The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
This is an action for damages for what plaintiffs contend is a
failure on the part of the defendant, FleetBoston Financial Corp.
("FleetBoston"),*fn1 to honor an oral commitment to extend
lines of credit to several businesses operating in Argentina.
FleetBoston has moved the Court to dismiss plaintiffs' action
pursuant to Federal Rule of Civil Procedure 12(b) (6). It is the
defendant's position that the oral agreements are unenforceable
because they do not satisfy the statute of frauds and do not fit
within any of the recognized exceptions to the statute.
Furthermore, FleetBoston argues that the plaintiffs lack the
standing necessary to assert the claims contained within the
complaint. For the reasons set forth herein, defendant's motion
to dismiss is denied in part and granted in part.
In deciding a motion to dismiss a complaint as failing to sate
a claim on which relief can be granted pursuant to Rule 12(b)
(6), a district court is obligated to view the complaint in the
light most favorable to the plaintiff. See Scheuer v. Rhodes,
416 U.S. 232, 237 (1974); Yoder v. Orthomolecular Nutrition Inst., Inc., 751 F.2d 555, 562 (2d Cir. 1985). This demands
that the court accept as true the factual allegations stated by
the plaintiff in its complaint. See Zinermon v. Burch,
494 U.S. 113, 118 (1990). Any reasonable inferences that may be drawn
from the stated facts must be drawn in plaintiff's favor. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972). As such, the
facts set forth herein are drawn from the complaint.
Plaintiffs Robinson Flemtamentos, SA ("Robflesa"), Agencia
Maritima Robinson S.A.C.F.I. ("AMR") and Adrogue Chico are
Argintine entities that share the same principals, Ricardo Gaston
Cazou ("Cazou") and Andrew George Robinson ("Robinson"). Robflesa
and AMR are in the shipping business and Adrogue Chico is
involved with housing developments. Dating back to the 1980's
these companies and their affiliates have used the international
banking division of BankBoston, now a New York City based
division of defendant, as their principal bank.
In order to provide banking services for Robflesa and AMR and
take advantage of certain tax laws, Plaintiff Sea Trade Company
Ltd. ("Sea Trade") was organized under the laws of the Bahamas by
BankBoston International ("BankBoston"). According to plaintiffs,
Sea Trade's only function is to handle financial transactions for
a second off-shore company, Plaintiff Tradewinds Enterprises
(Jersey) Ltd. ("Tradewinds"), also organized by BankBoston under the laws of the Bailiwick of Jersey. Tradewinds
in turn operated an international ship brokering business through
its agent Robflesa, utilizing the BankBoston bank accounts owned
by Sea Trade. Although Sea Trade, Tradewinds, Robflesa and AMR
are separate legal entities, Sea Trade and Tradewinds were
created solely to benefit Robflesa and AMR. It was the intention
of the plaintiffs and BankBoston that the four entities would
work in concert for the mutual benefit of one another. Similarly,
Plaintiff Nani Shipping Corp. Ltd. ("Nani Shipping") was created
by BankBoston under the laws of the Bahamas to function as a
banking vehicle for Adrogue Chico.
Two major charterers, Centenary S.A. and Navynor S.A., sought
to retain Tradewinds as its exclusive broker for all of their
freight transactions. As part of this arrangement Tradewinds was
to provide financing in a revolving amount of $1 million, and in
return, receive a commission of the freight charges. AMR was to
benefit as the ship's agent from an increased volume of fees. In
order to finance the relationship, however, Tradewinds needed to
secure a line of credit from BankBoston.
Plaintiffs met with Ricardo Carrasco ("Carrasco"), the
BankBoston official who had for some time handled plaintiffs'
accounts and was responsible for the creation of Sea Trade, Tradewinds and Nani Shipping. Plaintiffs also met with Cecilia
Recalde, another BankBoston official, to explain the proposed
transaction. Plaintiffs hoped to obtain the $1 million line of
credit necessary to finance the deal. Carrasco declined to extend
a $1 million line of credit, but agreed to grant Sea Trade an
unsecured line of credit for $400,000 to fund the
Centenary/Navynor contract. According to plaintiffs, Carrasco did
not ask that the agreement, which was to finance a 4 year
shipping contract that could be renewed for another 2 years, be
memorialized in writing. This, they claim, was "consistent with
the history of the account." In practice, the line of credit was
more or less an agreement to allow Sea Trade to overdraw its
account by up to $400,000.
Relying on the agreement with BankBoston, the charter agreement
was entered into in September of 1997. In 1998, however, Carrasco
disappeared after the bank began to suspect that he had been
scheming to divert substantial assets from BankBoston. Concerned
by what it believed Carrasco to be guilty of and by the fact that
he had apparently fled, in February of 1998, BankBoston froze all
of the accounts for which he had served as the primary loan
officer. Included among the accounts frozen was Sea Trade's
account. Cazou and Robinson protested the freeze, claiming the
agreement had been in effect for nearly six months and there had
never been any improprieties associated with their account. In response, BankBoston offered to reactivate Sea
Trade's account if the company would agree to certain
modifications to its terms, including providing collateral. Sea
Trade objected to the modifications and the account remained
closed. Its access to credit gone, Tradewinds began defaulting on
contracts. In April Centenary and Navynor suspended the
Exclusivity and Financing Contract.
The claim brought against defendant by Adrogue Chico and Nani
Shipping follows a similar script to the one offered by their
fellow plaintiffs. In need of capital to develop a housing
project on the outskirts of Buenos Aires, Cazou was introduced to
Carl Kishman ("Kishman") of BankBoston's Buenos Aires office.
Officials within the Buenos Aires office studied the proposed
Adrogue Chico project that Cazou had presented to Kishman and
Carrasco and in ...