NATIONAL INDEMNITY COMPANY v. COMPANHIA SIDERURGICA NACIONAL S.A. et al

Filing 86

OPINION. Signed by Judge Jose L. Linares on 2/8/16. (cm )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

NATIONAL INDEMNITY COMPANY,

Civil Action No.: 15-752 (JLL)

Plaintiff,

OPINION

V.

COMPANHIA SIDERURGICA NACIONAL
S,A. & CATALYST RE CONSLUTING,
L.L.C.
Defendants.
LINARES, District Judge.

This matter comes before the Court by way of a motion to dismiss for
lack of personal
jurisdiction filed by Defendant Companhia Siderurgica Nacional, S.A.
(“CSN”).’ (ECF No. 79,
“CSN’s Mov. Br.”). Plaintiff National Indemnity Company (“NICO”)
and Defendant Catalyst Re
Consulting, L.L.C. (“Catalyst Re”) have opposed CSN’s motion. (ECF
2
Nos. 80, “Pl.’s Opp. Br.”;
81, “Catalyst Re’s Opp. Br.”). CSN has filed a reply to the opposi
tion. (ECF No. 82, “CSN’s
Reply Br.”). The Court decided this matter without oral argument pursua
nt to Federal Rule of
Civil Procedure 78, and for the reasons stated herein, the Court grants
in part and denies in part
CSN’s motion to dismiss for lack of personal jurisdiction.

l

CSN also seeks dismissal on the grounds that it was not properly served
. (CSN’s Mov. Br. at 19-24). However, this
Court indicated in its December 17, 2015 text order (ECF No. 78)
that the Court will reserve ruling on Plaintiff’s
related motion (ECF No. 6) for alternative service until after its
determination on the personal jurisdiction issue.
Accordingly. CSN’s arguments for dismissal based upon improper
service will be dealt with after the Court issues the
instant Opinion and accompanying Order.
2
parties dispute whether Catalyst Re has standing to oppose this motion
. (See ECF Nos. 83-85). Having reviewed
Catalyst Re’s moving brief, and fmding that it fails to raise any argum
ents not otherwise raised by Plaintiff, the Court
will disregard Catalyst Re’s opposition brief entirely. The Court
also notes that Plaintiff attached Catalyst Re’s
opposition brief and all exhibits thereto in support of its opposi
tion brief. Although the Court declines to consider
Catalyst Re’s brief itself, the Court will consider the exhibits attache
d thereto and cited by Plaintiff in its brief. That
Plaintiff chose to attach these documents as an exhibit to Catalyst Re’s
brief, rather than as separate exhibits to its own
briet does not preclude the Court from considering these documents.

1

L

3
BACKGROUND

A. The Parties

Plaintiff NICO is a Nebraska insurance company that provides reinsurance (also known
as
“retrocessional coverage”) to insurers in the United States and abroad. (Compi.
4

¶ 4). NICO’s

principle place of business is Omaha, Nebraska. (Id.). IRB Brasil Resseguros S.A.
(“IRB”) is a
Brazilian insurance company (Compi.

¶ 16) who, although initially named as a defendant, has

since been dismissed from the case without prejudice. (ECF No. 74). Defend
ant CSN is a
Brazilian corporation and “one of the largest conglomerates in Brazil with interests
in steel, iron
ore, mining, and various other operations.” (Compl.

¶ 13). Defendant Catalyst Re is a reinsurance

broker located and operating out of New Jersey that specializes in securing reinsur
ance coverage
for South American businesses. (Compi.

¶ 18).

B, Pertinent Facts
a. The Alleged Reinsurance Contract

Plaintiff filed the instant action on February 2, 2015, seeking declaratory relief
as well as actual
damages against Defendants for alleged tortious conduct relating to
a reinsurance contract
allegedly entered into between Plaintiff and IRB. Specifically, Plaintiff alleges
claims of tortious

