Celestin v. Martelly

698 F.Supp.3d 443

Odilon S. CELESTIN, Widmir Romelien, Marie Lucie St Vil,Gorettie St Vil, Jeannette Valeus, Guetty Felin,Herve Cohen, and on behalf of all others similarly situated, Plaintiffs, v. Michel Joseph MARTELLY, Jocelerme Privert, Jovenel Moise,the Western Union Company, d/b/a Western Union Holdings, Inc.,Western Union Financial Services, Inc., and Through Other Subsidiaries and Affiliates,MoneyGram International, Inc. and MoneyGram Payment System, Inc. (Collectively MGI), Caribbean Air Mail, Inc.,d/b/a CAM, Unibank, S.A., Unitransfer USA, Inc., Unigestion Holding, S.A.,d/b/a Digicel Haiti, Natcom S.A., and the Government of Haiti, Defendants.

18-CV-7340 (LDH) (PK)

United States District Court, E.D. New York

Filed September 29, 2023

Signed September 30, 2023

Marcel Pierre Denis, Denis Law Group, PLLC, Brooklyn, NY, Rodney R. Austin, Rodney R. Austin PLLC, Fresh Meadows, NY, for Plaintiff Odilon S. Celestin.

Marcel Pierre Denis, Denis Law Group, PLLC, Brooklyn, NY, for Plaintiffs Widmir Romelien, Goldie Lamothe-Alexandre, Vincent Marazita.

Jeannette Valeus, Pro Se.

Guetty Felin, Pro Se.

Gorettie St. Vil, Pro Se.

Herve Cohen, Pro Se.

Marie Lucie St. Vil, Pro Se.

Bertrand Rolf Madsen, Madsen Law P.C., New York, NY, Elizabeth Wolstein, Samuel Lucien Butt, Schlam Stone & Dolan LLP, New York, NY, for Defendants Michel Joseph Martelly, Jocelerme Privert, The Government of Haiti.

Bertrand Rolf Madsen, Madsen Law P.C., New York, NY, for Defendant Jovenel Moise.

Stephen H. Nakamura, Andrew R. Peck, Merle Brown & Nakamura P.C., New York, NY, for Defendant Caribbean Air Mail, Inc.

Paul D. Turner, Pro Hac Vice, Oliver M. Birman, Pro Hac Vice, Perlman, Bajandas, Yevoli & Albright, P.L., Fort Lauderdale, FL, Benjamin L. Reiss, Pro Hac Vice, Perlman, Bajandas, Yevoli & Albright, Coral Gables, FL, Kieran M. Corcoran, Stinson LLP, New York, NY, for Defendants Unitransfer USA, Inc., Unibank, S.A.

Macx L. Jean-Louis, New York, NY, for Defendant Natcom S.A. James H.R. Windels, Davis Polk & Wardwell LLP, Brooklyn, NY, James Irving McClammy, Marie Killmond, Davis Polk & Wardwell LLP, New York, NY, for Defendant Unigestion Holding, S.A.

Brian Laurence Bank, David Stephen Wilck, Michelle A. Bholan, Rivkin Radler LLP, Uniondale, NY, for Defendants MoneyGram International, Inc., MoneyGram Payment System, Inc., (collectively MGI).

MEMORANDUM AND ORDER

LaSHANN DeARCY HALL, United States District Judge:

Plaintiffs Odilon S. Celestin, Widmir Romelien, Marie Lucie St Vil, Gorettie St Vil, Jeannette Valeus, Guetty Felin, and Herve Cohen (collectively, "Plaintiffs"), bring claims against Defendants Michel Joseph Martelly, Jocelerme Privert, Jovenel Moise, the Government of the Republic of Haiti, Western Union, Money Gram International, Inc., Caribbean Air Mail, Inc., Unitransfer USA Inc., Unigestion Holding d/b/a Digicel Haiti, Unibank S.A., and Natcom S.A. (collectively, "Defendants")¹ individually and on behalf of all others similarly situated, for violations of federal antitrust laws and various state laws. Moving Defendants move pursuant to Rules 8, 9(b), and 12(b)(6) of the Federal Rules of Civil Procedure, forum non conveniens, and the act of state doctrine to dismiss the complaint in its entirety.

BACKGROUND²

Plaintiffs allege that in April 2011, Michel Joseph Martelly, the then-President-elect of Haiti, devised a "wide-ranging scheme" to impose fees and fix prices on money transfers, food remittances, and international calls made to and from Haiti. (Third Am. Compl. ("TAC") ¶¶ 3-4, 72, 188, 238, ECF No. 118.) While Martelly is alleged to be the "principal architect and ringleader" of the conspiracy, Jocelerme Privert and Jovenel Moise, who each succeeded Martelly, "adopted as his own the acts and conducts of his predecessor" and continued in perpetrating the scheme. (Id. ¶¶ 188, 214, 223.)

