Davis International, LLC, Holdex, LLC, Foston Management, Ltd. v. New Start Group Corp., Venitom Corp., Pan-American Corp., Mdm Bank, Ural-Gorno…

Honorable Paul S. Diamond, United States District Judge for the Eastern District*
of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 09-2472
____________
DAVIS INTERNATIONAL, LLC, HOLDEX, LLC, FOSTON MANAGEMENT, LTD.,
AND OMNI TRUSTHOUSE, LTD.,
Appellants
v.
NEW START GROUP CORP., VENITOM CORP., PAN-AMERICAN CORP., MDM
BANK, URAL-GORNO METALLURGICAL CO., EVRAZ HOLDING, MIKHAIL
CHERNOI, OLEG DERIPASKA, ARNOLD KISLIN, MIKHAIL NEKRICH, AND
ISKANDER MAKMUDOV,
Appellees
____________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 04-cv-1482)
District Judge: The Honorable Gregory M. Sleet
____________
Argued: January 25, 2010
Before: FUENTES and FISHER, Circuit Judges, and DIAMOND, District Judge.*
(Opinion Filed: March 3, 2010)
Bruce S. Marks, Esq. [ARGUED]
Thomas C. Sullivan, Esq.
Maria Temkin, Esq.
Marks & Sokolov

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1835 Market Street, 28th Floor
Philadelphia, PA 19103
David L. Finger, Esq.
Finger, Slanina & Liesbesman
1201 Orange Street
One Commerce Center, Suite 725
Wilmington, DE 19801
Counsel for Appellants
Charles M. Oberly, III, Esq.
Karen V. Sullivan, Esq.
Drinker, Biddle & Reath
1100 North Market Street, Suite 1000
Wilmington, DE 19801
Richard Schaeffer, Esq.
Peter J. Venaglia, Esq.
Dornbush, Schaeffer, Strongin & Venaglia
747 Third Avenue, 11th Floor
New York, NY 10017
Counsel for Appellee New Start Group Corp.
Charles M. Oberly, III, Esq.
Karen V. Sullivan, Esq.
Drinker, Biddle & Reath
1100 North Market Street, Suite 1000
Wilmington, DE 19801
Richard Schaeffer, Esq.
Peter J. Venaglia, Esq.
Dornbush, Schaeffer, Strongin & Venaglia
747 Third Avenue, 11th Floor
New York, NY 10017
Counsel for Appellee Venitom Corp.
Brian E. Maas, Esq.
Cameron A. Myler, Esq.
Frankfurt, Kurnit, Klein & Selz
488 Madison Avenue

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New York, NY 10022
Charles M. Oberly, III, Esq.
Karen V. Sullivan, Esq.
Drinker, Biddle & Reath
1100 North Market Street, Suite 1000
Wilmington, DE 19801
Counsel for Appellee Mikhail Chernoi
Michael G. Biggers, Esq.
Bryan Cave
1290 Avenue of the Americas
New York, NY 10104
Kevin F. Brady, Esq.
Collins J. Seitz, Jr., Esq.
Connolly, Bove, Lodge & Hutz
1007 North Orange Street, 8th Floor
P.O. Box 2207
Wilmington, DE 19899
Karen V. Sullivan, Esq.
Drinker, Biddle & Reath
1100 North Market Street, Suite 1000
Wilmington, DE 19801
Counsel for Appellee Oleg Deripaska
Karen V. Sullivan, Esq.
Drinker, Biddle & Reath
1100 North Market Street, Suite 1000
Wilmington, DE 19801
Counsel for Appellee Pan American Corp.
Andrew D. Cordo, Esq.
Richard I.G. Jones, Jr., Esq.
Ashby & Geddes
500 Delaware Avenue
P.O. Box 1150, 8th Floor
Wilmington, DE 19899

