MEMORANDUM OPINION

LEWIS A. KAPLAN, District Judge.

Danish companies are required by law to withhold on account of anticipated Danish tax liability a percentage of dividends distributed to shareholders. The withholding tax may be refunded to some U.S. shareholders in certain circumstances under a double taxation treaty. This is one of more than a hundred cases in which the Kingdom of Denmark claims that the defendants defrauded it of by submitting tax refund claims in which they falsely claimed to own stocks in Danish companies that had paid dividends net of withholding tax. In fact, the complaints allege, the defendants did not own those stocks and had no taxes withheld from any dividends. Nevertheless, the defendants allegedly obtained many millions of dollars in tax refunds from the Danish treasury under these allegedly false and fraudulent pretenses. This case is before the Court on plaintiff SKAT's motion to dismiss counterclaims filed by defendants Goldstein Law Group PC 401(K) Profit Sharing Plan (the "Goldstein Plan") and Sheldon Goldstein (collectively with the Goldstein Plan, "Goldstein") [DI-1131].

Facts2

The Goldstein Plan is a Florida pension plan exempt from taxation under the Internal Revenue Code.3 Its sole trustee is Sheldon Goldstein.4 Mr. Goldstein and the Goldstein Plan allege that the Plan maintained a brokerage account with ED&F Man Capital Markets, a broker-dealer headquartered and registered in England.5 They allege also — though only in the following, indirect sense — that ED&F Man has stated that it traded Danish securities for the benefit of 36 pension plans, including the Goldstein Plan.6

A treaty between the United States and Denmark "provides for the refund of tax withheld on dividend payments to shareholders that," like the Goldstein Plan, "are U.S. pension plans [that] are exempt from taxation."7 Goldstein alleges that it purchased Danish stock with the expectation that it would receive these refunds.8 According to Goldstein, ED&F Man filed nine applications for tax refunds on Goldstein's behalf.9 SKAT granted the first eight but denied the ninth.10 In Goldstein's telling, this was because SKAT discovered a "scheme" whereby one Sanjay Shah helped foreign pension plans file fraudulent tax refund claims.11 Goldstein alleges that it had nothing to do with Shah or this scheme and that SKAT's denial of its ninth claim was unlawful.12 Although it alleges no supporting facts, it asserts "[u]pon information and belief [that] SKAT commenced litigation against hundreds of U.S. pension plans without bothering to investigate whether" they had any connection to the alleged Shah scheme.13 This case allegedly is among them.

SKAT here alleges that Goldstein fraudulently claimed tax refunds from the Danish government by misrepresenting that it owned Danish stock.14 It asserts claims for fraud, aiding and abetting fraud, payment by mistake, unjust enrichment, money had and received, and negligent misrepresentation.15 Not long ago, I denied motions by Goldstein and similarly situated defendants to dismiss SKAT's complaints.16

As noted, this is not the only proceeding involving Goldstein and SKAT. Goldstein alleges that "SKAT is pursuing multiple actions and investigations against [Goldstein] arising out of the same transactions in Denmark and, upon information and belief, other jurisdictions."17 The one such foreign proceeding that Goldstein specifies is a Danish administrative appeal involving SKAT and the Goldstein Plan. Goldstein offers little detail about that proceeding. But this Court already has described it on a general level. In a prior opinion, I noted that many of the defendants in this multidistrict litigation took administrative appeals from SKAT's determination letters finding that they wrongfully claimed ownership of Danish stock and, hence, were not entitled to refunds predicated on their asserted share ownership.18 I found that "the primary if not only issue [in the Danish appeals] is whether the defendants [such as Goldstein] owned . . . shares [of Danish stock], or owned and lent them to a third party."19

Goldstein alleges that this lawsuit and the Goldstein Plan's Danish tax appeal are parallel proceedings. In its view, "SKAT is attempting [in both proceedings] to collect [the] eight refunds" it issued to Goldstein.20 Goldstein alleges also that both matters involve "the same allegations,"21 "the exact same conduct,"22 and even "the same causes of action."23