The scheme allegedly began before Martelly took the presidential oath. (Id. ¶ 189.) According to the complaint, Martelly contacted telecommunication companies, including Defendant Digicel Haiti, and requested that they add a $0.05 fee per minute on all phone calls originating from the United States and Europe. (Id.) They agreed. (Id.) Martelly also met with money transfer operators and commercial banks, including Defendants Caribbean Air Mail, Inc., Unibank S.A., Unitransfer USA Inc., Western Union, and MoneyGram International, Inc., to strike an anticompetitive agreement to illegally raise the fee to remit money to Haiti by $1.50. (Id. ¶ 192.) Ultimately, Defendants each colluded with Martelly to draft three Haitian governmental instruments to effectuate Martelly's scheme: two circulars issued by the Central Bank of Haiti (the "BRH"), which together imposed a $1.50 fee on money transfers and food remittances made to Haiti from the United States, Canada, Turks and Caicos, and the Bahamas; and a presidential order, which mandated a $0.05 per-minute fee be added to the cost of international phone calls made into Haiti (together, the "Fees"). (Id. ¶¶ 56, 66, 68, 71-72, 198.)

The first circular, known as Circular 98, was issued on May 20, 2011, and imposed "testing, certification, user and inspection fees" of $1.50 on money transfers into and out of Haiti. (Id. ¶ 66.) In particular, under Circular 98, money transfer operators must: (1) make monthly filings with the BRH of certified copies of reports detailing the total amounts filed with the regulatory body of the territories where they are licensed to operate; and (2) collect a $1.50 fee on money transfers and food remittances. (Id. ¶¶ 67-68.) The second circular, Circular 7, was issued on May 31, 2011. (See id. ¶ 113.) According to the complaint, Circular 7 was issued to address a term omitted from Circular 98. (Id. ¶¶ 69-70, 113.) Specifically, Circular 7 provides that "[t]he fees will be collected at the source from all money transfer [sic] sent and received (cash or in kind) from overseas" and are to be collected from individuals in the United States, Canada, Turks and Caicos, and the Bahamas. (See id. ¶¶ 70-71.) On September 14, 2011, Martelly issued the Presidential Order, which provides that "the floor price for all incoming international call[s] is hence forth fixed at US $0.23 per minute." (Id. ¶¶ 59-60.) The Presidential Order further requires that $0.05 of the $0.23 are to be turned over to CONATEL, Haiti's telecommunication regulatory agency. (Id. ¶ 61.) According to Article 3 of the Presidential Order, the purpose of the $0.05 fee is to help CONATEL fight against telephone fraud. (Id. ¶ 62.)

Plaintiffs claim that Circulars 98 and 7 (together, the "Circulars") and the Presidential Order "ran afoul of the laws of Haiti" because "only the parliament may raise taxes and fees for the benefit of the state." (Id. ¶ 57 n.6.) Furthermore, while Martelly "promoted, marketed, advertised and sold" the Fees to the public as necessary "to finance free education for impoverished children," Martelly knew that neither his Presidential Order nor the Circulars contain language "relating to tax or funding education." (Id. ¶¶ 58, 201-02.) Defendants aided Martelly in misleading the public by advertising and collecting the Fees as lawful taxes levied to fund free education in Haiti. (Id. ¶¶ 73, 96-98, 108-109, 119, 154, 167-168 177, 187, 207, 215, 225.) According to the complaint, a program to fund free education in Haiti does not exist. (Id. ¶ 221.) Instead, Martelly allegedly embezzled monies collected through the Fees with the aid of Defendant Unibank S.A., which extended Martelly a $9 million loan to build a beach house as a means of transferring a portion of the proceeds from the $1.50 wire transfer fee. (Id. ¶¶ 183-84.) In return for their part in the scheme, Defendants allegedly retained a portion of the Fees. (Id. ¶¶ 96, 116, 149, 164, 181, 212, 223, 226). And while the Government of Haiti purports to receive at least an estimated $132 million per year from the Fees, (id. ¶ 197), there has been no public accounting detailing the amount of funds collected and remitted to the Haitian government nor an explanation of how the funds were used in Haiti once remitted to the BRH. (Id. ¶¶ 84, 86, 117, 150, 165, 220.)

DISCUSSION³

I. Forum Non Conveniens

The doctrine of forum non conveniens permits a federal court to "resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir. 2005) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)). It is a "remedy" granted to defendants who are victimized by a plaintiff's choice to "resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself." Gilbert, 330 U.S. at 507, 67 S.Ct. 839; see also Koster v. (Am.) Lumbermens Mut. Cas. Co., 330 U.S. 518, 531-32, 67 S.Ct. 828, 91 L.Ed. 1067 (1947) ("We hold only that a district court, in a derivative action, may refuse to exercise its jurisdiction when a defendant shows much harassment and plaintiff's response not only discloses so little countervailing benefit to himself in the choice of forum as it does here, but indicates such disadvantage as to support the inference that the forum he chose would not ordinarily be thought a suitable one to decide the controversy."). Accordingly, "the central focus of the forum non conveniens inquiry is convenience" and "dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981).

A district court confronted with a motion to dismiss for forum non conveniens must engage in a three-step inquiry. First, the Court must "determine the degree of deference properly accorded the plaintiff's choice of forum." Celestin...