Vitol, S.A. v. Primerose Shipping Co. , 708 F.3d 527 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VITOL, S.A., 
Plaintiff - Appellant,
v.
PRIMEROSE SHIPPING COMPANY LTD;
SPARTACUS NAVIGATION
CORPORATION,
Defendants-Appellees,
and
CAPRI MARINE, LTD; STARLADY
MARINE LTD; LASSI SHIPPING
COMPANY LTD; OCEAN CARRIER  No. 11-1900
MARITIME CORPORATION; DEEP BLUE
MARITIME, S.A.; AMARILIS SHIPPING
COMPANY; AURORA MARITIME;
GERASSIMOS KALOGERATOS, a/k/a
Gerrassimos Kalagiratos, a/k/a
Gerassimos Kalogiratos; IOANNIS "
JOHN " KALOGERATOS, a/k/a Ioannis
"John" Kalagiratos, a/k/a Ioannis
"John" Kalogiratos; MARIA
VIAGGINI; NIKOLAOS KOUTSOKOSTAS,
Defendants,

2 VITOL v. PRIMEROSE SHIPPING CO.
v. 
INCHCAPE SHIPPING SERVICES; JOHN
S. CONNOR, INCORPORATED, 
Garnishees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(1:09-cv-03430-MJG)
Argued: September 20, 2012
Decided: February 8, 2013
Before MOTZ, AGEE, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Judge Motz and Judge Thacker joined.
COUNSEL
ARGUED: Lawrence Jay Kahn, FREEHILL, HOGAN &
MAHAR, New York, New York, for Appellant. Patrick F.
Lennon, LENNON MURPHY CAULFIELD & PHILLIPS,
LLC, New York, New York, for Appellees. ON BRIEF:
Alexander M. Giles, SEMMES, BOWEN & SEMMES, Balti-
more, Maryland, for Appellant. Nancy R. Siegel, LENNON
MURPHY CAULFIELD & PHILLIPS, LLC, New York,
New York; Geoffrey S. Tobias, OBER, KALER, GRIMES &
SHRIVER, Baltimore, Maryland, for Appellees.
VITOL v. PRIMEROSE SHIPPING CO. 3
OPINION
AGEE, Circuit Judge:
Vitol, S.A. ("Vitol") brought the underlying action in the
district court against Spartacus Navigation Corp.
("Spartacus") and Primerose Shipping Company
("Primerose") (collectively "S&P") seeking to "pierce the cor-
porate veil" and enforce a judgment against S&P it had previ-
ously obtained against Capri Marine, Ltd. ("Capri Marine").
After determining that its exercise of admiralty jurisdiction
was proper, the district court granted motions to dismiss and
to vacate attachment filed by S&P. For the reasons stated
below, we affirm the judgment of the district court.
I.
Background and Proceedings Below
In September 2000, the vessel ALAMBRA was involved in
a marine pollution incident ("the Oil Spill") while in port in
the country of Estonia. The ALAMBRA was owned by Capri
Marine and chartered by Vitol at the time of the Oil Spill.
Vitol brought suit against Capri Marine in the English High
Court of Justice, Queen’s Bench Division, Commercial Court,
alleging that Capri Marine breached certain warrantees of sea-
worthiness resulting in the Oil Spill and resulting damages.
Vitol prevailed in the English court, and obtained a judgment
in 2005 against Capri Marine in the amount of $6.1 million
plus costs and interest ("the English Judgment"). The English
Judgment remains unpaid and now totals over $9 million with
accrued interest. During the English litigation, the ALAM-
BRA was sold for scrap by Capri Marine to Aurora Maritime
("Aurora") for approximately $2 million.
In 2009, Vitol filed a verified complaint (the "Verified
Complaint") against S&P in United States District Court for
the District of Maryland alleging that S&P (as well as other
4 VITOL v. PRIMEROSE SHIPPING CO.
named but not joined defendants)1 were alter egos of Capri
Marine, thereby seeking to enforce the English Judgment
against S&P. In conjunction with its Verified Complaint,
Vitol filed a motion, pursuant to Rule B(1)(a) of the Supple-
mental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions of the Federal Rules of Civil Procedure
(the "Supplemental Rules"), requesting an ex parte order for
issuance of process of maritime attachment, and prayed that
the district court attach the vessel M/V THOR (then docked
at Baltimore, Maryland), owned by Spartacus.2
The district court granted the motion and issued an ex parte
order attaching the THOR. Shortly thereafter S&P entered a
restricted appearance in the district court, posted a security
bond, and reached a stipulation for the THOR’s release by
paying approximately $9 million into the district court as sub-
stitute collateral for the THOR (the "THOR Substitute Collat-
eral").3 Subsequently, S&P moved to vacate the attachment,
pursuant to Supplemental Rule E, and to dismiss the Verified
Complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure.
By order entered February 23, 2010, the district court
granted the motions to vacate the attachment and dismiss the
Verified Complaint (the "2010 Order"). In the 2010 Order, the
district court addressed its jurisdiction over the action, as S&P
contended that Vitol failed to state an admiralty claim and
1
Capri Marine, Gerassimos Kaligaratos, and other related entities were
named as defendants in Vitol’s alter ego suit against S&P. These defen-
dants, however, have not been served, were not parties to the district court
proceedings, and are not parties to this appeal.
2
Vitol sought Supplemental Rule B attachment of the THOR to initiate
the underlying quasi in rem action against the defendants, S&P, who could
not be found in the District of Maryland. See Fed. R. Civ. P. Adm. Supp.
R. B(1)(a).
3
Although the THOR is owned by Spartacus, it is managed by
Primerose as a part of the Primerose fleet.
VITOL v. PRIMEROSE SHIPPING CO. 5
therefore the district court lacked jurisdiction over the pro-
ceedings.
The district court determined that the action filed by Vitol
sounded in admiralty even though the English Judgment was
issued by the Commercial Court of the English High Court of
Justice, not the English Admiralty court. The district court
based its ruling on expert witness declarations stating that the
underlying English action (relating to the Oil Spill) sounded
in admiralty under English law, and could have been brought
either in the Commercial or Admiralty court in England. On
that basis, the court concluded Vitol’s choice of forum in
England was not dispositive for purposes of admiralty-based
jurisdiction.
Having concluded it possessed competent jurisdiction in
admiralty over the proceeding, the district court then held that
Vitol had failed to state a claim upon which relief may be
granted, and dismissed the Verified Complaint pursuant to
Rule 12(b)(6). In early 2011, however, the district court
granted Vitol leave to amend and Vitol filed an amended veri-
fied complaint (the "Amended Verified Complaint"), and
stayed release of the THOR’s Substitute Collateral. The
Amended Verified Complaint contains the allegations rele-
vant to this appeal.
Although the Amended Verified Complaint contains some
thirty pages of detailed allegations related to Vitol’s alter ego
claim against S&P, the gravamen of that claim can be distilled
into a short summary: Capri Marine is owned by Starlady
Marine Ltd. ("Starlady"), an entity that is in turn controlled by
Gerassimos and Ionnas Kalogiratos. Aurora, the company to
which the ALAMBRA was sold for scrap, is actually a
dummy corporation owned and operated as part of the
Kalogiratos Group—a group of related shipping entities under
the control of the Kalogiratos family. After the ALAMBRA
was sold to Aurora, Aurora sold the ALAMBRA to a third
party (for approximately $3 million), and the proceeds from
6 VITOL v. PRIMEROSE SHIPPING CO.
the sale were used to pay down one of Capri Marine’s loans,
but not paid towards the Oil Spill damages. Primerose, which
is owned by Nicholas Velliades (a non-party), was allegedly
established with the remaining proceeds of the ALAMBRA
sale. Velliades, the nominal principle of the Primerose fleet,
is alleged to be a mere puppet of Gerassimos Kalogiratos
("Gerassimos"). Primerose uses the office facilities of Star-
lady without charge, engages in extensive comingling of
funds and makes undocumented, uncollateralized, and unre-
paid loans to Starlady or members of the Starlady fleet. In
addition, Spartacus, which is also nominally controlled by
Velliades, also shares office facilities with Primerose and
Starlady, and put up no funds to secure the release of the
THOR from attachment. Rather, the THOR Substitute Collat-
eral was provided by Primerose.
