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Rentech Inc. v. SGI, Inc.

Supreme Court, New York County

June 28, 2013

RENTECH, INC, Plaintiff,
SGI, INC., f/k/a SOLENA GROUP, INC.; SOLENA FUELS CORPORATION; SOLENA FUELS, LLC; and SOLENA FUELS, INC.; each Defendant d/b/a SOLENA GROUP and each other, Defendants. Index No.157359/2012

Unpublished Opinion



Defendants Solena Fuels Corporation; SFI Investors, LLC, named in the Verified Complaint as Solena Fuels, LLC, and Solena Fuels, Inc. move for an Order to Dismiss Plaintiffs Verified Complaint pursuant to CPLR §§ 301 and 302 and CPLR § 3211(a)(7).

Plaintiff opposes and cross-moves for leave to amend the caption of the summons and complaint, amending the name of Defendant Solena Fuels, LLC, to "SFI Investors LLC, f/k/a Solena Fuels, LLC."

This action was commenced in New York based on a forum selection clause in a Contract signed by the non-moving defendant, SGI, Inc.

Plaintiff alleges that while moving Defendants are non-signatories to the forum selection clause, they are bound by the forum selection clause as alter egos of SGI, or as closely related, or successors in interest, or based on de facto merger.

Defendants move to dismiss on the ground that facts have not been alleged to establish that SGI and the moving defendants are closely related so as to permit exercise of jurisdiction over the moving Defendants. Nor does the complaint state a cause of action against the moving defendants on the grounds that they are the alter ego of SGI.

The complaint alleges that Plaintiff and SGI entered into an agreement on March 8, 2010, pursuant to which Plaintiff provided technical services for which SKI agreed to pay $80, 000. Based on a change order, an additional $20, 000 is due. The $100, 000 was to be paid by July 1, 2011. Instead of making the payment, Defendant formed Solana Fuels Corp. in April 2012, to benefit from the services and products delivered by Plaintiff to Defendants without payment.

Plaintiff alleges that the business purpose of each Defendant is identical; that each is simply the continuation of SGI; all defendants operate as alter egos of each other; the ownership and management of each Defendant is identical; the office address and office suite of each Defendant is identical; the telephone numbers of each Defendant are identical; each Defendant operates under the common name "Solena Group"; each defendant is a successor-in-interest to SGI; that each defendant has been de facto merged with SGI; that there is no separate identity of each Defendant; and that websites and press releases reflect that the entities are closely related to SGI.

Plaintiff alleges that all the entities are controlled by Dr. Do, who signed the agreement on behalf of SGI. Further, Plaintiff asserts that the business of SGI and the moving defendants is identical - namely, the production of sustainable jet, diesel and marine fuels from biomass. Plaintiff alleges that, in November 2010, SGI (then known as Solena Group, Inc.) issued a press release announcing the use of plaintiff s proprietary Fischer-Tropsch fuel technology. Subsequently, in September 2012, after the incorporation of Solena Fuels Corporation, Solena Fuels stated in a brochure that it was using the "proven Fischer-Tropsch platform." In short, Plaintiff maintains that SGI is continuing its business under the umbrella of Solena Fuels.

Dr. Do, the President and CEO of SGI, and Brian Miloski, the CFO of Solena Fuels Corp. and a director of SFI Investors, LLC, have signed sworn affidavits is support of the motion. They maintain that SGI was formed under Delaware law and is the parent company of SFI Investors, LLC, and the indirect parent of Solana Fuels Corporation. SFI Investors, LLC and Solena Fuels Corporation are Delaware corporations. Each conducts business as a separate legal entity, and they were formed for legitimate business purposes. In connection with the formation of SFI Investors, LLC, SGI contributed assets relating to its British Airways project to be located in London, England.

Defendants contend that the investors, directors, shareholders, and management teams of the various named defendants are not identical. SFC holds a patent for technology for the production of a synthetic fuel gas which can be used to produce electricity, jet, or diesel fuel. SFC licenses a portion of this technology to SGI, Inc.

Defendants state that SGI holds a ninety-five and four-tenths percent ownership interest in SFI, received in consideration of its contribution of assets. SFI owns an eighty percent ownership interest in SFC, received in consideration of its contribution of assets. SGI holds an indirect seventy-six and thirty-two one-hundredths percent ownership ...

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