United States District Court, D. Massachusetts
DANIEL P. NEELON, Plaintiff,
BLAIR KRUEGER and DESERT EAGLE RESOURCES, LTD. f/k/a GARRISON INTERNATIONAL, LTD., Defendants
For Daniel P. Neelon, Plaintiff, Counter Defendant: Paul J. Andrews, Jr., LEAD ATTORNEY, Paul J. Andrews, Esq., Braintree, MA; Daniel P. Neelon, Boston International Law Group LLC, Braintree, MA.
For Blair Krueger, Desert Eagle Resources, Ltd., formerly known as Garrison International, Ltd., Defendants, Counter Claimants: Damian R. LaPlaca, LEAD ATTORNEY, Nelson Kinder & Mosseau P.C., Boston, MA; Robert F. Callahan, Jr., Nelson Kinder & Mosseau PC, Manchester, NH.
MEMORANDUM & ORDER
Indira Talwani, United States District Judge.
In this action, Plaintiff Daniel P. Neelon (" Neelon" ) brings claims for defamation, unfair and deceptive business practices, and tortious interference with business relations. See First Am. Compl. ¶ ¶ 85-122 [#18] [hereinafter Compl.]. Neelon alleges that Defendants Blair Krueger (" Krueger" ) and Desert Eagle Resources, Ltd. (" Desert Eagle" ) (collectively " Defendants" ) made certain false statements in Canada suggesting that Neelon was facing criminal charges in Mongolia, and that these statements were published in the United States, causing significant harm to Neelon's reputation and business prospects. See generally id.
More than two years after this litigation commenced, Defendants filed a Motion to Dismiss for Forum Non Conveniens [#108], alleging that either Canada or Mongolia is a more convenient forum in
which to litigate this suit. The court finds that, on balance, the private and public interest factors relevant to a forum non conveniens determination do not support dismissal in favor of either alternative forum. Defendants' motion is, therefore, DENIED.
II. Factual Background
A. The Parties and Underlying Loan Agreement
Neelon is an attorney licensed in Massachusetts. Compl. ¶ 13. In 2010, Neelon worked at the Boston-based law firm Denner Pellegrino, LLP. Id. In this capacity, Neelon participated in drafting loan documents for his client Georges Cohen (" Cohen" ), a Canadian national. Id. ¶ 16. Cohen entered into a loan agreement with Garrison Asia, LLC (" Garrison Asia" ), a Mongolian mining exploration company. Id. ¶ 1; Aff. Blair Krueger ¶ ¶ 19-20 [#108-2] [hereinafter Krueger Aff.]. Garrison Asia was a Mongolian subsidiary of Garrison International, Ltd., which is a Canadian company. Compl. ¶ ¶ 1, 3. Garrison International, Ltd. now operates under the name of Desert Eagle Resources, Ltd.--a named defendant in this action. Id. ¶ 7. At the time of these events, Garrison International Ltd.'s stock was listed on the Canadian TSX Venture Exchange. Krueger Aff. ¶ 29. Defendant Krueger is a Canadian national who in 2010 was the President and CEO of Garrison International. Compl. ¶ ¶ 7-8.
The loan was intended to provide capital for Garrison Asia's mining exploration activities in Mongolia. Id. ¶ 16. The loan's financing documents provided, as a remedy for default, that Cohen could take ownership of Garrison Asia. Id.; Krueger Aff. ¶ 23. The same provision granted a seventy-two hour right to cure any default. Krueger Aff. ¶ 23.
B. The Alleged Events Underlying Defendants' Press Releases
In February 2011 Cohen transferred all shares of Garrison Asia into his possession. Compl. ¶ 16. Neelon alleges that Cohen did so after a series of defaults and in accordance with the loan agreement's remedy provision. Id.
Defendants claim that the transfer occurred without first providing a right to cure the alleged defaults and without the knowledge of Anthony Bainbridge, who was Desert Eagle's Chief Operating Officer in 2011, or Krueger, both of whom were allegedly not in Mongolia on the date of the transfer. See Aff. Anthony Bainbridge ¶ ¶ 44, 48 [#108-21] [hereinafter Bainbridge Aff.]; Krueger Aff. ¶ 23.
Upon discovery of the transfer, Defendants initiated a complaint against Neelon and Cohen at the Mongolian Police State Investigation Office. Compl. ¶ 28. The Mongolian police eventually decided against bringing criminal charges. Id. ¶ ¶ 30-32.
C. Defendants' Allegedly Defamatory Press Releases
On May 20, 2011, Defendants issued a press release through Marketwire.com, which has a multinational readership and offices in the United States and Canada. Id. ¶ 33. The press release stated that the company stamp for Garrison Asia was taken by " two men" from its Mongolian offices " without the knowledge or permission of any of the Officers or Directors of the
Company." Id. ¶ 34. The press release claimed further that the " stamp was used to transfer the ownership of the shares of Garrison Asia LLC away from the Company." Id. The release also stated that a criminal investigation into the two men's activities had resulted in the filing of criminal charges. Id. Defendants also allegedly informed " numerous people" that the two men referenced in this press statement were Neelon and Cohen. Id. ¶ 36.
Defendants issued another press release on September 23, 2011, through Marketwire.com and news.investors.com. Id. ¶ ¶ 56, 58. This release stated that:
The Company also wishes to notify its shareholders with an update in regard to its News Release of May 20, 2011 concerning its statement of the unauthorized transfer of the Company's subsidiary in Mongolia that occurred in January and February 2011 that a criminal action has been filed in Mongolia against Georges Cohen, a former director of Garrison International, and Daniel Neelon, Counsel of Mr. Cohen, and has been assigned case number 21147156. The criminal action pending against Mr. Cohen and Mr. Neelon was filed under section 236 of the Mongolian Criminal Code which refers to a procedure which has caused substantial damage to a business entity and may be reviewed under Section 148 which is entitled " Appropriation of Property by Fraud" or Section 150 which is entitled " Misappropriation or Embezzlement of Property."
Id. ¶ 59.
Neelon also alleges that Defendants played a role in the publication of a September 24, 2011, blog entry on stockhouse.com entitled " Alleged Criminal Daniel P. Neelon," and that Desert Eagle posted financial statements on sedar.com, which referenced a " criminal action pending against Mr. Cohen and Mr. Neelon [that] was filed under the Mongolian Criminal Code." Id. ¶ ¶ 71, 76-77.
D. The Parties' Claims and Defenses
Neelon claims that the press releases were defamatory and that Defendants knew or should have known that no criminal charges were pending against him in Mongolia. Compl. ¶ ¶ 60-63. Defendants argue that the press releases were not defamatory and that Krueger ensured all of the information in the press releases was thoroughly fact checked in Mongolia prior to publication. Krueger Aff. ¶ ¶ 33-34, 38-39.
E. Neelon's Alleged Damages
According to Neelon, Defendants' statements resulted in " damages to [his] income, earning capacity, reputation, business opportunities and emotional health." Aff. P. Daniel Neelon ¶ 33 [#119-57] [hereinafter Neelon Aff.]. In particular, Neelon claims that he lost client referrals, was denied a bank loan for project financing, and that a potential law partner withdrew from plans to associate with him after learning of the press releases. Id. ¶ ¶ 252-56. He asserts that harm to his reputation and lost business opportunities in Boston caused his 2012 income to drop by 87% from its 2011 level. Id. ¶ 255. Neelon also claims that he lost out on a lucrative mining exploration opportunity in Mongolia when his project partners ...