FILED: NEW YORK COUNTY CLERK 05/16/2014 INDEX NO /2012 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/16/2014

Transcription

1 FILED: NEW YORK COUNTY CLERK 05/16/2014 INDEX NO /2012 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/16/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CONTINENTAL INDUSTRIES GROUP, INC., Index No /2012 -against- Plaintiffs, Hon. Jeffery K. Oing, J.S.C. Special Referee Jeremy R. Feinberg HAKAN USTUNTAS, PLASMAR PLASTIK VE KIMYA SAN. VE DIŞ TIC. A.Ş, AND MARCHEM INTERNATIONAL TRADING LLP, Defendants. PLASMAR PLASTIK VE KIMYA SAN. VE DIŞ TIC. A.Ş AND MARCHEM INTERNATIONAL TRADING LLP S REPLY TO THE POST-HEARING MEMORANDUM OF CONTINENTAL INDUSTRIES GROUP, INC. EATON & VAN WINKLE LLP 3 Park Avenue, 16 th Floor New York, NY On the Brief: John J. Driscoll, Esq. Robert Rickner, Esq.

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii PRELIMINARY... 1 ARGUMENT... 3 I. CIG misstates the burden of proof II. Ustuntas s actions before April 2008 are not imputed to Plasmar and Marchem because there is no evidence he was their agent during that time III. Plasmar and Marchem s minor contacts with Marco Polo, ICC in Turkey, MTS Logistics, and some New York banks are not substantially related to CIG s cause of action and do not demonstrate that Plasmar and Marchem purposefully conducted business in New York, so there is no jurisdiction under 302(a)(1) IV. There is no jurisdiction under 302(a)(2) because Plasmar and Marchem were not in New York when they allegedly committed a tort V. There is no jurisdiction under 302(a)(3) because CIG did not prove an injury in New York, and CIG has no viable tort claims VI. CIG did not properly serve Plasmar VII. CIG failed to prove its case and insulting Mehmet Altunkilic cannot save it CONCLUSION i

3 TABLE OF AUTHORITIES CASES Banco Nacional Ultramarino v Chan, Banco, 169 Misc 2d 182 [Sup Ct, NY County 1996], affd 240 AD2d 253 [1st Dept 1997]... 8 Bank Brussels Lambert v Fiddler Gonzalez & Rodriguez, 171 F3d 779 [2nd Cir. 1999]... 9 Caprer v Nussbaum, 36 AD3d 176 [2d Dep t 2006] Citibank, N.A. v Angst, Inc., 61 AD3d 484 [1st Dept 2009]... 3 Darby Trading Inc. v Shell Intern. Trading and Shipping Co. Ltd., 568 F Supp 2d 329 [SD NY 2008] Ehrenfeld v Bin Mahfouz, 9 NY3d 501 [2007]... 5 Feathers v McLucas, 15 NY2d 443 [1965]... 9 Ferrante Equip. Co. v Lasker-Goldman Corp., 26 NY2d 280 [1970]... 8 Gass v Gass, 42 AD3d 393 [1st Dept 2007]... 3 Johnson v Ward, 4 NY3d 516 [2005]... 5 Louis Capital Mkts, LP v REFCO Group Ltd., 801 NYS2d 490 [Sup Ct, NY County 2005] Marie v Altshuler, 30 AD3d 271 [1st Dept 2006]... 6 McGowan v Smith, 52 NY2d 268, [1981]... 6 McKee Electric Co. v Rauland-Borg Corp., 20 NY2d 377 [1967]... 5 MTS Logistics v Stone Tile Direct, US Dist Ct, SD NY, 10 Civ 7312, Crotty, J., WL O Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199 [1st Dept 2003]... 3 Pramer S.C.A. v Abaplus Intl. Corp., 76 AD3d 89 [1st Dept 2010]... 9 Richbell Info. Serv., Inc. v Jupiter Partners, L.P., 309 AD2d 288 [1st Dept 2003]... 4 SPCA of Upstate New York, Inc. v Am. Working Collie Assn., 18 NY3d 400 [2012]... 5 Sybron Corp. v Wetzel, 46 NY2d 197 [1978] Wechsler v Bowman, 285 NY 284 [1941] ii