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Karen V. Sullivan, Esq.
Drinker, Biddle & Reath
1100 North Market Street, Suite 1000
Wilmington, DE 19801
Counsel for Appellee MDM Bank
William H. Devaney, Esq.
Venable
1270 Avenue of the Americas, 25th Floor, Rockefeller Center
New York, NY 10020
Charles M. Oberly, III, Esq.
Karen V. Sullivan, Esq.
Drinker, Biddle & Reath
1100 North Market Street, Suite 1000
Wilmington, DE 19801
Counsel for Appellee Ural-Gorno Metallurgical Company
David H. Herrington, Esq.
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, NY 10006
William M. Lafferty, Esq.
Jay N. Moffitt, Esq.
Morris, Nichols, Arsht & Tunnell
1201 North Market Street
P.O. Box 1347
Wilmington, DE 19899
Charles M. Oberly, III, Esq.
Karen V. Sullivan, Esq.
Drinker, Biddle & Reath
1100 North Market Street, Suite 1000
Wilmington, DE 19801
Counsel for Appellee Evraz Holding
Lisa C. Cohen, Esq. [ARGUED]
Schindler, Cohen & Hochman
100 Wall Street, 15th Floor

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New York, NY 10005
Lawrence S. Goldman, Esq.
Elizabeth M. Johnson, Esq.
Law Offices of Lawrence S. Goldman
500 Fifth Avenue, 29th Floor
New York, NY 10110
Charles M. Oberly, III, Esq.
Karen V. Sullivan, Esq.
Drinker, Biddle & Reath
1100 North Market Street, Suite 1000
Wilmington, DE 19801
Counsel for Appellee Arnold Kislin
Charles M. Oberly, III, Esq.
Karen V. Sullivan, Esq.
Drinker, Biddle & Reath
1100 North Market Street, Suite 1000
Wilmington, DE 19801
Edward M. Spiro, Esq.
Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer
565 Fifth Avenue
New York, NY 10017
Counsel for Appellee Mikhail Nekrich
William H. Devaney, Esq.
Venable
1270 Avenue of the Americas, 25th Floor, Rockefeller Center
New York, NY 10020
Charles M. Oberly, III, Esq.
Karen V. Sullivan, Esq.
Drinker, Biddle & Reath
1100 North Market Street, Suite 1000
Wilmington, DE 19801
Counsel for Appellee Iskander Makmudov

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____________
OPINION OF THE COURT
____________
DIAMOND, District Judge.
This case comes before us for the second time in the course of litigation spanning
ten years and at least two continents. In Davis International, LLC v. New Start Group
Corp. (Davis I), we upheld the District Court’s dismissal of Appellants’ amended
complaint based on direct estoppel. See 488 F.3d 597 (3d Cir. 2007). We also held that
the District Court had jurisdiction to enjoin Appellants from refiling the same claims in
another domestic court, and remanded for consideration of whether to grant such
injunctive relief. Id. The District Court granted the anti-suit injunction, and denied
Appellants’ motion for supplemental briefing. Appellants now appeal those decisions.
We will affirm.
I.
Because we write primarily for the Parties, we will recite only the facts necessary
for our analysis.
In November 2004, Appellants Davis International, LLC, Holdex, LLC, Foston
Management, Ltd., and Omni Trusthouse, Ltd. filed a complaint in the Delaware Court of
Chancery, including claims of federal RICO and common-law conversion. Appellants
alleged that they were the victims of an international conspiracy to seize control of

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Kachkanarsky GOK, Russia’s largest vanadium ore plant. Appellants charge that through
a combination of physical threats, bribery, and sham financial transactions, their shares in
GOK were transferred in August 2000 to Delaware shell companies owned by the
conspirators.
Appellants filed separate lawsuits based on these allegations in Russia, England,
Belgium, and New York. The Southern District of New York dismissed the New York
action on forum non conveniens grounds, holding that Russia was the appropriate forum.
See Base Metal Trading S.A. v. Russian Aluminum, 253 F. Supp. 2d 681 (S.D.N.Y.
2003), aff’d, 98 Fed. Appx. 47 (2d Cir. 2004). Although Base Metal included claims and
allegations in addition to those in the instant case, the GOK allegations were identical,
and all of the Appellants and four of the Appellees here were parties. See Davis I, 488
F.3d at 602.
After Appellants filed their November 2004 Chancery Court complaint, Appellees
New Start Group Corp., Venitom Corp., Pan-American Corp., MDM Bank, Ural-Gorno
Metallurgical Co., Evraz Holding, Mikhail Chernoi, Oleg Deripaska, Arnold Kislin,
Mihail Nekrich, and Iskander Makmudov removed the action to the District Court.
Appellees moved to dismiss and to permanently to enjoin Appellants from filing these
same GOK-related claims in any court in the United States. The District Court stayed
merits discovery while it considered Appellees’ motions. Displeased with the stay, on
April 26, 2005, Appellants filed an amended federal complaint without their state law

