ING Bank N.V. v. PORTLAND M/V et al

Filing 45

ORDER: GRANTING Motion to Compel Sufficient Disclosures [24}, and the Motionto Compel Discovery 26 . DENIES WITHOUT PREJUDICE Motion toVacate the Rule B Attachment of the M/V Portland and Reduce Security 18 . Ordered that Azuline is ordered to provide the Plaintiff with the initial disclosures specified in INGs Motion to Compel Sufficient Initial Disclosures on or before July 5, 2016, at 11:59 a.m. Signed by Judge John W. deGravelles on 06/16/2016. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ING BANK N.V.,

Plaintiff,

Case No. 3:15-cv-00805-JWD-RLB

v.

M/V PORTLAND, IMO NO. 9497854,
HER ENGINES, TACKLE,
EQUIPMENT, FURNITURE,
APPURTENANCES, ETC. IN REM, ET
AL.

Defendants.

ORDER AND RULING ON MOTIONS TO COMPEL DISCOVERY AND SUFFICIENT
DISCLOSURES AND TO VACATE RULE B ATTACHMENT
I.

INTRODUCTION
Before the Court is the Motion to Compel Sufficient Disclosures (“Motion for

Disclosure”), (Doc. 24), and the Motion to Compel Discovery (“Motion for Discovery”)
(collectively, “Plaintiff’s Motions” or “Relevant Motions”), (Doc. 26),1 filed by ING Bank N.V.
(“ING,” “Bank,” or “Plaintiff”), and the Motion to Vacate the Rule B Attachment of the M/V
Portland and Reduce Security (“Motion to Vacate”), (Doc. 18), filed by Azuline Shipping and

1

On April 8, 2016, the originally filed Motion for Discovery was replaced by another. (Doc. 28.)
Citations to Document Number 26 are to the swapped variant.
1 of 28

Trading Company (“Azuline”). Appearing “specially,” “restrictively,” and “solely” as the
claimant of one in rem defendant herein, Portland M/V, IMO No. 9497854 (“Portland”), as well
as her engines, tackle, equipment, furniture, equipment, furniture, appurtenances, and every part,
Azuline opposes Plaintiff’s Motions with the Memorandum in Opposition to ING’s Motion to
Compel Sufficient Initial Disclosures (“Opposition to Motion for Disclosure”), (Doc. 25), and
the Memorandum in Opposition to ING’s Motion to Compel Discovery (“Opposition to Motion
for Discovery”) (collectively, “Azuline’s Oppositions”), (Doc. 31). These five motions echo
points made in several other filings, including Plaintiff’s Motion for Leave to File Verified First
Amended Complaint (“Motion to Amend”),2 (Doc. 39); Plaintiff’s First Amended Verified
Complaint (“Amended Complaint”), (Doc. 42); and Azuline’s Notice of Opposition to ING’s
Motion for Leave to File Verified First Amended Complaint, (Doc. 43), (“Opposition to Leave”);

2

Federal Rule of Civil Procedure 15 “sets forth the applicable procedural mechanism for
amending a complaint.” United States v. Approximately $77,000.00 in U.S. Currency, No. 1:11cv-01251 GSA, 2013 U.S. Dist. LEXIS 179186, at *9, 2013 WL 6842889, at *3 (E.D. Cal. Dec.
20, 2013). According to its first paragraph, “[a] party may amend its pleading once as a matter of
course within 21 days after serving it, or . . . if the pleading is one to which a responsive pleading
is required, 21 days after service of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.” FED. R. CIV. P. 15(a)(1); Dueling v. Devon
Energy Corp., 623 F. App’x 127, 128 (5th Cir. 2015). “In all other cases, a party may amend its
pleading only with the opposing party’s written consent or the court’s leave,” and a court “should
freely give leave when justice so requires.” FED. R. CIV. P. 15(a)(2). For two different reasons, as
stated by this Court at the conference held on April 22, 2016, (Doc. 41), and as asserted in the
Motion to Amend, (Doc. 39), this Court granted the Motion to Amend. First, as Azuline itself
has never answered, the twenty-one day timespan set in Rule 15(a)(1) has not yet commenced.
Second, even if this watch had run by virtue of the filing of either Nomikos’ answer, (Doc. 15),
or Azuline’s Motion to Vacate, (Doc. 18), Rule 15(a)(2) “evinces a bias in favor of granting
leave to amend.” Mayeaux v. La. Health Serv. & Indem. Co., 376 F.3d 420, 425 (5th Cir. 2004).
Thus, “unless there is a substantial reason, such as undue delay, bad faith, dilatory motive, or
undue prejudice to the opposing party, the discretion of the district court is not broad enough to
permit denial.” Martin’s Herend Imports, Inc. v. Diamond & Gem Trading U.S. Co., 195 F.3d
765, 770 (5th Cir. 1999) (citations omitted) (internal quotation marks omitted). The Court found
no such motives or undue burden in light of, among other matters, Plaintiff’s general promptness
and Azuline’s refusal to permit even minimal discovery and evident ability to mount a credible
defense.

2 of 28

and Azuline’s Answer and Affirmative Defenses to the Verified First Amended Complaint
(“Amended Answer”), (Doc. 44). Unlike this matter’s substantive law, the single issue raised in
the Relevant Motions and presently contested by ING and Azuline (collectively, “Parties”) is
whether Plaintiff is entitled to discovery into facts supporting the jurisdictional claim, one
initially advanced in its first pleading (“Complaint”), (Doc. 1), and further amplified in the
Amended Complaint, (Doc. 42), that Portland “was and is beneficially owned, operated and
managed by” A.M. Nomikos Transworld Maritime Agencies, S.A. (“Nomikos”), “and is the alter
ego of the registered vessel owner, Azuline,” (Doc. 26-1). Plaintiff aks this Court to allow it to
conduct such discovery, as it is essential to establishing this tribunal’s subject-matter jurisdiction
(“jurisdictional discovery”) and remains questionable only by virtue of Azuline’s resistance to
Plaintiff’s every attempt at uncovering the relationship, if any, between Azuline, the Portland’s
recorded owner, and Nomikos, this same vessel’s purported manager. Azuline, in turn, requests
the Court to do the very opposite by granting its Motion to Vacate.
While both Parties rely on a handful of contrary cases,3 three longstanding principles
guide this Court’s resolution of this dispute. First, the scope of discovery under the Federal Rules
of Civil Procedure4 is broad, bounded by a few construed limits. Second, whenever a factual
question regarding a court’s jurisdiction exists, a party is traditionally entitled to receive an
opportunity to secure and present evidence related to this threshold issue, and the decision
regarding such discovery’s appropriateness lies wholly within the relevant trial court’s
discretion. Third (and relatedly), if such discovery is permitted, it should be circumspectly

3

Admirably, Defendant’s counsel acknowledged the paucity of case law during this Court’s
April conference.
4

In this order and ruling (“Ruling”), any and all references to “Rule” or “Rules” are to the
Federal Rules of Civil Procedure unless otherwise noted.