S&P again moved to vacate the attachment and dismiss the
Amended Verified Complaint. In an August, 22, 2011 order
(the "2011 Order"), the district court granted both motions,
although it did conclude that Vitol had alleged sufficient facts
to support a reasonable belief that Capri Marine is an alter ego
of Gerassimos. The court pointed to allegations that Capri
Marine was substantially undercapitalized at the time of the
Oil Spill, that Capri Marine did not hold business meetings or
keep corporate minutes, and that Gerassimos orchestrated the
sale of the ALAMBRA to Aurora "for less than fair market
value with the intent to defraud Capri [Marine]’s creditors,
including [Vitol]." (J.A. 1563).
The court went on to conclude, however, that Vitol had
failed to allege with sufficient particularity in the Amended
Verified Complaint that S&P were alter egos of either Geras-
simos or Capri Marine. The court discussed allegations made
by Vitol that Gerassimos, not Velliades, was the "real" owner
of Primerose (and related entities) and concluded that the alle-
gations demonstrated only that Velliades’ companies have a
close relationship with Gerassimos’ companies, but a close
relationship is not sufficient as a matter of law to prove alter
VITOL v. PRIMEROSE SHIPPING CO. 7
ego status. Further, the court found that dividends paid to the
Kalogiratos family from their interest in Deep Blue Maritime
S.A. ("Deep Blue") (another company principally owned by
Velliades) did not "directly relate to Primerose or Spartacus
and[ ]therefore [are] not probative as to whether Primerose or
Spartacus are alter egos of Gerassimos." (J.A. 1569).
Because the Amended Verified Complaint failed to make
a plausible allegation with sufficiently particularized facts (in
accordance with Supplemental Rules B and E) that S&P are
alter egos of Capri Marine, the district court found no basis
for the further attachment of the THOR’s Substitute Collateral
and vacated the attachment. The court also found that the alle-
gations were insufficient to show a plausible basis for relief
pursuant to Rules 8 and 12, and granted the motion to dismiss
the Amended Verified Complaint.
Vitol noted a timely appeal, posted a supersedeas bond, and
the district court has stayed the order vacating the attachment
of the THOR’s Substitute Collateral pending appeal. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
On appeal, Vitol claims that the district court erred in
vacating the attachment of the THOR and dismissing Vitol’s
Amended Verified Complaint for failure to state a claim. S&P
respond that the district court was without jurisdiction to
entertain the complaint in the first instance, and we should
affirm the judgment in their favor on that ground. Alterna-
tively, S&P argue that should the jurisdictional ruling be
affirmed, the district court correctly held that Vitol’s plead-
ings fail to state a claim upon which relief can be granted. We
address the jurisdictional matter first, as we must verify juris-
diction in order to proceed. See Sucampo Pharms., Inc. v.
Astellas Pharma, Inc., 471 F.3d 544, 548 (jurisdiction is a
"threshold" issue that must be resolved prior to resolving "an
issue relating to the merits of the dispute, such as failure to
state a claim").
8 VITOL v. PRIMEROSE SHIPPING CO.
II. Jurisdiction
An issue of the district court’s subject matter jurisdiction is
a question of law that the Court reviews de novo. See North
Carolina ex rel. Cooper v. Tenn. Valley Auth., 515 F.3d 344,
347 n.1 (4th Cir. 2008).
S&P assert that the district court’s exercise of jurisdiction
over this case was improper for two reasons. First, S&P con-
tend the English Judgment is not an admiralty decree, and
thus the district court here, sitting only in admiralty, lacked
subject matter jurisdiction. Second, even if the district court
had admiralty jurisdiction, S&P argue that Supplemental Rule
B is a "pre-judgment" remedy only and could not be used to
secure the appearance of a party once the English Judgment
had been entered. We disagree with S&P’s contentions and
hold the district court did not err in its determination of juris-
diction.
A. Admiralty Jurisdiction
Congress has vested the district courts with, inter alia, orig-
inal jurisdiction over "[a]ny civil case of admiralty or mari-
time jurisdiction." 28 U.S.C. § 1333. Central to this appeal,
then, is the question of whether Vitol’s Amended Verified
Complaint sounds in admiralty so as to invoke the district
court’s admiralty jurisdiction under § 1333.
It is well recognized that federal courts in the United States
possess jurisdiction in admiralty over claims to enforce a for-
eign admiralty judgment. See, e.g., 1 Benedict on Admiralty
§ 106 ("[A]dmiralty jurisdiction in the United States may be
broadly stated as extending to . . . any claim to enforce a judg-
ment of a foreign admiralty court."). Even in the earliest days
of the Republic, the Supreme Court confirmed that the courts
of the United States possess jurisdiction to recognize the
admiralty decrees of foreign admiralty courts. See Penhallow
v. Doane’s Adm’rs, 3 U.S. (3 Dall.) 53, 97 (1795) (Iredell, J.)
VITOL v. PRIMEROSE SHIPPING CO. 9
("It was clearly shown at the bar, that a Court of Admiralty,
in one nation, can carry into effect the determination of the
[C]ourt of Admiralty of another.").
American courts have long and consistently held that admi-
ralty jurisdiction was well-founded to enforce the judgments
of foreign admiralty courts. See, e.g., Otis v. The Rio Grande,
18 F. Cas. 902, 903 (C.C.D. La. 1872) (No. 10,613), aff’d 90
U.S. 458 (1874) ("This court is in duty bound to carry into
effect the sentences and decrees, not only of other federal
courts, but even of the admiralty courts of foreign countries
. . . ."); The Jerusalem, 13 F. Cas. 559, 563 (C.C.D. Ma. 1814)
(No. 7,293) (admiralty court "will enforce a foreign maritime
judgment between foreigners, where either the property or the
person is within its jurisdiction"); Int’l Sea Food Ltd. v. M/V
Campeche, 566 F.2d 482, 485 (5th Cir. 1978) (citing The
Centurion, 5 F. Cas. 369, 370 (No. 2,554) (D. Me. 1839))
("[A]n admiralty court has jurisdiction to enforce any judg-
ment of another admiralty court . . . .").
While acknowledging this established precedent, S&P
assert that it is inapplicable here because the English Judg-
ment is not an "admiralty judgment" so as to be entitled to
recognition by the admiralty courts of the United States. This
is so, S&P argue, for two reasons. First, the Commercial
Court (rather than the Admiralty Court) of the English High
Court of Justice, Queen’s Bench Division, issued the English
Judgment. Second, in any event, the English Judgment, hav-
ing been reduced to a judgment debt, is now merely a mone-
tary award that itself lacks any maritime character.
B. Choice of English Forum
The thrust of S&P’s first argument is that because Vitol
elected to pursue legal action against Capri Marine in the
Commercial Court of the English High Court of Justice, rather
than the Admiralty Court, the English Judgment was not an
10 VITOL v. PRIMEROSE SHIPPING CO.
admiralty judgment and therefore no admiralty jurisdiction
can exist in the case at bar. We do not agree.
Vitol and S&P proffered declarations to the district court
from their respective experts on English law. Those experts
agreed that the type of maritime claim brought by Vitol
against Capri Marine could have been brought in either the
Commercial Court or the Admiralty Court. Julia Dias, Sparta-
cus’ own expert, averred that there is a "considerable overlap
between admiralty claims falling within the Admiralty juris-
diction of the High Court . . . on the one hand, and commer-
cial claims on the other." (J.A. 136-37). Dias went on to state
that "[Vitol] properly and legitimately elected to commence
proceedings and pursue its claim in the Commercial Court
rather than the Admiralty Court as it was entitled to do[,]" and
noted that "it is entirely commonplace in my experience for
claims such as Vitol’s which involve issues of unseaworthi-
ness to be brought in and heard by the Commercial Court."
(J.A. 138). Finally, Dias stated that "[h]ad Vitol elected to
bring the claim in the Admiralty Court, it would almost cer-
tainly have proceeded and been handled in much the same
way as it actually was." (Id.).