4 STATUTES CPLR 302(a)(1)... 1 CPLR 302(a)(2) (a)(3)... 2 CPLR 3016(b) CPLR 4320(a)... 3 Ontario Corporations Act, R.S.O. 1990, CHAPTER C Ontario Rules of Civil Procedure Rule 16.02(c) TREATISES Restatement [Second] of Torts Siegel, NY Prac 93 at [5th ed 2011]... 3 iii

5 Plasmar Plastik ve Kimya San. ve Dış Tic. A.Ş ( Plasmar ) and Marchem International Trading LLP ( Marchem ) submit this Post-Trial Reply Memorandum to the Post-Hearing Memorandum of Continental Industries Group, Inc. ( CIG ), and respectfully request that this Court find there is no jurisdiction over Plasmar and Marchem. PRELIMINARY STATEMENT CIG s memorandum has several defects: First, CIG misstates the burden of proof. CIG needs to do more than make a prima facie showing of jurisdiction. CIG must prove its case by the preponderance of the evidence. Justice Jeffery K. Oing granted Plasmar and Marchem s motion to dismiss, and referred this matter to a Special Referee, so CIG cannot rely on the motion to dismiss standard to prove jurisdiction. Second, CIG inaccurately argues that Ustuntas s contacts before April 2008 should be imputed to Plasmar and Marchem. There is no evidence in the record that shows Ustuntas was their agent before April And afterwards, there is no evidence that Ustuntas had any contacts with New York that could confer jurisdiction under 302(a)(1) Third, CIG is wrong in concluding there is a substantial connection between its cause of action and Plasmar and Marchem s minor contacts with Marco Polo, the Istanbul Branch Office of ICC in Turkey, MTS Logistics, and some unspecified New York banks, which is required to show jurisdiction under 302(a)(1). The only evidence presented at trial is that Ustuntas was friends with employees at ICC and Marco Polo. He did not need CIG s purported trade secrets to do business with them. Plasmar and Marchem only had their banks send money to banks in New York because the suppliers told them to, which is not purposeful conduct, and has no connection to any of CIG s trade secrets. And MTS Logistics is a common carrier. Claiming that shipping through MTS is a trade secret is like claiming that shipping through UPS is a trade secret. Moreover, there is no evidence that Plasmar or Marchem purposefully transacted business with 1

6 MTS in New York because Marco Polo shipped goods to MTS in Egypt. Fourth, there is no jurisdiction under 302(a)(2) because Plasmar and Marchem were not in the State of New York when the alleged torts were committed. The single case CIG found to support its position is contrary to 50 years of precedent from the Court of Appeals that has never been overturned. Fifth, CIG fails to cite a single case regarding jurisdiction under 302(a)(3), and instead argues that Plasmar s and Marchem s sole opposition to jurisdiction under CPLR 302(a)(3) is that the Complaint does not allege any tortuous conduct by them. This statement is both puzzling and wrong. Plasmar and Marchem gave several reasons why there is no jurisdiction under 302(a)(3) in the prior briefing. CIG then argues that it has successfully pled a claim for aiding and abetting a breach of a fiduciary duty. (Notably, CIG does not argue it has a viable trade secret claim.) CIG is wrong, but more importantly, CIG fails to establish that they were injured in New York, so there is no jurisdiction under 302(a)(3). Sixth, CIG failed to properly serve Plasmar through Ustuntas. Ustuntas is not an officer of Plasmar, and his home is not a place of business. And there is no evidence in the record regarding CIG s attempt to serve Plasmar in Turkey almost a year ago, although it appears that the attempt was defective. Seventh, CIG, having failed to prove their case at trial, resorts to hyperbolic insults, claiming Mehmet Altunkilic s testimony was incredible, disturbing, and self-serving. But it was CIG s witness, owner and president Omer Karabey, who actually tried to deceive this Court into thinking that Exhibit 35, CIG s alleged smoking gun, came from New York, when it really came from Turkey. 2

