NYKCool A.B. v. Ecuadorian Line, Inc.

13-2730-cv
NYKCool A.B. v. Ecuadorian Line, Inc.
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 14th day of April, two thousand fourteen.
PRESENT:
JOSÉ A. CABRANES,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
NYKCOOL A.B.,
Plaintiff-Appellee,
v. No. 13-2730-cv
ECUADORIAN LINE, INC.,
Defendant-Appellant,
PACIFIC INTERNATIONAL SERVICES, INC., PAN
AMERICAN TRADING COMPANY, INC.,
FRUIT IMPORTERS AMERICAS, INC.,
PACIFIC GROUP HOLDING, INC., SOUTH PACIFIC
SHIPPING CO., LTD., ALVARO FERNANDO NOBOA
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PONTON, CARLOS AGUIRRE, CARLOS AHLSTROM,
EDWARD HICKEY, ROBERT KISSINGER,
Defendants.
_____________________________________
FOR PLAINTIFF-APPELLEE: Garth Wolfson, Mahoney & Keane
LLP, New York, NY.
FOR DEFENDANT-APPELLANT Michael D. Wilson, Hill Rivkins &
Hayden LLP, New York, NY.
Appeal from a June 14, 2013 Order of the United States District Court for the Southern
District of New York (Lewis A. Kaplan, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court be AFFIRMED.
Appellant Ecuadorian Line, Inc. (“Ecuadorian Line”) appeals a decision of the District
Court granting summary judgment to appellee NYKCool A.B. (“NYKCool”) pursuant to Federal
Rule of Civil Procedure 54(b). The Order was preceded by a March 29, 2013 Report and
Recommendation (“R&R”) of Magistrate Judge Andrew J. Peck, recommending that summary
judgment be granted against all of the corporate defendants in the action, of which Ecuadorian Line
was one of six. NYKCool, a judgment creditor, was pursuing the judgment against Ecuadorian Line
and the other corporate defendants on alter ego and veil-piercing theories.1 We assume the parties’
familiarity with the underlying facts and procedural history of the case.
On appeal, Ecuadorian Line argues that in granting summary judgment against them, the
District Court improperly rendered them “guilt[y] by association,” Appellant Br. at 7, because the
R&R failed to include an analysis of whether to pierce the corporate veil with regard to Ecuadorian
Line independently of the other corporate defendants, and that questions of material fact remained
regarding whether it was proper to pierce Ecuadorian Line’s corporate veil.
We review de novo an order granting summary judgment, “resolving all ambiguities and
drawing all permissible factual inferences in favor of the party against whom summary judgment is
sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010). We affirm when “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
1 In his brief Order of June 14, 2013, Judge Kaplan noted Ecuadorian Line’s objections to the R&R, and held
that “the evidence was more than sufficient to justify the magistrate judge’s recommendations, substantially for the
reasons set forth in NYK’s response to Ecuadorian’s objections.” For purposes of this appeal, we will consider Judge
Kaplan’s Order of June 14, 2013 as adopting the R&R of Magistrate Judge Peck with regard to Ecuadorian Line’s
liability for the judgment.
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Civ. P. 56(a). However, “conclusory statements or mere allegations [are] not sufficient to defeat a
summary judgment motion.” Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002). We have explained
that under New York law, “a court may pierce the corporate veil where 1) the owner exercised
complete domination over the corporation with respect to the transaction at issue, and 2) such
domination was used to commit a fraud or wrong that injured the party seeking to pierce the veil.”
MAG Portfolio Consultant, GMBH v. Merlin Biomed Group LLC, 268 F.3d 58, 63 (2d Cir. 2001) (internal
quotation marks omitted). The factors that a court must evaluate to find such domination include:
(1) disregard of corporate formalities; (2) inadequate capitalization; (3) intermingling of
funds; (4) overlap in ownership, officers, directors, and personnel; (5) common office
space, address and telephone numbers of corporate entities; (6) the degree of discretion
shown by the allegedly dominated corporation; (7) whether the dealings between the
entities are at arms length; (8) whether the corporations are treated as independent
profit centers; (9) payment or guarantee of the corporation's debts by the dominating
entity, and (10) intermingling of property between the entities.
Id. Similarly, federal courts sitting in admiralty must apply federal common law, and in order to
pierce a corporate veil under federal maritime law, one corporation must “have so dominated and
disregarded [another’s] corporate form” that the dominated corporation was essentially used for the
dominating corporation’s “personal business rather than its own corporate business.” Kirno Hill
Corp. v. Holt, 618 F.2d 982, 985 (2d Cir. 1980).
Upon a review of the record, we conclude that the District Court did not err in adopting the
R&R of the Magistrate Judge, and correctly concluded that there was no genuine dispute that
Ecuadorian Line’s corporate veil could be pierced.
CONCLUSION
We have considered all of Ecuadorian Line’s arguments on appeal and find them to be
without merit. Accordingly, we AFFIRM the June 14, 2013 judgment of the District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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