3 of 28

monitored and tightly demarcated. In general, then, the party is normally allowed to do no more
than necessary to verify allegations of specific facts crucial to a federal court’s jurisdictional
determination. Undeniably, admiralty, the substantive law which governs this suit, often compels
the application of unique principles. Nevertheless, these precepts’ retain their potency whenever
jurisdictional questions arise at a case’s commencement.
Accordingly, having employed these tenets, this Court concludes that, in the Complaint,
the Plaintiff has alleged sufficient facts that, if substantiated, would amply support this Court’s in
rem jurisdiction over the Portland and in personam jurisdiction over Nomikos, the defendant
being sued in personam and Azuline’s alleged alter ego, allegations properly and effectively
augmented in the Amended Complaint. Due to the evident plausibility of Plaintiff’s alter ego
claims, the Rules, which prioritize the just and efficient adjudication of every action and entitle
any party to discovery into any non-privileged matter that is relevant to its opponent’s claims or
defenses, strongly militate in favor of Plaintiff’s invocation of Rule 26, the statutory basis for
both the Motion for Disclosures and the Motion for Discovery. This result, in turn, is supported
by the overwhelming weight of the jurisprudence construing the Supplemental Rules for
Admiralty or Maritime Claims.5 Though Defendant has offered up a few cases to buttress its
response, these opinions are too few in number and too questionable in reasoning to persuade
this Court to disregard this venerable axiom.

5

In this Ruling, any and all references to “Admiralty Rule” or “Admiralty Rules” are to the
Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture, technically
amendments to the Rules themselves.

4 of 28

For these reasons, as discussed more fully below, this Court GRANTS the Motion for
Disclosures and the Motion for Discovery and DENIES WITHOUT PREJUDICE Azuline’s
Motion to Vacate.6

II.

BACKGROUND

A.

RELEVANT FACTS
Prior to this suit, O.W. Bunker & Trading A/S and O.W. Bunker China, Ltd.

(collectively, “Bunker”) made a number of deliveries to three separate vessels: the Portland; the
M/V/ Annika N., IMO No. 9514054 (“Annika”); and M/V Melchior, IMO No. 9100102
(“Melchior”) (collectively, “Supplied Vessels”). (Doc. 1 at 2–3; Dc. 42 at 2–3.) In the process,
Bunker issued invoices to Furness Withy Chartering Ltd. (“Furness”), “Nomikos’ broker for the
procurement, supply and delivery of bunkers, lubricants and other marine fuel to the Portland
and the other Supplied Vessels.” (Doc. 1 at 4.) The invoices appended to the Complaint bear this
out, as the first two are addressed to “A.M. Nomikos / Transworld Maritime Agencies SA / C/O
Furness Withy Chartering Co.” (See, e.g., Doc. 1-2 at 1, 5; Doc. 1-3 at 1, 5; Doc. 1-4 at 5.)
According to the Complaint, Nomikos had multiple “alter egos,” including AMN Bulk Carriers,
Inc. and A.M. Nomikos & Sons (UK) Ltd. (Doc. 1 at 11, 13–14; Doc. 42 at 11; see also Doc. 16
at 2.) Most relevantly to the case at hand, the Portland was alleged to be “beneficially owned,
operated and managed by Nomikos and Nomikos’ wholly owned and controlled subsidiary,”
Azuline,7 (Doc. 1 at 2, 4; Doc. 42 at 2, 4; Doc. 42 at 3, 4, 18, 19, 20–21), Portland’s “registered

6

Naturally, Azuline may freely refile this motion upon the conclusion of the Parties’ limited
discovery. Plaintiff’s failure to substantiate its allegations after such discovery may indeed prove
fatal to the Portland’s continued attachment.
7

The Answer was jointly filed by Nomikos and Azuline. (Doc. 15; Doc. 16 at 2.)

5 of 28

owner,”8 (Doc. 1 at 4). According to the Demetriades Affidavit, Azuline is a Librarian
corporation with a registered office of 80 Broad Street, Monrovia, Liberia, “wholly owned” by
Bass Holding SA (“Bass”), another Liberian company located at the same registered office.
(Doc. 18-3 ¶¶ 4 –6).
“[A] banking and financial services corporation or business entity organized and existing
under the laws of The Netherlands,” ING eventually became the “assignee of certain accounts,
assets and maritime liens” once owned Bunker. (Doc. 1 at 2; Docs. 1-1, 1-2, 1-3, 1-4; Doc. 42 at
2.) Allegedly, Plaintiff holds the accounts receivables owed by Nomikos for bunkers supplied
and delivered to the Subject Vessels. (Doc. 1 at 2; Dc. 42 at 2.) When Bunker defaulted on its
$70 million obligation to ING, (Doc. 1 at 3; Doc. 42 at 3), and after it declared bankruptcy, (Doc.
18-2 at 2 –3), pursuant to Section 1333 of the United States Code’s twenty-eighth title,9
Admiralty Rules C and B, and Rule 9(h), ING exercised its discretion to proceed against the
Portland in rem and Nomikos in personam. (Doc. 1 at 6–7; Doc. 42 at 7.) Pursuant to this Court’s
orders, ING secured the Portland’s arrest and attachment, (Docs. 7, 8), and the release of the
vessel was secured pursuant to a letter of undertaking given by United Kingdom Mutual Steam
Ship Assistance Association (Europe) Limited (UKE), (Doc. 10-1). Subsequently, when ING
sought to obtain initial disclosures and further discovery from Nomikos’ alleged alter ego,

8

In an “unsworn” affidavit attached to the Motion to Vacate (“Demetriades Affidavit”), (Doc.
18-3; Doc. 24-5), Mr. Christophoros Demetriades (“Demetriades”), “the sole director of
Azuline,” attempts to parry these allegations with detail. (Doc. 18-1 at 11; Doc. 18-3 ¶ 8.) For
example, Demetriades avers that Azuline had no more than a contractual relationship and shares
no corporate office with Nomikos and that Nomikos has no involvement in Azuline’s
“incorporation” or “day-to-day corporate operations.” (Doc. 18-3 ¶¶ 9–13.) He concludes with a
legal assertion: “Azuline and Nomikos are completely separate corporate entities with
independent corporate existences.” (Id. ¶ 16.)
9

In this Ruling, any and all references to “Section 1333” or “§ 1333” are to this particular
section of the Title 28 of the United States Code.

6 of 28

Azuline, (Doc. 24-1 at 1; Doc. 26-1 at 4), after Azuline filed the Motion to Vacate, Azuline
refused to supply any information. (See, e.g., Doc. 26-1 at 6–7.) Azuline did so for one apparent
reason: as its responses indicate, (Doc. 26-1 at 4–5), the Complaint’s purported deficiency under
Rule E(2)(a). See infra Part II.C.

B.

