Everard Findlay Consulting, LLC v. Republic of Surin.

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Everard Findlay Consulting, LLC, Plaintiff, v. Republic of Suriname, Defendant.

No. 18-CV-8926 (AJN)

United States District Court, S.D. New York

March 22, 2022

OPINION & ORDER

ALISON J. NATHAN, DISTRICT JUDGE

Before the Court is Defendant Republic of Suriname's supplemental motion to dismiss Plaintiff Everard Findlay Consulting, LLC's amended complaint for breach of a contract under which Everard provided services to promote tourism in Suriname. The Court previously dismissed Everard's amended complaint for lack of subject of subject matter jurisdiction under the Foreign Sovereign Immunities Act. The Second Circuit reversed that decision and remanded to this Court to resolve Suriname's remaining argument for dismissal on the basis of forum non conveniens. For the reasons that follow, the Court DENIES Suriname's motion to dismiss.

I. Background

A. Factual background

The following facts are drawn from Everard's amended complaint and the sworn declarations submitted by the parties. See Little v. XL Ins. Co. SE, No. 18-CV-11919 (VB), 2019 WL 6119118, at *2 (S.D.N.Y. Nov. 18, 2019) (citing Aguas Lenders Recovery Grp. LLC v. Suez, S.A., 585 F.3d 696, 697 n.1 (2d Cir. 2009)).

Everard Findlay, LLC (“Everard”) provides “comprehensive, multimedia branding campaign and strategic consultancy services.” Am. Compl. ¶ 1, Dkt. No. 24. It is a limited liability company organized under the laws of New York in September 2009 and its sole member is Everard Findlay (“Findlay”), who is a native of Trinidad and Tabago, a U.S. citizen, and has been a New York resident since 2000. Findlay Decl. ¶¶ 2-3, Dkt. No. 59. In December 2011, Findlay was introduced by Suriname's ambassador to the United Nations to the head of Suriname's Chamber of Commerce and to Suriname's Foreign Minister. Id. ¶¶ 9-10; Reeder Decl. ¶ 4, Dkt. No. 56. Findlay met with the ambassador at Suriname's Mission to the United Nations in New York City, and the ambassador expressed an interest in Everard's brand consulting services. Findlay Decl. ¶¶ 10-11.

In May 2012, Findlay began negotiations over a brand consulting agreement with officials of the Suriname government, during which time Findlay “made several trips to Suriname” to learn about the country, pitch his services, and negotiate, in addition to at least one instance of “face-to-face negotiations with [a Suriname official] in New York.” Id. ¶ 12; Reeder Decl. ¶¶ 6-8. On October 1, 2012, Everard and Suriname signed a Branding Consultation Agreement in New York City. Am. Compl. ¶ 19; Findlay Decl. ¶ 13. Findlay signed on behalf of Everard and Suriname's Foreign Minister signed on behalf of Suriname. Reeder Decl. ¶ 10. The listed objectives of the Branding Consultation Agreement included:

• “Create a sustainable, dynamic, specific, recognizable and competitive brand for Suriname that will be used in marketing the country domestically, regionally, and internationally”;

• “Recommend and facilitate projects that will enhance the brand experience and support the promotion of Suriname as an attractive place to invest, live, and visit domestically, regionally, and internationally”;

• “Stimulate greater desire for international visitors to come to Suriname and for citizens of Suriname to tour their own country”;

• “Utilize targeted forums to position Suriname as an attractive tourist destination”; and • “Create advertising, communication and branding initiatives[.]”

Reeder Decl., Ex. B at 1.

Suriname agreed to pay Everard an initiation fee of $60, 000, a monthly fee of $16, 040, and project fees for approved budgets as well as payment for transportation and hotel expenses. Id., Ex. A at 2. From this Branding Consultation Agreement, Everard proposed, and Suriname agreed to, four projects to achieve the identified objectives: the Web Development & Internal “We Are Suriname” Advertising Campaign (hereinafter, “the ‘We Are Suriname' Campaign” or “the Campaign”), the Erwin de Vries Art Market Project, the Designer Collaboration Project, and the Central Bank van Suriname Investment Guide & DVD. Am. Compl. ¶¶ 25-34. Suriname agreed to these four projects on January 23, 2013, in Suriname. Id. ¶ 26; Reeder Decl. ¶ 13. The “We Are Suriname” Campaign is the “project at issue in this action” and the basis for the damages claimed in the amended complaint. Findlay Decl. ¶ 20; see Am. Compl. ¶¶ 63, 71, 74. Briefly, the Campaign involved the creation of a web platform through which Suriname could communicate with potential investors and tourists and a “We Are Suriname” print media advertising campaign that promoted the sights and culture of Suriname, to be distributed both within Suriname and abroad. Am. Compl. ¶¶ 27-30. The Campaign also called for Everard to establish a social media presence for Suriname and to “act as Suriname's press office” in managing the country's public relations. See Reeder Decl., Ex. C at 4 (the “We Are Suriname” Campaign project estimate). The estimated cost of the Campaign, separate from the other three projects, was $3, 879, 211. Id. at 7.