Vitol’s expert on English law, Luke Parsons, offered a sub-
stantially similar declaration with respect to the structure of
the English Admiralty and Commercial Courts. Parsons
agreed with Dias’ assessment that Vitol’s claim against Capri
Marine could have been brought in either court, and similarly
described the jurisdictional overlap between the two. Parsons
concluded "the claim made by Vitol in this case, is an ‘admi-
ralty claim’ within the meaning of [English Law] and are
claims which the Admiralty Court and Commercial Court
both have the jurisdiction and expertise to hear." (J.A. 360).
The expert declarations are illuminating, particularly to the
degree the experts of the adverse parties are in agreement con-
cerning the application of English law. These expert declara-
tions, considered together, plainly demonstrate that Vitol’s
VITOL v. PRIMEROSE SHIPPING CO. 11
action against Capri Marine could have been brought in the
English Admiralty Court, i.e., that it was an admiralty claim
as that term is understood by the courts of England. S&P,
however, ask this Court to hold that the choice of forum in
England, not the subject matter of the underlying claim, is dis-
positive of whether jurisdiction lies with the district court pur-
suant to 28 U.S.C. § 1333. In other words, S&P contend that
Vitol’s choice of forum in the English Commercial Court for
an otherwise valid admiralty claim there divests any resulting
judgment of its admiralty character in this country so it can
no longer be considered as an admiralty matter. We find this
argument unpersuasive and unsupported.
The approach advocated by S&P, which looks purely to
form at the expense of substance, is unsupported by citation
to any case as authority for its position. Indeed, the dispositive
question is not whether the English Judgment issued from an
"admiralty court," but rather, whether the claim itself is mari-
time in nature. See Victrix S.S. Co., S.A. v. Salen Dry Cargo
A.B., 825 F.2d. 709, 713 (2d Cir. 1987) ("[A]n admiralty court
has jurisdiction of a claim to enforce a foreign judgment that
is itself based on a maritime claim.") (emphasis added). Inas-
much as the English Commercial Court exercised jurisdiction
over a maritime claim, we agree with the district court’s con-
clusion that "the Commercial Court was an admiralty court
with respect to the English Judgment." (J.A. 991-92).
C. Reduction to Monetary Award
We also reject S&P’s separate contention on appeal that
because the English Judgment has been reduced to a monetary
award it now lacks the maritime character necessary to being
considered an admiralty judgment which would deprive the
district court of jurisdiction in this proceeding. The Fifth Cir-
cuit’s decision in Int’l Sea Food Ltd. v. M/V Campeche, 566
F.2d 482 (5th Cir. 1978) is instructive on this issue.
In Capmeche, the sole issue before the court was "whether
a United States district court has subject matter jurisdiction in
12 VITOL v. PRIMEROSE SHIPPING CO.
admiralty to enforce a foreign maritime decree which awarded
monetary damages to the plaintiff on a claim for collision."
566 F.2d at 483. In finding the district court possessed juris-
diction, the Fifth Circuit looked to The Centurion, 5 F. Cas.
369 (D. Me. 1839) (No. 2,554), which addressed the jurisdic-
tion of an admiralty court to enforce a monetary award made
in an arbitration arising out of a salvage dispute. The Centu-
rion court reasoned that
[a]lthough the admiralty has a general jurisdiction
over maritime contracts and quasi contracts, and
things done on the sea, it does not follow that the
payment of a debt in every form which it may
assume can be enforced in the admiralty, simply
because it originated in a contract . . . which was
within the jurisdiction of the court[,]
5 F. Cas. at 370, and concluded that admiralty jurisdiction did
not lie to enforce the arbitration agreement award. The Centu-
rion court noted, however, that if the underlying matter "had
been decided by a regular decree of a court of admiralty by
which a specific sum were awarded to the libellant, this court
could have taken cognizance of the case, because a court of
admiralty has jurisdiction to carry into execution the decree of
another court of admiralty." Id. Thus, the fact that the debt at
issue in The Centurion arose from an arbitration award was
dispositive. Had the debt been established by way of an admi-
ralty court judgment, then admiralty jurisdiction would be
present in a subsequent proceeding to enforce that judgment.
The Campeche court thus read the language of The Centu-
rion to "suggest[ ] that an admiralty court has jurisdiction to
enforce any judgment of another admiralty court regardless of
its lack of maritime flavor." 566 F.2d at 485 (emphasis
added). The Fifth Circuit accordingly held that the district
VITOL v. PRIMEROSE SHIPPING CO. 13
court possessed jurisdiction over the money-judgment
enforcement action in that case.4
In light of Campeche, we are persuaded that the fact that
the judgment Vitol ultimately seeks to recognize is now a
monetary award does not defeat the district court’s admiralty
jurisdiction because that prior judgment was rendered by a
competent court sitting in admiralty. Consistent, therefore,
with a long line of cases confirming American admiralty
jurisdiction over actions to enforce foreign admiralty judg-
ments, we reject S&P’s argument that the district court lacked
admiralty jurisdiction over Vitol’s action.
D. Supplemental Rule B
S&P’s next contention is that Supplemental Rule B could
not be used to attach the THOR. In S&P’s view, since they
were not parties to the English Proceeding resulting in the
English Judgment, the current action is only a post-judgment
enforcement action against them and not a maritime claim
subject to Supplemental Rule B. In support of their argument,
S&P recite language from the Second Circuit’s decision in
Williamson v. Recovery Ltd. Partnership, 542 F.3d 43, 48 (2d
Cir. 2008), which states, inter alia, that attachment pursuant
to Supplemental Rule B is recognized as a "prejudgment
mechanism used by parties in admiralty cases to secure juris-
diction over an absent party and to obtain security for poten-
tial judgment where the absent party’s assets are transitory."
4
S&P urge us to distinguish Campeche on the grounds that the underly-
ing dispute revolved around the interpretation of a maritime insurance
contract. Thus, the subsequent trial in that case would involve issues of a
maritime flavor.
While S&P correctly recite an additional rationale for the Campeche
court’s decision, they are incorrect to suggest that the presence of a second
justification somehow undermines the primary basis of jurisdiction: that
the money judgment was the decree of an admiralty court. Indeed, the
Campeche court squarely addressed the identical issue before this Court
in the case at bar and we find its rationale persuasive.
14 VITOL v. PRIMEROSE SHIPPING CO.
We find S&P’s reading a strained construction and contrary
to a long line of precedent in admiralty cases.
Supplemental Rule B provides in pertinent part:
If a defendant is not found within the district when
a verified complaint praying for attachment and the
affidavit required by Rule B(1)(b) are filed, a veri-
fied complaint may contain a prayer for process to
attach the defendant’s tangible or intangible personal
property—up to the amount sued for—in the hands
of garnishees named in the process.
Fed. R. Civ. P. Adm. Supp. R. B(1)(a).5
Initially, we note that the limitation suggested by S&P, i.e.,
that Supplemental Rule B must be strictly construed as a pre-
judgment remedy, does not appear in the text of the rule.
5
The Second Circuit has provided a useful history of the maritime
attachment process that aids in our analysis of S&P’s argument.
Maritime attachment is a feature of admiralty jurisprudence that
antedates both the congressional grant of admiralty jurisdiction to
the federal district courts and the promulgation of the first
Supreme Court Admiralty Rules in 1844. Aurora Mar. Co. v.
Abdullah Mohamed Fahem & Co., 85 F.3d 44, 47 (2d Cir.1996).
In fact, "[t]he use of the process of attachment in civil causes of
maritime jurisdiction by courts of admiralty . . . has prevailed
during a period extending as far back as the authentic history of
those tribunals can be traced." Atkins v. The Disintegrating Co.,
85 U.S. (18 Wall.) 272, 303, (1874). The power to grant attach-
ments in admiralty is an inherent component of the admiralty
jurisdiction given to the federal courts under Article III of the
Constitution. U.S. Const. art. III, § 2. The power’s historical pur-
pose has been two-fold: first, to gain jurisdiction over an absent
defendant; and second, to assure satisfaction of a judgment. Swift
& Co. Packers v. Compania Colombiana Del Caribe, S.A., 339
U.S. 684, 693 (1950).
Aqua Stoli Shipping Ltd. v. Gardner Smith Pty Ltd., 460 F.3d 434, 437-38
(2d Cir. 2006).
VITOL v. PRIMEROSE SHIPPING CO. 15
Rather, the plain wording of the rule itself requires only that
the defendants not be present in the district wherein the Rule
B prayer is filed, and that the plaintiff file an affidavit in
accordance with Supplemental Rule B(1)(B) that the prospec-
tive defendant’s property is present in the district. In this case,
Vitol has unquestionably complied with both requirements.