PROCEDURAL HISTORY
On November 30, 2015, ING filed four documents: the Complaint, (Doc. 1); the Motion

for Issuance of a Warrant of Arrest Pursuant to Admiralty Rule C (“Motion for Arrest”), (Doc.
2); and the Motion Authorizing Issuance of a Writ of Attachment and Garnishment Pursuant to
Supplemental Admiralty Rule B (“Motion for Attachment”), (Doc. 3); and the Motion to Allow
Vessel to Move Within Port (“Motion to Allow”), (Doc. 4). On that same day, this Court granted
the Motion for Arrest, (Doc. 6), the Motion for Attachment, (Docs. 7, 8), and the Motion to
Allow, (Doc. 9). This arrest and attachment was released at ING’s request on December 3, 2015.
(Doc. 10.) Azuline submitted the Notice of Verified Statement of Rights or Interest on December
16, 2015. (Doc. 13.) A scheduling order was entered on December 21, 2015. (Doc. 14.)
On January 21, 2016, Nomikos answered the Complaint. (Doc. 15.) Azuline tendered the
Motion to Vacate on March 14, 2016. (Doc. 18.) Plaintiff filed the Motion for Disclosure on
March 29, 2016, (Doc. 24); the Opposition to Motion for Disclosure arrived on April 8, 2016,
(Doc. 25). The Motion for Discovery came on April 8, 2016, (Docs. 26, 27-1), and Azuline’s
counter was first filed on April 15, 2016, (Doc. 31), and formally docketed on April 19, 2016,
(Doc. 37). In chambers, oral argument was held on April 22, 2016. (Docs. 38, 40.) At this
argument’s conclusion, the Court afforded Plaintiff an opportunity to request permission to
amend the Complaint pursuant to Rule 15. (Docs. 38, 40.) Plaintiff did so on April 27, 2016,

7 of 28

(Doc. 39), and the Amended Complaint was entered on April 29, 2016, (Doc. 42). Azuline filed
the Opposition to Leave on May 2, 2016. (Doc. 43.) Seventeen days later, Nomikos submitted
the Amended Answer. (Doc. 44.)

C.

PARTIES’ ARGUMENTS

1.

Motion for Disclosure
Plaintiff seeks an order to compel Azuline “to provide sufficient initial disclosures in

accordance with . . . [Rule] 26(a)(1) as concerns either the production of a copy or the provision
of a description of documents and tangible things Azuline has in its possession, custody, or
control to support” the Motion to Vacate. (Doc. 24 at 1.) Specifically, ING now demands a copy
or adequate description “including but not limited to” the following documents: (1) the
agreement between Azuline and Nomikos; (2) Azuline’s articles of incorporation; (3) the articles
of incorporation of Bass, Azuline’s alleged Liberian owner; (3) Azuline’s corporate resolutions;
(4) Bass’ corporate resolutions; (5) Azuline’s by-laws; (6) Bass’ by-laws; (7) Azuline’s tax
returns for the last three fiscal years; (8) Bass’ tax returns for the same period; and (9) any other
documents or tangible things that Azuline will rely on to support its defense that Nomikos is not
its alter ego. (See Doc. 25-1.) In making this request, Plaintiff characterizes the initial disclosures
provided by Azuline on March 23, 2016, as improper under Rule 26(a)(1)(A)(ii) due to Azulein’s
“failure to either produce a copy of or an adequate description of all documents and tangible
things that it may use to support its defenses.” (Doc. 24-1 at 2.)
The sole document “Azuline referenced in its Initial Disclosures” was the Demetriades
Affidavit. (Id.) Yet, even though this lone document “referenced the corporate documents and
shareholder information of Azuline and Bass,” these documents were never provided; only

8 of 28

Demetriades’ words were offered to substantiate Azuline’s defense. (Id. at 2–3.) More support
was lacking, as “Demetriade’s declaration also referenced an agreement between Azuline and
Nomikos concerning the M/V PORTLAND” that has never been provided. (Id. at 3.) In light of
both this absence of supporting documentation and one declaration’s plethora of unverifiable
claims, Azuline failed to comply with Rule 26(a)(1)(A)(ii) by having failed to provide any
specificity regarding the documents upon which it now relies to support its defense to Plaintiff’s
alter ego claim. (Id.) Contending that Rule 37(a)(4) allows this Court to punish Azuline for
“evasive or incomplete disclosure,” Plaintiff ends with a request for “an Order, pursuant to Fed.
R. Civ. P. 37(a)(3) to compel Azuline to supplement its initial disclosures either to produce a
copy of or to provide an adequate description of all documents referenced in Mr. Demetriades’
declaration and otherwise falling within the provisions of Fed. R. Civ. P. 26(a)(1)(A)(ii).” (Id. at
4.)
In response, Azuline attacks Plaintiff’s claims as “premised on the conclusory allegation
that Nomikos should be considered the beneficial owner of all three vessels because it is
purportedly the alter ego of the actual vessel owners.” (Doc. 25 at 1.) In its view, these assertions
do not meet Admiralty Rule E(2)(a)’s “requirement that such claims be pled with ‘particularity’
and ING cannot demonstrate ‘probable cause’ for its attachment of the PORTLAND.” (Id. at 2.)
Due to this pleading defect, Plaintiff “is not entitled to conduct post-attachment discovery in
response to Azuline’s Motion to Vacate” so as to “bolster retroactively its alter ego claims and
avoid dismissal.” (Id. at 2 (citing Oldendorff Carriers GmbH & Co., KG v. Grand China
Shipping (Hong Kong) Co., No. C-12-074, 2012 U.S. Dist. LEXIS 188347, 2012 WL 3260233,
at *8 (S.D. Tex. July 2, 2012)).) In other words, Azuline’s opposition to the Motion to Compel
is, first and foremost, predicated on the Complaint’s apparent inadequacy.

9 of 28

Nonetheless, Azuline maintains that the “initial disclosures are not deficient” and that
“parties are not entitled to compel the production of documents in connection with initial
disclosures.” (Id. at 3.) Regardless, it fully complied with Rule 26(a)(1)(A)(ii), as Rule only
requires “that Azuline disclose documents that Azuline may use to support its claims or
defenses,” not that It provide Plaintiff with “useful” documents. (Id. at 4 (emphasis in original)
(citing to Yaccarino v. Motor Coach Indus., Inc., No. 03-4527, 2006 U.S. Dist. LEXIS 97208, at
*21, 2006 WL 5230033, at *6 (E.D.N.Y. Sept. 29, 2006)).) Even if Azuline had to disclose the
requested documents, “Rule 26 only requires Azuline to provide ‘a description by category and
location’ of such documents.” (Id. at 5.) Azuline contends that “‘a listing of materials by
category . . . satisfies Rule 26(a)(1)(A)(ii)’’; such a listing it provided. (Id.; see also Doc. 24-3)
The objective of Rule 26(a)(1)(A)(ii) disclosures “is to enable the other parties to make informed
decisions about which documents they should request be produced pursuant to Rule 34, and to
enable them to frame document requests that will avoid squabbles about wording.” (Id. at 6
(internal quotation marks omitted) (quoting MILLER ET AL., FED. PRAC. & PROC. CIV. § 2052 (3d
ed. 1999)).) For these reasons, Azuline argues that Plaintiff’s “motion to compel should be
denied.” (Id. at 6.)

2.