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claims, and re-filed those state claims in a new Chancery Court action. Davis I, 488 F.3d
at 605. The Chancery Court also stayed the case. When Appellants moved to lift the stay
in August 2006, the Court denied the motion, stating that Appellants’ new action was “an
abuse of the removal statute.” (App. 707.)
On March 29, 2006, the District Court dismissed Appellants’ claims, concluding
that under the doctrine of direct estoppel, Appellants were bound by the Base Metal
Court’s forum non conveniens determination. Davis Int’l v. New Start Group Corp., 2006
U.S. Dist. LEXIS 13990 (D. Del. Mar. 29, 2006). The District Court also ruled that it did
not have the authority to grant the injunctive relief that Appellees had requested:
The court reaches its decision with some regret because it is
convinced, as is the Chancery Court, that the plaintiffs are
attempting to subvert the removal statute by splitting their
claims. The court is also convinced that, absent an injunction,
the plaintiffs will continue to file this action and take up the
time and resources of another court.
Id. at *47 n.16.
In Davis I, we upheld the District Court’s dismissal, reasoning that because the
allegations regarding GOK were identical to those in Base Metal, direct estoppel
precluded relitigation of the forum non conveniens ruling. Davis I, 488 F.3d at 605. We
also determined that the District Court had jurisdiction to issue the anti-suit injunction, and
remanded so that the Court could determine if such an injunction was warranted. Id. at
606.

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On remand, the District Court granted the anti-suit injunction pursuant to the All
Writs Act. See Davis Int’l v. New Start Group, 2009 U.S. Dist. LEXIS 40895 at *9 (D.
Del. May 13, 2009); 28 U.S.C. § 1651(a). The District Court also denied Appellants’
request to file a supplemental brief because briefing on the injunction motion was already
complete. Id. at *10 n. 4.
II.
The District Court had jurisdiction pursuant to the All Writs Act. 28 U.S.C. §
1651(a). We have jurisdiction under 28 U.S.C. § 1291.
III.
We “review[] the terms of an injunction for an abuse of discretion, underlying
questions of law receive de novo review, and factual determinations are reviewed for clear
error.” In re Prudential Ins. Co. of Am. Sales Practice Litig., 261 F.3d 355, 363 (3d Cir.
2001).
A district court’s decision to deny a motion to supplement or amend a pleading is
reviewed for an abuse of discretion. Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938
(3d Cir. 1984).
IV.
A.
Appellants devote the bulk of their brief to argument that the Anti-Injunction Act
barred the District Court from granting the anti-suit injunction. 28 U.S.C. § 2283.

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Although acknowledging the Davis I holding that the District Court had jurisdiction to
grant an anti-suit injunction, Appellants nonetheless contend that the Court did not have
the authority to issue injunctive relief. This distinction without a difference appears to be
little more than an attempt to re-argue Davis I.
The All Writs Act provides a district court with the jurisdiction – and thus, the
authority – to enjoin state court proceedings where “necessary or appropriate in aid of [its]
jurisdiction and agreeable to the usages and principles of law.” 28 U.S.C. § 1657. The
Act is intended to work in concert with the Anti-Injunction Act, which provides that “[a]
court of the United States may not grant an injunction to stay proceedings in a State court
except as expressly authorized by Act of Congress, or where necessary in aid of its
jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283; see also In re
Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 134 F.3d 133, 143 (3d
Cir. 1998). Accordingly, a district court may not issue an injunction pursuant to the All
Writs Act unless one of these three exceptions applies.
In Davis I, we noted that one of these exceptions could well apply: “[c]ourts
considering the question have unanimously held that a plaintiff’s fraudulent attempt to
subvert the removal statute implicates the expressly authorized exception to the
Anti-Injunction Act and may warrant the granting of an anti-suit injunction.” 488 F.3d at
605 (citing Quackenbush v. Allstate Ins. Co., 121 F.3d 1372, 1378 (9th Cir. 1997); Kan.
Pub. Employees Ret. Sys. v. Reimer & Koger Assocs., Inc., 77 F.3d 1063, 1070-71 (8th