Based on the foregoing allegations, Goldstein filed a counterclaim asserting four claims. Count 1 asks for a declaration that the decisions of this Court are binding on SKAT in all jurisdictions and venues in the world.24 Goldstein alleges that it "will suffer substantial harm" if it is forced to defend itself in cases involving "the exact same conduct"25 and that will "give[ ] rise to likely conflicting outcomes."26

Count 2 asks for an injunction "prohibiting SKAT from taking any action that would impair or otherwise impact matters that SKAT has submitted for determination to this Court."27 The injuries Goldstein seeks to prevent are, as above, the cost of participating in multiple lawsuits and the risk of being subject to conflicting judgments.28

Count 3 is captioned "Recovery of Denied Claims." Goldstein alleges only that it is entitled to recover the ninth tax refund because SKAT "improper[ly]" refused to disburse it.29

Count 4 rests on alleged promissory estoppel. Goldstein claims that "for years, SKAT refunded Danish tax paid to all U.S. pension plans that submit[ted] the documentation requested by SKAT"30 and that Goldstein purchased shares of Danish companies and submitted reclaim applications "[i]n reliance on SKAT's practice of paying all properly-documented claims."31 Goldstein likewise refers to the U.S.-Denmark treaty that it believes makes it exempt from paying tax on dividends paid on Danish stock.32 After stating these points, Goldstein asserts that SKAT should be "estopped from demanding that the Goldstein Plan pay tax on the dividends."33 It asserts also that SKAT must disburse the ninth tax refund.34

Discussion

I. Common Law Claims

Counts 3 and 4 seek relief under common law. SKAT is based in Denmark and the counterclaim implies that its relevant conduct took place there. Goldstein is based in Florida and invested through ED&F Man, which is based in England. Although none of the facts giving rise to these counterclaims has any apparent connection to New York, both parties assume that New York law applies.35 Therefore I apply the law of the forum — New York.36

A. "Recovery of Denied Claims"

Stating an actionable claim in federal court requires more than demanding relief. To survive a motion to dismiss under Rule 12(b)(6), a party must "state a claim upon which relief can be granted."37 A plaintiff's entitlement to relief depends on the existence of both material facts and a legally enforceable right — i.e., a right of action.

Count 3 is captioned "recovery of denied claims." The remedy Goldstein demands is clear: it wants SKAT to disburse the ninth tax refund. But Goldstein has not explained why it has a right to this remedy. Neither its counterclaim nor its opposition to this motion cites any provision of law or judicial decision, in New York or elsewhere, recognizing a cause of action for "recovery of denied claims." I already have informed Goldstein, and all the parties in this MDL, that this Court "is not required, and does not propose, to do the [parties'] homework for them and scour [the] law for a provision that may or may not entitle [them] to a [favorable decision]."38 Goldstein has stated a claim, but not one upon which relief can be granted given its present form.

Goldstein argues that its claim should survive nonetheless because, under Rule 8 of the Federal Rules of Civil Procedure, "a pleading need only `give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'"39 But Goldstein has not given SKAT notice of the grounds upon which its claim rests. "A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief."40

Apparently conceding its failure to identify a right of action, Goldstein argues that its claim should survive because it "expect[s]" that discovery will reveal causes of action for "unjust enrichment, money had and received, breach of contract, breach of the covenant of good faith and fair dealing, and negligence."41 These causes of action are not asserted in the counterclaim, and even in its memorandum Goldstein has offered no detail about them. I decline to consider these unasserted theories of liability based on an expectation rather than allegations of fact that, if proven, would entitle Goldstein to relief.