Motion to Compel
Traceable to the same alleged intransigence behind the Motion for Disclosure, the Motion

to Compel “requests this Court enter an order compelling Azuline to respond to ING Bank’s
written discovery within 7 days.” (Doc. 26 at 1.) According to ING, Azuline chose not to comply
with Rule 26 when it willfully “did not provide any substantive answer to any of the foregoing
written discovery”; “[r]ather Azuline produced a total of 144 pages of objections,” in which the

10 of 28

same three cases are cited, (Doc. 26-1 at 2, 4 –5.) Azuline’s objections, which were primarily
that discovery was “premature in light of Azuline’s pending Motion to Vacate the Rule B
Attachment of the . . . PORTLAND and Reduce Security,” are contrary to the applicable law,
and should be overruled and stricken by the Court.” (Id. at 2, 5.) In support, Plaintiff first stresses
discovery’s great breadth and general liberality, so much so that “Parties resisting discovery bear
the burden of justifying their objections and bases for not responding to requests.” (Id. at 5–6
(citing to Chiasson v. Zapata Gulf Marine Corp., 988 F. 2d 513, 517 (5th Cir. 1993), and
McLeod, Alexander, Powel, & Apffel, P.c. V. Quarles, 894 F. 2d 1482, 1485 (5th Cir 1990)).)
Thereafter, pointing out that the Complaint asserts the Portland “was and is beneficially
owned, operated and managed by Nomikos, and is the alter ego of the registered vessel owner
Azuline,” Plaintiff now seeks no more than crucial information to verify the claims advanced in
Demetriades’ “self-serving declaration.” (Id. at 6.) Plaintiff argues that “a substantial amount of
the information rests within the sole custody of Azuline, Nomikos, and the other Nomikos alter
ego entities, to which ING Bank has directed its foregoing written discovery.” (Id.; see also, e.g.,
Doc 1 at 2.) As “[a]ll parties must be given a reasonable opportunity to present all the material
that is pertinent to the motion,” Plaintiff merits “an opportunity to obtain adequate discovery,” a
chance afforded by a number of other courts. (Id. at 6–7.) Indeed, while it can cite to numerous
opinions, Azuline relies on deeply flawed cases.10 (Id. at 7–9.) Thus, Plaintiff implores this Court
to follow a familiar principle—“When a factual question governs the Court’s jurisdiction, the
Plaintiff must have ample opportunity to secure and present evidence relevant to the
jurisdictional question”—and therefore “strike the objection of prematurity, and require Azuline
to fully and completely respond to each Request for Admission, Interrogatory, and Request for

10

These cases are dissected later in this Ruling. See infra Part III.B.2.

11 of 28

Production.” (Id. at 9.) In the end, because its every request bears upon “the alter ego status of
Azuline, Nomikos, and the other Nomikos alter egos near the time the M/V PORTLAND was
arrested and attached,” no other result accords with the Rules and with precedent.
On March 14, 2016, Azuline challenged the sufficiency of ING’s alter ego allegations by
means of the Motion to Vacate. (Doc. 31 at 2.) Quoting this rule, Azuline asserts: “Whenever
property is arrested or attached, any person claiming an interest in it shall be entitled to a prompt
hearing which the plaintiff shall be required to show why the arrest or attachment should not be
vacated.” (Id.) For the attachment not to be vacated, the pleading standard encoded in Admiralty
Rule E(2)(a) must be met. (Id. at 4 (citing, among others, United States v. $49,000 Currency, 330
F.3d 371, 376 n.8 (5th Cir. 2003)).) Per this criterion, “[a] plaintiff must, therefore, do more than
simply provide greater detail than it otherwise would be required to do under Rule 8 of the
Federal Rules of Civil Procedure.” (Id. (also citing Ronda Ship Mgmt. Inc. v. Doha Asian Games
Organising Comm., 511 F. Supp. 2d 399, 404 (S.D.N.Y. 2007)).) As encapsulated in the
Complaint, however, Plaintiff’s allegation that Azuline is Nomikos’ alter ego will not do, as it is
“unsupported by any substantive factual allegations and falls far short of Supplemental Rule
E(2)(a)’s requirement that such claims be pled with ‘particularity.’” (Id. at 2.) Therefore, “it
cannot be said that the PORTLAND is the property of Nomikos and the Rule B attachment
premised upon that fiction must be vacated.” (Id. at 2, 4 (relying on, among others, Vitol, S.A. v.
Primerose Shipping Co., 708 F.3d 527, 539 (4th Cir. 2013)).)
Per Azuline, “Rule E properly places the focus of the post-attachment hearing on the
allegations of the complaint.” (Id. at 6.) But, as written and docketed, the Complaint simply does
not meet its particularity requirement as construed by several courts, including Vitol, “[the]
leading case on this issue at the circuit level.” (Id. at 4–6.) With its first pleading so flawed,

12 of 28

having attempted to distinguish Plaintiff’s own case law, “ING is not entitled to embark on a
fishing expedition in the vain hope that it will discover some evidence to support its alter ego
theory.” (Id. at 6.) Regardless of discovery’s underlying goals, the result that it seeks—denial of
ING’s discovery motions and the Portland’s release—most closely cohere with the “core purpose
of Rule E”: while “[v]essel owners have long claimed that the ex parte nature of Rule B
attachments violates the procedural due process clause of the Fifth Amendment to the United
States Constitution,” “[t]hose challenges have been unsuccessful only because of the procedural
protections contained in Rule E.” (Id. at 10 (citing Schiffahartsgesellschaft Leonhardt & Co. V.
A. Bottacchi S.A. De Navegacion, 773 F.2d 1528, 1539 (11th Cir. 1985)).) Simply put, for the
same reason it opposed Plaintiff’s request for initial disclosures, Azuline now opposes the
Motion for Discovery: as a matter of law, Plaintiff is not “entitled to conduct discovery on its
alter ego theories in advance of the Court’s ruling on Azuline’s Motion to Vacate.” (Id. at 3.)

III.

DISCUSSION

A.

APPLICABLE LAW

1.

Admiralty Statute
In accordance with § 1333(1), any district court has “original jurisdiction, exclusive of

the courts of the States, of . . . [a]ny civil case of admiralty or maritime jurisdiction” and “[a]ny
prize brought into the United States and all proceedings for the condemnation of property taken
as prize.” 28 U.S.C. § 1333; Lozman v. City of Riviera Beach, 133 S. Ct. 735, 739, 184 L. Ed. 2d
604 (2013); Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 748, 181 L. Ed. 2d 881 (2012).
With constitutional roots, this statute both grants a district court the authority to grant
attachments and arrests in actions in rem and provides a sufficient basis for a court taking

13 of 28

jurisdiction over alter ego claims relating to the effected vessel. Flame S.A. v. Freight Bulk Pte
Ltd., 807 F.3d 572, 582 (4th Cir. 2015) (citing Swift & Co. Packers v. Companai Columbiana
Del Caribe, S.A., 339 U.S. 684, 689 n.4, 70 S. Ct. 861, 865 n.4, 94 L. Ed. 1206 (1950)); see also,
e.g., Chan v. Soc’y Expeditions, Inc., 123 F.3d 1287, 1294 (9th Cir. 1997); Atlanta Shipping
Corp. v. Chem. Bank, 631 F. Supp. 335, 341 (S.D.N.Y. 1986). Indeed, the Fifth Circuit has left
no doubt about the existence of this power and the jurisdictional nature of this inquiry: as it once
wrote, federal courts sitting in admiralty “can pierce the corporate veil of a corporation in order
to reach the ‘alter egos’ of the corporate defendant directly involved,” a “heavily fact-specific”
analysis. Talen’s Landing, Inc. v. M/V Venture, II, 656 F.2d 1157, 1160 (5th Cir. 1981); accord,
e.g., Crane v. Green & Freedman Baking Co., 134 F.3d 17, 21 (1st Cir. 1998); cf. Jackson v.
Tanfoglio Giuseppe, S.R.L., 615 F.3d 579, 586 (5th Cir. 2010) (“[A] court which has jurisdiction
over a corporation has jurisdiction over its alter egos.”); OS Shipping Co. v. Global Mar. Trust(s)
Private Ltd., No. 11-CV-377-BR, 2011 U.S. Dist. LEXIS 49054, at *14, 2011 WL 1750449, at
*6 (D. Or. May 6, 2011) (“Admiralty courts may pierce the corporate veil in order to reach the
‘alter egos’ of a corporate defendant.” (quoting Chan, 123 F.3d at 1294)). Of course, “[f]ederal
courts sitting in admiralty must apply federal common law when examining corporate identity.”
Holborn Oil Trading, Ltd. v. Interpetrol Bermuda, Ltd., 774 F. Supp. 840, 844 (S.D.N.Y. 1991);
accord, e.g., Clipper Wonsild Tankers Holding A/S v. Biodiesel Ventures, LLC, 851 F. Supp. 2d
504, 508–09 (S.D.N.Y. 2012).
As such, when one party articulates an alter ego claim and another attacks it as
purportedly insufficient, the extent of a court’s admiralty jurisdiction has been placed at issue,
and federal common law must be consulted. Cf., e.g., Sabine Towing & Transp. Co. v. Merit
Ventures, Inc., 575 F. Supp. 1442, 1446 (E.D. Tex. 1983) (citing Swift, 339 U.S. at 689). In