The parties disagree, at times markedly, about precisely which ideas were conceived by whom and what work occurred where. According to Everard, it “conceived of the projects, ” including the Campaign at issue, “in New York.” Am. Compl. ¶ 5; Findlay Decl. ¶¶ 21-23. Further, Everard contends that the “development, design and all related tasks related to the preparation of the website . . . were all performed in New York” under Findlay's supervision and that the “majority” of other tasks occurred in New York, whether by Findlay himself or by New York-based subcontractors hired by Everard. Findlay Decl. ¶¶ 29-30; see also Id. ¶¶ 5, 32-33. By contrast, Suriname claims that the Campaign “was conceived by Suriname, in Suriname, ” and that Everard's “performance of the engagement was necessarily centered on Suriname.” Reeder Decl. ¶¶ 15-16. The parties agree, however, that Findlay personally traveled to Suriname at least ten times, for at least a week each trip, and held multiple meetings in Suriname during these visits. Id. ¶¶ 16-17; Findlay Decl. ¶ 30.

Nor do the parties agree whether the Campaign was targeted at New York and the United States-as is Everard's telling-or was targeted more generally to an international audience as well as inwardly to Suriname-as is Suriname's telling. According to Everard, “the target of the [Campaign] was the United States, specifically New York.” Findlay Decl. ¶ 21. It points, as proof, to emails sent by Suriname officials that suggest targeting wealthy tourists in the United States and media promotions in New York City. Id. ¶¶ 21-23. Everard also identifies an event hosted in New York City on April 9, 2014, that was attended by a Suriname government official and by Maikel Reeder, who was employed by the Suriname government to oversee and facilitate Everard's work. Id. ¶¶ 34-37; see Goossens Decl. ¶ 3, Dkt. No. 61. Suriname, for its part, argues that this targeting of the United States, and the events in New York City, were part of other projects-like the Designer Collaboration Project-and not the “Internal ‘We Are Suriname' Project, ” which it claims was intended to be internal to Suriname. Goossens Decl. ¶¶ 6-11. Notably, despite the “internal” descriptor, the description of the “We Are Suriname” Project refers repeatedly to branding efforts “internationally.” E.g., Reeder Decl., Ex. C at 2-3 (referring to “branding applications domestically and internationally, ” “[i]nternational placement” negotiated by Everard, placement with “international and local printed periodicals, ” and bringing “Suriname to the forefront of the international conversation”).

Everard contends that it performed the work satisfactorily and alleges that Suriname chronically made late payments and eventually ceased payment altogether. Am. Compl. ¶¶ 59, 61-66. In turn, Everard stopped working on its Suriname projects. Id. ¶ 68. Suriname argues that it ceased payments to Everard because its work was inadequate. See, e.g., Reeder Decl. ¶¶ 20-23. Everard claims that it is owed approximately $2.2 million in relation to the Campaign. Am. Compl. ¶¶ 71-72.

B. Procedural history

Everard filed suit against Suriname on September 28, 2018, Dkt. No. 1, and filed an amended complaint on April 15, 2019, Dkt. No. 24. The Court on April 30, 2020, granted Suriname's motion to dismiss, holding that the Foreign Sovereign Immunities Act barred the action. Dkt. No. 43. The Second Circuit on December 28, 2020, vacated the Court's decision, concluding that its intervening decision in Pablo Star Ltd. v. Welsh Government, 961 F.3d 555 (2d Cir. 2020), required that Suriname be denied sovereign immunity. Everard Findlay Consulting, LLC v. Republic of Surin., 831 Fed.Appx. 599 (2d Cir. 2020).

The Second Circuit remanded the case for the Court to consider Suriname's forum non conveniens argument, which the Court had not considered. Id. at 602 & n.3. Suriname filed the supplemental motion to dismiss, raising only a forum non conveniens argument, on March 5, 2021. Dkt. No. 54. The motion is fully briefed. Everard Br., Dkt. No. 55; Suriname Br., Dkt. No. 58; Everard Reply, Dkt. No. 60. The Court considers, too, the briefs submitted by the parties in support of, and in opposition to, Suriname's original motion to dismiss. Dkt. Nos. 30, 33, 39.

II. Legal Standard

Typically, a court considering a motion to dismiss “must limit its analysis to the four comers of the complaint.” Vassilatos v. Ceram Tech. Int'l Ltd., 92-CV-4574, 1993 WL 177780, at *5 (S.D.N.Y. May 19, 1993) (citing Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir. 1991)). “On a motion to dismiss for forum non conveniens that is decided without a factual hearing, the Court must accept as true the facts alleged in the complaint,...