The opinion of the court was delivered by: JONES
BARBARA S. JONES, United States District Judge:
Plaintiff Europe and Overseas Commodity Traders, S.A. ("EOC") brings this action alleging eleven counts arising out of the alleged fraudulent sale of securities by Banque Paribas London ("Paribas"), Paribas Global Bond Futures Fund (the "Fund"), Paribas Asset Management Ltd. (the "Fund Manager"), and John Arida ("Arida") (collectively referred to as "Defendants").
Defendants move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b), claiming that this Court lacks subject matter jurisdiction over the case and personal jurisdiction over the defendants. In the alternative, defendants move the Court to dismiss this action on the grounds of forum non conveniens. For the reasons set forth below, defendants' motion is hereby granted.
Plaintiff is a Panamanian corporation with its principal place of business in Monaco.
Its sole shareholder is Alan Carr, a Canadian citizen, who for most of the time of the investment at issue was residing in Florida. Plaintiff EOC established a securities trading account with Paribas in London in or about October 1992 by entering an Investment Agreement. The Investment Agreement contains choice of law and choice of forum provisions which state that "this Agreement is governed by English Law. Disputes arising out of the Agreement shall be subject to the jurisdiction of the English courts to which for our benefit you submit."
In October 1993, EOC invested in the Fund using the account it established with Paribas. The circumstances surrounding plaintiff's initial purchase of shares in the Fund are in dispute. Both parties agree that Carr was in England for a period of time in the fall of 1993 and that he left England on October 9, 1993. Carr concedes that before he left, he was introduced to Arida and had conversations with him concerning the securities trading account he held with Paribas. Carr denies that Arida solicited the investment in the Fund during these conversations; rather, he avers that Arida solicited the purchases by telephone and facsimile while Carr was in Florida between October 14 and October 18. Carr claims that he made the first purchase in the Fund on October 18, and he made subsequent purchases in October and November.
Arida contends, however, that Carr placed the initial order of shares in the Fund on behalf of EOC on October 8, before he left England, rather than on October 18, as plaintiff contends. Arida concedes that after Carr made this initial purchase in England, he had several communications with Carr regarding EOC's investment in the Fund while Carr was in Florida, beginning on or about October 14. Arida agrees that during the period of October through November 1993 EOC made further investments in shares in the Fund.
Each side has submitted documentary evidence to support its position as to when the initial purchase was made. To support its allegation that the initial purchase was made while Carr was in Florida on October 18, 1993, plaintiff submits a June 15, 1994, letter from Arida listing EOC's purchases in the Fund which indeed lists the date for the first purchase as October 18, 1993. The Court finds this letter unpersuasive for two reasons.
First, under the Fund rules governing share valuation, the share price Carr claims to have paid on October 18 is incorrect. Under the Fund Rules, a "purchase" of shares of the Fund can occur only on a valuation day at their then-applicable net asset value; valuation days, which determine the purchase price of Fund shares, are Mondays. In addition, "applications for purchase received ... not later than 1:00 p.m. on the second bank business day preceding a Valuation Day will, if accepted, be dealt with on the basis of the relevant Net Asset Value calculated at such Valuation day . . ." Baker reply decl. at P 5. As applied to EOC's purchase, an order for the purchase of Fund shares placed on October 8, 1993, a Friday, could not be valued on Monday, October 11, 1996, because October 11 was less than two business days from the date the order was placed. Rather, the shares would have been valued (i.e., their purchase price determined) on Monday, October 18.
Significantly, Carr acknowledges that on his initial purchase, he paid the price per share which was listed as the value on October 18, 1993. Carr decl. P 12. If Carr had in fact placed the order for the securities on October 18, he would have paid the amount which was the value on October 25 under the rules of the Fund.
The second reason the Court finds the June 15, 1994, letter from Arida to Carr unpersuasive is that the letter is internally inconsistent. Some of the dates listed as "purchases" are valuation dates, suggesting that the date referred to as the date of "purchase" was in fact the date of valuation. Some of the dates listed as "purchases" are "settlement" dates, suggesting that the "purchase" referenced was the payment date. Some of the dates do not correspond to either purchase or settlement dates and thus might actually represent purchase order dates. Because neither plaintiff nor defendants has provided a wholly satisfactory explanation for the dates in this letter, this Court concludes that Arida was using the term "purchase" loosely to refer to each of the above three possibilities.
