United States District Court, S.D. New York
Lawrence H. Martin, Ronald E.M. Goodman, Vivek Krishnamurthy, Foley Hoag, LLP, Washington, DC, Marjorie E. Berman, Krantz & Berman, LLP, New York, New York, for Defendant Petróleos de Venezuela S.A.
Femi Salu, Salu & Salu Law Firm, PLLC, Southaven, MS, for Plaintiff Skanga Energy & Marine Limited.
OPINION & ORDER
DENISE COTE, District Judge.
Following the close of fact discovery, defendant Petróleos de Venezuela, S.A. ("PDVSA") has moved to dismiss plaintiff Skanga Energy & Marine Limited's ("Skanga") second amended complaint ("SAC") pursuant to Rules 12(b)(1) and 12(b)(2), Fed. R. Civ. P., for lack of subject matter jurisdiction and personal jurisdiction, respectively. PDVSA is owned and operated by the government of Venezuela and asserts a defense of sovereign immunity. For the following reasons, PDVSA's motion to dismiss for lack of subject matter jurisdiction is granted. Because Skanga never served any other defendant, this case shall be closed.
Skanga has the burden to support this action by a preponderance of the evidence. Skanga's assertion of liability against PDVSA rests on its assertion that Skanga had a contract with Arevenca, S.A. ("Arevenca"), a Venezuelan company that Skanga asserts was PDVSA's agent for the sale of petroleum products to Skanga. PDVSA has shown that Arevenca was not its agent. While PDVSA's evidence is largely undisputed, to put that evidence in context it is helpful to describe as well Skanga's assertions regarding the commercial transactions that prompted this lawsuit. As will be evident, beyond the existence of wire transfers to New York and Swiss bank accounts, very little about these underlying transactions has been established with any certainty.
PDVSA is an energy corporation owned and operated by the Venezuelan government. As a holding company, it does not engage directly in sales and purchases of energy products, but manages subsidiaries that perform that function. Arevenca is not one of its subsidiaries.
Skanga is a Nigerian "downstream petroleum marketing and trading company" company incorporated in 1992. Around the time of the alleged transactions leading to this litigation, Skanga had four shareholders. Skanga's primary shareholder was Chief Lucky N. Igbinedion ("Igbinedion"). Igbinedion was the Governor of Nigeria's Edo State at that time. Christian Imoukhuede ("Imoukhuede") was Skanga's Chief Executive, and another shareholder. Imoukhuede became Chief Executive in "June or July" of 2006. Prior to Imoukhuede's arrival as Chief Executive, Skanga's "business hadn't started, " and the company was "inactive." Skanga made annual filings with the Corporate Affairs Commission of Nigeria for the years 2006, 2007, and 2008, i.e., the years in which the alleged transactions occurred and the year in which Skanga instigated this lawsuit in New York Supreme Court. Each of those filings contains a statement from Skanga's "Chartered Accountants" "Dynamic Premier & Co." that Skanga "has not done any business, and as a result no profit or loss account has been annexed thereto." Imoukhuede admits that Skanga had not engaged in any commercial transactions with any entity before the alleged transactions that led to this litigation.
Virtually the only evidence Skanga has offered in this action which supports its claim of an agency relationship between PDVSA and Arevenca is the deposition testimony given by Imoukhuede in February and April of 2014 as Skanga's Rule 30(b)(6) witness. See Fed.R.Civ.P. 30(b)(6). Imoukhuede testified that the events underlying this litigation began in September of 2006, when then-Governor Igbinedion hosted a state function in Abuja, Nigeria attended by the then-Venezuelan ambassador to Nigeria, Boris Henriquez, and Venezuelan diplomat and trade consul Enrique Arrundell James ("Arrundell"). Arrundell subsequently became the Venezuelan ambassador to Nigeria. Imoukhuede states that at the function he discussed with Arrundell the possibility of Skanga purchasing petroleum products from PDVSA, and that Arrundell told him that he could connect Skanga to PDVSA in order for Skanga to do business with PDVSA.
