narrowly crafted Section 1367(d) and state interests in limiting claims, even where Minnesota barred supplemental state law claims that had been initially filed in federal court and then re-filed within 30 days in state court. The Court held that Section 1367(d) was to be read narrowly, and that any change in the balance of federal and state interests would require Congress to make a clear statement that state law was being overridden—which clear statement was obviously lacking as to Section 1367(d). Id. at 543-44. Thus, Section 1367(d) was not a universal tolling statute that could ensure that a federal action would toll the Minnesota age discrimination statute of limitations. Given Tomanio and Raygor, there is no basis for Norex to argue that Section 1367(d) overrides every state borrowing statute 49 NEWYORK 9055776 regime, including CPLR § 202, especially where that regime implicates foreign— as opposed to state—law. Moreover, as the trial court below correctly recognized (and as not reached by the First Department), the operation of Section 1367(d) is subject to the U.S. Supreme Court’s precedent on the limited extraterritorial reach of U.S. federal law. (R. 54). Section 1367(d) provides that “State law” may vary the 30 days of tolling for asserted supplemental claims that is available under the federal statute. But, as Justice Bransten observed, 28 U.S.C. § 1367(e) expressly limits “State” to U.S. states and territories. Id. This definition does not include a foreign country. Here, New York law dictates the use of Alberta’s limitations and tolling regime. Under the U.S. Supreme Court’s recent holdings in Kiobel v. Royal Dutch Petroleum Co. and Morrison v. National Australia Bank Ltd., “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” 133 S. Ct. 1659, 1664 (2013); 130 S. Ct. 2869, 2878 (2010). Kiobel is particularly relevant here, to the extent that it applied the limits on extraterritoriality to a jurisdictional statute (there, 28 U.S.C. § 1350), and Section 1367 relates to the supplemental jurisdiction of federal courts. Section 1367(d) makes no reference to non-U.S. law, and under Kiobel and Morrison, the statute’s limited definition of “State” can only mean that Congress did not intend any tolling effect of Section 1367(d) to have extraterritorial reach. 50 NEWYORK 9055776 Indeed, the legislative history of Section 1367(d) confirms that Congress’ focus was to provide a 30-day grace period “where state law might fail to toll.” See H.R. Rept. No. 101-734, at 30 (1990), reprinted in 1990 U.S.C.C.A.N. 6860, 6876. Given that many U.S. states have borrowing statutes like CPLR § 202, there are instances when the “State law” referred to in Section 1367(d) will import limitations and tolling rules from the non-U.S. jurisdictions where claims accrued, as is the case with Norex and the borrowing of Alberta limitations and tolling law. Thus, the operation of Section 1367(d) in such situations implicates the extraterritorial scope of federal law because Norex would have this Court use a federal statute to alter the Alberta law that governs the claims of an Alberta-based company under CPLR § 202—a result Kiobel does not allow.42 Finally, by its express terms, Section 1367(d) only allows the 30 days to re- file supplemental claims after dismissal of the federal action “unless State law provides for a longer tolling period.” 28 U.S.C. 1367(d). There is no question but 42 This does not mean that Section 1367(d) cannot benefit non-U.S. plaintiffs generally or has no application to supplemental claims asserted in federal court under foreign substantive law. By conflating the kinds of supplemental claims that may be asserted in federal court with the reach of Section 1367(d) based on the statute’s use of the term “State law,” Norex fundamentally misunderstands the statute. (See Norex’s 1st Dep’t Br. at 21-22). When a plaintiff in federal court asserts supplemental claims under foreign law (as Norex did with its Russian law claims), concerns about the extraterritorial effect of federal law are not automatically triggered because that plaintiff only is asking a U.S. federal court to apply foreign law as it exists abroad as a rule of decision which involves no modification of that foreign law by U.S. federal law. By contrast, Section 1367(d) is designed to alter state law by providing a limited grace period running from a federal dismissal that may not otherwise be available under state law. What Kiobel and Morrison preclude is Section 1367(d) being used extraterritorially to alter non-U.S. law, which is what limits Norex’s ability to rely on Section 1367(d) to toll its claims, all of which are subject to the limitations laws of Alberta, Canada. 