United Coals, Inc. v. Attijariwafa Bank

UNITED COALS, INC. Plaintiff, v. ATTIJARIWAFA BANK, Defendant.

Civil Action No.: 1:19-cv-95

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

April 14, 2020

(Kleeh)

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS [ECF NO. 4]

Pending before the Court is Defendant Attijariwafa Bank's Motion to Dismiss and Notice Pursuant to Rule 44.1 of the Federal Rules of Civil Procedure. The issues have been fully briefed and the matter is ripe for decision. For the reasons discussed herein, the Court DENIES the motion.

I. PROCEDURAL HISTORY

Plaintiff filed this action in the Circuit Court of Harrison County, West Virginia on November 5, 2018. ECF No. 1-1 at 19. Its Complaint alleges two causes of action: breach of contract and promissory estoppel. Id. at ¶¶104-113 and 114-123. Defendant removed the matter to the United States District Court for the Northern District of West Virginia on April 24, 2019. ECF No. 1. This Court entered its First Order and Notice establishing certain deadlines on April 30, 2019. ECF No. 2. By the parties' joint motion, the Court stayed those deadlines. ECF No. 11. Defendant filed its Motion to Dismiss on jurisdictional grounds on May 17, 2019. ECF No. 4. Plaintiff responded in opposition and Defendant filed its reply brief on June 28, 2019. ECF Nos. 15 and 20. This Court entered its Order denying the Motion to Dismiss on March 30, 2020. ECF No. 32. This Memorandum Opinion now follows outlining the Court's analysis in detail.

II. FACTUAL BACKGROUND

According to the Complaint,¹ Plaintiff United Coals, Inc. ("United") had interest in establishing a business relationship with the Electricity Branch of the Moroccan National Office of Electricity and Drinking Water ("ONEE"). ECF No. 1-1 at ¶6. To that end, United appointed a registered agent in Morocco, Richard G. Leon ("Leon"). Id. at ¶2. Leon was initially appointed United's agent around October 10, 2013. See Declaration of Jeffrey A. Goldizen, ECF No. 15-1, at ¶5. He was United's only agent in Morocco. Id. United also initiated contact and a business relationship with Defendant Attijariwafa Bank ("the Bank").

A non-addressed letter announcing Leon's agency was provided to the Bank. Id. Of note, that letter indicates Leon was appointed United's sole representative with respect to "(i) procuring debt or equity capital from banks or other sources from the country of Morocco, (ii) procuring coal purchase contracts from the country of Morocco and (iii) pursuing such other business activities and ventures as may benefit United Coals, Inc." Id. at Ex. 1. The same letter notes Leon was appointed by "United Coals, Inc., West Virginia, USA." Id.

Specific notice of Leon's agency was provided to the Bank in a letter addressed to Mr. Mohammed Kamal ED-DAHABI dated December 30, 2013. Id. at ¶7 and Ex. 2. That same letter outlines the contracts United secured with ONEE and requests the Bank open an account for United to handle the two transactions. Id. at Ex. 2. United was specific that the account would be used to manage the letter of credit with ONEE and must be able to send and receive international wire transfers both to and from the United States of America. Id. The letter, authored by Goldizen, was sent on United's letterhead noting its Clarksburg, West Virginia location and was notarized by a West Virginia notary public. Id.

United alleges it contracted with ONEE to ship coal to ONEE at the Port of Casablanca, Morocco. Id. at ¶6-8. Those shipments were covered by two different contracts, ONEE Contract No. 415 andONEE Contract No. 425. ECF No. 1-1 at ¶6. Contract No. 415 was for a shipment of 192,000 metric tons of steam coal in six cargoes while Contact No. 425 called for 96,000 metric tons of steam coal delivered to the Port of Casablanca in three cargoes. Id. Together, the ONEE contracts had a gross value of $26,784,000 to United. ECF No. 15-1, at ¶4.

ONEE agreed to pay United through irrevocable documentary credit at a prime bank in favor of United. EFC No. 1-1 at ¶10. Initially, as of December 30, 2013, United expected ONEE to apply to the Bank for issuance of the letters of credit pursuant to the terms of Contract No. 415 and Contract No. 425. Id. at ¶11. In the December 30, 2013 letter described above, United opened an account with Defendant Attijariwafa Bank to accept and distribute wire transfers and manage its Line of Credit with ONEE. ONEE later decided to have a different bank issue the required letters of credit. Id. at ¶13.

Plaintiff intended to fulfill its coal shipment obligations to ONEE with coal purchased from Emerald International Corporation ("Emerald"), a Kentucky-based coal company. Id. at ¶¶23-24. The coal was located near New Orleans, Louisiana and was to be shipped directly from the state of Louisiana to a Casablanca, Morocco port. Id. at ¶14. Prior to entering into any contractual relationship with Emerald, United arranged for transport of the coal with aBahamas-based broker, Agriculture & Energy Carriers, Ltd. Id. Eventually, the M/V Mardinik vessel was designated to transport the coal. That vessel was based at Myrtle Grove, Louisiana. Id. at ¶¶14-18.

