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Soroof Trading Development Co., Ltd. v. Ge Microgen, Inc.

United States District Court, S.D. New York

April 8, 2014

SOROOF TRADING DEVELOPMENT COMPANY, LTD., Plaintiff,
v.
GE MICROGEN, INC., PLUG POWER, INC., and GENERAL ELECTRIC COMPANY, Defendants.

MEMORANDUM AND ORDER

JAMES C. FRANCIS, IV, Magistrate Judge.

This is an action for breach of contract and misrepresentation against defendants GE Microgen, Inc. and Plug Power, Inc., members of the now-defunct GE Fuel Cell Systems, LLC ("GEFCS"), and General Electric Company. Plaintiff Soroof Trading Development Company, Ltd. ("Soroof Trading") has renewed its motion for leave to amend the caption to reflect the name under which it is currently operating, Soroof International Company, Ltd. ("Soroof International"). The motion is granted.

Background

The factual background of this dispute is set forth in my May 11, 2012, Memorandum and Order. Soroof Trading Development Co. v. GE Microgen, Inc. , 283 F.R.D. 142 (S.D.N.Y. 2012); see also Soroof Trading Development Co. v. GE Fuel Cell Systems, LLC, No. 10 Civ. 1391, 2013 WL 1286078 (S.D.N.Y. March 28, 2013); Soroof Trading Development Co. v. GE Fuel Cell Systems, LLC, No. 10 Civ. 1391, 2012 WL 6554862 (S.D.N.Y. Dec. 13, 2012). I will summarize it briefly here, with necessary additions.

The plaintiff company was formed in 1996 in the Kingdom of Saudi Arabia under the name Soroof Trading Development Company, Ltd. (English Translation of Founding Contract of Saroof Trading Development Co., Ltd. (Limited Liability Company) dated May 13, 1996 ("Founding Contract"), attached as part of Exh. 1 to Declaration of Aaron W. Knights dated Feb. 10, 2014 ("1st Knights Decl."), at 2), [1] and it registered with the Ministry of Commerce and Industry in 1998 (English Translation of Company Registration Certificate dated March 17, 1998 ("1998 Registration"), attached as part of Exh. 2 to 1st Knights Decl.). In June 2000, GEFCS and the plaintiff entered into an agreement under which the plaintiff would obtain the right to distribute GEFCS-produced fuel cells in Saudi Arabia in exchange for a $1 million distribution fee. (Distributor Agreement Between GE Fuel Cell Systems, LLC, and Soroof Trading Development Company Ltd. dated June 6, 2000 ("Distribution Agreement"), attached as Exh. 1 to Second Amended Complaint ("SAC"), §§ 1, 2.3, 6.4). At that time, the plaintiff's name was Soroof Trading Development Company, Ltd., and this is reflected in the agreement. (Distribution Agreement). In 2000, the company's ownership expanded from two members of the Saudi royal family to seven. (English Translation of The Partners Resolution Concerning the Ammendment [sic] of Some Items of the Founding Contract of Soroof Trading Development Company Ltd. for the Enry [sic] of New Partners dated Dec. 17, 2000 ("2000 Partners Resolution"), attached as part of Exh. 4 to Declaration of Michael D. Fisse dated Feb. 24, 2014 ("Fisse Decl."), at 3). In 2001, Soroof Trading changed its name to Soroof International Company, Ltd., [2] and "extend[ed] its purposes" to include electrical works contracting as well as wholesale and retail trading, among other things. (English Translation of The Partners Resolution Concerning the Ammendment [sic] of Some Items of the Founding Contract of Soroof Trading Development Company Ltd. Dated Sept. 4, 2001 ("2001 Partners Resolution"), attached as part of Exh. 4 to 1st Knights Decl., at 45).