7 ARGUMENT I. CIG misstates the burden of proof. CIG must prove there is jurisdiction over Plasmar and Marchem by a preponderance of the evidence. CIG states without any citation that Plaintiff need only make a prima facie showing of jurisdiction because no discovery has been conducted on that issue. NYSCEF Doc. No. 45 at 14. CIG is wrong. CIG was given jurisdictional discovery, and both sides presented witnesses at the trial, so the preponderance of the evidence standard governs. (see CPLR 4320(a) [ A referee to report shall conduct the trial in the same manner as a court trying an issue without a jury. ]; Citibank, N.A. v Angst, Inc., 61 AD3d 484, 485 [1st Dept 2009] [holding that the fact finding in a special referee s report is subject to the preponderance of the evidence standard]; O Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199, 200 [1st Dept 2003] [finding the plaintiff has the burden of proving there is jurisdiction over the defendant]). CIG cannot rely on the motion to dismiss standard here. As Professor Siegel explains, a prima facie showing of jurisdiction, a sufficient start, only opens the door to jurisdictional discovery. (Siegel, NY Prac 93 at [5th ed 2011]). The subsequent trial on the issue, known as a traverse, actually determines whether jurisdiction lies. (Id.; see also Gass v Gass, 42 AD3d 393, 400 [1st Dept 2007] [finding that a traverse hearing report by a special referee is governed by the preponderance of the evidence standard]). CIG needed to prove its case by a preponderance of the evidence, as it would in any other bench trial, and it failed. II. Ustuntas s actions before April 2008 are not imputed to Plasmar and Marchem because there is no evidence he was their agent during that time. 302(a)(2) does not confer agency jurisdiction over Plasmar or Marchem because there is no evidence that Ustuntas was an agent of Plasmar or Marchem before April 2008, while he was allegedly working for CIG in New York. And after April of 2008, Ustuntas had only minor 3

8 contacts with New York, which do not confer jurisdiction under 302(a)(1), as explained in section III., infra. CIG conflates Ustuntas alleged work for CIG in New York from 2004 to April 2008, and Ustuntas consulting for Plasmar and Marchem that started afterwards. But it is not enough to show that Ustuntas might be Plasmar s or Marchem s agent now. CIG must prove that Ustuntas was Plasmar s or Marchem s agent at the specific time the contacts with New York occurred. (see Richbell Info. Serv., Inc. v Jupiter Partners, L.P., 309 AD2d 288, 308 [1st Dept 2003] [finding no jurisdiction because, even though a non-party, named Griffiths, was an agent for the defendant in the past, he was not an agent for the specific transaction at issue in the case]). There is no evidence in the record showing that Ustuntas was Plasmar s or Marchem s agent, before April 2008, when he was alleged to be working virtually in New York, while sitting at home in Canada. Therefore, those specific contacts with New York, from 2004 to April 2008, are not imputed to Plasmar or Marchem for jurisdictional purposes. III. Plasmar and Marchem s minor contacts with Marco Polo, ICC in Turkey, MTS Logistics, and some New York banks are not substantially related to CIG s cause of action and do not demonstrate that Plasmar and Marchem purposefully conducted business in New York, so there is no jurisdiction under 302(a)(1). There is no jurisdiction under 302(a)(1) because Plasmar and Marchem s minor contacts with Marco Polo, the Istanbul Branch Office of ICC in Turkey, MTS Logistics, and some New York banks are not substantially related to CIG s cause of action and do not demonstrate that Plasmar and Marchem purposefully availed themselves to the privileges of conducting business in New York. To establish jurisdiction under 302(a)(1), there must be a substantial relationship between a defendant s transactions in New York and a plaintiff s cause of action. (Johnson v Ward, 4 NY3d 516, 519 [2005] [cited favorably by CIG]). When the relationship is too attenuated, there is no jurisdiction. (Id.). Moreover, for jurisdiction there must be "some act by 4

9 which the defendant purposefully avails itself of the privilege of conducting activities within New York." (Ehrenfeld v Bin Mahfouz, 9 NY3d 501, 508 [2007] [emphasis added] [quoting McKee Electric Co. v Rauland-Borg Corp., 20 NY2d 377, 382 [1967]). Moreover, even if a defendant has some contacts with New York, there is no jurisdiction under 302(a)(1) unless those specific contacts can be directly connected to the cause of action. For example, in SPCA of Upstate New York, Inc. v Am. Working Collie Assn., the defendant twice visited the plaintiff s animal shelter in New York and also donated cash and leashes to the animal shelter. (18 NY3d 400, [2012]). After returning to Vermont, the defendant posted several articles on the Internet based on what the defendant observed at the shelter in New York. (Id. at 403). The shelter sued for defamation, but the Court of Appeals found there was no jurisdiction because the defendant did not specifically visit New York to gather information for the articles, and thus there was no substantial relationship between the shelter s cause of action and the defendant s contacts with New York. (Id.). Similarly, in McGowan v Smith, the plaintiff, a New York resident, bought a fondue pot in New York, took the pot to Canada while visiting friends, and was burned by the pot in Canada when it malfunctioned. (52 NY2d 268, [1981]). The Japanese defendant not only sold the pot to a department store in New York, where it was purchased, but also visited New York several times to do market research and determine what kinds of products New Yorkers might buy. (Id. at 272). But the Court of Appeals found there was no substantial connection between the defendant s contacts with New York and the cause of action, and found no jurisdiction under 302(a)(1). (Id.; see also Marie v Altshuler, 30 AD3d 271, 272 [1st Dept 2006] [finding no jurisdiction under 302(a)(1) because even though the defendant sent communications to New York, the plaintiff failed to connect the content of those communications to the claims alleged]). 5