Indeed, in Aqua Stoli Shipping Ltd. v. Gardner Smith Pty Ltd.,
the Second Circuit opined that where a plaintiff has satisfied
the two-part Supplemental Rule B(1)(B) test, a district court
should only vacate attachment in "limited" circumstances:
"that [the defendant] would be subject to in personam juris-
diction in an adjacent district, that [the defendant] was located
and subject to personal jurisdiction in the same district as [the
plaintiff], or that [the plaintiff] had already obtained sufficient
security." 460 F.3d 434, 447 (2d Cir. 2006). S&P do not
assert that any of those limited circumstances are present here.
Therefore, we conclude the language of Supplemental Rule B
did not on its face bar the THOR’s attachment.
As the district court recognized, ample precedent reflects
that Supplemental Rule B has been used to attach admiralty
defendants’ property in actions to enforce a foreign admiralty
judgment. See, e.g., Campeche, 566 F.2d at 483 (finding
admiralty jurisdiction where Supplemental Rule B used to
garnish judgment debtor’s proceeds in district); Good Chal-
lenger Navagante S.A. v. Metalexportimport S.A., No. 06-cv-
1847 (KMK), 2006 U.S. Dist. LEXIS 97920, at *1 (S.D.N.Y.
July 24, 2006) (upholding Supplemental Rule B attachment in
action to enforce the judgment of English Commercial Court);
Pink Goose (Cayman) Ltd. v. Sunway Traders LLC, No. 08-
cv-2351 (HB), 2008 WL 4619880, at *1 (S.D.N.Y. Oct. 17,
2008) (upholding Supplemental Rule B attachment in action
to enforce foreign arbitration award).
S&P, however, emphasize that courts have described Sup-
plemental Rule B as a "pre-judgment" remedy, e.g., William-
son, 542 F.3d at 48, and argue that it should not be used in
a case such as this, where a judgment has already issued from
16 VITOL v. PRIMEROSE SHIPPING CO.
a foreign admiralty court, and Vitol’s claim is one to collect
on that judgment. We believe, however, that "pre-judgment,"
as it is used in the Supplemental Rule B context, must be
understood to mean prior to the judgment in the particular
case where a plaintiff seeks to use Supplemental Rule B. It
makes little, if any, sense to construe Supplemental Rule B
otherwise when centuries of settled hornbook admiralty law
establish that "admiralty jurisdiction in the United States may
be broadly stated as extending to . . . any claim to enforce a
judgment of a foreign admiralty court." Benedict, supra,
§ 106; see also Penhallow, 3 U.S. at 97 (Iredell, J.) ("It was
clearly shown at the bar, that a Court of Admiralty, in one
nation, can carry into effect the determination of the [C]ourt
of Admiralty of another.").
Vitol seeks, as an absolutely necessary condition precedent
to an action to enforce the English Judgment, a prior separate
and independent judgment against S&P that those entities are
the alter ego of Capri Marine and/or the Kalogiratos group. "It
is well established that an admiralty court can review ques-
tions of . . . alter ego." Ost-West-Handel Bruno Bischoff
GMBH v. Project Asia Line, Inc., 160 F.3d 170, 174 (4th Cir.
1998) (citing Swift & Co. Packers v. Compania Colombiana
Del Caribe, 339 U.S. 684, 689 n.4 (1950)). Attachment of the
THOR under Supplemental Rule B is thus clearly a pre-
judgment mechanism in the sense which establishes jurisdic-
tion over S&P for adjudication of the alter ego dispute. This
seems the logical conclusion here as Vitol’s prayer in the
Amended Verified Complaint is for judgment against S&P as
the alter ego of Capri Marine. Only armed with that initial
judgment can Vitol proceed to enforce the English Judgment.
Moreover, it would be difficult to understand the long line
of cases, discussed supra at 8-9, extending the admiralty juris-
diction of the United States district courts to actions to
enforce the decrees of foreign admiralty courts, if the limita-
tion suggested by S&P was correct. We simply do not believe,
based on the text of Supplemental Rule B and the long line
VITOL v. PRIMEROSE SHIPPING CO. 17
of admiralty precedent, that a plaintiff seeking to enforce a
foreign admiralty judgment could avail itself of the courts of
admiralty in the United States, yet be deprived of the use of
the district court’s power to attach assets: an "inherent compo-
nent of the admiralty jurisdiction given to the federal courts."
Aqua Stoli, 460 F.3d at 437.6
In re Stolt-Nielsen Transp. Grp. B.V., No. 06 Civ. 703
(NRB), 2008 WL 650391 (S.D.N.Y. Mar. 7, 2008), aff’d sub
nom. Stolt-Nielsen Transp. Grp. v. Lio Yag Sanayi Ve Ticaret
A.S., 330 F. App’x 207 (2d Cir. 2009) (unpublished), cited by
S&P in support of their construction of Supplemental Rule B,
actually lends support to the construction that we adopt. In
that case, the plaintiff initially brought the complaint against
the defendant without Supplemental Rule B attachment,
apparently because the defendant was located within the dis-
trict. The defendant left the district and a default judgment
was ultimately entered in favor of the plaintiff. Thereafter, the
plaintiff attempted to use Supplemental Rule B to attach the
defendant’s property. The court rejected the plaintiff’s
attempts, finding that because a default judgment had already
been entered by the court, "[plaintiff’s] motion is essentially
a plea for us to allow it to use [Supplemental] Rule B as [a]
judgment collection device." Id. 2008 WL 650391, at *2.
By contrast, the district court in the case at bar had not
entered any judgment against S&P at the time the ex parte
motion for Supplemental Rule B attachment was filed by
Vitol. What Vitol sought was to establish jurisdiction through
Supplemental Rule B in the District of Maryland so its under-
6
Had Vitol already obtained a judgment in the district court against S&P
and at a later time then sought to attach their assets to satisfy a previously
docketed judgment, in that circumstance, Vitol’s attempt to use Supple-
mental Rule B might be seen as a prohibited post-judgment action. In that
limited circumstance, Vitol might be required to use other attachment or
judgment enforcement procedures in lieu of Supplemental Rule B. How-
ever, that situation is not present in this case and we need not speculate
here on what decision would be required should those events occur.
18 VITOL v. PRIMEROSE SHIPPING CO.
lying alter ego complaint could be adjudicated; not to enforce
the English Judgment in the first instance, although we are not
at all certain that usage is barred by the Rule. In any event,
Vitol’s use of Supplemental Rule B was entirely consistent
with the rule’s purpose: "to permit the attachments of assets
wherever they can be found and not to require the plaintiff to
scour the globe to find a proper forum for suit or property of
the defendant sufficient to satisfy a judgment." Transportes
Navieros y Terrestres S.A. de C.V. v. Fairmount Heavy
Transp. N.V., 572 F.3d 96, 103 (2d Cir. 2009).
Accordingly, we reject S&P’s arguments either that the dis-
trict court lacked admiralty jurisdiction or that the attachment
of the THOR was a misuse of Supplemental Rule B.
III. The Merits
Turning to the merits of this appeal, Vitol argues that the
district court erred in concluding that the Amended Verified
Complaint failed to adequately plead a claim under Rule 8 of
the Federal Rules of Civil Procedure or Supplemental Rule
E(2)(a). Under Rule 8(a), a pleading must contain "a short and
plain statement of the claim showing that the pleader is enti-
tled to relief, in order to give the defendant fair notice of what
the claim is and the grounds upon which it rests." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal cita-
tions, quotation marks, and alterations omitted). A district
court should dismiss a complaint pursuant to Rule 12(b)(6) if,
accepting all well-pleaded allegations in the complaint as true
and drawing all reasonable factual inferences in the plaintiff’s
favor, the complaint does not allege "enough facts to state a
claim to relief that is plausible on its face." Id. at 570. Under
Rule 12(e), a "party may move for a more definite statement
of a pleading to which a responsive pleading is allowed but
which is so vague or ambiguous that the party cannot reason-
ably prepare a response."