B. Promissory Estoppel

Unlike "recovery of denied claims," promissory estoppel is a real theory of liability in New York. "A cause of action for promissory estoppel under New York law requires the plaintiff to prove three elements: 1) a clear and unambiguous promise; 2) reasonable and foreseeable reliance on that promise; and 3) injury to the relying party as a result of the reliance."42

Goldstein alleges that SKAT for many years had a practice of paying tax refunds to all U.S. pension plans that filed properly documented claims.43 It alleges also that it "was exempt from all income tax levied . . . [by] Denmark" under a treaty between the United States and Denmark.44 Goldstein characterizes SKAT's practice and the U.S.-Denmark treaty as "promises" and claims it relied on them in choosing to invest in Danish stock. It asserts that SKAT therefore is estopped from demanding that Goldstein pay the withheld tax on the other eight refund claims.45

SKAT's alleged practice of complying with the U.S.-Denmark treaty's refund. requirement is not a "clear and unambiguous promise."46 Goldstein has pointed to no authority, and I am aware of none, holding that a government agency's pattern of engaging in legally required behavior on the basis of taxpayer submissions that later turn out to be fraudulent constitutes a "promise" for the purposes of a promissory estoppel claim.

II. Claims for Equitable Relief

A. Injunctive Relief

Goldstein seeks preliminary and permanent injunctions "prohibiting SKAT from taking any action that would impair or otherwise impact matters that SKAT has submitted for determination to this Court."47 The parties both describe this as an anti-suit injunction, or one that prevents a party from commencing or pursuing parallel litigation in foreign jurisdictions.48

To begin, the injunction claim is too vague. A party seeking a preliminary injunction must demonstrate "(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor."49 Based on Goldstein's pleading, the Court is uncertain exactly what Goldstein wants to enjoin SKAT from doing. This lack of clarity prevents the Court from meaningfully assessing whether Goldstein has a likelihood of success on the merits or whether sufficiently serious merits questions warrant preliminary relief.

To the extent Goldstein is seeking an anti-suit injunction, it additionally must satisfy the factors laid out in the Second Circuit's China Trade50 decision.51 First, two threshold requirements must be met: "(1) the parties must be the same in both matters, and (2) resolution of the case before the enjoining court must be dispositive of the action to be enjoined."52 A domestic judgment cannot be "dispositive" of a foreign action unless the foreign court would recognize it.53 If these threshold requirements are met, courts then look to five additional factors54: "(1) frustration of a policy in the enjoining forum; (2) the foreign action would be vexatious; (3) a threat to the issuing court's in rem or quasi in rem jurisdiction; (4) the proceedings in the other forum prejudice other equitable considerations; or (5) adjudication of the same issues in separate actions would result in delay, inconvenience, expense, inconsistency, or a race to judgment."55 Of these factors, the first and third are the most important.56 "[P]arallel proceedings on the same in personam claim ordinarily should be allowed to proceed simultaneously, at least until a judgment is reached in one which can be pled as res judicata in the other."57 For that reason, "an anti-foreign-suit injunction should be used sparingly, and should be granted only with care and great restraint."58

The parties involved in this dispute, the Danish appeal, and the possible future lawsuits are the same: SKAT and Goldstein.59 And resolving SKAT's fraud claims may require a determination of at least one apparent issue in Denmark, which is whether Goldstein owned the shares of Danish stock it claimed in its refund applications to have owned.60 Goldstein does not, however, assert that Denmark's courts would recognize a judgment from this Court resolving the ownership issue. In fact, it asserts that "Denmark[ ] refus[es] to recognize U.S. judgments."61 Its failure to argue that any foreign court would recognize a judgment of this Court forecloses an inference that such a judgment would be "dispositive" of a foreign action.62

Even if the threshold requirements for an anti-suit injunction were met, the five additional factors counsel strongly against such relief. Goldstein has pointed to no U.S. policy that would be frustrated by allowing an agency of Denmark to defend itself in a tax appeal in Danish court involving Danish law. Goldstein certainly will not be heard to argue that the tax appeal is vexatious, because Goldstein itself is the appellant.63 To whatever extent Goldstein does not concede that the third factor is met here,64 I hold that it is not. The Danish appeal poses no threat to this Court's "in rem or quasi in rem jurisdiction," and there is no indication that the Danish tax court is likely to enjoin this proceeding.65

On the fourth factor, Goldstein has not argued that any equitable considerations would be prejudiced by the continuation of the tax appeal other than its desire to be free from the cost of litigation. That consideration is weighed appropriately under factor five, which also is of no help to Goldstein. While it always is true that multiple suits create inconvenience and expense, and it is possible (though no evidence so suggests at this time) that the two suits will result in a race to judgment, the ubiquity of these factors means that they are rarely, if ever, determinative under China Trade.66 Goldstein has failed to demonstrate that they create any special urgency here.