10 CIG claims that there is a substantial connection between their purported trade secrets, and Plasmar and Marchem s contacts with Marco Polo, the Istanbul Branch Office of ICC in Turkey, MTS Logistics, and some unspecified New York banks, and CIG further claims that Plasmar and Marchem purposefully conducted business in New York. CIG is wrong for several reasons. First, as Mehmet Altunkilic testified, Plasmar and Marchem bought goods from Marco Polo because Nancy Tepper was friends with Ustuntas. 47:26-48:4. There is no evidence in the record showing that Ustuntas stole CIG s trade secrets relating to Marco Polo. Tepper was eager to sell to her friend Ustuntas. Ex18:MR00326; 47:20; 121:7-11. Plasmar and Marchem s handful of purchases from Marco Polo were the result of this friendship, so there is no proof of a substantial connection between purchases from Marco Polo and CIG s claim that Ustuntas stole trade secrets. Second, Plasmar and Marchem s only purposeful contacts with ICC were in Turkey, not New York. Plasmar and Marchem bought goods from ICC s Istanbul Branch Office. 39:6-13; 107:22-23; 121: The s between the two companies are even in Turkish. Ex17:PR Moreover, ICC s employee in Turkey, Cihangir Sonat, was one of Ustuntas s childhood friends. 39:5-8, 121:12-122:4. As with Marco Polo, Ustuntas did not need any purported CIG trade secrets to do business with ICC because he was friends with ICC employees in Turkey, so there is no substantial connection between the purchases from ICC and CIG s cause of action. Third, Plasmar and Marchem had their banks send money to banks in New York because their suppliers told them to. 40:4-18; 109: :1-21. Plasmar and Marchem did not purposefully seek out banks in New York. Id. Moreover, Karabey would not even say which 6

11 banks he considered a trade secret, so CIG cannot prove any connection between one of CIG s secret banks and a specific banking transaction by Plasmar and Marchem. Moreover, suppliers would often tell Plasmar and Marchem what banks to use; these banks are not CIG s exclusive property or trade secrets. 40:9-13. Fourth, MTS Logistics is a common carrier. (see MTS Logistics v Stone Tile Direct, US Dist Ct, SD NY, 10 Civ 7312, Crotty, J., WL , *1 [explaining that MTS is a non-vessel operating common carrier ]). Claiming MTS is a trade secret is like claiming UPS is a trade secret. And there is no evidence that Plasmar or Marchem chose to use MTS in New York. Altunkilic could not remember if he used MTS for purchases in the United States, and the shipping documents show that Marco Polo shipped to MTS in Egypt. See, e.g., Ex15:PR Therefore, CIG has failed to prove any substantial connection between MTS and their cause of action, and has even failed to prove that Plasmar and Marchem had any purposeful contact with MTS in New York. Finally, Ustuntas s contacts with New York after April 2008 are no different from Plasmar and Marchem s contacts with New York: minor and unrelated to CIG s cause of action. All he did was his old friend Nancy Tepper. Thus, even if Ustuntas is now their agent, his actions do not confer jurisdiction over Plasmar and Marchem. IV. There is no jurisdiction under 302(a)(2) because Plasmar and Marchem were not in New York when they allegedly committed a tort. There is no evidence that Plasmar and Marchem were in New York when any tort was committed, so there is no jurisdiction under 302(a)(2). CIG s one case, in support, Banco Nacional Ultramarino v Chan, is contrary to 50 years of precedent from the Court of Appeals, which was reaffirmed by the First Department in (compare Banco, 169 Misc.2d 182, [Sup Ct, NY County 1996], affd 240 AD2d 253 [1st Dept 1997] with Ferrante Equip. Co. v 7

