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Mediterranean Shipping Co. S.A. v. Ningbo Toptrade Imp. Exp. Co. Ltd.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


March 27, 2009

MEDITERRANEAN SHIPPING COMPANY S.A., PLAINTIFF,
v.
NINGBO TOPTRADE IMP. EXP. CO. LTD., TOPTRADE RECYCLING (USA) INC., AND NEWDEH LEE, DEFENDANTS.

The opinion of the court was delivered by: Cedarbaum, J.

MEMORANDUM OPINION AND ORDER

In May 2006, Mediterranean Shipping Company S.A., ("MSC") brought this action against Ningbo Toptrade Import Export Co. Ltd., ("Ningbo") Toptrade Recycling (USA), Inc., and Newdeh Lee for issuance of a Process of Maritime Attachment and Garnishment pursuant to Rule B of the Supplemental Rules for Admiralty and Maritime Claims and Asset Forfeiture Actions. The attachment was issued, and the Bank of New York restrained an Electronic Fund Transfer of $500,000 originated by Ningbo on July 12, 2007.

MSC filed a duplicate action against the very same defendants in the Central District of California. Judge Feess of the Central District of California dismissed that complaint sua sponte for lack of subject matter jurisdiction. He found that MSC's injury had occurred on land and thus could not support admiralty jurisdiction. Mediterranean Shipping Co. v. Ningbo Toptrade Imp. Ex. Co, et al., No. CV 07-0733 (GAF) (C.D. Cal. June 26, 2007). MSC filed a notice of appeal to the Ninth Circuit Court of Appeals on August 2, 2007, and the parties argued the appeal before the Ninth Circuit on February 2, 2009.

On April 21, 2008, defendants appeared though counsel in this action and moved to dismiss for lack of subject matter jurisdiction. Neither party has submitted authority on the res judicata effect of the proceedings in their identical case now awaiting decision by the Ninth Circuit. Accordingly, defendants' motion to dismiss is denied as premature.

SO ORDERED.

MIRIAM GOLDMAN CEDARBAUM United States District Judge

20090327

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