The court has assigned Justice O Peter Sherwood to hear the case. The motion will come up for hearing on September 13
BestMediaInfo Bureau | Delhi | August 29, 2012
WPP filed a motion on Tuesday, August 28, 2012, in the New York Supreme Court for dismissal of NDTV Limited’s lawsuit against TAM India and other defendants such as WPP, Kantar Media and AC Nielsen. The New York Supreme Court has assigned Justice O Peter Sherwood to hear the case (No 652589-2012). The motion will come up for hearing on September 13, 2012.
WPP’s petition for dismissal has been filed on behalf of “moving defendants” Kantar Market Research Services Pvt Ltd (improperly sued as Kantar Media Research Pvt Ltd), IMRB International, a division of Hindustan Thompson Associates Private Limited (improperly sued as IMRB International), Cavendish Square Holding BV, J Walter Thompson (although no such entity exists and no proper J Walter Thompson entity has any connection to the facts alleged in the complaint) and WPP plc (which also has no connection to the facts alleged in the complaint).
It has submitted that “this memorandum of law in support of their motion to dismiss the verified complaint (the “Complaint”) of New Delhi Television Limited (“New Delhi TV” or “Plaintiff”), for insufficiency of service pursuant to CPLR § 3211(a)(8). Kantar India also moves for lack of personal jurisdiction pursuant to CPLR § 3211(a)(8). In addition, the Moving Defendants move to dismiss the Complaint, pursuant to CPLR § 327, for forum non conveniens. Finally, the Moving Defendants move to dismiss all the claims asserted against them in the Complaint pursuant to CPLR § 3211(a)(7) for failure to state a cause of action and pursuant to CPLR § 3013 and § 3016 for failure to plead with the requisite particularity.”
The petition adds: “This case is nothing more than a desperate attempt by the plaintiff, a television station in New Delhi, to drum up media coverage in India to divert attention from the real reasons its programmes have had low audience ratings and its financial performance has been abysmal for five years. New Delhi TV has crossed the globe and come to New York State Supreme Court to complain about an Indian company, TAM, and how it measures the ratings of television programmes in India. New Delhi TV has filed its completely baseless and misdirected claims in a 193-page complaint, containing 654 paragraphs and 42 causes of action against 32 irrelevant parties, including the Moving Defendants.
“First, as a threshold issue, the complaint should be dismissed as to all Moving Defendants for insufficiency of service. Flouting even the most basic rules regarding service of process, NDTV simply left five identical copies of the complaint in a ripped shopping bag with a facilities employee at a building in New York in which none of the Moving Defendants conduct business, and then mailed another copy addressed to J Walter Thompson (not even a proper entity) to the same address. As explained in more detail below, this sloppy attempt at service is completely insufficient and as a result, the entire complaint should be dismissed as against the Motion Defendants.”
The petition further says, “Moveover, and not surprisingly, NDTV’s drafting of the Complaint is as careless as its attempt at service. Not only does it improperly name several of the Moving Defendants, but even if the Moving Defendants had been properly named, this Court does not have jurisdiction over Kantar India, which is an Indian company with absolutely no presence in the United States, let alone in New York. Of course, it is not surprising that the companies that have anything to do with the allegations in the complaint have no presence in the United States, let alone New York, as this case is completely about actions allegedly taken or not taken in India by Indian companies having an alleged impact on an India television station. Thus, the fact that certain U.S. Kantar companies, completely distinct from Kantar India, have offices in the State of New York does not render Kantar India subject to jurisdiction in New York.”
“Beyond the basic sloppiness regarding service and drafting, what is most shocking about the Complaint is that a thorough read makes it perfectly clear that this case has absolutely nothing to do with New York. Hundreds of paragraphs demonstrate that the nexus of any potential claim (at best a breach of contract claim against an Indian party other than Moving Defendants) lies in India, not New York.
There are dozens of Indian residents whose names appear in the Complaint that will be witnesses and many other witnesses in India that are not listed in the Complaint; key agreements that are at the core of the dispute that provide that all disputes are subject to the jurisdiction of Mumbai courts; and a multitude of transactions that all occurred in India, which are described in hundreds of the Complaint’s 600 plus paragraphs. Moreover, in dozens of paragraphs of the Complaint, NDTV emphasizes that the alleged corruption at issue her implicates well-known Indian politicians and Indian government officials, thus providing even more reason for a New York Court to refrain from getting involved in this dispute. Accordingly, based upon considerations of justice, fairness and convenience, NDTV’s claim is better adjudicated in India, and this Court should dismiss the complaint as against Moving Defendants,” said the petition.
The petition says, “Finally, and alternatively, each and every one of the claims that NDTV asserts against the Moving Defendants fails to state a cause of action. Not only is it beyond dispute that NDTV cannot pierce the corporate veil of the company with whom it contracted in order to hold its share holders liable, but the pleading on their face are wholly insufficient to state a cause of action against any of the Moving Defendants.”