By contrast, Supplemental Rule E(2)(a), the governing
pleading standard for Supplemental Rule B proceedings,
VITOL v. PRIMEROSE SHIPPING CO. 19
states that "the complaint shall state the circumstances from
which the claim arises with such particularity that the defen-
dant or claimant will be able, without moving for a more defi-
nite statement, to commence an investigation of the facts and
to frame a responsive pleading." (emphasis added).
The remedy for failure to comply with the pleading stan-
dards of Supplemental Rule E(2)(a) is set forth in Supplemen-
tal Rule E(4)(f), which provides that "[w]henever property is
arrested or attached, any person claiming an interest in it shall
be entitled to a prompt hearing at which the plaintiff shall be
required to show why the arrest or attachment should not be
vacated or other relief granted consistent with these rules."
Fed. R. Civ. P. Adm. Supp. R. E(4)(f) (emphasis added).
Thus, the primary remedy afforded for failure to comply with
Rule E(2)(a) is vacatur of the attachment. Dismissal of the
complaint is not a Rule E remedy. See Chiquita Int’l Ltd. v.
MV BOSSE, 518 F. Supp. 2d 589, 596 (S.D.N.Y. 2007)
("Rule E(4)(f) allows a motion for vacatur of attachment, but
does not provide for dismissal.").
Counsel for S&P, however, suggested at oral argument that
dismissal of the complaint automatically flows from vacatur
of the Supplemental Rule B attachment because, absent Sup-
plemental Rule B attachment, the court lacks jurisdiction over
S&P. Oral Argument Audio Recording at 33:30.7 This argu-
ment fails as a matter of law.
In Republic National Bank of Miami v. United States, 506
U.S. 80 (1992), the Supreme Court rejected the notion that, in
an in rem civil forfeiture action, the district court’s continued
7
Although it appears that S&P did not previously advance the argument
that dismissal of the complaint flows automatically from vacatur of the
attachment, we address the argument because it implicates the subject
matter jurisdiction of the district court and "[s]ubject matter jurisdiction
cannot be forfeited or waived." See In re Kirkland, 600 F.3d 310, 314 (4th
Cir. 2010).
20 VITOL v. PRIMEROSE SHIPPING CO.
control of the res is necessary for the court to retain jurisdic-
tion over the forfeiture proceedings. See id. at 84. In that case,
following a civil forfeiture proceeding in which the Govern-
ment prevailed, the United States Marshal transferred the res
(the proceeds of a sale of certain assets) from his control to
the United States Treasury. Id. at 83. Although the claimant
timely appealed from the judgment against it, the claimant did
not move to stay execution of the judgment or post a superse-
deas bond. Once the assets were removed from the court’s
control, the Government sought to dismiss the claimant’s
appeal for lack of jurisdiction. The court of appeals granted
the motion to dismiss the appeal, but the Supreme Court
reversed.
After a lengthy discussion of both maritime and forfeiture
cases, the Supreme Court held that "[s]tasis is not a general
prerequisite to the maintenance of jurisdiction. Jurisdiction
over the person survives a change in circumstances." Id. at 88.
The seizure of the res, the Court concluded, "and the publica-
tion of the monition or invitation to appear, is regarded as
equivalent to the particular service of process in the courts of
law and equity." Id. at 85. In sum, while control over the res
is a prerequisite to initiation of the in rem action, the court
does not need to continuously possess the res to maintain
jurisdiction once established.8
The in rem principle articulated in Republic National Bank
has been extended to quasi in rem proceedings, including
those arising under Supplemental Rule B. See Stevedoring
8
The Court acknowledged that "if a defendant ship stealthily absconds
from port and leaves the plaintiff with no res from which to collect, a
court might determine that a judgment would be useless." Republic Nat’l
Bank, 506 U.S. at 87 (internal quotation marks and citations omitted).
Nevertheless, the Court reasoned that "the fictions of in rem forfeiture
were developed primarily to expand the reach of the courts and to furnish
remedies for aggrieved parties, not to provide a prevailing party with a
means of defeating its adversary’s claim for redress." Id. (internal citations
omitted).
VITOL v. PRIMEROSE SHIPPING CO. 21
Servs. of Am. v. Ancora Transp., N.V., 59 F.3d 879, 882 (9th
Cir. 1995) ("[The Republic National Bank rationale] applies
with equal persuasiveness to quasi in rem proceedings insti-
tuted under [Supplemental] Rule B."). We find the logic of
Republic National Bank applicable in the case at bar.9 See
Woodlands Ltd. v. Nationsbank N.A., 164 F.3d 628 (table),
No. 97-1813, 1998 WL 682156 (4th Cir. Sept. 23, 1998)
(applying Republic National Bank in a Supplemental Rule B
maritime attachment case). Thus, even if the attachment of the
THOR was vacated under Supplemental Rule E, that event
would not, in and of itself, act to terminate the jurisdiction of
the district court as to the Amended Verified Complaint.
As dismissal of the complaint is not a proper remedy under
Supplemental Rule E, and because dismissal does not auto-
matically flow from vacatur of Supplemental Rule B attach-
ment, we must, as the district court endeavored to do, analyze
Vitol’s claims through the lens of both Supplemental Rule E
and Rules 8 and 12. As the district court observed, "it is at
least theoretically possible that a Complaint adequate to with-
stand a Rule 12(b)(6) motion may, nevertheless, not be ade-
quate to avoid the vacatur of an attachment." (J.A. 1551). We
now describe the standards under the two sets of rules and
then apply those standards to the merits of Vitol’s Amended
Verified Complaint.
A. Supplemental Rule E Standard
We review the district court’s order vacating the attachment
of the THOR’s Substitute Collateral for abuse of discretion,
with legal conclusions underlying the order reviewed de novo.
See ProShipLine Inc. v. Aspen Infrastructures Ltd., 609 F.3d
9Moreover, if we were to conclude that dismissal of the complaint auto-
matically flowed from the grant of a motion to vacate the attachment, Sup-
plemental Rule E would effectively subsume Rules 8 and 12 in the context
of admiralty and forfeiture cases. No court has extended the supplemental
rules in that way and neither do we.
22 VITOL v. PRIMEROSE SHIPPING CO.
960, 966 (9th Cir. 2010); Shipping Corp. of India Ltd. v.
Jaldhi Overseas Pte Ltd., 585 F.3d 58, 66 (2d Cir. 2009).
After receiving notice of Supplemental Rule B attachment,
the defendant is entitled to contest the attachment at a prompt
hearing pursuant to Rule E(4)(f). To avoid vacatur of attach-
ment, it is the plaintiff’s burden to show that "1) it has a valid
prima facie admiralty claim against the defendant; 2) the
defendant cannot be found within the district; 3) the defen-
dant’s property may be found within the district; and 4) there
is no statutory or maritime law bar to the attachment." Aqua
Stoli, 460 F.3d at 445. "[T]he sole basis for extending this
claim to [S&P] is the allegation that [S&P are] . . . alter ego[s]
of [Capri Marine]. Thus, to survive this motion [to vacate],
the Complaint must allege particular facts supporting [Vitol’s]
alter ego theory of liability to satisfy Rule E(2)(a)’s height-
ened pleading standard." Arctic Ocean Int’l Ltd. v. High Seas
Shipping Ltd., 622 F. Supp. 2d 46, 53 (S.D.N.Y. 2009).10
To restate a basic premise, to plead a prima facie admiralty
case pursuant to Supplemental Rule E, "the complaint shall
state the circumstances from which the claim arises with such
particularity that the defendant or claimant will be able, with-
out moving for a more definite statement, to commence an
investigation of the facts and to frame a responsive pleading."
Fed. R. Civ. P. Adm. Supp. R. E(2)(a). The burden to show
why continued attachment is proper is the plaintiff’s to bear.
See Equatorial Marine Fuel Mgmt. Servs. Pte Ltd. v. MISC
Berhad, 591 F.3d 1208, 1210 (9th Cir. 2010).
As we have previously explained,
10
The parties dispute whether Supplemental Rule E(2)(a)’s pleading
standard is still "heightened" in light of the Supreme Court’s holdings in
Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009). We need not answer
that question here because we conclude that Vitol has failed to carry its
pleading burden under either standard.