The plaintiff filed its original complaint, identifying itself as Soroof Trading Development Company Ltd., in February 2010. (Complaint, ¶ 4). The first amended complaint, identifying the plaintiff identically, was filed in February 2012. (First Amended Complaint, ¶ 4). In March 2012, the plaintiff requested permission to file a second amended complaint, which I granted. Soroof Trading , 283 F.R.D. at 153. The second amended complaint again identified the plaintiff as Soroof Trading Development Company Ltd. (SAC, ¶ 4). Approximately one year after filing the now-operative complaint, the plaintiff sought to amend the case caption to identify itself as Soroof International Company, Ltd. I denied the motion without prejudice and ordered additional discovery "for the limited purpose of obtaining information related to the name change." Soroof Trading Development Co. v. GE Fuel Cell Systems, LLC, No. 10 Civ. 1391, 2013 WL 2398888, at *2 (S.D.N.Y. May 31, 2013). That discovery was stayed pending the resolution of the parties' summary judgment motions. (Memorandum Endorsement dated June 7, 2013, at 2). After the motions were denied, the ordered discovery proceeded, culminating in depositions of Soroof representatives pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure.

Discussion

The defendants offer a series of reasons for denying the plaintiff's application. First, they contend that the change effected through the 2001 Partners Resolution was more than merely nominal; rather it altered the business so fundamentally that Soroof Trading ceased to exist or merged into Soroof International. (Memorandum in Opposition of Defendants GE Microgen, Inc., General Electric Company and Plug Power, Inc. to Plaintiff's "Renewed Motion to Correct its Name in the Case Caption" ("Def. Memo.") at 3-8). Second, they argue that the plaintiff should be judicially estopped from claiming that Soroof Trading and Soroof International are a single entity. (Def. Memo. at 9-12). Third, the defendants assert that, even if Soroof International is the proper party to assert the claims at issue in this action, the motion to amend should be denied pursuant to Rule 17 of the Federal Rules of Civil Procedure. (Def. Memo. at 12-19). Fourth, they argue that Rules 15(a) and 16(b)(4) also mandate denial of the motion. (Def. Memo. at 20-23). Finally, they claim to have been prejudiced by the plaintiff's failure to produce necessary discovery. (Def. Memo. at 23-24). Each argument fails.

A. 2001 Partners Resolution

The evidence shows that the 2001 Partners Resolution was not the momentous change the defendants allege it to be. On its face, the resolution accomplishes two things: it changes the name of Soroof Trading to Soroof International, and it allows the company to engage in certain additional activities. (2001 Partners Resolution at 45-46). As the plaintiff points out, Soroof Trading was not dissolved - Soroof International is, like Soroof Trading, a Saudi limited liability company operating under the existing Company Registration ("CR") Number with the same founding date (1998 Registration; 2001 Partners Resolution at 44; English Translation of Company Registration Certificate dated Oct. 8, 2012, attached as part of Exh. 5 to 1st Knights Decl.); the company's assets were not dissipated or transferred (Auditors' Report and Financial Statements for the Yer [sic] Ended December 31, 2001, attached as part of Exh. 7 to 1st Knights Decl., at 8; Auditors' Report and Financial Statements for the Yer [sic] Ended December 31, 2002, attached as part of Exh. 7 to 1st Knights Decl., at 14); indeed, the 2001 Partners Resolution explicitly leaves all provisions of the Founding Contract intact, with the exception of the name and the second article defining the company's purposes (2001 Partners Resolution at 47).

The testimony from the company's representatives confirms this. In October 2012, corporate designee Jim Jackson testified that Soroof International and Soroof Trading are "the same company." (Excerpt of Deposition of Jim Jackson dated Oct. 18, 2012 ("Jackson Dep."), attached as Exh. 8 to 1st Knights Decl., at 7). In February 2013, corporate designee Tahir Rashid testified similarly, asserting that the change from Soroof Trading to Soroof International was merely a name change. (Excerpt from Deposition of Tahir Rashid dated Feb. 25, 2013 ("Pl. Excerpt 2013 Rashid Dep."), attached as Exh. 9 to 1st Knights Decl., at 171). Mr. Rashid reaffirmed this fact in testimony from January 2014:

Q: What is Soroof International LLC in relation to Soroof Trading Development Ltd?
A: It's the same company. Soroof International LLC is the same company as Soroof Trading. It was a name change from this company to Soroof International LLC.
...
Q: If I understood you[]... correctly, there is no separate founding contract for Soroof International LLC, rather the same founding contract applies to both entities; correct?
...
A:.... There are no two entities.... The number of the commercial registration remains the same
....
...
A:... [T]he main company is Soroof International and this... was initially Soroof Trading Development, then we took the name change and ...

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