Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-01482—G|\/IS Document 79-2 Filed 05/11/2005 Page 1 of 2
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May ll, 2005
The Honorable Gregory M. Sleet
United States District Court
District of Delaware
844 King Street
Wilmington, DE 19801
RE: Davis hzternational LLC et al. v. New Start Group Corp., et al.
Case Nos. 1482 & 1483
Dear Judge Sleet:
I am writing in regard to Mr. Oberiy’s letter dated May 5, 2005 requesting that the Court permit
Defendants’ pending motion to dismiss for collateral estoppel apply to Plaintiffs’ amended complaint, along
with the briefing schedule applicable to the original motion. Rather than simply conferring with Plaintiffs,
Defendants instead saw tit to incorporate this request in a letter laced with argument and ad izomirzenz
attacks. Plaintiffs have no objection to this request and also join Mr. Ober1y’s request that the Court
remand the action recently filed in Chancery Court, which Mr. Oberly improperly removed. To the extent
that the Court has considered the allegations in Mr. Oberly’s letter, I briefly respond:
First, the implied suggestion that I sought the time period to prepare Plaintiffs’ opposition to
Defendants’ Motion to Dismiss for Collateral Estoppel based on a hidden motive and not because of my
travel schedule is without merit. Mr. Oberly, along with the other 22 defense counsel who _joined in his
letter, are welcome to examine my passport and receipts accumulated during my recently concluded two
week business trip to London, Moscow, lI>nepro·petrovslc (Ukraine), Kiev, and Budapest to quell any doubts
which they may have about the bonajides of my travel. A simple call to my office would have confirmed
my absence.
Second, Plaintiffs believe that the case was removed for an improper purpose because Defendants
had no good faith intention to litigate the matter on the merits in federal court. Rather, they removed the
case so that they could malce the circular argument that the very court that they chose is inconvenient.
Such an argument was long ago rejected. Cowley v. Northern Pac. Railroad Co., 159 U.S. 569, 583 (1895)
("The case having been removed to the Circuit Court upon the petition of defendant, it does not lie in its
mouth to claim that such court had no jurisdiction of the case unless the court from which it was removed
had no jurisdiction"); Ayers v. Watson, ll.3 U.S. 594, 599 (1884) ("{S]ince the removal was effected at the
instance ofthe party who now makes the objection, we thinlc that he is estopped").
Non—federal claims were removed from the amended complaint and refiled, along with new non-
federal claims, in the Chancery Court. The Third Circuit has repeatedly held that plaintiffs may bring
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Case 1:04-cv-01482—Gl\/IS Document 79-2 Filed 05/11/2005 Page 2 of 2
MARKS & SOKOLOV, LLC
arronnevs sr Law
Howoname Gmzoonv M. Shear
MAY 10,2005
Psca.2
federal claims in federal court; and non—federal claims in state court, even if based on the sanze facts, and
litigate the matters simtiltaneously. See e. g. Marks v. Stinson, 19 F.3d 873, 885 (3d Cir. 1994); (“A federal
plaintiff may pursue parallel actions in the state and federal courts"); Gwynedd Properties, Bic. v. Lower
Gwynedd T ownslnp, 970 F.2d ll95, l203 (3d Cir. 1992) ("[T]he rule is well recognized that the pendency
of an action in the state court is no bar to proceedings concerning the same subject matter in the Federal
court havingjurisdiction").
Det`eridants’ attempt to avoid merits litigation by requesting this Court to interfere with the Chancery
court proceedings runs afoul of long standing principles of federalism as reflected by the Aritidnjunction
Act, 28 lJ".S.C. §2283. The Act "is an absolute prohibition against enjoining state court proceedings, unless
the injunction falls within one of [the] three specifically defined exceptions? Atlantic Coast Line R. Co. v.
Brot/ierliood ofLocon1otive Engineers, 398 U.S. 281, 286 (1970). Because the Chancery Court action is not
identical, it does not fall within any exception to the Anti—I.njunction Act. See, Daniel Boone Area Sc/2.
Dist. v. Lelznran Bros., Inc., 187 F. Supp. 2d 414, 418 (WD. Pa. February 5, 2002) ("The text ofthe statute
suggests that Congress has authorized federal courts to enjoin state proceedings only in the very same case
that was removed to federal court").
Plaintiffs are prepared to litigate the merits either in this Court or Chancery Court or both, but not
Russia, where Defendants threatened the lives of Plaintiffs’ representatives, Joseph Traum and Jalol
Khaidarov, and obtained their false detention through planted drugs, as well as corrupted court proceedings.
Plaintiffs concern for their safety in Russia is heightened by reports of the possibly imminent release from
prison in Russia of`Det`endants’ ally in the Russian-/Xmerican Izmailovo matia, Vyacheslav Ivankov (better
know as "Yaponchik"), a violent criminal who was convicted of extortion in the United States in 1997 and
then extradited to Russia in 2004 after serving time. See US. v. Abelts, 146 li.3d 73 (2d Cir. 1998);
"Russian Crime Boss Released From U.S. Prison, Extradited To l\/loscow", Moscow News, July 21, 2004.
Mr. Ivankov has vowed to retaliate against persons who have caused problems for hirn, including American
law enforcement personnel and Plaintit`fs’ above representatives.
We are pleased to provide any information or briefing which Your Honor may require.
Sincerely,
/s/ Brace S. Marks
Bruce S. Marks
Counsel for Plaintiffs
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cc: All Counsel Listed in the Proposed Orders
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