VITOL v. PRIMEROSE SHIPPING CO. 23
Rule E(2)(a)’s requirement for pleading specific cir-
cumstances is one part of the process which guards
against the improper use of admiralty seizure pro-
ceedings. Thus, the rule’s heightened particularity in
pleading requirement is always subject to the general
standard that the complaint sufficiently notify the
defendant of the incident in dispute and afford a rea-
sonable belief that the claim has merit.
United States v. Mondragon, 313 F.3d 862, 865 (4th Cir.
2002) (emphasis added) (internal citations, quotation marks,
and alterations omitted). While courts to have considered the
question are in agreement that the Supplemental Rule E(2)(a)
pleading requirement is "heightened," the precise boundaries
of such a heightened pleading requirement are not clearly
defined.
As one district court explained,
courts have compared the showing required in a
"reasonable grounds" analysis to the more familiar
standard of probable cause. See, e.g., Amstar Corp.
v. S/S ALEXANDROS T., 664 F.2d 904, 912 (4th Cir.
1981) ("A shipowner challenging the validity of an
arrest is constitutionally entitled to a prompt post-
arrest hearing in which the plaintiff has the burden
of showing probable cause for the arrest"). The
Supreme Court, interpreting the phrase "reasonable
grounds" as used in a criminal statute, has said that
"[t]he terms ‘probable cause’ as used in the Fourth
Amendment and ‘reasonable grounds’ . . . are sub-
stantial equivalents of the same meaning." Draper v.
United States, 358 U.S. 307, 311 (1959). Probable
cause is less than a preponderance of the evidence;
in the criminal context, it has been described as a
"fair probability" that the asserted fact is true. Illi-
nois v. Gates, 462 U.S. 213, 214 (1983). With this
standard in mind, courts in Rule E(4)(f) hearings
24 VITOL v. PRIMEROSE SHIPPING CO.
have emphasized that their conclusions are "merely
holding that it is likely" that alleged facts are true.
See North of England Protecting and Indem. Ass’n,
1999 WL 33116416, at *3.
Wajilam Exps. (Singapore) Pte. Ltd. v. ATL Shipping Ltd.,
475 F. Supp. 2d 275, 279-80 (S.D.N.Y. 2006).11
This Court has only once opined on Supplemental Rule
E(2)(a)’s pleading requirement. In Mondragon, we expressed
our agreement with the majority view, that "[Supplemental]
Rule E(2)(a) requires a complaint to allege sufficient facts to
support a reasonable belief that the property is subject to for-
feiture." 313 F.3d at 865 (emphasis added).12 We went on to
explain, however, that "Rule E(2)(a) needs little interpreta-
tion. It is plainly written and means precisely what it says."
Id. (internal quotation marks omitted).
Although Vitol asserts on appeal that the district court erred
by applying a "reasonable belief" standard to S&P’s motion
to vacate, the court unquestionably applied the proper stan-
dard in light of Mondragon. The district court discussed the
"reasonable belief" standard from Mondragon, and, as we will
discuss in detail below, faithfully applied that requirement.
11
Although Wajilam Exports describes a "reasonable grounds" standard,
rather than the "reasonable belief" standard noted in our discussion of
Mondragon, courts appear to use the two terms interchangeably to
describe an identical standard for vacating an attachment. Cf. United
States v. Diaz, 491 F.3d 1074, 1077 (9th Cir. 2007) (noting in the criminal
context that "[t]he phrase ‘reason to believe’ is interchangeable with and
conceptually identical to the phrases ‘reasonable belief’ and ‘reasonable
grounds for believing’").
12
Mondragon was decided in the context of a civil forfeiture claim.
However, the Mondragon holding was based in large part on Riverway
Co. v. Spivey Marine and Harbor Service Co., 598 F. Supp. 909 (S.D. Ill.
1984), an admiralty in rem case.
VITOL v. PRIMEROSE SHIPPING CO. 25
B. Rule 12(b)(6) Standard
We review de novo the grant of a Rule 12(b)(6) motion to
dismiss for failure to state a claim. McCorkle v. Bank of Am.
Corp., 688 F.3d 164, 171 (4th Cir. 2012). To survive a motion
to dismiss pursuant to Rule 12(b)(6), Vitol’s "[f]actual allega-
tions must be enough to raise a right to relief above the specu-
lative level," thereby "nudg[ing] [its] claims across the line
from conceivable to plausible." Twombly, 550 U.S. 544, 555,
570 (2007).
The plausibility standard requires a plaintiff to dem-
onstrate more than "a sheer possibility that a defen-
dant has acted unlawfully." [Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)]. It requires the plaintiff to
articulate facts, when accepted as true, that "show"
that the plaintiff has stated a claim entitling him to
relief, i.e., the "plausibility of ‘entitlement to relief.’"
Id. (quoting Twombly, 550 U.S. at 557).
To emphasize the Federal Rules’ requirements for
stating claims that are warranted and therefore form
a plausible basis for relief, the Supreme Court has
held that a complaint must contain "more than labels
and conclusions, and a formulaic recitation of the
elements of a cause of action will not do." Twombly,
550 U.S. at 555. To discount such unadorned conclu-
sory allegations, "a court considering a motion to
dismiss can choose to begin by identifying pleadings
that, because they are no more than conclusions, are
not entitled to the assumption of truth." Iqbal, [556
U.S. at 679]. This approach recognizes that "naked
assertions" of wrongdoing necessitate some "factual
enhancement" within the complaint to cross "the line
between possibility and plausibility of entitlement to
relief." Twombly, 550 U.S. at 557 (internal quotation
marks omitted).
26 VITOL v. PRIMEROSE SHIPPING CO.
At bottom, determining whether a complaint states
on its face a plausible claim for relief and therefore
can survive a Rule 12(b)(6) motion will "be a
context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense. But where the well-pleaded facts do not per-
mit the court to infer more than the mere possibility
of misconduct, the complaint has alleged—but it has
not ‘show[n]’—‘that the pleader is entitled to
relief,’" as required by Rule 8. Iqbal, 55 U.S. at 679
(alteration in original) (citation omitted) (quoting
Fed.R.Civ.P. 8(a)(2)).
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
C. The Alter Ego Claim
Having described the relevant pleading standards, we turn
to the resolution of the merits of Vitol’s alter ego claim as
pled in the Amended Verified Complaint. "It is well estab-
lished that an admiralty court can review questions of . . . alter
ego." Ost-West-Handel, 160 F.3d at 174 (citing Swift & Co.
Packers v. Compania Colombiana Del Caribe, 339 U.S. 684,
689 n.4 (1950)). "[A] corporate entity is liable for the acts of
a separate, related entity only under extraordinary circum-
stances, commonly referred to as ‘piercing the corporate
veil.’" Arctic Ocean Int’l, 622 F. Supp. 2d at 53 (quoting
Dolco Invs., Ltd. v. Moonriver Dev., Ltd., 486 F. Supp. 2d
261, 271 (S.D.N.Y. 2007)). "Although decisions to pierce a
corporate veil, exposing those behind the corporation to liabil-
ity, must be taken reluctantly and cautiously, courts will not
hesitate to take such action when justice so requires." Keffer
v. H.K. Porter Co., Inc., 872 F.2d 60, 64 (4th Cir. 1989) (cit-
ing In re County Green Ltd. P’ship, 604 F.2d 289, 292 (4th
Cir. 1979)). "[I]n extraordinary cases, such as the corporate
form being used for wrongful purposes, courts will pierce the
corporate veil and disregard the corporate entity, treating the
VITOL v. PRIMEROSE SHIPPING CO. 27
parent corporation and its subsidiary as a single entity." Cor-
rigan v. U.S. Steel Corp., 478 F.3d 718, 724 (6th Cir. 2007).
In Keffer, as well as DeWitt Truck Brokers, Inc. v. W. Ray
Flemming Fruit Co., 540 F.2d 681 (4th Cir. 1976), we articu-
lated several factors that "guide the determination of whether
one entity constitutes the alter ego of another." Ost-West-
Handel, 160 F.3d at 174. These factors include "gross under-
capitalization, insolvency, siphoning of funds, failure to
observe corporate formalities and maintain proper corporate
records, non-functioning of officers, control by a dominant
stockholder, and injustice or fundamental unfairness." Id.Other factors properly considered by the district court in this
case include intermingling of funds; overlap in ownership,
officers, directors, and other personnel; common office space;
the degrees of discretion shown by the allegedly dominated
corporation; and whether the dealings of the entities are at
arm’s length. See Arctic Ocean, 622 F. Supp. 2d at 53.