51 NEWYORK 9055776 that New York law does provide a longer re-filing period than this (i.e., six months under CPLR § 205(a) vs. thirty days under Section 1367(d)). But, this does not guarantee that a plaintiff like Norex can rely on that six-month period because here the “State law” to which Section 1367(d) expressly defers makes CPLR § 205(a) subject to the borrowing statute regime of CPLR § 202 (see supra Section I.B), and Tomanio—like New York law—recognizes that we apply all of the limitations and tolling regime of the applicable jurisdiction. Thus, the “unless” clause comes into effect whether or not the state tolling period ultimately will apply in a particular case, and the word “provides” signifies that state law need not actually save and revive otherwise time-barred claims, contrary to Norex’s assertion. (Norex Br. at 44). Hence, the fact that CPLR § 205(a) does not help a particular non-resident preserve claims accruing elsewhere, does not change the fact that New York law does provide a longer period than Section 1367(d), and so by the express terms of the federal statute that statute does not apply here.43 It is important to note that this does not lead to an unfair or absurd result. Norex’s claims did not lapse solely because of the 30 days (or the six months) that 43 This is entirely consistent with Goldstein, where the majority opinion suggested in dicta that Section 1367(d)’s 30-day toll from a federal dismissal would apply only in the hypothetical scenario where there was no “state tolling provision” (i.e., CPLR § 205(a)), since, unlike Norex, the plaintiffs in Goldstein did re-file their supplemental claim in state court within 30 days of the Second Circuit’s dismissal. See 13 N.Y.3d at 522. Professor David Siegel, in a published synopsis of the Goldstein decision, did not see the need to mention this dicta regarding Section 1367(d)’s hypothetical applicability—further suggesting that the First Department’s ruling does no violence to Goldstein whatsoever. See David D. Siegel, New York State Law Digest, No. 602, at 1 (February 2010). 52 NEWYORK 9055776 passed before Norex re-filed in state court. Rather, Norex’s claims lapsed because Norex took none of the right steps to assert and preserve its non-federal claims.44 For example, the Record shows that, inter alia, (i) Norex never asserted its New York claims as supplemental federal claims making Section 1367(d) inapplicable to all those claims; (ii) the Second Circuit’s dismissal on the merits made Section 1367(d) inapplicable to all of Norex’s claims; and (iii) Norex undisputedly did not re-file within 30 days of the federal dismissal on the merits, again making Section 1367(d) inapplicable even to Norex’s supplemental Russian law claims. Thus, Norex was not denied a benefit conveyed by any statute, and applying CPLR § 202 is consistent with both New York law and Section 1367(d). Once again, however, this does not mean that Section 1367(d) cannot benefit non-U.S. plaintiffs generally or has no application to supplemental foreign law claims. Rather, the narrow goals of Section 1367(d) tolling can be harmonized with state borrowing statutes by applying the statute to provide for federal tolling and a 30-day re-filing window for dismissed supplemental claims where state law 44 As noted above, it does not appear that Norex ever believed that it had New York claims until after the federal action was dismissed. See supra Section I.B.4. Had Norex believed it had New York claims that might be prejudiced by New York’s borrowing statute regime, it could have taken steps to preserve them. Just by way of example, it is a common litigation technique to preserve claims by bringing a separate action, parallel to a related action in another forum, and then stay that separate action pending the outcome of the related proceeding. See, e.g., Nederlandse Ertstankersmaatschappij, N.V. v. Isbrandtsen Co., 339 F.2d 440, 441 (2d Cir. 1964) (upholding stay of litigation pending related arbitration proceeding); Hikers Indus., Inc. v. William Stuart Indus. (Far East) Ltd., 640 F. Supp. 175, 178 (S.D.N.Y. 1986) (noting that stay pending arbitration would promote judicial economy). 53 NEWYORK 9055776 is silent, or would not provide a re-filing window of at least 30 days. Here, based on Raygor and Tomanio, what Section 1367(d) cannot do is override an existing state borrowing and tolling regime, especially one that dictates the application of non-U.S. law. Here, Norex failed to calculate when it needed to file its New York or Russian claims in New York state court in order to preserve those claims under CPLR § 202 (as construed for decades by this Court), which by no means was displaced by Section 1367(d). The fact that Norex was negligent does not now justify rewriting the law to suit Norex’s needs. CONCLUSION For the foregoing reasons, Defendants respectfully request that this Court affirm the First Department’s decision in its entirety. Dated: New York, New York December 24, 2013 NEW YORK 9055776 CASELLP By:--"""--_ cl _(}u_'/ Owen C. Pell Scott E. Hershman Brian E. Fritz Max Shtemgel 1155 Avenue ofthe Americas New York, NY 10036 Tel: (212) 819-8200 Fax: (212) 354-8113 opell@whitecase. com shershman@whitecase.com bfritz@whitecase.com mshterngel@whitecase.com Attorneys for Defendants-Respondents OAO Tyumen Oil Company and TNK-BP Limited Submitted on Behalf of All Defendants- Respondents 54 2 y:- ,,",,-_ Ct_M_I'_ D D