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Greatship (India) Limited v. Marine Logistics Solutions (Marsol) LLC

January 24, 2012

GREATSHIP (INDIA) LIMITED, PETITIONER,
v.
MARINE LOGISTICS SOLUTIONS (MARSOL) LLC, RESPONDENT.



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

MEMORANDUM OPINION AND ORDER

Respondent Marine Logistics Solutions, LLC ("Marsol") chartered two vessels owned by petitioner Greatship (India) Limited ("Greatship"). Marsol defaulted on two payments to Greatship, who referred the matter to arbitration in London. On September 22, 2010, the arbitrators awarded Greatship damages of $2,168,700 with interest, an award which Marsol has neither appealed nor paid. On January 20, 2011, Greatship petitioned this court to enforce the award pursuant to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"), codified at 9 U.S.C. §201 et seq. (2006), and the Federal Arbitration Act, codified at 9 U.S.C. § 1 et seq. Marsol now moves to dismiss the petition under Fed. R. Civ. P. 12(b)(2), arguing that the court lacks personal jurisdiction over it. Because Greatship's allegations do not support a finding of jurisdiction over Marsol, Marsol's motion to dismiss is GRANTED.

Factual Background

The following facts are undisputed between the parties.

Greatship, an Indian business entity, is the owner of two vessels, the Greatship Amrita and the Greatship Anjali. (Pet.'s Mem. of Law in Opp. To Resp.'s Mot. to Dismiss ("Opp.") at 1; Verified Petition ("Pet.") ¶2.) Marsol is an offshore logistics service provider, registered in Dubai, United Arab Emirates. (Hashmi Decl. ¶3; D'Ambrosio Decl. Ex. 1.) Marsol time chartered the Greatship Amrita and the Greatship Anjali under two charterparties*fn1 dated November 27, 2007. (Opp.at 1.)

On or about October 19, 2009, Greatship and Marsol agreed to early re-delivery of the vessels, and entered into two settlement agreements (the "Amrita Agreement" and the "Anjali Agreement"). (Opp.at 1; see D'Ambrosio Decl. Ex. 1, Ex. 2.) In the Amrita Agreement, Marsol agreed to pay Greatship $1,811,516.00 for outstanding time charter hire, and $450,000.00 in compensation for early redelivery of the Greatship Amrita. (Id.) In the Anjali Agreement, Marsol agreed to pay Greatship $557,596.71 for outstanding time charter hire. (Id.) The Amrita Agreement contained a schedule for payments of the total settlement amounts, and provided that if Marsol were to default on any two consecutive installments, "the defaulting sums along with all other sums . . . shall become due and payable immediately and shall carry an interest in the measure of 10% (ten percent) annually until the date of realization." (Id. at 1-2.) Clauses in each settlement agreement provided that each would be governed in accordance with English law, and that disputes arising out of the agreements would be referred to arbitration in London. (Id. at 2; Resp. Mot. to Dismiss ("MTD") at 2.) The settlement agreements nowhere mention the United States, New York State, or any other state. (See D'Ambrosio Decl. Exs. 1 & 2.)

Marsol allegedly defaulted on its October and November 2009 installments due under the agreements. (Opp.at 2; MTD at 2.) Greatship then referred the dispute to arbitration in London, in accordance with the arbitration clauses. (Opp.at 2; MTD at 2.) On September 22, 2010, the arbitrators awarded Greatship principal damages of $2,168,700, with interest. (Opp.at 2; see MTD at 2.) Greatship subsequently made demands for payment, but Marsol has not paid. (Opp. at 2; see MTD at 2.)

On January 20, 2011, Greatship petitioned this court to enforce the award pursuant to the New York Convention. (Pet. ¶1.) On June 6, 2011, Marsol moved under Rule 12(b)(2) to dismiss the petition for lack of jurisdiction.

