Free Affidavit - District Court of Delaware - Delaware

Case 1 :04-cv-01482-GIVIS Document 48 Filed 03/31/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DAVIS INTERNATIONAL, LLC, HOLDEX, LLC,:
FOSTON MANAGEMENT, LTD, and :
OMNI TRUSTHOUSE, LTD, :
Piamurrs, Q
v. No. O4~l482—GMS
NEW START GROUP CORP., VENITOM CORP.,i
PAN—Al\/IERICAN CORP., MDM BANK, :
URAL—GORNO METALURAGICAL COMPANY;
EVRAZ HOLDING, MIKHAIL CHERNOI, :
OLEG DERIPASKA, ARNOLD KISLIN, :
MIKHAIL NEKRICI-I, and ISKANDER :
MAKMUDOV, :
Defendants.
AFFIDAVIT OF CHARLES M. OBERLY, III
SUBMITTING DECLARATIONS IN SUPPORT OF
DEFENDANTS’ MOTION TO DISMISS
STATE OF DELAWARE )
) ss.
COUNTY OF NEW CASTLE )
Charles M. Oberly III, first being duly sworn, hereby deposes and says:
I. I am member of the Bar of the State of Delaware and an attomey
with Oberly Jennings & Rhodunda, P.A., local counsel for defendants Arnold Kislin,
Mikhail Chernoi, Iskander Makmudov, Ural—Gorno Metallurgical Company, Mikhail
Nekrich, New Start Group Corp. and Venitom Corp.
2. I submit this Affidavit on behalf of all defendants in this action to
outline the motion to dismiss the complaint icing filed herewith by defendants and to
submit certain declarations and exhibits relevant to defendants’ motion. Any statements

Case 1:04—cv—01482-G|\/IS Document 48 Filed 03/31/2005 Page 2 of 4
or omissions by the defendants notwithstanding, it is the intention of each defendant to
join in the motion and briefs of the other defendants.
3. Submitted conteniporaneously with this Affidavit are a motion to
dismiss and opening briefs on the following grounds:
A. Direct Estoppel and injunction — motion to dismiss
pursuant to the doctrine of direct estoppel and to enjoin
plaintiffs from re-filing this action.
B. Forum Non Conveniens — motion to dismiss on the grounds
of forum non conveniens.
C. Qogy - motion to dismiss on the grounds of international
comity.
D. Failure to State a Claim — motion to dismiss for lack of
subject matter jurisdiction over the RICO claims and
pursuant to Rule l2(b)(6) for failure to state a claim.
4. Annexed hereto as Exhibit l is the Declaration of Lisa C. Cohen,
counsel to defendant Arnold Kislin, which is relevant to defendants’ motion to dismiss
the complaint pursuant to the doctrine of direct estoppel and to enjoin plaintiffs from re-
tiling this action. Should this Court dismiss the complaint upon this ground, it is
unnecessary to reach any other ground.
5. Annexed hereto as Exhibits 2 and 3 are the Expert Declaration of
Professors Paul B. Stephan IH and Sergei Nikolaevich Lebedev, which are relevant to
defendants’ motion to dismiss on the basis of forum non conveniens and comity.
6. Annexed hereto as Exhibit 4 is the Declaration of Peter J.
Venaglia, counsel to New Start Group Corp. and Venitoin Corp., which is relevant to
defendants’ motion to dismiss on the basis of forum non conveniens and comity.
2

Case 1 :04-cv-01482-GIVIS Document 48 Filed 03/31 /2005 Page 3 of 4
7. Annexed hereto as the exhibit numbers indicated below are
declarations from each defendant’s counsel, which, for purposes of the forum non
conveniens motion: (a) consent to the jurisdiction of the Russian courts in any action
filed by plaintiffs alleging the same or similar claims asserted in the complaint; (b) agree
to produce any relevant documents or witnesses in Russia; (c) consent to any venue in
Russia that may be selected by plaintiffs; and (d) waive any defense based on any statute
of limitations which may have expired after the filing of the complaint herein (November
4, 2004) until 90 days after judgment in this case becomes final:
Exhibit 5 Declaration of Richard J. Schaeffer on behalf of New Start
Group Corp. and Venitom Corp.
Exhibit 6 Declaration of Joel B. Kleinman on behalf of MDM Bank.
Exhibit 7 Declaration of William H. Devaney for Ural—Gorno
Metallurgical Co.
Exhibit 8 Declaration of David H. Herrington on behalf of Evraz
Holding.
Exhibit 9 Declaration of Brian E. Maas on behalf of Mikhail Chemoi.
Exhibit 10 Declaration of Michael G. Biggers for Oleg Deripaska.
Exhibit ll Declaration of Lisa C. Cohen on behalf of Arnold Kislin.
Exhibit 12 Declaration of Paul R. Grand on behalf of Mikhail Nekrich.
Exhibit 13 Declaration of William H. Devaney for lskander
Makmudov.
8. Submitted contemporaneously with this Affidavit is a thirteen-
volume Appendix, which includes the exhibits which are referred to in defendants’
opening briefs. References in the briefs to the Appendix appear as A—__.
3

Case 1:04—cv—01482-G|\/IS Document 48 Filed 03/31/2005 Page 4 of 4
9. Also submitted contemporaneously is a Compendium of
Unreported Cases cited in the opening briefs.
FURTHER AFFIANT SAYETH NOT.
Charles M. Oberly, HI
Sworn to and subscribed before me
this 30th day of March, 2005.

Notary Public
4