12 Lasker-Goldman Corp., 26 NY2d 280, 285 [1970] [holding that 302(a)(2), by its plain language, requires actual presence in the state] affirming Feathers v McLucas, 15 NY2d 443, 458 [1965] [same]; Platt Corp. v Platt, 17 NY2d 234, [1966] [explaining that the tortfeasor must be physically in New York, and the fact that the tortfeasor s acts may have consequences elsewhere does not alter their personal localization as acts. ]; Pramer S.C.A. v Abaplus Intl. Corp., 76 AD3d 89, 97 [1st Dept 2010] [ To find that a defendant has committed a tortuous act in New York, our courts have traditionally required the defendant s presence here at the time of the tort. ]; see also Bank Brussels Lambert v Fiddler Gonzalez & Rodriguez, 171 F3d 779, 790 [2nd Cir. 1999] [explaining that, under Feathers, there would be no jurisdiction under 302(a)(2) even if a New Jersey domiciliary were to lob a bazooka shell across the Hudson River at Grant's tomb ]). This line of Court of Appeals cases has never been overturned. As there is no evidence that Plasmar and Marchem came to New York, or that they committed a tort while in New York, there is no jurisdiction under 302(a)(2). V. There is no jurisdiction under 302(a)(3) because CIG did not prove an injury in New York, and CIG has no viable tort claims. There is no jurisdiction under 302(a)(3) because CIG did not prove an injury in New York, and CIG has no viable tort claim. CIG claims that Plasmar s and Marchem s sole opposition to jurisdiction under CPLR 302(a)(3) is that the Complaint does not allege any tortuous conduct by them.... NYSCEF Doc. No. 45 at 20. This statement is both puzzling and wrong. As explained in Plasmar and Marchem s prior brief, there are several more reasons why this Court lacks jurisdiction under 302(a)(3). NYSCEF Doc. No. 46 at CIG then argues that they have successfully pled a claim for aiding and abetting a breach of fiduciary duty by alleging that Ustuntas took trade secrets relating to Mexichem and Equate. NYSCEF Doc. No. 8

13 45 at It is true that CIG must have a viable tort claim to establish jurisdiction under 302(a)(3), but CIG cites cases deciding motions to dismiss, not cases where the court considered jurisdiction. Moreover, the first three cases, S. & K. Sales Co. v Nike, Inc. (816 F2d 843, [2d Cir. 1987]), Caprer v Nussbaum (36 AD3d 176 [2d Dep t 2006]), Wechsler v Bowman (285 NY 284 [1941]), only reiterate the general standard for pleading a claim for aiding and abetting a breach of fiduciary duty, and involve disparate facts. 1 The final case, Louis Capital Mkts, LP v REFCO Group Ltd. (801 NYS2d 490 [Sup Ct, NY County 2005]), is at least in the general vicinity of relevance, but it does not support CIG s position. As the case explains, these claims are governed by the heightened pleading standard of CPLR 3016(b), and the plaintiff must prove that the defendant knowingly provided substantial assistance to the primary violator. (Id. at ). In Louis, the mole confessed the entire scheme to the plaintiff, and the plaintiff acted quickly, so the pleadings had the necessary support. (Id.). Here, CIG has not even pled detailed facts to show that Plasmar or Marchem knowingly assisted Ustuntas in breaching his duties. In its pleadings, CIG does not identify one single instance where Plasmar or Ustuntas helped Ustuntas take trade secrets from Equate when he was allegedly working for CIG, and the complaint does not even mention Mexichem. So even if this was a motion to dismiss, and not a post-trial briefing, CIG s claims would fail. 2 But CIG misses the most important point. It is not enough, under CPLR 302(a)(3), to have a viable tort claim. CIG needed to prove that the situs of the injury was in New York by 1 Restatement [Second] of Torts 843 is titled Riparian Land Defined, and does not concern jurisdiction. 2 It is also strange that CIG concedes that it must have a viable tort claim for jurisdiction under 302(a)(3), but CIG does not argue that it has a valid trade secret claim. 9