United opened its account, 0541 R 000428033, with the Bank's Casablanca, Morocco branch. Id. at ¶34. United alleges at least one agreement was in place between it and the Bank with respect to that account. Declaration of James L. Marketos, ECF No. 15-2 at ¶¶5-7 and Ex. 1.²

The Complaint alleges a number of transactions and events related to United's claims against the Bank. Specifically, United alleges the Bank repeatedly promised to provide letters of credit to support United in its efforts to perform its obligations under the ONEE contracts. ECF No. 1-1 at ¶¶55, 62 and 80. United further alleges it took action or refrained from acting in reliance on the Bank's promises. Id. at ¶57. United alleges its reliance on the Bank caused it financial harm as the Bank allegedly never fulfilled its promises. Id. at ¶¶68, 71, 72 and 79. United further alleges communications between the Bank and Leon, United's authorized Moroccan agent. Id. at ¶25; ECF No. 15-1 at ¶14. Inits response to the pending motion, United also identifies five (5) communications it alleges were direct from the Bank to Jeffrey A. Goldizen, United's West Virginia-based President and sole shareholder:

1. April 9, 2014 email³ forwarding proof of payment of a Bank fee (ECF No. 15-1 at ¶15);

2. April 10, 2014 email regarding issuance of a letter of credit (Id.);

3. April 28, 2014 letter advising of a letter of credit (Id.);

4. April 28, 2014 email forwarding acknowledgment of Plaintiff's order to wire funds to Emerald (Id.); and,

5. April 30, 2014 email forwarding a letter (15-1 at ¶15).

There were numerous communications with United's agent in Morocco however.⁴ Id. at ¶14; see also Compl. Goldizen states Leon kept him "regularly abreast of such communications." Id.

III. APPLICABLE STANDARD

When a federal court's personal jurisdiction is challenged under Federal Rule of Civil Procedure 12(b)(2), it is ultimately the plaintiff's burden to prove that jurisdiction exists by a preponderance of the evidence. See Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 396 (4th Cir. 2003) (citation omitted); see also Clark v. Milam, 830 F.Supp. 316, 318-19 (S.D.W. Va. 1993). When the court addresses the jurisdictional question "on the basis only of motion papers, supporting legal memoranda and the relevant allegations of a complaint, the burden on the plaintiff is simply to make a prima facie showing of a sufficient jurisdictional basis to survive the jurisdictional challenge." New Wellington Financial Corp. v. Flagship Resort Development Corp., 416 F.3d 290, 294 (4th Cir. 2005). A plaintiff's burden is not considered particularly heavy. See Stand Energy Corp. v. Columbia Gas Transmission Corp., Docket No. 2:04-CV-0867, 2005 WL 1926639, at *2 (S.D.W. Va. August 8, 2005) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §1351 (1990)). "Mere allegations of personal jurisdiction are sufficient for a party to make a primafacie showing." Clark, 830 F. Supp. at 319 (internal quotations and citations omitted). "In determining whether the plaintiff has made the requisite showing, the court must construe all relevant allegations of the pleadings and draw all reasonable inference in favor of the existence of jurisdiction." Carefirst, 334 F.3d at 396.

Two conditions must be satisfied for a district court to assert personal jurisdiction over a non-resident defendant: (1) a state long-arm jurisdiction statute must authorize jurisdiction over the non-resident defendant; and (2) the court's exercise of personal jurisdiction over the nonresident defendant must "comport with the Due Process Clause." Mylan Lab, Inc., 2 F.3d at 59-60. Because "the West Virginia long-arm statute is coextensive with the full reach of due process, it is [sometimes] unnecessary ... to go through the normal two-step formula for determining the existence of personal jurisdiction." In re Celotex Corp. v. Rapid Am. Corp., 124 F.3d 619, 627-28 (4th Cir. 1997) (citation omitted); see also York v. Property and Casualty Ins. Co. of Hartford, No. 2:12cv06582, 2013 WL 5504435 (S.D.W. Va. Oct. 3, 2013) ("[T]he statutory inquiry merges with the constitutional inquiry, and the two inquires essentially become one."). Therefore, the court's inquiry primarily focuses on whether theexercise of personal jurisdiction over the non-resident defendant is consistent with the Due Process Clause.

It is well established that the exercise of personal jurisdiction over the non-resident defendant is consistent with the Due Process Clause "if the defendant has sufficient 'minimum contacts' with the forum such that requiring the defendant to defend its interests in the forum does not 'offend traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). When...