United States District Court, S.D. New York
OPINION & ORDER
F. KEENAN, United States District Judge
Fabrique, Ltd. (“Fabrique”) moves for summary
judgment under Federal Rule of Civil Procedure 56 because
there is no dispute that Plaintiff New Asia Enterprises Ltd.
(“New Asia”), a Hong Kong corporation, is
dissolved under Hong Kong law and lacks capacity to maintain
this suit. Fabrique argues that it is entitled to judgment as
a matter of law because Federal Rule of Civil Procedure 17(b)
precludes New Asia from maintaining suit. New Asia counters
that summary judgment is inappropriate because it
“stands ready, willing and able” to apply for
restoration of its corporate status. Fabrique contends that
New Asia's application for restoration would be futile.
The Court grants Fabrique's motion for summary judgment.
Court summarizes the facts from the parties' statements
submitted in accordance with Local Rule 56.1 of the Southern
and Eastern Districts of New York. Unless otherwise noted,
the parties do not dispute these facts.
Asia organized as a corporation under Hong Kong law on May 7,
2004. (Def.'s Loc. R. 56.1 Statement ¶ 1.) The Hong
Kong Companies Ordinance (Chapter 622) governs Hong Kong
corporations, (Id. ¶ 4.), and section 27 of the
Companies Ordinance tasks the Hong Kong Companies Registrar
with keeping the records of companies registered under the
Companies Ordinance. Companies Ordinance § 662 requires
a Hong Kong private company to file an annual return every
year. New Asia last filed an annual return on May 7, 2012.
(Id. ¶ 6.) On September 4, 2015, after New Asia
failed to file annual returns for three years, the Hong Kong
Companies Registrar published a notice pursuant to Companies
Ordinance § 743 in Hong Kong's Official Gazette that
“unless cause is shown to the contrary, ” within
three months of the publication, it would strike New Asia
from the Companies Register and New Asia would be dissolved.
(Id. ¶ 7.) On January 8, 2016, the Hong Kong
Companies Registrar published a notice that it had struck New
Asia from the Companies Register and New Asia was
“accordingly dissolved.” (Id. ¶ 8.)
to sue or be sued is determined . . . for a corporation, by
the law under which it was organized.” Fed.R.Civ.P.
17(b); accord Marsh v. Rosenbloom, 499 F.3d 165, 177
(2d Cir. 2007) (“‘[H]ow long and upon what terms
a state-created corporation may continue to exist is a matter
exclusively of state power, ' with the federal government
‘powerless to resurrect a corporation which the state
has put out of existence for all purposes.'”
(quoting Chi. Title & Tr. Co. v. Forty-One Thirty-Six
Wilcox Bldg. Corp., 302 U.S. 120, 127-28 (1937))). A
party must maintain its capacity to sue throughout
litigation. Mather Constr. Co. v. United States, 201
Ct. Cl. 219, 225 (1973), quoted in 6A Charles Alan
Wright et al., Federal Practice & Procedure
§ 1559 (3d ed. Apr. 2016 Update).
shall grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A material fact is one that “might
affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). On summary judgment, a genuine dispute
as to any material fact exists when evidence of record would
permit a reasonable jury to decide in the non-movant's
favor. Dean v. Univ. at Buffalo Sch. of Med. &
Biomedical Scis., 804 F.3d 178, 186 (2d Cir. 2015). A
court ruling on a motion for summary judgment must credit the
nonmoving party's evidence and draw all justifiable
inferences in the nonmoving party's favor. Curry v.
City of Syracuse, 316 F.3d 324, 329 (2d Cir. 2003).
“determining foreign law, the court may consider any
relevant material or source, including testimony, whether or
not submitted by a party or admissible under the Federal
Rules of Evidence.” Fed.R.Civ.P. 44.1. “The
court's determination must be treated as a ruling on a
question of law.” Id.
is entitled to summary judgment because the parties do not
dispute that the Hong Kong Companies Registrar dissolved New
Asia and, under Hong Kong law, a dissolved company lacks the
capacity to maintain legal actions. A stay is inappropriate
because New Asia has not sufficiently shown that the
Companies Registrar will reinstate New Asia.
submits an unrebutted expert declaration on Hong Kong law to
assist the Court. (See Moerdler Decl. Ex. A, ECF No.