14 of 28

addition, the establishment of a non-party’s status as an alter ego and the precise import of an
alleged agency relationship in attachment matters frequently necessitates resolution of an
intensely factual jurisdictional inquiry over which this Court may exercise its constitutional and
statutory authority in admiralty cases. See, e.g., KPI Bridge Oil Singapore PTE Ltd. v. Berlian
Laju Tanker Tbk PT, No. C 12-00710 WHA, 2012 U.S. Dist. LEXIS 37751, at *10 –11 (N.D.
Cal. Mar. 20, 2012); ABN AMRO, Inc. v. Capital Int’l, Ltd., 595 F. Supp. 2d 805, 822 (N.D. Ill.
2008). Since a court’s jurisdiction over an alter ego is coextensive with its jurisdictional reach
over the sham (or dummy) corporation, facts relevant to an alter ego analysis are ineluctably
jurisdictional in nature and often clouded at a case’s inception. Cf., e.g., Dolco Invs. Ltd. v.
Moonriver Dev., Ltd., 486 F. Supp. 2d 261, 271 (S.D.N.Y. 2007); Wajilam Exports Singapore
Pte. Ltd. v. ATL Shipping Ltd., 475 F. Supp. 2d 275 (S.D.N.Y. 2006).

2.

Admiralty Rules
In this substantive area, the Rules and the Admiralty Rules intermingle, occasionally even

clashing. See SUP. MAR. R. A(2); United States v. $134,972.32 Seized from FNB Bank, Acct. No.
5351, 94 F. Supp. 3d 1224, 1229 (N.D. Ala. 2015). Whenever such a conflict emerges, the
Admiralty Rules rightly control. SUP. MAR. R. A(1)–(2), G(1); see also, e.g., Approximately
$77,000.00 in U.S. Currency, 2013 U.S. Dist. LEXIS 179186, at *9 n.2, 2013 WL 6842889, at
*3 n.2. Thus, though Azuline cites to Rule 8 and impliedly relies upon the Court’s Twombly and
Iqbal decisions, (See Doc. 31 at 6 n.14, 9–10), Admiralty Rule E contains the only relevant
pleading standard for such actions.11 See Vitol, 708 F.3d at 547. But see United States v. Vehicle

11

Crucially, the standard for dismissal remains the same, as the Admiralty Rules contain no specialized criterion.

15 of 28

2007 Mack 600 Dump Truck, 680 F. Supp. 2d 816, 827 (E.D. Mich. 2010) (citing United States
v. $ 41,580.00, 253 F. App’x 880, 881–82 (11th Cir. 2007)).
This rule requires that any “complaint . . . state the circumstances from which the claim
arises with such particularity that the defendant or claimant will be able, without moving for a
more definite statement, to commence an investigation of the facts and to frame a responsive
pleading.” SUP. MAR. R. E(2)(a). Per the Admiralty Rules’ plain text, this unique standard, rather
than any other erected by the Rules, applies when a court must pass on the sufficiency of the
action concerns, as it does so here, maritime attachment and garnishment. See, e.g., United States
v. 4323 Bellwood Circle, Atlanta, Georgia 30349, 680 F. Supp. 2d 1370, 1372 (N.D. Ga. 2010)
(finding that “the traditional pleading rules are modified by” the Admiralty Rules and applying
Admiralty Rule G(2) to determine the sufficiency of the forfeiture complaint); United States v.
$22,173.00 in United States Currency, 716 F. Supp. 2d 245, 249 (S.D. N.Y. 2010) (finding that
Admiralty Rule G(2), rather than Fed. R. of Civ. P. 8, governs the sufficiency of a civil forfeiture
complaint); United States v. All Assets Held at Bank Julius Baer & Co., Ltd., 571 F. Supp. 2d 1,
16 (D.D.C. 2008) (finding that Supplemental Rule G creates a heightened pleading requirement
for civil forfeiture complaints as compared to the Rule 8 standard applicable in other cases).
When forfeiture is sought, as a case cited by Azuline itself clarifies, (Doc. 31 at 4–5), it has also
been held to require that “a complaint . . . allege sufficient facts to support a reasonable belief
that . . . property is subject to forfeiture,” Vitol, 708 F.3d at 542; accord, e.g., U.S. v. Mondragon,
313 F.3d 862, 865 (4th Cir. 2002); see also, e.g., United States v. $829,422.42 in United States
Currency Seized from Account No. XXXXX2771 at Citibank, N.A., No. 3:08CV00914 (DJS),
2009 U.S. Dist. LEXIS 51133, at *14–15 (D. Conn. June 18, 2009). Thus, if a defendant can
“frame a responsive pleading” without the need for a more definite statement and so long as the

16 of 28

pertinent pleading’s allegations do not dwell solely in “the realm of the purely speculative,”
Admiralty Rule E’s unambiguous bar has been met and surpassed. E.g., Vitol, S.A., 708 F.3d at
545; Puerto Rico Ports Auth. v. BARGE KATY-B, 427 F.3d 93, 105 (1st Cir. 2007); Monragon,
313 F.3d at 865. While Rule 8 and Admiralty Rule E may overlap, the latter compels no greater
specificity, so says the opinion—the Fourth Circuit’s Vitol—that Azuline describes as the
“leading case this issue at the circuit level,” (Doc. 31 at 4). The factual allegations, taken as true,
need only support the relevant claim and allow a defendant to launch an investigation and frame
a response. See All Assets Held at Bank Julius Baer & Co., 571 F. Supp. 2d at 16.

3.

Rules’ Fifth Title
Rule 26 sets forth discovery’s basic limits, FED. R. CIV. P. 26, while Rule 1 sets forth the

overarching tenets—efficiency and justice—intended to dictate a court’s interpretation of any
single rule, FED. R. CIV. P. 1. Generally, Rule 26 allows for broad fact discovery into a party’s
claims and defenses, with courts admonished not to so narrowly apply them “so as to deprive a
party of the discovery that is reasonably necessary to afford a fair opportunity to develop and
prepare the case.” Jones v. Forrest City Grocery, Inc., No. 4:06CV00944-WRW, 2007 U.S. Dist.
LEXIS 19482, at *2 & n.3, 2007 WL 841676, at *1 & n.3 (E.D. Ark. Mar. 16, 2007) (quoting
Trevion v. Celanese Corp., 701 F.2d 397, 405 (5th Cir. 1983)). By precedent, its ambit is
circumscribed only by those limitations that “come into existence when the inquiry touches upon
the irrelevant” or when a request “encroaches upon the recognized domains of privilege” or
offends the balancing test set in Rule 26(b). Hickman v. Taylor, 329 U.S. 495, 508, 67 S. Ct. 385,
392, 91 L. Ed. 451 (1947). Pursuant to Rules 1 and 26, discovery should rarely be restricted if
ostensibly relevant evidence lies in another’s files on the basis of alleged irrelevance or asserted,

17 of 28

but unproved, inconvenience. As in all discovery matters, a district court’s discretion in
demarcating these borders is “broad.” Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841,
856 (5th Cir. 2000); accord, e.g., Belhas v. Moshe Ya’Alon, 515 F.3d 1279, 1290 (D.C. Cir.
2008). Inevitably, it is case-specific.