At its core, the question of whether to pierce the corporate
veil is a fact-intensive inquiry, because "the circumstances
necessarily vary according to the circumstances of each case,
and every case where the issue is raised is to be regarded as
sui generis to be decided in accordance with its own underly-
ing facts." DeWitt Truck Brokers, 540 F.2d at 684 (internal
quotation marks, footnote, and alterations omitted). "Instead
of a firm rule, the general principle . . . has been that liability
is imposed when doing so would achieve an equitable result."
Williamson, 542 F.3d at 53 (quotation marks omitted). "In
applying these factors a court must focus on reality and not
form, [on] how the corporation operated and the individual
defendant’s relationship to that operation." Ost-West-Handel,
160 F.3d at 174 (citing DeWitt, 540 F.2d at 685) (quotation
marks omitted).
Vitol alleged in its Amended Verified Complaint that Capri
Marine "made no independent business decisions controlling
its principle asset, the ALAMBRA," and that it lacked a busi-
28 VITOL v. PRIMEROSE SHIPPING CO.
ness address of its own as "it shared Starlady’s address." (J.A.
1129). Further, Vitol made specific allegations that Capri
Marine, by its own admission, had no appreciable assets save
the ALAMBRA, despite owning unencumbered title to the
ALAMBRA and operating it profitably in the years prior to
the Oil Spill.
The most significant allegations, however, concern the sale
of the ALAMBRA following the Oil Spill in 2001. Vitol spe-
cifically alleged that Capri Marine paid Vitol $500,000 in
order to lift an injunction restraining its ability to sell the
ALAMBRA. Because it lacked other assets, Capri Marine
obtained the $500,000 through a loan financed by Trade Mari-
time in the amount of $1.4 million. Trade Maritime is part of
the Kalogiratos Group. At that time, Capri Marine was essen-
tially insolvent (save for its interest in the ALAMBRA) and
facing the prospect of considerable liability arising out of the
Oil Spill. It thus had little chance of repaying the Trade Mari-
time loan on its own.
Capri Marine sold the ALAMBRA (its sole asset) in 2001
to what appeared to be a third party, Aurora. Instead, Aurora
was also part of the Kalogiratos Group under the control of
Gerassimos. The ALAMBRA was later resold at a substan-
tially higher price to a bona fide third party, and the assets of
the sale were distributed throughout the Kalogiratos Group
including repayment of the loan made by Trade Maritime.
The district court concluded that the foregoing allegations
were sufficient, for both Supplemental Rule E and Rule
12(b)(6) purposes, to have pled Capri Marine was the alter
ego of Gerassimos and his related entities. For purposes of
our analysis, we may assume, without deciding, that the
Amended Verified Complaint does adequately plead Capri
Marine as the alter ego of Gerassimos.
Even assuming that Capri Marine is an alter ego of Gerassi-
mos, that status does not resolve the issue in the case at bar
as to whether alter ego liability can attach to S&P. Rather,
VITOL v. PRIMEROSE SHIPPING CO. 29
Vitol must make independent allegations sufficient to avoid
dismissal and vacatur that Gerassimos is the alter ego of S&P.
The district court discussed the relevant alter ego allegations
as to S&P and Gerassimos in the Amended Verified Com-
plaint and concluded that "more is necessary to establish the
degree of actual domination and control essential to prove an
alter ego claim." (J.A. 1565). We agree with the district
court’s holdings both for Supplemental Rule E and Rule
12(b)(6) purposes.
In reviewing the vacatur of attachment under Supplemental
Rule E, we look first to the text of that Rule. In doing so, it
is clear that S&P could not, without moving for a more defi-
nite statement, "frame a responsive pleading." See Fed. R.
Civ. P. Supp. Adm. R. E(2)(a). This is so because the facts
alleged in the Amended Verified Complaint do not give rise
to a reasonable belief that Primerose and/or Spartacus are
alter egos of Gerassimos or his related entities.
Looking first to allegations concerning the degree to which
the Starlady Fleet (unquestionably controlled by Gerassimos)
was connected with the Primerose Fleet, we agree with the
district court that Vitol’s allegations were insufficient to pass
the reasonable belief test. Vitol alleged that the Primerose
Fleet, including Spartacus (owner of the THOR) was started
with funds from the Starlady Fleet, as well as the allegations
that Starlady vessels have similar coloration to Primerose ves-
sels, and that Primerose shared offices, phone numbers, and
other office facilities with Starlady. Vitol argues that those
allegations should be sufficient to establish the alter ego status
of S&P, and the district court erred in finding that "more is
necessary" for Vitol to demonstrate the interconnectedness of
the two shipping fleets.
These allegations of fleet interconnectedness, however,
simply do not rise to the level of creating a reasonable belief
to support the claim of alter ego. Applying the factors dis-
cussed above we conclude that, although Vitol has alleged a
30 VITOL v. PRIMEROSE SHIPPING CO.
close business relationship between Kalogiratos-controlled
entities and S&P, it has not done enough to allege an alter ego
status. At best, Vitol has made allegations with particularity
only to support a reasonable belief that the two fleets maintain
a close business relationship. Vitol’s allegations that the
Primerose fleet was started with funds from the Starlady fleet
establish little more than that Starlady has invested in
Primerose, and not how that event gives Starlady control over
Primerose’s affairs or establishes any ownership rights. More-
over, allegations that the fleets share similar coloration are not
probative of the core question of whether the two entities have
disregarded corporate formalities. And while sharing office
space may be an indicium of alter ego, we do not believe that
shared office space on its own is sufficient to compel a con-
clusion that Starlady and/or Gerassimos dominated and con-
trolled Primerose.
Vitol has also alleged that Velliades (the alleged owner of
Primerose and Spartacus) extended a line of credit to Gerassi-
mos following the sale of the ALAMBRA. The mere exten-
sion of a line of credit from one corporate entity to another,
however, does not create a reasonable belief of alter ego. Sig-
nificantly, as the district court noted, the credit line was
repaid. In short, that Velliades extended credit to Gerassimos
does not tend to show that Velliades’s business ventures are
dominated or controlled by Gerassimos.
Vitol further alleged that Starlady paid $120,000 into an
account held by Seatrade (a non-party owned and managed by
Primerose) at Laiki Bank, and on the same day, Seatrade’s
loan from the same bank was discharged. Again, though,
while this allegation is evidence of a close corporate relation-
ship, and perhaps even a failure to adhere to corporate formal-
ities, it is not evidence that funds were comingled, that
Gerassimos "dominates" Seatrade (or indeed, any Primerose-
VITOL v. PRIMEROSE SHIPPING CO. 31
affiliated entity), or that the corporate form was in any way
materially disregarded.13
Vitol also made an allegation that Deep Blue14 transferred
$360,000 to Starlady at the same time as Primerose trans-
ferred $10,500 to Starlady. Starlady converted these funds to
Euros, then back to dollars, and transferred $306,000 back to
Primerose. Vitol alleges that Velliades agreed to assist Geras-
simos by transferring the funds temporarily in order to assist
Starlady in obtaining favorable tax status under Greek law;
but claims that there is no explanation for why Starlady only
repaid $306,000 of the $370,500 originally loaned. As the dis-
trict court explained, however, in light of the fact that Gerassi-
mos owns a 5% interest in Deep Blue, the funds retained by
Starlady represent an advance on dividends related to the 5%
ownership stake. Again, all that Vitol has pled is that a close
relationship exists between the Kalogiratos entities and those
controlled by Velliades. But it has effectively alleged nothing
more than repaid loans and dividend distributions, which do
not establish the type of dominion and control needed to dem-
onstrate alter ego status. Indeed, the specific facts alleged by
Vitol simply establish that the two fleets maintain a close
business relationship that sometimes results in the disregard
of formality. But such allegations alone will not suffice to
give rise to a reasonable belief of alter ego status sufficient to
invoke the "extraordinary" remedy of piercing the corporate
veil. See Arctic Ocean, 622 F. Supp. 2d at 53.