63-1.) Hong Kong's Companies Ordinance (Chapter 622)
governs the duties of companies to maintain their good
standing and appoints the Companies Registrar to oversee
compliance with the law. See Companies Ordinance,
(2014) Cap. 622, 10-11 §§ 21-28 (H.K.). To maintain
good standing, the Companies Ordinance requires a company to
file an annual return with the Registrar detailing current
information about the company's affairs. Id.
§§ 662, 664. If the Registrar “has reasonable
cause to believe that a company is not in operation or
carrying on business, ” the Registrar may contact the
company to inquire whether it continues to operate either by
sending a letter or, if the Registrar determines that the
company is unlikely to receive a letter, by publishing a
notice in the Gazette that, “unless good cause is shown
to the contrary, the company's name will be struck off
the Companies Register, and the company dissolved, at the end
of 3 months after the date of the notice.” Id.
§ 744(3). After publishing a notice in the Gazette,
“the Registrar may, unless cause is shown to the
contrary, strike the company's name off the Companies
Register at the end of 3 months after the date of the
notice.” Id. § 746(1). To do so, the
Registrar “must publish in the Gazette a notice
indicating that the company's name has been struck off
the Companies Register.” Id. § 746(2).
“On publication of the notice under subsection (2), the
company is dissolved.” Id. § 746(3).
Under Hong Kong law, a dissolved company ceases to exist as a
legal entity and cannot “sue or do any other legal act
unless and until it [i]s restored to the Company
Register.” Chan Yuet Ying v. Wong Choi Hung,
 H.K.E.C. 78 ¶ 65 (C.F.I.); accord Re
Integrated Mktg. Commc'ns Ltd.,  5 H.K.L.R.D.
362, 365 ¶ 7 (C.F.I.) (“As a matter of general
principle, a company that is dissolved has ceased to exist as
a legal entity. In the absence of express statutory provision
such as found in s.291(7) of the previous Companies Ordinance
before its repeal, a dissolved company is not normally in a
position either to sue or be sued or indeed to do any other
legal act.”); Ng Pit Hak v. Ho Chin, 
H.K.E.C. 557 ¶ 8 (C.F.I.) (interpreting a predecessor
Companies Ordinance and concluding that “[i]f a company
is dissolved, all property and rights whatsoever vested in or
held on trust for the company immediately before its
dissolution, shall be deemed to be bona vacantia and
shall belong to the Government, by virtue of section 292(a)
of Companies Ordinance”). Indeed, under the effective
Companies Ordinance, “every property and right vested
in or held on trust for the company immediately before the
dissolution is vested in the Government as bona
vacantia” (i.e., ownerless property). Companies
Ordinance § 752(1); Bona vacantia, Black's
Law Dictionary (10th ed. 2014).
Asia does not directly dispute Fabrique's Hong Kong law
expert. Nor does it dispute that the Registrar filed both
notices causing its dissolution. Rather, it contends that the
Companies Ordinance permits it to apply for restatement nunc
pro tunc “as if it had not been dissolved.”
Companies Ordinance § 764(1). New Asia claims that it
“stands ready, willing and able to do so. In fact,
it has begun the process.” (Pl.'s Mem. of L.
in Opp'n to Def.'s Mot. for Summ. J. 2, ECF No. 65
(emphasis in original).) In support, New Asia submits a
declaration from its President, Richard Grant, who states
that he “only discovered that New Asia was struck off
the Hong Kong Companies Register after Fabrique sought leave
to make this motion for summary judgment” and that he
has “instructed New Asia's Hong Kong-based
professionals to begin the process of remediating this issue,
and understand[s] that it may take several months.”
(Grant Decl. ¶¶ 3-4, ECF No. 67.) Based on these
statements, New Asia asks the Court to deny Fabrique's
motion or to stay the action for six months to allow for
Asia is correct that the Companies Ordinance permits a
company that has been struck off the Companies Register and
dissolved under section 746 to apply to the Registrar to be
restored to the Companies Register. See Companies
Ordinance § 760(1)-(2). But “[t]he Registrar must
not grant an application made under section 760 unless all
the conditions specified in subsection (2), and any other