B.

APPLICATION
In light of the foregoing principles, Plaintiff’s Motions must be granted for two reasons.

First, admiralty law’s bare precedent supports Plaintiff’s Motions, a position equally consistent
with the pro-discovery mandate encoded in Rules 1 and 26. Second, the cases cited by Azuline in
its response to Plaintiff’s Request for Production, (Doc. 26-1), and whose conclusions it now
implores this Court to adopt, (See, e.g., Docs. 26, 31), do not fit this case’s particular set of facts.
Once these differences are uncovered, not one of these non-binding cases can be deemed wholly
dispositive or convincing. For these two causes, with this Court’s jurisdiction at issue and with
discovery having been impeded by Azuline’s ambiguous responses, this Court will honor the
Rules’ animating objectives: “Rule 26 must be read in light of its dual purposes of narrowing the
issues and eliminating surprise.” McHugh v. Olympia Entm’t, Inc., 37 F. App’x 730, 735 (6th
Cir. 2002); see also, e.g., U.S. Commodity Futures Trading Comm’n v. Parnon Energy, Inc., 593
F. App’x 32, 36 (2d Cir. 2014) (“Relevance to the subject matter under Rule 26 is construed
broadly to encompass any matter that bears on, or that reasonably could lead to other matter that
could bear on, any issue that is or may be in the case.” (internal quotation marks omitted)
(quoting Oppenheimer Fund v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389, 57 L. Ed. 2d
253 (1978))); Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998) (“The scope of
discovery under the Federal Rules of Civil Procedure is traditionally quite broad.”);

18 of 28

Teichgraeber v. Memorial Union Corp. of Emporia State Univ., 932 F. Supp. 1263, 1265 (D.
Kan. 1996) (“Discovery relevance is minimal relevance, which means it is possible and
reasonably calculated that the request will lead to the discovery of admissible evidence.”
(citation omitted) (internal quotation marks omitted)).12

1.

Sufficiency of the Complaint and the Propriety of Jurisdictional Discovery
In specifying the general limits for jurisdictional discovery in and outside of admiralty

law’s purview, the vast majority of federal courts have reached the exact same conclusion:
“When . . . there is . . . a factual question regarding a district court’s jurisdiction, the district court
must give the plaintiff ample opportunity to secure and present evidence relevant to the existence
of jurisdiction.” Hansen v. PT Bank Negara Indon., 601 F.3d 1059, 1063–64 (10th Cir. 2010)
(citing Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000), as to a
foreign sovereign’s entitlement to immunity); see also, e.g., Toys R Us., Inc. v. Step Two, 318
F.3d 446, 456 (3d Cir. 2003) (affirming the principle that “courts are to assist the plaintiff by
allowing jurisdictional discovery unless the plaintiff’s claim is clearly frivolous” and collecting
cases so concluding); Raccoon Recovery, LLC v. Navoi Mining & Metallurgical Kombinat, 244
F. Supp. 2d 1130, 1141 (D. Colo. 2002) (noting that a district “court has discretion to permit
limited discovery with respect to jurisdictional issues”); Gould, Inc. v. Pechiney Ugine Kuhlman,
853 F.2d 445, 451 (6th Cir. 1988) (same); Butcher's Union Local No. 498 v. SDC Inv., Inc., 788
F.2d 535, 540 (9th Cir. 1986) (same). The Fifth Circuit has itself described this juridical
obligation in the same terms. Box v. Dallas Mexican Consulate Gen., 487 F. App’x 880, 884 (5th

12

While the Rules were amended effective December 1, 2015, the relevance standard for discovery has not changed.
Instead, the proportionality factors once set in Rule 26(b)(2)(C) have now been moved into Rule 26(b)(1) so as to
reemphasize the fact that evidence’s discoverability is subject to the proportionality test first adopted in 1983.
Relevance itself, a discrete and separate yet oft-merged requirement, remains a relatively low threshold.

19 of 28

Cir. 2012); see also, e.g., McAllister v. FDIC, 87 F.3d 762, 766 (5th Cir. 1996) (“When a district
court makes factual determinations decisive of a motion to dismiss for lack of jurisdiction, it
must give plaintiffs an opportunity for discovery and a hearing that is appropriate to the nature of
the motion to dismiss”); cf. Intelsat Global Sales & Mktg. Ltd. v. Cmty. of Yugoslav Posts Tels.
& Tels., 534 F. Supp. 2d 32, 34 (D.D.C. 2008) (“[A] court should allow for limited jurisdictional
discovery if a plaintiff shows a non-conclusory basis for asserting jurisdiction and a likelihood
that additional supplemental facts will make jurisdiction proper.”). Naturally, convinced by this
overwhelming body of case law, court after court has authorized such precisely focused
discovery in admiralty cases. See, e.g., China Nat’l Chartering Corp. v. Pactrans Air & Sea,
Inc., 882 F. Supp. 2d 579, 588 (S.D.N.Y. 2012); Res. Marine Pte, Ltd. v. Solym Carriers
(London) Ltd., No. 2:12-cv-2554-JAM-GGH, 2012 U.S. Dist. LEXIS 179820, at *8, 2012 WL
6628966, at *3 (E.D. Cal. Dec. 19, 2012) (extending the general rule, as stated in Harris Rutsky
& Co. Ins. Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1135 (9th Cir. 2003), to maritime
attachment cases); Oldendorff Carriers GmbH & Co. KG v. Grand China Shipping (Hong Kong)
Co. Ltd., No. C-12-74, 2012 U.S. Dist. LEXIS 145949, at *4–5 (S.D. Tex. Oct. 10, 2012); Kite
Shipping LLC v. San Juan Navigation Corp., No. 11cv02694 BTM (WVG), 2012 U.S. Dist.
LEXIS 96199, at *19–21, 2012 WL 4049936, at *6–7 (S.D. Cal. Sept. 13, 2012); KPI Bridge Oil
Singapore PTE Ltd., 2012 U.S. Dist. LEXIS 37751, at *10–11. Indeed, when one party has
denied this principle’s application in an Admiralty Rule E(4)(f) proceeding, courts have not
hesitated to reject this position. See, e.g., KPI Bridge Oil Singapore PTE Ltd., 2012 U.S. Dist.
LEXIS 37751, at *12 –13 (finding that an alter ego claim has been alleged with sufficient detail
to trigger a right to jurisdictional discovery when the complaint stated that one entity had been
“dominated and controlled” by another); cf. Equatorial Marine Fuel Mgmt. Servs. PTE v. MISC

