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Fr 8 Singapore Pte. Ltd v. Albacore Maritime Inc. and Prime and Order Marine Corp.

December 14, 2010


The opinion of the court was delivered by: Richard J. Holwell, District Judge:


Plaintiff FR 8 Singapore Pte. Ltd. ("FR8") commenced this action on March 9, 2010 against defendants Albacore Maritime ("Albacore"), Prime Marine Corp., Prime Marine Management Inc., and PMC Holding Inc. (collectively, the "Prime Defendants") to compel the Prime Defendants to arbitrate FR8's claims in London as alter egos of Albacore. Defendants have moved to dismiss the complaint [11] for lack of subject matter jurisdiction, on forum non conveniens grounds, and for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The Prime Defendants also moved to stay discovery pending resolution of the motion to dismiss, while FR8 cross-moved to compel discovery [15]. For the reasons that follow, the Court DENIES the motion to dismiss for lack of subject matter jurisdiction, DENIES without prejudice the motion for failure to state a claim, and DENIES the cross-motion to compel discovery.


For the purposes of this opinion, the following facts are taken as true.

On April 14, 2008, Albacore, a Marshall Islands corporation, entered into a Memorandum of Agreement ("MOA") to purchase the Marshall Islands' flagged vessel Overseas Reginamar from FR8, a Singaporean company. Albacore had been created twelve days earlier, on April 2, 2008, for the sole purpose of purchasing and chartering the vessel. (Suanes Decl. ¶

4.) A company called AMC Holding Inc. owns Albacore; another called CLRT Holding owns AMC Holding Inc.; and CLRT Holding is owned by Prime Marine Corporation ("Prime"). (Compl. ¶¶ 33, 35, 36.) Prime is wholly owned by PMC Holding Inc. (Compl. ¶ 30.) All of the companies in the Albacore line of ownership are Marshall Islands companies, and their corporate books are located in Greece; Prime and PMC Holding Inc.'s principal offices are in Greece as well. (Compl. ¶¶ 7, 8, 33, 35; see Suanes Decl. ¶ 13.) Prime Marine Management ("Prime Management"), a Liberian company under Prime's control, serves as manager of the several shipowning companies ultimately owned by Prime, including Albacore. (Compl. ¶ 16, 31; Suanes Decl. ¶ 9).

Stathis Topouzoglou ("Topouzoglou"), a resident of Greece and one of Prime Management's directors, handled the negotiations for the defendants leading up to the MOA, along with the Prime Defendants' Greek counsel. (Suanes Decl. ¶ 9; Woods Decl. ¶ 5.) Roger Woods ("Woods"), a broker with FR8 Shipbrokers Ltd., whose primary office is in London, handled FR8's negotiations. (Woods Decl. ¶ 4.) In a March 28, 2008 e-mail, Woods provided a March 31 deadline to Topouzoglou by which the buyers' board of directors was to agree to the proposed terms of the MOA. (Bamford Decl. ¶ 6, Ex. 1.) Topouzoglou replied on March 31, 2008, indicating that the buyers' board of directors had approved the transaction. (Id. ¶ 7.) On April 1, 2008, Woods informed Topouzoglou that FR8's board of directors had also approved the transaction, and requested that Topouzoglou "advise the correct name of [the] company for the [MOA]." (Id. Ex. 3.) Another Prime Management employee, Michael Chalkias, informed FR8 on April 2, 2008 that the buyer would be Albacore, which had been incorporated that day. (See id. Ex. 4; Suanes Decl. ¶ 4.) Albacore and FR8 executed the MOA on April 14, 2008. (Suanes Decl. ¶ 4.) The agreement set the purchase price of the vessel at $58,500,000, and required a 10% security deposit, which Prime paid on April 16, 2008.*fn1 (Woods Decl. Ex. 4.) Albacore signed the MOA in Greece; FR8 signed it in Singapore. (Suanes Decl.¶ 9.)

The MOA provides that it "shall be governed by and construed in accordance with English law and any dispute arising out of this Agreement shall be referred to arbitration in London . . . ." (Suanes Decl. Ex. B § 16.) Albacore and FR8 are signatories to the MOA; the Prime Defendants are not. (See Suanes Decl. Ex. B.)