The same is true of Vitol’s allegation that "Velliades is a
[p]uppet of Gerassimos Kalogiratos." (J.A. 1145). This state-
ment, without more, is clearly lacking in the particularity
required to satisfy the Supplemental Rule E standard. S&P
could not have responded to this bald, conclusory assertion
13
The record does not reflect whether Seatrade repaid to Starlady the
$120,000 deposited by Starlady into its account at Laiki Bank.
14
The Kalogiratos family owns a minority share in Deep Blue, which is
managed by Primerose.
32 VITOL v. PRIMEROSE SHIPPING CO.
without moving for a more definite statement. And once
again, while Vitol does make certain "factual" allegations, the
specific facts that Vitol does allege are not sufficient to sup-
port its legal conclusions. Indeed, many of Vitol’s allegations
never depart the realm of the purely speculative, including the
allegation that Velliades cannot be the principal of Primerose
because he "had no prior experience in ship management."
(J.A. 1146). These speculative allegations simply do not meet
the heightened "reasonable belief" standard.15
In sum, Vitol has failed to "allege particular facts support-
ing its alter ego theory of liability to satisfy [Supplemental]
Rule E(2)(a)’s heightened pleading standard." Arctic Ocean,
622 F. Supp. 2d at 53. In reaching this conclusion we are
mindful of the heightened pleading standard of Supplemental
Rule E, and again note that courts should be "reluctant[ ]" and
"cautious[ ]" when deciding to pierce the corporate veil. Kef-
fer, 872 F.2d at 64.
Because Vitol has failed to plead with sufficient specificity
that S&P are alter egos of Capri Marine, it has failed to carry
its burden to show why the attachment of the THOR Substi-
tute Collateral should not be vacated as the district court held.
See Fed. R. Civ. P. Adm. Supp. R. E(4)(f) (placing burden on
plaintiff "to show why the arrest or attachment should not be
vacated"). We therefore conclude that the district court did
not abuse its discretion in granting S&P’s motion to vacate
the attachment.
15
Vitol does allege that Gerassimos was involved with the financing of
the THOR, signing certain mortgage documents on behalf of Spartacus
and directing certain loan-related documents to be sent to his attention.
While we agree with Vitol that this allegation suggests some degree of
cross-collateralization between the entities, we do not agree that Gerassi-
mos’ involvement with the THOR’s financing makes plausible the other-
wise conclusory allegation that he, not Velliades, therefore dominates
Primerose and its fleet.
VITOL v. PRIMEROSE SHIPPING CO. 33
We next turn to the application of the Rule 8 pleading
requirements discussed above to determine if Vitol pled alle-
gations in the Amended Verified Complaint sufficient to sur-
vive Rule 12(b)(6) scrutiny. Indeed, while the Supplemental
Rule E reasonable belief standard is not identical to the plau-
sibility standard under Rule 12(b)(6), we find much of the
analysis to overlap. For example, the analysis above of Vitol’s
allegations pertaining to fleet interconnectedness assists and
informs our view of the same allegations viewed through the
lens of Rule 12(b)(6).
Vitol’s allegations that the Primerose Fleet was started with
funds from Gerassimos and related entities, and allegations
concerning fleet coloration and shared office space, are liter-
ally "factual" allegations entitled to a presumption of truth.
See Iqbal, 556 U.S. at 681. We are not, however, required to
accept Vitol’s legal conclusions, drawn from those facts, as
true. See Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.
2008) (courts "need not accept the legal conclusions drawn
from the facts" stated in the complaint). This is so because,
even accepting the well-pleaded facts as true, those facts do
not give rise to a plausible allegation of alter ego.
As the district court recognized, taking as true Vitol’s alle-
gations of fleet interconnectness, Vitol has at best made a
plausible allegation that S&P maintain a close business rela-
tionship with Gerassimos and his related entities. There is
nothing in the allegations of interconnectness that plausibly
suggests the sort of dominion, control, failure to observe cor-
porate formalities, or fundamental unfairness needed to state
a claim for alter ego status.
We find the same to be true with respect to Vitol’s allega-
tions of comingling of funds. Although Vitol does baldly
allege that funds from Primerose were comingled with funds
from Starlady, that allegation is conclusory, and not entitled
to a presumption of truth. See Iqbal, 556 U.S. at 681. With
respect to Vitol’s allegations concerning the degree to which
34 VITOL v. PRIMEROSE SHIPPING CO.
funds were comingled, we once again identify facts in the
Amended Verified Complaint that were properly pled: that
Velliades extended a credit line to Gerassimos following the
sale of the ALAMBRA; that Starlady paid funds to Laki Bank
in exchange for discharge of certain loans to Seatrade; and
that Deep Blue loaned considerable funds to Starlady, some
of which were not repaid.
Again, however, when we apply the alter ego factors dis-
cussed supra at 27, to these facts, we find that the allegations
in the Amended Verified Complaint do not plausibly state an
alter ego claim. Indeed, the loans allegedly made between
Gerassimos (and related entities) and Velliades (and related
entities) were repaid, with the exception of a portion of the
loan made by Deep Blue. But Vitol’s allegations fail to
account for the fact that Gerassimos owned a small share of
the interest in Deep Blue, and as the district court explained,
the discrepancy between the amount loaned and that repaid
was properly attributable to a dividend distribution.
To the extent that these facts show a close business rela-
tionship, that allegation falls short of establishing alter ego.
And because the loans were largely repaid, we do not agree
with Vitol’s bald allegation that these transactions represent
improper comingling of funds with failure to observe the cor-
porate form. In short, these allegations, in our view, do not
contain the "factual enhancement" necessary to cross "the line
between possibility and plausibility of entitlement to relief."
Twombly, 550 U.S. at 557 (emphasis added) (quotation marks
and brackets omitted).
Similarly, the statement that Velliades is a mere puppet of
Gerassimos is a bald allegation, couched as fact, that is no
more than an unsupported legal conclusion for purposes of
Rule 12(b)(6). See Jordan v. Alt. Res. Corp., 458 F.3d 332,
338 (4th Cir. 2006) ("[W]e need not accept the legal conclu-
sions drawn from the facts, and [ ] need not accept as true
unwarranted inferences, unreasonable conclusions, or argu-
VITOL v. PRIMEROSE SHIPPING CO. 35
ments." (internal quotation marks omitted)). As explained
above, the factual support for this assertion is simply lacking,
and we need not address it further.
Finally, we note that the Amended Verified Complaint is
replete with examples of allegations related to whether
Primerose is an alter ego of Spartacus and other members of
the Primerose fleet. Vitol alleges, for example, that Primerose
had "no commercially justifiable reason" to provide funds to
secure the release of the THOR in the instant litigation.
Besides being a further example of the speculation which we
will not accept as true for either Supplemental Rule E or Rule
12(b)(6) purposes, these allegations do little to support Vitol’s
theory of the case: that Primerose (and its fleet member, i.e.,
Spartacus) is an alter ego of Gerassimos or the Kalogiratos
Group.
In sum, we agree with the district court’s holding that the
allegations in the Amended Verified Complaint fail to state a
claim upon which relief may be granted, and dismissal was
therefore warranted pursuant to Rule 12(b)(6). Vitol’s allega-
tions are conclusory and contain legal conclusions couched as
factual allegations. To the extent that the Amended Verified
Complaint does properly allege facts, those facts do not show
more than "a sheer possibility that a defendant has acted
unlawfully." See Iqbal, 556 U.S. at 678. Because "the well-
pleaded facts do not permit [this] [C]ourt to infer more than
the mere possibility of misconduct, the complaint has alleged-
but it has not ‘shown’—‘that the pleader is entitled to relief.’"
See id. at 679. As with the Supplemental Rule E analysis, we
conclude the district court did not err in granting S&P’s Rule
12(b)(6) motion to dismiss the Amended Verified Complaint.
IV. Conclusion
For the foregoing reasons, we agree that the district court
properly exercised admiralty jurisdiction over Vitol’s claims.
Our review of the merits of Vitol’s claim against S&P, how-
36 VITOL v. PRIMEROSE SHIPPING CO.
ever, lead us to conclude that dismissal was appropriate pur-
suant to Rule 12(b)(6), and the district court’s ex parte order
of attachment was properly vacated. We therefore affirm the
judgment of the district court.
AFFIRMED