Thus, construing all facts in favor of the plaintiff, keeping in mind that this Court need not draw all argumentative inferences in favor of the plaintiff, Atlantic Mutual Insur. Co. v. Balfour MacLaine International Ltd., 968 F.2d 196, 198 (2d Cir. 1992), this Court finds that plaintiff's initial purchase of shares in the Fund was made in England on October 8, 1993.
Neither party disputes that after several phone calls and facsimiles between Arida and Carr while Carr was in Florida during October and November 1993, plaintiff made additional purchases in the Fund. Plaintiff also contends that during the month of October, Paribas solicited and sold shares in the Fund to another investor, Matthew O'Brien, who is not a party to this action. Plaintiff avers that Mr. O'Brien is a resident alien in the United States and a British subject who was residing in Florida at the time of his investment. Plaintiff's allegation is unsupported: it has not submitted an affidavit by O'Brien himself. However, defendants have submitted O'Brien's investment application which reflects that at the time that O'Brien applied to make a purchase in the Fund, he listed his residence as London and his citizenship as British. See Baker reply decl. P 10, exh. 6. Plaintiff offers nothing to controvert this evidence other than his averment that O'Brien was resident in Florida at the time of purchase, and in fact now is a citizen of the United States. See Carr decl.. at P 19. Thus this Court credits the defendants' submission, and in light of this submission, finds that O'Brien resided in England at the time of his investment in the Fund.
Defendants move to dismiss plaintiff's complaint on three grounds: lack of subject matter jurisdiction, lack of personal jurisdiction and under the doctrine of forum non conveniens. Before it can consider a forum non conveniens motion, a court must first determine whether it has jurisdiction over the case and the parties. See, e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504, 91 L. Ed. 1055, 67 S. Ct. 839 (1947).
Subject Matter Jurisdiction
The Court must consider whether there is subject matter jurisdiction based on a federal question pursuant to 28 U.S.C. 1331.
The Securities Exchange Act is silent as to extraterritorial application. See e.g., Alfadda v. Fenn, 935 F.2d 475, 478 (2d Cir.), cert. denied, 502 U.S. 1005, 116 L. Ed. 2d 656, 112 S. Ct. 638 (1991). In order to determine whether a federal court has subject matter jurisdiction over federal securities claims brought by foreign plaintiffs, courts must determine whether "Congress intended that the precious resources of the United States courts be devoted to a specific transnational securities claim." Itoba Ltd. v. LEP Group PLC, 54 F.3d 118, 121-22 (2d Cir. 1995) (quoting Bersch v. Drexel Firestone, Inc., 519 F.2d 974, 985 (2d Cir.), cert. denied sub nom, Bersch v. Arthur Andersen & Co., 423 U.S. 1018, 46 L. Ed. 2d 389, 96 S. Ct. 453 (1975)), cert. denied, 133 L. Ed. 2d 659, 116 S. Ct. 702, 116 S. Ct. 703 (1996). In making this determination, courts apply the "conduct test" or the "effects test." The Second Circuit has stated that these two tests can be applied in conjunction. "Indeed an admixture or combination of the two often gives a better picture of whether there is sufficient United States involvement to justify the exercise of jurisdiction by an American court." Itoba, 54 F.3d at 122.
Under the "effects" test, a federal court has subject matter jurisdiction if the defendant's conduct abroad has "substantial" impact in the United States, see Alfadda, 935 F.2d at 478, that is, if the conduct impacts on "stock registered and listed on [an American] national securities exchange and [is] detrimental to the interests of American investors." Itoba, 54 F.3d at 124 (quoting Schoenbaum v. Firstbrook, 405 F.2d 200, 208 (2d. Cir.), rev'd with respect to holding on merits, 405 F.2d 215 (2d Cir. 1968) (in banc), cert. denied sub nom. Manley v. Schoenbaum, 395 U.S. 906, 23 L. Ed. 2d 219, 89 S. Ct. 1747 (1969) (brackets in original)). Under the "conduct" test, a federal court has subject matter jurisdiction if the defendant committed acts in the United States that were more than merely preparatory to the fraud, and those acts or culpable failures to act within the United States directly caused the claimed loss. Alfadda v. Fenn, 935 F.2d at 478.