DIGJAM LIMITED, Plaintiff-Appellant, v. WL ROSS & CO. LLC, Defendant-Appellee, 488 F. App'x 538

SUMMARY ORDER Plaintiff appeals from an order of the District Court dated June 22, 2011, denying its claim to reinstate its complaint, which had been dismissed on forum non conveniens grounds without prejudice to a motion for reinstatement. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. We review a denial of reinstatement under the doctrine of forum non conveniens for abuse of discretion. See Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir.2005).

A district court abuses its discretion when its decision “(1) rests either on an error of law or on a clearly erroneous finding of fact, or (2) cannot be located within the range of permissible decisions, or (3) fails to consider all the relevant factors or unreasonably balances those factors.” Pollux Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 70 (2d Cir.2003) (internal citation omitted). Here, we find no error in the District Court’s denial of reinstatement.

In accordance with the procedure recommended in Usha, the lower court properly found, according to its own “satisfaction,” that plaintiffs “claims are likely to be adjudicated with reasonable dispatch,” Usha (In dia) Ltd. v. Honeywell Int’l, Inc., 421 F.3d 129, 134-36 (2d Cir.2005), having stated in its order that the Indian court “seems to be progressing with the case,” Order Denying Motion to Reopen, Digjam Limited v. WL Ross & Co, LLC, 09 Civ. 1607 (Doc. No. 42) (S.D.N.Y. June 22, 2011) and taking notice of the 61-page decision already written by the foreign court. Id.

Given these considerations, although the backlog in Indian courts can be extensive we find the lower court properly decided the “reasonable dispatch” issue based on defendant’s showing. Additionally, we find that the defendant did not flout the District Court’s order by raising statute of limitations defenses in the Indian court, given that the limitations periods expired prior to the date of the filing of the complaint in the District Court. See Schertenleib v.

Traum, 589 F.2d 1156, 1166 (2d Cir.1978) (<cWe add the condition that defendant must waive any statute of limitations defense that has arisen since the commencement of this action in the Southern District.”) (emphasis added); Panama Processes, S.A. v. Cities Service Co., 789 F.2d 991, 992 (2d Cir.1986) (“Agrees to waive any statute of limitations defense with respect to any such claims based upon facts or events which have arisen since the commencement of the within action in this Court ”) (emphasis added). Accordingly, the judgment of the district court hereby is AFFIRMED.