Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

NEEWRA, INC. v. MANAKH AL KHALEEJ GEN. TRADING & CONTR.

July 12, 2004.

NEEWRA, INC., Plaintiff,
v.
MANAKH AL KHALEEJ GENERAL TRADING AND CONTRACTING CO., KUWAIT FINANCE HOUSE, EMIRATES AIRLINES, and ARAMEX INTERNATIONAL, Defendants.



The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District

OPINION AND ORDER

Plaintiff Neewra, Inc. ("Neewra") sued defendants Manakh al Khaleej General Trading and Contracting Co. ("Manakh"), Kuwait Finance House ("KFH"), Emirates Airlines, and Aramex, after Manakh failed to pay for $2.5 million worth of software that Neewra sent to Manakh in Kuwait. KFH now moves to dismiss the complaint against it for lack of personal jurisdiction, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. For the reasons stated below, KFH's motion is granted, and Neewra's complaint against KFH is dismissed.

  I.

  The following relevant facts have been construed in the light most favorable to Neewra. To the extent necessary, the court has drawn logical inferences from the record to fill gaps in the parties' presentation of the facts.

  In early 2000, Neewra, a New York corporation, contracted to supply 1,000 units of software to Manakh, a Kuwaiti company, in exchange for $2.5 million. (Affidavit of Arween Sahni ("Sahni Aff.") ¶¶ 1-3) Before committing to the contract, Manakh asked Neewra to sell it a sample of the software in February 2002; Neewra sent the sample without arranging to be paid before delivery. (Id. ¶ 4) Instead, Neewra's president and sole owner, Arween Sahni, contacted ABN Amro Bank in New York and asked it to arrange an international collection*fn1 of the $2,500 payment. (Id. ¶ 5) Sahni told ABN Amro that KFH should be designated as the consignee, which meant that ABN Amro would send the necessary documents to KFH in Kuwait, and KFH would deliver them to Manakh in exchange for the $2,500 payment. (Id., Ex. A) ABN Amro instructed KFH to deliver the documents against payment and then remit payment to one of several ABN AMRO accounts. (Declaration of Harry H. Wise, III ("Wise Decl."), Ex. C).

  Manakh received the software sample in Kuwait and told Neewra that it was acceptable, and so Neewra went ahead with the main transaction for 1,000 units of software. (Sahni Aff. ¶ 6) Sahni delivered the software to Aramex, a freight forwarding company. (Id.) Aramex gave Sahni duplicate originals of the air waybill and then shipped the software to Kuwait via Emirates Airlines. (Id.) Sahni then prepared the necessary documents for a second collection, including an original air waybill, and delivered them to ABN Amro. (Id. ¶ 7) Sahni told ABN Amro that the documents should be sent to KFH in Kuwait, and KFH was to release the documents to Manakh in exchange for $2.5 million, which ABN ultimately was to transfer to Neewra's account with Banco Popular in New York. (Id., Ex. B) ABN Amro sent the relevant documents to KFH with instructions to deliver the documents to Manakh in exchange for $2.5 million, and ABN again told KFH to remit the payment to one of several ABN Amro accounts. (Wise Decl., Ex. F).

  In early March, KFH remitted Manakh's $2,500 payment for the software sample to an ABN Amro account in Chicago, Illinois. (Id., Exs. C, D) KFH had sent this money to ABN Amro through its correspondent account*fn2 at Citibank, N.A., in New York. (Id., Exs. A, D, E) However, although Manakh had obtained the software in Kuwait, a $2.5 million payment never arrived from KFH. (Sahni Aff. ¶ 9) Neewra later learned that Manakh had never paid KFH for the second set of documents (id. ¶ 10), and it now claims that KFH gave Manakh those documents without requiring that Manakh make any payment. (Compl. ¶ 14) According to Neewra, Manakh used the documents it received from KFH to prepare forgeries that enabled it to obtain possession of the software from Emirates Airlines in Kuwait City, Kuwait. (Id. ¶¶ 15-16).

  KFH is a public shareholding corporation organized and existing under the laws of Kuwait. (Declaration of Anwar Al-Fuzaie ("Al Fuzaie Decl.") ¶ 2) Its headquarters are in Kuwait City, Kuwait, and it is subject to the supervision and regulation of the Kuwaiti government. (Id.) KFH engages principally in banking services and real estate construction, leasing, and investing activities on its own behalf and for third parties, as well as in financial trading activities. (Id.) KFH has not been authorized by the New York Secretary of State to do business in New York. (Id. ¶ 3) KFH has no office or employees in New York, does not advertise or maintain telephone listings in New York, and does not own property in New York. (Id.) However, as described above, KFH does maintain a correspondent account with Citibank, N.A., in New York. (See Wise Decl., Ex. A, D, E) In addition, KFH boasts on its website that its investments "include various places in Asia, Europe, [and the] United States of America" and that its chairman "highlighted the significance of the American market and the success, which KFH achieved therein through investment in real estate and investment portfolios and funds, which are still operating and achieving highest returns for KFH and its customers." (Id., Ex. B, at 2) With respect to the transactions at issue here, KFH sent and received communications in Kuwait and did not attend any meetings in New York. (Al Fuzaie Decl. ¶ 7) All KFH personnel who have knowledge about this transaction are located in Kuwait. (Id. ¶ 8).

  On April 25, 2003, Neewra filed this action, which includes claims of conversion and negligence against KFH. (Compl. ¶¶ 17-18, 22-23) On November 12, 2003, KFH filed this motion to dismiss, arguing that this court lacks personal jurisdiction over it and that dismissal is appropriate also under the doctrine of forum non conveniens.

  II.

  A plaintiff served with a Rule 12(b)(2) motion to dismiss bears the burden of establishing that the court has jurisdiction over the defendant, a burden it may carry by making "prima facie showing" of jurisdiction. Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001). The plaintiff can make this prima facie showing by pleading, in good faith, legally sufficient allegations of jurisdiction through its own affidavits and supporting materials. Id. Where the issue of jurisdiction is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff, and any doubts are resolved in the plaintiff's favor. Id. Accordingly, the following facts, which are drawn from the parties' affidavits and supporting materials, are construed in the light most favorable to Neewra.*fn3 Because Neewra's factual allegations are "deemed true to test the jurisdictional theory of the complaint," the court is not now conducting an inquiry into disputed jurisdictional facts. Credit Lyonnais Securities (USA), Inc. v. Alcantara, 183 F.3d 151, 154 (2d Cir. 1999) (emphasis in original). If its jurisdictional theory proves to be sound, Neewra "still must prove the jurisdictional facts by a preponderance of the evidence, either at an evidentiary hearing or at trial." Id. III.

  To determine whether KFH, a foreign corporation, is subject to jurisdiction in New York, this court must first determine whether there is jurisdiction over KFH under New York law and then decide whether such an exercise of jurisdiction would be consistent with federal due process. Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999). Although Neewra argues that New York courts have jurisdiction over its cause of action under either subsection (1) or subsection (3) of N.Y.C.P.L.R. ("CPLR") § 302(a) (McKinney 2003), neither provision supports the exercise of jurisdiction over KFH. Accordingly, this court lacks jurisdiction over KFH under New York law and therefore need not determine whether the exercise of jurisdiction would meet due process requirements.

  A. CPLR § 302(a)(1)

  According to Neewra, this court has jurisdiction over KFH under either prong of CPLR 302(a)(1), which allows a court to exercise personal jurisdiction over a non-domiciliary who "[1] transacts any business within the state or [2] contracts anywhere to supply goods or services in the state," provided that the cause of action also arises from those acts. Id. As will be discussed in more detail below, neither ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.