14 showing that CIG lost customers or suppliers in New York and CIG failed. (see Sybron Corp. v Wetzel, 46 NY2d 197, 205 [1978]; Darby Trading Inc. v Shell Intern. Trading and Shipping Co. Ltd., 568 F.Supp.2d 329, [SD NY 2008] [ While Plaintiff is correct to note that lost sales or customers can satisfy the injury within New York requirement under Section 302(a)(3)(ii), those lost sales must be in the New York market, and those lost customers must be New York customers. ]). Mexichem is in Mexico and Columbia, and Equate is in Kuwait. 88:14-16, 167:10-168:11. Thus, even if CIG could establish that Plasmar and Marchem provided substantial assistance to Ustuntas, the purported injury to CIG was in Mexico, Columbia or Kuwait, not New York, so there is still no jurisdiction under 302(a)(3). VI. CIG did not properly serve Plasmar. Serving Ustuntas in his home does not confer service over Plasmar. There is no evidence in the record showing how Ustuntas s home is a place of business of Plasmar or why anyone would believe he managed a Turkish place of business there, so, under Rule 16.02(c) of the Ontario Rules of Civil Procedure, CIG has failed to meet its burden of proof. In addition, a statutory auditor in Turkey is not the same as a corporate secretary in Canada. Under, the Ontario Corporations Act, R.S.O. 1990, CHAPTER C.38, a secretary certifies shareholder votes (113(3), 147(2)), calls the first meeting for the board of directors (147(9)), receives notice when the number of directors is going to change (165(2)), and presides over the election of directors (171(6)). 3 In contrast, a statutory auditor only signs-off on the yearly financials. 35:22-37:11, 55:26-57:16. These two corporate positions are not analogous, so there is no service on an officer under Rule 16.02(c). 3 The Ontario Corporations Act is available at 10

15 Further, Plasmar never admitted, as CIG claims, that service in Canada was proper in its initial moving brief. In fact, Plasmar s former counsel spent several pages explaining why service was improper. NYSCEF Doc. No. 18 at 3-7. Finally, there is nothing in the record regarding CIG s attempt to serve Plasmar through the Central Authority in Turkey. CIG cannot prove its case by looking outside the record. Moreover, it has been almost a year since CIG attempted service in Turkey. CIG s attempt must have been defective. 4 VII. CIG failed to prove its case and insulting Mehmet Altunkilic cannot save it. CIG, having failed to prove its case, resorts to hyperbolic insults, claiming Altunkilic s testimony was incredible, disturbing, and self-serving. NYSCEF Doc. No.45 at Insulting Altunkilic s credibility cannot rescue CIG s case, or confer jurisdiction. But more importantly, most of these criticisms come from Karabey, and as the record shows, Karabey deceived this Court into thinking that Exhibit 35 came from a server in New York, when it really came from a server in Turkey. CIG brings up minor, alleged inconsistencies regarding peripheral issues. Karabey, in comparison, was dishonest, on the record, regarding a central issue in this case. CIG first claims that Ustuntas would have never received a bonus if Karabey knew he was going to consult for Plasmar. But this claim must be viewed in context. Ustuntas managed the Equate account for over a decade, even waking up at 3 a.m. in the morning, at Karabey s request, so that Equate would think he was still in Turkey. 60: The Equate account, according to Karabey, earned $1 million a year in profit. 190: As CIG s sole owner, that 4 Plasmar and Marchem interpreted Justice Jeffery K. Oing s July 11, 2013, NYSCEF Doc. No. 36, order to mean that he was referring the question of service on Marchem to a Special Referee, along with the other jurisdictional issues. It appears that CIG disagrees, and did not brief the issue. 11

