The opinion of the court was delivered by: Denise Cote, District Judge:
On December 23, 2011, defendant Petroleos de Venezuela, S.A.
("PDVSA"), moved to dismiss plaintiff Skanga Energy & Marine Limited's
("Skanga") December 2 amended complaint, pursuant to Rule 12(b)(1),
Fed. R. Civ. P., and the doctrine of forum non conveniens.*fn1
PDVSA argues that it is immune from suit as a foreign
sovereign defendant, and that Skanga has failed to establish the
applicability of the commercial activity exception to immunity. Skanga
has shown that defendant Arevenca S.A. ("Arevenca") acted as PDVSA's
agent in this commercial dispute and caused a direct effect in the
United States justifying the exercise of jurisdiction over PDVSA.
Similarly, Skanga has shown that its choice of New York as a forum for
this litigation is entitled to deference and should be honored.
PDVSA's motion to dismiss is denied.
Unless otherwise noted, the following facts are taken from Skanga's amended complaint, and assumed to be true for purposes of this motion. Skanga, a Nigerian corporation, imports petroleum products into Nigeria with Nigerian government authorization. It paid $11.2 million for petroleum products that PDVSA and Arevenca never delivered to Nigeria, and it seeks a refund from the defendants.
PDVSA is "an energy corporation and monopoly owned and operated by the Venezuelan government." United States v. Duran, 596 F.3d 1283, 1287 (11th Cir. 2010).*fn2 PDVSA has extensive international operations, including operations in the United States through PDVSA USA, Inc., and PDVSA's wholly-owned subsidiary Citgo Petroleum Corporation.
In or around 2006, representatives of Skanga, including Christian Imoukhuede ("Imoukhuede"), met in Nigeria with Venezuelan government personnel to discuss a potential transaction between Skanga and PDVSA. Among the Venezuelans with whom Skanga discussed the transaction was Enrique Arrundell ("Arrundell"), then Venezuela's trade consul to Nigeria and currently the Venezuelan ambassador to Nigeria. Skanga expressed its interest in purchasing petroleum products from PDVSA. Arrundell told Imoukhuede that if Skanga wanted to import oil from PDVSA, Skanga would have to work through a PDVSA agent corporation. The agent would deal directly with Skanga, and would represent, speak for, and bind PDVSA. Arrundell informed Skanga that Arevenca was PDVSA's agent.
Arrundell offered to introduce Skanga to Arevenca in Venezuela. At Arrundell's invitation, Skanga representatives, including Imoukhuede, traveled to Caracas in October 2006 to meet with Arevenca. Arrundell and other Venezuelan government officials met the Skanga delegation at the Caracas airport, and the Venezuelan officials handled immigration formalities for the Skanga representatives.
At a meeting at a Caracas hotel, Arrundell repeated that Skanga should work through Arevenca, PDVSA's agent, to purchase petroleum products from PDVSA. Arrundell introduced defendant Javier Gonzalez Alvarez ("Alvarez"), indicating that Alvarez represented both PDVSA and Arevenca in the negotiations with Skanga. Alvarez confirmed that he represented both Arevenca and PDVSA in the negotiations.
At the meeting, Alvarez represented that PDVSA and Arevenca were willing to enter a contract with Skanga to sell Skanga petroleum products on credit. PDVSA, Arevenca, and Skanga would all be parties to the contemplated agreement, PDVSA as seller, Arevenca as PDVSA's agent and shipper, and Skanga as buyer. Alvarez explained, however, that Skanga would have to prepay some charges in advance of delivery and to pay in full within three months of delivery. All payments would be made in U.S. dollars to an Arevenca bank account in New York, because PDVSA wished to use Skanga's payments in connection with PDVSA's U.S.-based operations. Arevenca would keep the pre-paid freight charges and transmit the balance of Skanga's payments directly to a PDVSA bank account in New York. Skanga agreed and its representatives returned to Nigeria.
Soon after, Arevenca made an offer to Skanga on PDVSA's behalf to sell 35,000 metric tons of diesel fuel to Skanga for $18.3 million. Alvarez advised Skanga that the fuel was in a vessel en route to Nigeria. Alvarez provided Skanga with a November 24, 2006 bill of lading, carrying PDVSA's corporate logo. It identified Arevenca as shipper and Skanga as consignee.
Upon receipt of the documents, Skanga contacted officials at Venezuela's Nigerian consulate. The officials confirmed the authenticity of the documents and the details of the transaction. Skanga then agreed to the purchase and wire transferred $1,400,000, representing freight charges, to Corp Banca, the bank designated by Arevenca in New York.
At around the same time, Alvarez offered to sell Skanga 70,000 metric tons of premium motor spirits for $35.7 million. Alvarez represented that the shipment was on a ship called the "Dignitii" en route to Nigeria. Alvarez instructed Skanga to make a payment to an account at a New York Citibank branch. Skanga agreed to the purchase, and prepaid by wire transfer a total of $9.8 million, representing both freight charges as well as a partial payment for the product itself, to the New York Citibank account.
The two shipments did not arrive in Nigeria. The Nigerian Ports Authority told Skanga that it had no record of either vessel entering Nigerian waters.
Skanga demanded that PDVSA and Arevenca refund the $11.2 million Skanga had transferred. PDVSA and Arevenca have refused, however, either to deliver the shipments or to refund any of Skanga's money.
Skanga filed its original complaint in New York state court on July 21, 2008. PDVSA was served on May 27, 2011. On June 24, PDVSA removed the case to this Court, pursuant to 28 U.S.C. § 1441(d).
Skanga filed its amended complaint on December 2. On December 23, PDVSA moved to dismiss Skanga's amended complaint. The motion became ...