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D'Amico Dry Ltd. v. Primera Mar. (Hellas) Ltd.

United States District Court, S.D. New York

July 30, 2015

D'AMICO DRY LTD., Plaintiff,
v.
PRIMERA MARITIME (HELLAS) LTD., ET AL., Defendants

Decided July 29, 2015.

Page 350

For D'Amico Dry Limited, Plaintiff: Thomas Leonard Tisdale, LEAD ATTORNEYS, Tisdale Law Offices, L.L.C., New York, NY; Timothy James Nast, Tisdale Law Offices, New York, NY.

For Primera Maritime (Hellas) Limited, also known as Primera Maritime Limited, Defendant: John J. Reilly, LEAD ATTORNEY, Corrine Anetra Irish, Squire Patton Boggs (U.S.) L.L.P. (NYC), New York, NY; Myung Han Kim, Wilson Elser, Moskowitz Edelman & Dicker LLP(White Plains), White Plains, NY.

For Sonic Finance Inc., Mirage Finance Inc., Nikka Finance Inc., Handy Finance Inc, Pasha Finance Inc., Movida Finance Inc., Element Finance Inc., Primebulk Shipmanagement Ltd., Bulknav Inc., Defendants: William Robert Bennett, III, LEAD ATTORNEY, Kate Bea Belmont, Blank Rome LLP, New York, NY.

For Caldera Marine Co. Ltd., Adalia Marine Co. Ltd., Defendants: George Michael Chalos, LEAD ATTORNEY, Katherine Noelle Christodoulatos, Chalos & Co., P.C., Oyster Bay, NY; Briton Paul Sparkman, Chalos & Co, P.C., Houston, TX.

For Seasatin Navigation Inc., Annamar Navigation Inc., Seasafe Navigation Inc., Chemnav Inc., Chemnav Shipmanagement Ltd., Defendants: Briton Paul Sparkman, Chalos & Co, P.C., Houston, TX; George Michael Chalos, Katherine Noelle Christodoulatos, Chalos & Co., P.C., Oyster Bay, NY.

Page 351

OPINION AND ORDER

John G. Koeltl, United States District Judge.

The plaintiff, d'Amico Dry Limited (" d'Amico" ), a foreign shipping company, initially brought this action against Primera Maritime (Hellas) Limited (" Primera" ) to enforce a money judgment issued by the English High Court of Justice (the " English Judgment" ). Thereafter, d'Amico amended its complaint to add numerous other individual and corporate defendants (the " alter ego defendants" ), seeking to hold them liable for the English Judgment on the grounds that they are Primera's alter egos. Sixteen of the alter ego defendants now jointly move to dismiss the claims against them pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, arguing that the plaintiff's action against them is claim and issue precluded by decisions of the United States District Courts for the Eastern and Southern Districts of Texas. For the reasons that follow, the defendants' motion is denied.

I.

The standards to be applied to a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) are the same as those applied to a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). " Thus, [a court] will accept all factual allegations in the complaint as true and draw all reasonable inferences in [the] plaintiff[']s[ ] favor. To survive a Rule 12(c) motion, [the] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). In deciding such a motion, the court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that either are in the plaintiff's possession or were known to the plaintiff when the plaintiff brought suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); see also Morillo v. Grand Hyatt New York, No. 13cv7123, 2014 WL 3498663, at *6 (S.D.N.Y. July 10, 2014).

Page 352

II.

In September 2009, d'Amico brought this action seeking to enforce the English Judgment that d'Amico had been awarded as a result of the alleged breach of a derivative financial contract, called a Forward Freight Agreement (" FFA" ), that d'Amico had entered into with Primera. The parties have disputed and still dispute whether this Court has admiralty jurisdiction pursuant to 28 U.S.C. § 1333 to enforce the English Judgment. See D'Amico Dry Ltd. v. Primera Mar. (Hellas) Ltd., No. 09cv7840, 2011 WL 1239861, at *1-2 (S.D.N.Y. Mar. 28, 2011) (granting defendants' motion to dismiss for lack of subject matter jurisdiction because the Egnlish Court was not sitting as an admiralty court and the plaintiff's claim was not maritime in nature under English law), vacated, 756 F.3d 151, 158 (2d Cir. 2014) (holding that United States law, not foreign law, determines whether a claim is maritime in nature for purposes of enforcing a foreign judgment based on that claim); Order Dated Mar. 31, 2015 (ECF No. 170) (denying defendants' second motion to dismiss for lack of subject matter jurisdiction). The factual background underlying d'Amico's claim against Primera is recounted in those decisions. The following factual and procedural background is provided for its relevance to the current motion.

A.

On December 20, 2010, this Court granted d'Amico leave to amend its Complaint, and d'Amico filed its Verified Amended Complaint (" VAC" ). The VAC named twenty alter ego defendants, including two individuals and eighteen corporate entities. In the VAC, d'Amico alleged that all of the corporate defendants are " alter egos of Defendant Primera because Primera dominates and disregards their corporate forms to the extent that Primera is actually carrying on the business and operations" of the corporate defendants. VAC ¶ ¶ 20, 37, 59, 71, 81.

The VAC organizes the alter ego defendants into five smaller groups, based on each group's alleged close relationship with Primera. In Section I, d'Amico alleges that several defendants share the same address, fax number, and registered address, and that they are all controlled by defendants Paul and Nikolaos Coronis. Id. ¶ ¶ 23-26. According to d'Amico, the corporate defendants all took out a loan as joint and several borrowers pursuant to a " May Facilities Agreement" in order to finance shared vessels, and Primera was the corporate guarantor for the loan. Id. ¶ ¶ 29-30.

Section II makes similar allegations for a separate group of alter ego defendants, alleging that they share a common address and phone and fax numbers. Id. ¶ ¶ 37-42. In this Section, d'Amico alleges that this group entered into an " April Facilities Agreement" to finance two different shared vessels. Id. ¶ 45. Section II also alleges that three alter ego defendants signed an " ISDA Agreement," in which they were all to " be regarded as one party." Id. ¶ ¶ 52-54. Finally, Sections III, IV, and V make similar allegations of shared control and relatedness between Primera and other alter ego defendants. See id. ¶ ¶ 59-88. For example, d'Amico alleges that another group of alter ego defendants were made parties and guarantors to the May Facilities Agreement in a supplemental agreement, but that the contact information remained as only Primera's. Id. ¶ ¶ 64-67.

On March 31, 2015, the Court issued a scheduling order, setting the date for the end of all discovery as September 4, 2015. Soon after, the alter ego defendants requested a pre-motion conference in order to stay discovery on the alter ego issues, and to file the present motion to dismiss.

Page 353

On May 20, 2015, the Court held a conference and issued an order staying discovery on the issue of alter egos until July 6, 2015. See Order Dated May 20, 2015 (ECF No. 184). On May 29, 2015, sixteen of the corporate alter ego defendants (the " moving defendants" ) filed the present joint motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.[1] The Court ...


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