Imoukhuede asserts that he traveled to Venezuela twice in connection with his efforts to achieve an agreement to import Venezuelan oil. On his first visit, in 2006, he met at a hotel on October 29 with Arrundell and defendant Francisco Javier González lvarez ("González"), a representative of Arevenca. Imoukhuede stated that before González arrived at the hotel, Arrundell told Imoukhuede that in order to do business with PDVSA, Skanga would have to work with Arevenca as an "agent." Imoukhuede testified that Arrundell told him that González "represents the corporate agent of PDVSA, and that [Skanga] needed to do this transaction, [Skanga] had to do it with the man who represents the corporate entity." He stated that when González arrived, González told him that he had "a strong relationship with PDVSA." No agreement for the sale of petroleum products was reached at that meeting.
Achieved web pages from 2006 and 2007 from Arevenca's website describe the company as a developer of a "logistics center" at a port complex. The website does not describe Arevenca as an oil company, or disclose any relationship with PDVSA.
On October 30, 2006, Imoukhuede attended a meeting at the Venezuelan Ministry of Energy and Mines with Arrundell, a Ministry employee named Virginia Montilla, and an analyst in the planning department of PDVSA named Beatriz Dam ("Dam"). Neither González nor any other representative of Arevenca was at the meeting. Imoukhuede explained to the participants at the meeting that his "mission" for the trip was "to solicit petroleum products from PDVSA." Dam responded that her position did not involve sales, and that she was "not in charge of" facilitating any PDVSA commercial transactions. Dam told Imoukhuede that he would have to "do an application through the supply and commerce director... of PDVSA" if he wanted to conduct business with PDVSA. The meeting lasted between ten and twenty minutes. It is the only substantive interaction with a PDVSA official that Skanga claims occurred. Imoukhuede does not suggest that there was any discussion of Arevenca at the meeting.
Pursuant to Dam's suggestion, Imoukhuede sent a letter of October 31 to PDVSA official Asdrubal Chavez, expressing Skanga's desire to "purchase petroleum products from Venezuela to Lagos, Nigeria." The letter does not refer to Arevenca. PDVSA did not respond.
After the meeting at the Ministry of Energy and Mines, Imoukhuede describes a meeting with Arrundell and González in his hotel room. According to Skanga's answer to PDVSA's first set of interrogatories, submitted by PDVSA in support of this motion, Arrundell "reiterated his previous statement that in order for Skanga to do business with PDVSA, Skanga was required to work with a PDVSA agent corporation" and that "Arevenca was an agent of PDVSA." It was at this meeting that an oral agreement for the sale of petroleum products was allegedly reached between Arevenca and Skanga. Imoukhuede states that he, Arrundell and González "agreed on the price number, the value for freight, [and] the payment pattern." Skanga describes the purported agreement as follows:
Corporate Defendants would sell petroleum products to Skanga on credit, in consideration of Skanga's agreement to prepay certain charges in advance of delivery and to pay in full for the product itself within three months of receipt of delivery, with all payments to be made in U.S. dollars to the Corporate Defendants' U.S. bank accounts in New York.
The purported agreement was not documented.
Soon after Imoukhuede returned to Nigeria in November of 2006, Arevenca allegedly made an offer to Skanga to sell Skanga 35, 000 metric tons of PDVSA diesel fuel for $16.9 million on credit, with a $1.4 million freight payment that would be due immediately. As evidence of this transaction, Skanga has offered several documents. Two of the documents critical to this transaction bear a PDVSA logo. They are a bill of lading ("Bill of Lading") and a certificate of quality ("Certificate of Quality"). These are the only documents offered by Skanga to link PDVSA to the transaction, and Skanga now admits that both documents are forgeries. A description of the documents that Skanga has offered in connection with this sale and Skanga's freight payment of $1.4 million follows.
Skanga has produced a purported invoice from Arevenca dated November 7, 2006. It lists Skanga as the buyer, and states a price of $16, 943, 500 for the "Diesel" product, and $1, 400, 000 for the freight charge. Imoukhuede testified that Skanga made a $1.4 million freight payment to Arevenca at some point soon after receiving the invoice.
Skanga also produced copies of the Bill of Lading and Certificate of Quality, both of which bear the PDVSA logo, and which were purportedly sent to Skanga to induce Skanga to make payments to Arevenca. The Bill of Lading names Arevenca as the shipper and Lagos, Nigeria as the destination. It is dated November 24, 2006. It specifies that the cargo is 34, 997.9 tons of "Diesel" with a value of $16, 943, 500. It lists the carrier as "Korean Tankers Maru", and the ship as the "P. Ventur." The "Certificate of Quality" also ...