20 of 28

Berhad, 591 F.3d 1208, 1209–10 (9th Cir. 2010) (declining to consider a plaintiff’s new
contention that an agency relationship had existed).
Two other patterns can be discerned in case after case. First, many courts have passed
upon the merits of Admiralty Rule E motions to vacate only after they first provided the party
asserting jurisdiction with just such an opportunity. See, e.g., Sea Vill. Marina, LLC v. A 1980
Carlcraft Houseboat, No. 09-3292 (JBS-AMD), 2010 U.S. Dist. LEXIS 5936, at *10–11, 2010
WL 33806, at *3–4 (D.N.J. Jan. 26, 2010); OS Shipping Co. v. Global Mar. Trust(s) Private Ltd.,
No. 11–CV–377–BR, 2011 U.S. Dist. LEXIS 49054, at *2–3, 2011 WL 1750449, at *1–2 (D.
Or. May 6, 2011); Hawknet Ltd. v. Overseas Shipping Agencies, No. 07 Civ. 5912(NRB), 2009
U.S. Dist. LEXIS 44023, at *5, 2009 WL 1309854, at *2 (S.D.N.Y. May 6, 2009). Second, while
jurisdictional discovery may always be denied, the existence of a reasonable possibility of
finding sufficient proof can often tip the scale in its favor. See Wyatt v. Kaplan, 686 F.2d 276,
284 (5th Cir. 1982). Arguably, it may even be required in such circumstances. Id. (affirming the
denial of discovery on questions of personal jurisdiction where the discovery sought could not
have added any significant facts).
Here, the Complaint, both as filed and as supplemented by the Amended Complaint,
passes Rule E’s standard. Admittedly not the most detailed of pleadings, the Complaint did
proffer factual allegations that, if believed, as this Court is required to do for purposes of
Admiralty Rule E, would tend to establish Azuline’s status as an alter ego of Nomikos. In
particular, the Plaintiff has alleged that Azuline is under the “direct control and management of
Nomikos,” that the various entities are “controlled and operated by the same managers and
executives,” and that Nomikos is the true (and only) “beneficial owner.” (See, e.g., Doc. 1; Doc.
26-1.) Attachments to the Complaint, meanwhile, suggest that Nomikos operated under multiple

21 of 28

corporate guises. (See, e.g., Doc. 1-2, 1-3, 1-4.) Under applicable federal common law, such
indicia of shared control and such domination are two of the many factors considered in
establishing an artificial entity’s status as another’s mere alter ego. See, e.g., Vitol, S.A., 708 F.3d
at 544; Kilkenny v. Arco Marine Inc., 800 F.2d 853, 859 (9th Cir. 1986). Unsurprisingly,
therefore, such allegations have been held adequate enough to trigger a constricted period of
jurisdictional discovery. See, e.g., KPI Bridge Oil Singapore PTE Ltd., 2012 U.S. Dist. LEXIS
37751, at *12 –13
True, these factual allegations may be “conclusory,” as Azuline asserts in the Opposition.
(Doc. 31 at 3.) However, while this characterization may be fatal for purposes of Rule 56, it is
not under Admiralty Rule E, for this Court must accord the presumption of truth to these
allegations.13 See, e.g., 829,422.42 in United States Currency Seized from Account No.
XXXXX2771 at Citibank, N.A., No. 3:08CV00914 (DJS), 2009 U.S. Dist. LEXIS 51133, at *14–
15; United States v. $79,321, 522 F. Supp. 2d 64, 68 (D.D.C. 2007). Standing alone, the
Complaint’s allegations suggested the existence of Azuline as a dummy and a sham, telltale
indicia of an alter ego claim; Azuline promptly recognized as much in the Motion to Vacate, (See
Doc. 18-1 at 5), without impairing its ability to answer, (Doc. 15). See, e.g., United States v. One
Gulfstream G-V Jet Aircraft, 941 F. Supp. 2d 1, (D.D.C. 2013) (“At the pleading stage, [per Rule
E] it suffices for the government to simply allege enough facts so that the claimant may
understand the theory of forfeiture, file a responsive pleading, and undertake an adequate
investigation.”). As such, the Complaint, as now supplemented by the Amended Complaint, are
more than sufficient to establish ING’s entitlement to limited discovery as to Azuline’s plausible

13

Tellingly, Azuline’s own position—that “none of the registered owners are alter egos of
Nomikos,” (Doc. 18-1 at 4), echoed throughout Azuline’s Oppositions—is itself conclusory.

22 of 28

status as a sham corporation. In fact, as this case’s docket well shows, the Complaint surely
allowed Defendant to “frame a responsive pleading” on both its own and Nomikos’ behalf as
well as file a credible motion to vacate, thereby satisfying Admiralty Rule E’s particularly
standard. SUP. MAR. R. E(2)(a); Vitol, 708 F.3d at 545. In finding the Complaint sufficient for the
present and ordering further discovery into a single jurisdictional issue, this Court does no more
than adhere to a well-settled principle—“[T]he district court must give the plaintiff ample
opportunity to secure and present evidence relevant to the existence of jurisdiction,” Hansen, 601
F.3d at 1063–64—endorsed by the Fifth Circuit in a most persuasive opinion, Box, 487 F. App’x
at 884.
Significantly, this decision both to recognize the temporary viability of a satisfactory
pleading and to authorize discovery into a key issue, rather than to dismiss a complaint for a
mere formalistic or technical defect, is buttressed by two other facts. First, so as to counter
Plaintiff’s allegations, Azuline has so far presented nothing but the unsworn declaration of a man
over whom this Court has no apparent jurisdiction, a hodgepodge of eighteen paragraphs that
references sundry other documents and expects court and party to assume the veracity of those
unsupported assertions.14 (Doc. 18-3.) When sharply managed discovery may allow this Court to
conclusively confirm—or decisively negate—its jurisdiction, and when a complaint has made a
colorable jurisdictional claim, justice and logic caution against denying jurisdiction on the basis
of such unbacked evidence.
Second, jurisdictional discovery is no party’s right. Freeman v. United States, 556 F.3d
326, 342 (5th Cir. 2009) (“A party is not entitled to jurisdictional discovery if the record shows

In a revealing, if not directly applicable, example, when only such supported affidavits exist
and personal jurisdiction must be confirmed, a “plaintiff usually bears only a prima facie
burden,” Celgard, LLC v. SK Innovation Co., 792 F.3d 1373, 1378 (Fed. Cir. 2015); accord
Fielding v. Hubert Burda Media, Inc., 415 F.3d 419, 429 (5th Cir. 2005).
14

23 of 28

that the requested discovery is not likely to produce the facts needed to withstand a Rule 12(b)(1)
motion”). However, it is normally disfavored in similar circumstances only “where discovery
would be unnecessarily burdensome or futile.” Wright v. N.J./ Dep’t of Educ., 115 F. Supp. 3d
490, 497 (D.N.J. 2015). Yet, Azuline, a party’s undisputed owner, has so far steadfastly refused
to provide Plaintiff with more than a list of vague categories and 144-pages worth of objections.
Had some documentation and more than a scintilla of evidence been exchanged demonstrating
the fancifulness of ING’s alter ego claim, this Court may have denied the validity of Plaintiff’s
discovery requests. In such a situation, a finding of futility or onerousness would be anchored in
more than a defending entity’s assertion. But, having nothing to examine and forced to depend
purely on Azuline’s mostly undisturbed silence, this Court cannot determine whether such
discovery would be “unnecessarily burdensome” or “futile to [P]laintiff’s cause.” See, e.g.,
Everything Yogurt Brands, LLC v. M.A.R. Air Foods, Inc., No. 09-4847, 2009 U.S. Dist. LEXIS
94601, at *4–5, 2009 WL 3260629, at *2 (D.N.J. Oct. 9, 2009); Brownstein v. N.Y.U. Med. Ctr.,
No. 94-907, 1994 U.S. Dist. LEXIS 16760, at *20, 1994 WL 669620, at *6 (D.N.J. Nov. 22,
1994). In such cases, the better policy is to allow discovery, whether Admiralty Rule E or Rule 8
applies. See, e.g., McAllister, 87 F.3d at 766; China Nat’l Chartering Corp, 882 F. Supp. 2d at
588. So the Rules themselves suggest. See, e.g., Teichgraeber, 932 F. Supp. at 1265.