16 profit belonged to Karabey. 293:4-6. If Karabey really thought that his longtime employee, who made him millions, was sick and leaving CIG to retire on a fixed income, Karabey would have paid Ustuntas more than $15,000. It would have been offensive not to. Instead, it is much more likely that Karabey knew that Ustuntas had another source of income, and thus felt comfortable paying him this paltry retirement bonus. Karabey and CIG also claim that calling Ustuntas a consultant is somehow disingenuous, and a litigation strategy. NYSCEF Doc. No.45 at 12. But it is irrelevant whether Ustuntas currently works as a consultant, an agent, or an employee. There is no jurisdiction over Plasmar and Marchem because there is no evidence Ustuntas worked for these companies, with their knowledge, in any capacity, until after April 2008, and after April 2008, his contacts with New York were so minor that they cannot confer jurisdiction, as explained in section II., supra. Altunkilic testified that Ustuntas was a consultant because it was true, not because of some purported strategy. CIG claims that it is incredible to believe that five or six CIG-NY or CKS employees would leave their positions without any offer of immediate employment. NYSCEF Doc. No.45 at 12. But Altunkilic only testified that two employees left CKS, a non-party. 44:9-22. It is not clear what other employees CIG is referring to. And Altunkilic s testimony is vague on this point; he said they left but never specified whether they were fired or quit, although it is not uncommon for people to leave job without knowing where they will work next. Id. This vague snippet of testimony does not impugn Altunkilic s credibility. CIG questions how Altunkilic can claim that he only communicated with ICC Turkey. NYSCEF Doc. No.45 at 12. But ICC is an international company, with a New York office, and they wanted to be paid in New York. As Altunkilic explained I send the money wherever they 12

17 ask me to send, to Romania, or to Swiss -- Switzerland or the United States, we don't know. We pay the invoice, whatever the Turkish office gave to us. We just discuss about about the goods and we discuss the price. 40:9-14. Moreover, Altunkilic and Ustuntas were friends with Sonat at ICC in Turkey, and he speaks Turkish, so it makes sense that they would communicate with him directly, rather that someone in New York they do not know, who speaks another language. CIG also points out that a date on Altunkilic s affidavit is inaccurate, and claims this error is disturbing. NYSCEF Doc. No.45 at There is no evidence that the contents of the affidavit are inaccurate. There is no evidence that Altunkilic even wrote the wrong date himself. In fact, he checked his passport and corrected the mistake on the record. Ex9.; 138:4-20. It appears that the notary made a mistake hardly a reason to accuse Altunkilic of lying. Finally, Karabey claims that Altunkilic made threats. This testimony is suspect for several reasons. First, this testimony is hearsay; Karabey never heard these alleged threats. 232: Second, no one confronted Altunkilic regarding these threats when he was in New York to testify, even though some of these alleged threats occurred before the trial even started. Instead, Karabey waited until Altunkilic was back in Turkey and unable to defend himself. Third, there are no s, police reports, or any other documents to support these allegations. Id. But the most important reason to doubt Karabey s veracity is because he tried to deceive this Court on a central issue in this case: Exhibit 35, the claimed smoking gun that allegedly shows Ustuntas stealing a list of customers. CIG, and Karabey, claim that Ustuntas stole files from CIG s servers in New York. It is the central accusation in their complaint, and Exhibit 35 was their alleged proof. During the trial, after being challenged by Defendants counsel, Karabey took great care to explain that CIG s servers were in New York, and that Ustuntas used these New York servers for and Citrix access. 156:22-161:22. Karabey then 13

18 testified that Exhibit 35 was from Ustuntas s work , and that his IT manager pulled this from the server. 219:8-220:3. Karabey also testified, repeatedly, that Ustuntas worked at CIG in New York, not CKS in Turkey. 161:22-162:26. On cross-examination, the truth was revealed. Exhibit 35 is not from a server in New York, it is from Turkey. 280:15-282:23. It was from the CKS servers, separate from CIG, and Karabey had no idea how his IT manager in New York got the . Id. And Exhibit 35 was not from Ustuntas s work at CIG, it was from an account at CKS. Id. One of the central issues in this jurisdictional dispute, and the whole case, is whether Ustuntas took trade secret files from servers in New York while he was working remotely in Canada. Initially, Karabey never admitted that Exhibit 35 was from a Turkish server. Instead, his testimony left the distinct impression that Exhibit 35 was proof that Ustuntas had taken secrets from servers in New York, until he caved on cross-examination. In sum, Karabey tried to deceive this Court on a central issue in this case, so all his testimony is suspect, especially his testimony about Altunkilic. 14

19 CONCLUSION It is respectfully submitted that Plasmar and Marchem that this Court has no jurisdiction over Plasmar and Marchem. CIG s post-trial brief provides no persuasive reason otherwise. Dated: New York, New York May 16, 2014 EATON & VAN WINKLE LLP By: JOHN J. DRISCOLL, ESQ. ROBERT RICKNER, ESQ. Attorneys for Plasmar Plastik ve Kimya San. ve Dış Tic. A.Ş and Marchem International Trading LLP Three Park Avenue, 16 th Floor New York, New York Tel: (212)