Discussion

"A court is 'obligated to dismiss an action against a defendant over which it has no personal jurisdiction' upon motion by that defendant." Stone v. Ranbaxy Pharm., Inc., No. 10 Civ. 8816, 2011 WL 2462654, at *1 (S.D.N.Y. June 16, 2011) (quoting In re Ski Train Fire, 230 F. Supp. 2d 403, 406 (S.D.N.Y. 2002)). "A plaintiff opposing a motion to dismiss a complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2) 'bears the burden of establishing that the court has jurisdiction over the defendant.'" Anderson v. Marr, No. 10 Civ. 818, 2011 WL 3423694, at *4 (S.D.N.Y. July 18, 2011) (quoting DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001)). Prior to discovery, the plaintiff need only plead facts which, if true, would establish jurisdiction over the moving defendant. Id.; Stone, 2011 WL 2462654, at *1. "At the pre-discovery stage, a court may consider documents beyond the pleadings in determining whether personal jurisdiction exists, and any pleadings and other documents considered by the Court must be interpreted in the light most favorable to the plaintiff." Anderson, 2011 WL 3423694, at *4. However, "conclusory allegations are not enough to establish personal jurisdiction." Gmurzynska v. Hutton, 257 F. Supp. 2d 621, 625 (S.D.N.Y. 2003). Instead the allegations supporting jurisdiction must be factually supported. Yellow Page Solutions, Inc. v. Bell Atlantic Yellow Pages Co., No. 00 Civ. 5663, 2001 WL 1468168, at *3 (S.D.N.Y. Nov. 19, 2001) (citing Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990)).

To enforce a foreign arbitral award under the New York Convention, the enforcing court must have in personam or quasi in rem jurisdiction over the party ordered to pay. Frontera Resources Azerbaijan Corp. v. State Oil Co. of the Azerbaijan Republic, 582 F.3d 393, 398 (2d. Cir. 2009); Adrian Shipholding Inc. v. Lawndale Group S.A., No. 08 Civ. 11124, 2010 WL 1372627, at *2 (S.D.N.Y. Mar. 26, 2010) ("[T]he Court of Appeals has recently imposed a requirement that courts in this Circuit find personal or quasi in rem jurisdiction before confirming a foreign arbitral award.") (citing Frontera). The federal statute that implements the New York Convention does not itself confer personal jurisdiction over the parties to an award. Opal Finance Ltd. v. Agrenco Madeira Comercio Int'l LDA, No. 08 Civ. 8279, 2010 WL 476711, at *1 (S.D.N.Y. Feb. 3, 2010). Personal jurisdiction must therefore be established either under state law, or, since the New York Convention is enacted by federal statute, by Federal Rule of Civil Procedure 4(k)(2).

Accordingly, to enforce a foreign arbitral award in this court, the petitioner must show either (1) that the respondent is "'present' in New York," Ford v. Department of Soc. Servs., No 10 Civ. 3800, 2011 WL 1458138, at *2 (S.D.N.Y. Mar. 22, 2011) (quoting N.Y. C.P.L.R. 301 (McKinney 2010)), and therefore subject to general personal jurisdiction; (2) that the respondent "has committed acts within the scope of New York's long-arm statute," Ford, 2011 WL 1458318, at *2 (quoting N.Y. C.P.L.R. 302), and is therefore subject to specific personal jurisdiction over claims arising from those acts; or (3) that, under Rule 4(k)(2), the respondent is not subject to the jurisdiction of any one state, but that the exercise of general federal personal jurisdiction over the respondent is nevertheless consistent with the requirements of due process*fn2 , see Kiobel v. Royal Dutch Petroleum Co., No. 02 Civ. 7618, 2010 WL 2507025, at *6 (S.D.N.Y. June 21, 2010) (citing Porina v. Marward Shipping Co., Ltd., 521 F.3d 122, 127 (2d Cir. 2008)).

N.Y. C.P.L.R. 301

N.Y. C.P.L.R. 301 provides for general personal jurisdiction with respect to any cause of action over a defendant who "is 'doing business' and is therefore 'present' in New York." Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 95 (2d Cir. 2000) (quoting Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 58 (2d Cir. 1985)). The defendant must "do[] business in New York not occasionally or casually, but with a fair measure of permanence and continuity." Id. (internal quotation marks omitted). "In order to establish that this standard is met, a plaintiff must show that a defendant engaged in continuous, permanent, and substantial activity in New York." Id. (internal quotation marks omitted). New York courts consider several factors in this analysis, "including 'the existence of an office in New York; the solicitation of business in New York; the presence of bank accounts or other property in ...


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