2.

Azuline’s Insufficient Case Law
Conversely, not one of the cases cited by Azuline in Opposition to Motion for Discovery,

(Doc. 31 at 5), and the Opposition to Motion for Disclosure, (Doc. 26; see also Doc. 26-1 at 4–
5), persuade this Court to reject this precedent’s directions. To Azuline, each case recognizes
“that a plaintiff is not entitled to bolster its case for an attachment by conducting post-attachment

24 of 28

discovery.” (Doc. 31 at 5.) Once each opinion is carefully read and its procedural posture is
diligently examined, however, its inapplicability to this proceeding is apparent.
Again and again, Azuline cites to one opinion, ignoring its pointed history: Oldendorff
Carriers GmbH & Co. KG v. Grand China Shipping (Hong Kong) Co. Ltd., C.A. No. C-12-074,
2012 U.S. Dist. LEXIS 188347, 2012 WL 3260233 (S.D. Tex. July 2, 2012). As ING rightly
notes, (Doc. 26-1 at 7–9), this decision was specifically overturned by the district court, at which
time the latter tribunal authorized precisely the kind of jurisdictional discovery that the Plaintiff
now seeks. 2012 U.S. Dist. LEXIS 145949, at *4–5 (S.D. Tex. Oct. 10, 2012). Pivotally here,
this decision, not the Magistrate Judge’s analysis, has ample support in the relevant
jurisprudence. See, e.g., EM Ltd. v. Republic of Argentina, 473 F.3d 463, 486 (2d Cir. 2007). As
the Fifth Circuit once advised, not even “the tension between permitting discovery to substantiate
exceptions to statutory foreign sovereign immunity and protecting a sovereign’s or sovereign
agency’s legitimate claim to immunity from discovery” should dissuade a court from compelling
discovery if it can “be ordered circumspectly and only to verify allegations of specific facts
crucial to . . . [that jurisdictional] determination.” Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d
528, 534 (5th Cir. 1992). In deciding this jurisdictional question—whether Azuline is Nomikos’
alter ego and thus subject to this Court’s jurisdiction under § 1333—this Court agrees.
Azuline’s second case, Unitas Fin. Ltd. v. Di Gregorio Havegacao Ltda., No. 99-1233
JCLLIFLAND, 1999 WL 33116415 (D.N.J. Nov. 8, 1999), is legally and factually distinct from
the present matter. First, this decision was ultimately based on “Third Circuit law” stating that
the garnishees’ status as insurers alone cannot form a basis to attach their accounts unless and
until plaintiffs are able to demonstrate that some debt is owed to defendant. Id. at *2. As such,
while controlling law forbade attachment in the absence of any other evidence in Unitas, Azuline

25 of 28

has not claimed that such an absolute rule governs here. Second, the plaintiff there had failed to
“suggest or demonstrate” that it had sought relevant discovery “from the garnishees during the
five months of attachment that preceded” their conclusory affidavit; hence, it made “no showing
to this Court of any efforts to obtain information regarding the insurance policies from
defendants or garnishees nor do they attest that garnishees have blocked any efforts at
discovery.” Id. at *4. In contrast, ING has long sought such discovery, only to be impeded by
Azuline’s documented resistance.
The next decision cited by Azuline, Mason Agency Ltd. v. Eastwind Hellas SA, No. 09
Civ. 6474 (DLC), 2009 U.S. Dist. LEXIS 91305, 2009 WL 3109821 (S.D.N.Y. Sept. 29, 2009),
is also pointedly dissimilar. In this New York case, the plaintiff had relied purely on three
contractual and quasi-contractual arguments; by its own choice, the plaintiff had thusly cabined
its own allegations and disavowed any other claim. Presented with such a focused complaint, the
district court predicated its decision on the “undisputed” fact that the relevant contract contained
no reference whatsoever to the defendant. Id. at *8. Here, ING had imperfectly articulated an
alter ego claim in the Complaint, an allegation that is doctrinally independent of any particular
contract and state body of law and that has now been supplemented by its second pleading. (See,
e.g., Doc. 1 at 2; Doc. 42 at 18.)
Azuline’s final case, Deiulemar Shipping SPA v. Probulk Carriers Ltd., 348 F. App’x
608 (2d Cir. 2009), is simply inapposite, its import oversold. In this unpublished decision
upholding the district court’s denial of a request for jurisdictional discovery, the Second Circuit
did not, as Azuline now asserts, recognize that “a plaintiff is not entitled to bolster its case for an
attachment by conducting post-attachment discovery,” (Doc. 31 at 6). Instead, the Second Circuit
there did no more than affirm a lower court’s decision, under the generous abuse of discretion

26 of 28

standard, choosing not to authorize such discovery. Deiulemar, 348 F. App’x at 609. As such, no
definite prohibition on such discovery was mentioned, much less endorsed; the decision not to
authorize such an undertaking was alone affirmed. Additionally, as this three-paragraph opinion
intimates, some discovery had, in fact, taken place prior to the relevant motion’s tendering. Id.
The district court thus possessed a record which allowed it to reach a number of factual
conclusions to which the circuit court applied the clearly-erroneous standard and chose not to
order “further discovery,” not all discovery. Id. (emphasis added). Because it is the latter that
Azuline has attempted to foreclose with its discovery responses, Deiulemar is readily
distinguishable.

IV.

CONCLUSION
Analyzed holistically, the Complaint and Amended Complaint’s alter ego claims as to

Azuline satisfy Admiralty Rule E(2)(a), thereby obviating the basis of Azuline’s Motion to
Vacate. Nonetheless, as Azuline has credibly raised questions about this Court’s jurisdiction, and
before this Court can decide these crucial threshold questions, precedent requires that ING be
given an opportunity to conduct the very discovery that Azuline itself has hindered. Accordingly,
this Court GRANTS ING’s Motion to Compel Sufficient Disclosures, (Doc. 24), and the Motion
to Compel Discovery, (Doc. 26), and DENIES WITHOUT PREJUDICE Azuline’s Motion to
Vacate the Rule B Attachment of the M/V Portland and Reduce Security, (Doc. 18). So as to
ensure this discovery is properly limited, on or before 11:59 a.m. on July 5, 2016, the Parties are
to submit a joint schedule for limited discovery as to ING Bank’s alter ego claim, as
encapsulated in the Amended Complaint, and Azuline is ordered to provide the Plaintiff with the

27 of 28

initial disclosures specified in ING’s Motion to Compel Sufficient Initial Disclosures on or
before July 5, 2016, at 11:59 a.m.
Signed in Baton Rouge, Louisiana, on June 16, 2016.

S

JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

28 of 28