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Nabeel Mazloum A/K/A v. International Commerce Corp.

November 7, 2011

NABEEL MAZLOUM A/K/A NABIL MOHAMMAD ALMAZALOUM,
PLAINTIFF,
v.
INTERNATIONAL COMMERCE CORP., ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Denise Cote, District Judge:

OPINION AND ORDER

Plaintiff Nabeel Mazloum ("Mazloum") brings this diversity action against International Commerce Corporation ("ICC"), Ekram J. Miller a/k/a Ekram J. Manafzadeh a/k/a Ekram Doe ("Miller"), and two unnamed defendants, alleging breach of contract, fraud, conversion, conspiracy to defraud, and a violation of the New York Deceptive Acts and Practices Act, N.Y. Gen. Bus. Law § 349. Miller has moved to dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). In his reply brief, Miller seeks sanctions pursuant to Federal Rule of Civil Procedure 11 and to strike portions of the amended complaint and opposition brief.

BACKGROUND

I. General Background

The following is derived from the allegations of the amended complaint filed March 31, 2011 and assumed to be true for the purposes of this Opinion. This action arises out of the parties' creation of a joint venture company, International Ayah Company ("Ayah"), to build housing and hotels in Syria. Mazloum is a Syrian citizen and conducts business from Riyadh, Saudi Arabia. ICC is a Delaware Corporation with its principal place of business in Maryland. Miller is an executive of ICC and has his business address at ICC's location in Maryland. Miller has several aliases and identities which he uses to defraud investors. The two unnamed defendants are business partners, agents or employees of ICC and Miller.

The parties signed their contract forming Ayah on November 26, 2007, and Ayah was incorporated on November 27. On February 18, 2008, Mazloum contributed $1.5 million to Ayah by depositing that amount into an account at HSBC Bank in New York City. The defendants failed to perform under the contract or, in effect, to do anything with the joint venture. Mazloum requested that the defendants either perform under the contract or refund his contribution, but they refused to do so. Miller and the two unnamed defendants then transferred assets from Ayah to their personal accounts in order to hide business assets from creditors.

II. Facts Alleged as to Personal Jurisdiction Over Miller

In the amended complaint, Mazloum made several allegations that purport to confer jurisdiction over Miller. He claims that Miller lives at 127 Avenue of the Americas in New York City under an alias; was the subject of a criminal trial under an alias in the Southern District of New York in the 1970s, an appeal from which was decided by the Second Circuit in 1979; and has a civil judgment entered against him, also under an alias, in New York State Supreme Court in 1999. Mazloum also alleges, "upon information and belief," that Miller is an executive of Aminco Trading Corporation ("Aminco"), which is incorporated and does business in New York; and that he has helped establish New York business ventures and given speeches in New York as recently as 2009.

These allegations are supplemented in the affirmation of Mazloum's counsel offered in opposition to the motion to dismiss. Upon information and belief, she asserted that Miller had personally appeared in New York repeatedly in connection with a real estate project called Sky Gate. In connection with Sky Gate, Miller had meetings with politicians in New York City in 2008 and 2009. In an exhibit attached to the affirmation, excerpts of a report of a British arbitral tribunal reviewing a dispute related to the Sky Gate project, it is noted that Miller had meetings in New York in November 2006. Mazloum's counsel also alleges that Miller has formed a new corporation, International Development Corporation ("IDC"), and through IDC, has signed a number of contracts in New York that are governed by the laws of the State of New York.

The affidavit that Miller filed in support of his motion to dismiss touches on many of these allegations. His testimony is that he is the president and sole shareholder of ICC, but that neither he nor ICC has a presence or conducts business in New York. Miller's place of business and home is in the State of Maryland, where he has exclusively lived since 1993. He has not maintained a residence in New York since 1979. Neither he nor ICC maintains an office, have employees, lease property, warehouse goods, have a registered agent, advertise, pay taxes or have bank accounts in New York. He specifically stated that neither he nor ICC has a bank account at HSBC Bank in New York, and that he does not maintain a domicile at either 127 or 1270 Avenue of the Americas in New York City. But, he notes that 1270 Avenue of the Americas was the address of Aminco, a company that he did indeed own. Aminco went out of business in 1979 and was not involved in the transaction giving rise to this action.

III. Procedural History

Mazloum filed the first complaint in this action on December 15, 2010. On February 23, 2011, Miller filed a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2). Pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), Mazloum filed an amended complaint on March 31.

Miller filed a motion to dismiss the amended complaint on May 16. On July 7, Mazloum filed his opposition in the form of an affirmation by his counsel. At the initial pretrial conference on July 15, Mazolum's counsel requested that this opposition be withdrawn as she had gathered new information relevant to the motion. This request was granted, and a new opposition ...


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