Dominion Bulk Chartering Ltd. v. America Metals Trading LLP , 419 F. App'x 121 ( 2011 )

11-347-cv
Dominion Bulk Chartering Ltd. v. America Metals Trading LLP
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 18th day of April, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 PIERRE N. LEVAL,
9 ROBERT A. KATZMANN,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 DOMINION BULK CHARTERING LTD.,
14 Plaintiff-Appellant,
15
16 -v.- 11-347-cv
17
18 AMERICA METALS TRADING LLP,
19 Defendant-Appellee.
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR APPELLANT: Peter Skoufalos (Patrick R.
23 O’Mea, on the brief), Brown
24 Gavalas & Fromm LLP, New York,
25 New York.
26
27 FOR APPELLEE: Garth S. Wolfson, Mahoney &
28 Keane, LLP, New York, New York.
29
30
1 Appeal from a judgment of the United States District
2 Court for the Southern District of New York (Marrero, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7
8 Plaintiff Dominion Bulk Chartering Ltd. appeals from
9 the district court’s judgment and order vacating the ex
10 parte Process of Maritime Attachment and Garnishment that it
11 obtained over the funds of defendant America Metals Trading
12 LLP. We assume the parties’ familiarity with the underlying
13 facts, the procedural history, and the issues presented for
14 review.
15
16 We review for abuse of discretion the district court’s
17 decision to vacate the Process of Maritime Attachment and
18 Garnishment. Shipping Corp. of India Ltd. v. Jaldhi
19 Overseas Pte Ltd., 585 F.3d 58, 66 (2d Cir. 2009) (mini in
20 banc). We review the district court’s underlying findings
21 of fact for clear error. Aqua Stoli Shipping Ltd. v.
22 Gardner Smith Pty Ltd., 460 F.3d 434, 439 (2d Cir. 2006),
23 overruled on other grounds by Jaldhi Overseas, 585 F.3d at24 61.
25
26 “Maritime attachments serve a dual purpose: first, to
27 obtain jurisdiction of the defendant in personam through its
28 property, and second, only as an adjunct to obtaining
29 jurisdiction, to secure any eventual judgment in plaintiff’s
30 favor.” Amber Int’l Navigation, Inc. v. Repinter Int’l
31 Shipping Co., S.A., No. 09 Civ. 3897, 2009 WL 1883251, at *2
32 (S.D.N.Y. June 30, 2009) (internal quotation marks and
33 alterations omitted and emphasis added). “Accordingly, a
34 Rule B attachment is available--pursuant to the express
35 terms of the Rule--only if the defendant ‘is not found
36 within the district.’” Id. “[T]o be found within the
37 jurisdiction so as to render an attachment inappropriate,
38 the [defendant] must not only be found for service of
39 process, but also be engaged in sufficient activity in the
40 district to subject it to jurisdiction even in the absence
41 of a resident agent expressly authorized to accept process.”
42 ProShipLine, Inc. v. Aspen Infrastructures, Ltd., 585 F.3d
43 105, 111-12 (internal quotation marks and footnote omitted);
44 see also STX Panocean (UK) Co. v. Glory Wealth Shipping Pte.
45 Ltd., 560 F.3d 127, 130-31 (2d Cir. 2009) (per curiam). We
46 have held that a defendant registered with New York’s
47 Department of State is “found” within the jurisdiction for
2
1 purposes of Rule B. STX Panocean, 560 F.3d at 133; see also
2 Transfield ER Cape Ltd. v. Indus. Carriers, Inc., 571 F.3d
3 221, 224 (2d Cir. 2009).
4
5 In vacating the order of attachment, the district court
6 evaluated “the entire record,” including “the
7 documents . . . presented,” and the testimony given at an
8 evidentiary hearing. J.A. Vol. II at 408. The district
9 court’s decision was not an abuse of discretion: America
10 Metals has a general agent, America Metals Trading (USA)
11 Inc., that is registered with New York’s Department of State
12 and is present and doing business in New York, J.A. Vol. I
13 at 24; America Metals itself does business in New York, J.A.
14 Vol. I at 23; at least some agreements between America
15 Metals and Dominion Bulk provide for arbitration in New
16 York, J.A. Vol. I at 33, 46; it was shown that the president
17 of America Metals USA attends meetings in New York on a
18 regular basis (and does so on behalf of America Metals),
19 J.A. Vol. II at 328, 337, and that America Metals USA
20 solicits business in New York on behalf of America Metals,
21 J.A. Vol. II at 353.
22
23 Contrary to Dominion Bulk’s objections, America Metals
24 USA, acting as America Metals’ registered general agent,
25 could accept service of process in New York on behalf of
26 America Metals. See Top Form Mills, Inc. v. Sociedad
27 Nationale Industria Applicazioni Viscosa, 428 F. Supp. 1237,
28 1250 (S.D.N.Y. 1977) (stating that “in the case of a foreign
29 corporation or partnership found to be doing business in New
30 York by virtue of the activities of its local agent, proper
31 service of process on that agent is considered valid service
32 on the foreign defendant”).
33
34 Finding no merit in Dominion Bulk’s remaining
35 arguments, we hereby AFFIRM the judgment of the district
36 court.
37
38
39 FOR THE COURT:
40 CATHERINE O’HAGAN WOLFE, CLERK
41
42
43
3