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Hovensa LLC v. Kristensons-Petroleum, Inc.

United States District Court, Second Circuit

April 26, 2013

HOVENSA LLC, Plaintiff,
v.
KRISTENSONS-PETROLEUM, INC., Defendant/Third-Party Plaintiff,
v.
OIL OVERSEAS S.A., Third-Party Defendant.

Geoffrey D. Ferrer, Esq., Christopher Raleigh, Esq., Cozen O'Connor, New York, NY, Counsel for Plaintiff.

Jeanne-Marie D. Van Hemmen, Esq., Josh Greco, Esq., Josh Parks, Esq., Betancourt, Van Hemmen, Greco & Kenyon LLC, Red Bank, NJ, Counsel for Defendants/Third-Party Plaintiff.

Scott R. Johnston, Esq., John G. Poles, Esq., Poles Tublin Stratakis & Gonzalez, LLP, New York, NY, Counsel for Third-Party Defendant.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

I. INTRODUCTION[1]

On May 16, 2012, Hovensa LLC ("Hovensa") brought suit against Kristensons-Petroleum, Inc. ("KPI") in the United States District Court, District of New Jersey, seeking $242, 121 in payment for 2, 294 barrels of marine fuel oil (commonly referred to as "bunkers") that Hovensa had delivered to the M/T Commencement (the "Vessel") on KPI's account.[2] By stipulation of the parties, the action was transferred to this Court under 28 ยง U.SC 1404(a) on July 24, 2012. The purpose of the transfer was to "facilitate the impleader of a third party defendant who may not be subject to in personam jurisdiction" in the District of New Jersey.[3]

On August 9, 2012, KPI filed a Third-Party Complaint alleging that it had ordered the fuel oil from Hovensa to fulfill a contract with Oil Overseas, S.A. ("OOSA"), and seeking $243, 851.04 from OOSA for non-payment of that contract.[4] A summons issued on August 10, 2012, and OOSA was served with it by a Federal Express package mailed under Rule 4(f)(2)(C)(ii) on August 12.[5] OOSA acknowledged receipt on October 12, and entered an appearance on January 4, 2013 for the purpose of contesting the Court's jurisdiction.[6]

Presently before the Court is OOSA's motion to dismiss the Third-Party Complaint under Rule 12(b)(2) for lack of personal jurisdiction, or alternatively under Rule 12(b)(7) for failure to join an indispensable party.[7] For the reasons stated below, KPI's motion to dismiss for lack of personal jurisdiction is granted.

II. BACKGROUND

A. Factual Background

1. Parties and Relevant Entities

Hovensa is a U.S. Virgin Islands limited liability company that operates a marine terminal in St. Croix.[8] KPI, a Delaware corporation with its principal place of business in New Jersey, is a trader of marine fuel oil.[9] KPI regularly purchases bunkers of oil from Hovensa under the terms of a standard form contract.[10] OOSA, a Panamanian corporation headquartered in Greece, is also a trader of marine fuel oil.[11] The Vessel is a foreign-flagged ocean-going tanker, which is not registered in the United States.[12] Annamar Navigation, Inc. ("Annamar"), the owner of the Vessel and Chemnav Shipmanagement, LLC ("Chemnav"), the Vessel's operator, are not parties to this litigation.[13]

2. The Transactions at Issue

This case arises out of a chain of agreements aimed at provisioning the Vessel with oil. The facts below are not in dispute. On November 25, 2011, Chemnav engaged OOSA to supply the Vessel with approximately 2, 300 barrels of marine fuel oil at a price of $107.25 per barrel, to be delivered to the Vessel, F.O.B., at Hovensa's St. Croix terminal.[14] OOSA then ordered the oil requested by Chemnav from KPI at a price of $105.75 per barrel.[15] KPI, in turn, ordered the oil from Hovensa at a price of $105.00 per barrel.[16] Finally, on November 27, Hovensa delivered the requested barrels of oil to the Vessel, which promptly acknowledged receipt.[17]

Once this delivery had been made, Hovensa sent KPI an invoice for $242, 121.60, [18] KPI sent OOSA an invoice for $243, 851.04, [19] and OOSA sent Chemnav an invoice for $248, 462.88, [20] all payable within thirty days of delivery. To date, OOSA has not paid KPI, [21] and KPI has not ...


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