B. Declaratory Judgment

Count 1 asks for a declaratory judgment stating that "this Court's decisions in this action arising out of the transactions set forth in the Complaint are binding on SKAT in all jurisdictions and venues [in the world]."67 This claim fails for at least three reasons.

First, Goldstein lacks Article III standing. Federal courts "must be alert to avoid imposition upon their jurisdiction through obtaining futile or premature interventions, particularly where a ruling is sought that would reach far beyond the particular case."68 For this reason, a dispute giving rise to a request for declaratory relief "must not be nebulous or contingent[,] but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and that some useful purpose to be achieved in deciding them."69 The injury Goldstein wishes to avoid is contingent upon foreign courts, primarily in actions not yet filed, issuing judgments that conflict with judgments that this Court may or may not issue.70 This is far to speculative to warrant declaratory relief. Much for that reason, Goldstein has not demonstrated that a declaration would serve any useful purpose at this time.71

Second, Goldstein has not asserted a right of action entitling it to declaratory relief. The Declaratory Judgment Act ("DJA")72 is "procedural only" and "gives a district court the discretion to `declare the legal rights and other legal relations of any interested party seeking such a declaration.'"73 But this "discretion does not extend to the declaration of rights that do not exist under law."74 This is because a declaratory judgment is a remedy, not a right, and the DJA "does not create an independent cause of action."75 A district court does not have the discretion to issue a declaratory judgment unless it "relies on a valid legal predicate," i.e., a right of action.76

Goldstein has not identified — or even attempted to identify — a "valid legal predicate" for its claim.77 Even if it had, none of the counterclaims could serve as a valid predicate, as none of them have survived the motion to dismiss.78

Third, even if I had the authority to exercise jurisdiction over a claim for declaratory relief, I would exercise my "broad discretion" not to do so.79 In weighing whether to order declaratory relief, courts must ask "(1) whether the judgment will serve a useful purpose in clarifying or settling the legal issues involved; and (2) whether a judgment would finalize the controversy and offer relief from uncertainty."80 Some courts ask also "(1) whether the proposed remedy is being used merely for `procedural fencing' or a `race to res judicata'; (2) whether the use of a declaratory judgment would increase friction between sovereign legal systems or improperly encroach on the domain of a state or foreign court; and (3) whether there is a better or more effective remedy."81

It is not clear how the judgment would clarify or settle any relevant legal issues. Goldstein confusingly argues that the declaration "would clarify that SKAT . . . intend[s] to abide by this Court's decisions."82 Nothing in the counterclaim permits an inference that there is any risk whatsoever that SKAT will fail to do that. What Goldstein really wants is a declaration that SKAT will not be able to rely on a favorable foreign judgment if it does not prevail on its fraud claims in this Court.83 As noted above, this problem is conjectural. For this same reason, the declaration would not finally resolve the controversy between SKAT and Goldstein.

The other three factors all point in the same direction. The entire purpose of the declaration is "a race to res judicata" because Goldstein would use it to preclude SKAT from trying to enforce a favorable foreign judgment. The declaration would increase friction between the United States and Denmark by precluding a Danish agency from relying on a Danish judgment based on Danish law. And there is a far better remedy available to Goldstein: waiting for a concrete dispute involving conflicting judgments and acting at that time.

Conclusion

Plaintiff's motion to dismiss [18-md-2865, DI-113] is granted.

SO ORDERED.