Under the MOA, the vessel was to be delivered some time between May 1 and June 30, 2009. (Suanes Decl. Ex. B § 5(b).) Accordingly, FR8's English counsel, Mark Bamford ("Bamford"), and the Prime Defendants' Greek counsel, Constantinos Emmanuel ("Emmanuel") and Ekaterini Konidari ("Konidari"), exchanged drafts of the vessel delivery documents in April 2009. (Bamford Decl. ¶¶ 13-20, Exs. 5-9.) On April 30, 2009, Woods sent Topouzoglou a notice that the vessel would be delivered on May 11, 2009. (Id. Ex. 11.) The next day, however, Topouzoglou informed FR8 that because of the "global financial meltdown," Albacore's financing arrangements had been "torn apart." (Woods Decl. Ex. 5.) Although Albacore had originally anticipated being able to finance the entire sale price of the vessel with a loan from HSH Nordbank ("HSH"), HSH was now willing to loan no more than $21,600,000, leaving Albacore with a financing deficiency of approximately $39,000,000. (Id.) Topouzoglou claimed that the financial crisis could serve as a basis for Albacore to invoke the MOA's force majeure clause and terminate the contract; he also offered to finance the difference by giving FR8 a "second mortgage" in the vessel to secure a payment obligation due in five years. (Id.) FR8, however, rejected Topouzoglou's proposal and insisted that Albacore proceed. (Bamford Decl.

¶ 29.) FR8 also asked that Prime guarantee the transaction, but Topouzoglou rejected that request. (Woods Decl. ¶ 30.)

FR8 continued to proceed as though the closing for the transaction would occur on May 11, 2009. On May 6, 2009, Woods sent Topouzoglou a notice that the vessel would be delivered in five days. (Bamford Decl. Ex. 12.) The following day, Woods informed Konidari that the closing would be at the Marshall Islands registry in New York. (Id. Ex. 15.) Konidari then told Bamford and Woods that Emmanuel "will be probably attending the closing meeting on behalf of Buyers." (Id. Ex. 19.) Between May 8 and May 10, Woods and Bamford both arrived in New York to attend the closing. (Bamford Decl. ¶ 33; Woods Decl. ¶ 13.) On May 11, 2009, however, Emmanuel e-mailed Bamford to say that because FR8 "have yet to provide Buyers with a Notice of Readiness for delivery pursuant to line 56 of the MOA," he did not have to attend the closing. (Bamford Decl. Ex. 20.) Woods sent a Notice of Readiness that same day, and Bamford asserted that Albacore was contractually obligated to attend the closing, regardless of whether a Notice of Readiness had been provided. (Id. Exs. 21, 22.) Emmanuel did not come to New York.

On May 12, 2009, Topouzoglou attempted to invoke the force majeure clause of the MOA to terminate the agreement, citing the global financial crisis. (Bamford Decl. Ex. 23.) FR8 in turn accused the defendants of breaching the contract by failing to attend the closing meeting. (Bamford Decl. ¶ 43.) On June 25, 2009, FR8 instituted arbitration in London with Albacore only in accordance with the arbitration clause of the MOA. (Suanes Decl. ¶¶ 7-8.) This suit followed on March 9, 2010, seeking a judgment that the Prime Defendants are bound to Albacore's arbitration agreement as alter egos of Albacore, and a consequent order compelling the Prime Defendants to join Albacore in defending FR8's claims in the London arbitration.


I.Subject Matter Jurisdiction

FR8's complaint asserts two bases for subject matter jurisdiction in this case: diversity jurisdiction under 28 U.S.C. § 1332 and federal question jurisdiction under the Federal Arbitration Act (the "FAA"), 9 U.S.C. §§ 1, et seq., the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "Convention"), and legislation implementing the Convention, 9 U.S.C. §§ 201, et seq. Defendants contend that neither of these grounds provides subject matter jurisdiction.

FR8's first basis, diversity jurisdiction, plainly fails. The relevant statute confers jurisdiction on district courts in civil actions where the matter in controversy exceeds the sum or value of ...

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