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Cir. 1996); Frith v. Blazon-Flexible Flyer, Inc., 512 F.2d 899, 901 (5th Cir. 1975)). In
light of the findings by the District and Chancery Courts – that Appellants’ re-filed state
court action was intended to subvert the removal statute – we held that the District Court
could grant an anti-suit injunction and remanded for the District Court to consider whether
it should grant the injnction. Davis I, 488 F.3d at 606. In these circumstances, we have
already rejected Appellants’ instant assertion that the District Court was without
“authority” to issue the anti-suit injunction. We will not revisit that ruling.
Appellants vigorously protest the finding that they had attempted to subvert the
removal statute. They argue that they had “every right to delete the non-federal claims by
amending their Complaint and filing them in state court in the hope of beginning merits
discovery which had been stayed in federal courts for four years.” (Appellants’ Br. at
28-29.) They suggest that they did not improperly seek to re-initiate state court litigation
in an action removed to federal court; but, rather, had simply begun a second state court
case from which they omitted the RICO claim that had been the basis for removal. (Id. at
27-28.)
This is yet another distinction without a difference. Both the District Court and the
Chancery Court found that “the [Appellants’] claims filed in the [re-filed] Chancery Court
derive from the same set of facts as the [Appellants’] RICO claims.” Davis Int’l, 2009
U.S. Dist. LEXIS 40895 at *9-10. Appellants candidly admit that they re-filed the
Chancery Court action “in the hope of beginning merits discovery which had been stayed

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in federal courts for four years.” This is exactly the kind of abusive tactic that courts have
condemned as an attempt to subvert the removal statute. See Kan. Pub. Employees Ret.
Sys., 77 F.3d at 1070-71 (plaintiffs subverted removal statute when they re-filed some of
their claims in a second state court suit because they were displeased with federal court’s
ruling on statute of limitations issue); Frith, 512 F.2d at 901 (plaintiff subverted removal
statute when district court denied a motion to remand tort claims and plaintiff re-filed
claims in a second state court suit).
In these circumstances, the District Court correctly concluded that Appellants had
attempted to subvert the removal statute and so properly enjoined them under the Anti-
Injunction Act’s expressly authorized exception.
B.
Appellants also argue that the District Court erroneously denied their motion to
submit a supplemental brief on the injunction issue. Again, we do not agree.
After our remand, the District Court set out the following briefing schedule on the
injunction issue: Appellees’ opening brief was due on August 13, 2007, Appellants’
answering brief was due September 13, 2007, and Appellees’ reply brief was due
September 28, 2007. On October 27, 2008, Appellants moved to submit a supplemental
brief summarizing an English Court’s recent findings on the inadequacy of Russia’s legal
system. Because “briefing was complete” and the District Court believed it had all the
materials it needed to rule on Appellees’ injunction request, it denied Appellants’ motion.

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Davis Int’l, 2009 U.S. Dist. LEXIS 40895 at *10 n.4. We will not disturb that decision,
which was certainly well within the District Court’s discretion. See Murray v.
Commercial Union Ins. Co., 782 F.2d 432, 435 (3d Cir. 1986); Boileau, 730 F.2d at 938.
Cf. Pfeil v. Rogers, 757 F.2d 850, 858 (7 Cir. 1985), cert. denied, 475 U.S. 1107 (1986)
(“The decision to disregard all material submitted after a reasonable filing deadline is
certainly not an abuse of discretion. . .”).
V.
We will affirm the orders of the District Court enjoining Appellants from pursuing
any further litigation on their claims in the United States and denying their motion to file a
supplemental brief.

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