The facts as stated herein are taken as alleged in Plaintiff’s Complaint. (ECF No.
1, “Compi.”). For purposes of this
Motion to Dismiss, these allegations are accepted by the Court as true. See Phillip
s v. County ofAllegheny, 515 F.3d
224, 228 (3d Cir, 2008) (“The District Court, in deciding a motion [to dismis
s under Rulel 12(b)(6), was required to
accept as true all factual allegations in the complaint and draw all inferences
from the facts alleged in the light most
favorable to [the plaintiff].”).
“Reinsurance is an arrangement whereby an insurer (the reinsured or the ceding
company) cedes or transfers all or
part of the risk on an underlying insurance policy or group of policies to a reinsur
er, which agrees to indemnify the
ceding company for the risk transferred in exchange for receiving a premium.
Reinsurers may, in turn, cede all or part
of the risk they have agreed to reinsure to other reinsurers. This type of arrang
ement is known as retrocessional
coverage and the reinsurer ceding the risk and the reinsurer accepting the risk are
referred to as, respectively, the
retrocedent and the retrocessionaire.” (Compl. 11).
¶
‘

2

interference with a contractual relationship (Count II), tortious interference
with economic
advantage (Count III), unjust enrichment (Count IV), injurious falsehood (Coun
t V), prima facia
tort (Count VI), and civil conspiracy (Count VII).
According to Plaintiff, in 2007, CSN purchased a direct insurance policy (the “2007
CSN
Sul America Policy”) from Sul America Cia Nacional de Seguros (“Sul America”) for
the period
of January 21, 2007 to November 21, 2007 (the “Original Period”). (Comp
i.

¶J

14-15). Sul

America is a Brazilian insurance company, and is not a party to this action. (Id.
¶ 15). Sul America
and CSN later extended the 2007 CSN-Sul America Policy from November 21, 2007
to February
21, 2008 (the “Extension Period”). (Id.). CSN’s direct policy provided for
$750 million in
coverage. (Id.).
To protect itself against risk of loss, Sul America reinsured about $748 million of
the $750
million 2007 CSN-Sul America Policy through IRB. (Id. 16). IRB, in turn, sought
retrocessional
¶
coverage of approximately $725 million of the $748 million in reinsurance of the
2007 CSN-Sul
America Policy. (Id.

¶

17). To that end, Plaintiff alleges that “[o]n or about November 5, 2007,

Alexandre Leventhal of Catayist Re [the New Jersey-based reinsurance broker
] approached NICO
describing himself as an agent for TRB, to request that NICO provide retroce
ssional coverage for
IRB’s reinsurance of the 2007 CSN Policy (for the Extension Period only).”
(Id.

¶

18). NICO

alleges that NICO and IRB entered into an agreement whereby IRB paid NICO
approximately
$760,000 in premium in consideration of NICO providing retrocessional covera
ge in the amount
of $60,850,000 (the “2007 Retrocessional Contract”). (Id. 19).
¶
CSN thereafter secured direct insurance from a Brazilian insurance compa
ny by the name
of Mapfre Seguros (the “2008 CSN-MS Policy”) for the period of Februa
ry 21, 2008 through
February 21, 2009. (Id.

¶ 21).

Plaintiff alleges that IRB reinsured the 2008 CSN-MS Policy and

3

that IRB again acted through its New Jersey-based reinsurance broker, Catalyst Re, to
purchase
reinsurance coverage from NICO as well as other non-Brazilian reinsurers. (Id.

¶ 22).

Plaintiff

alleges that NICO and IRB entered into an agreement whereby NICO agreed
to provide
$189,680,000 in retrocessional coverage (the “2008 Retrocessional Contract”) in exchan
ge for
IRB’s payment of an approximately $9 million premium. (Id.

¶ 23).

In early 2008, Mr. Leventhal of Catalyst Re notified NICO that IRB would not be able
to
pay the set premium within the timeframe provided for in the 2008 Retrocessional Contra
ct. (Id.

¶

25). After learning about the delay in payment, “CSN, out of concern that such
delay might

negatively impact its recovery of losses under the 2008 CSN Policy, instructed Mr.
Leventhal to
communicate to NICO, on its behalf and as its agent, that CSN would guarantee payme
nt of the
premium owed by IRB to NICO under the 2008 Retrocessional Contract.” (Id.

¶

26). The

Complaint alleges that Mr. Leventhal, acting as CSN’s agent, wrote to NICO
informing it that
CSN would pay the approximately $9 million premium and requesting an extens
ion of time by
which CSN could make the payment. (Id.

¶ 28).

NICO agreed to the extension. (Id. ¶ 29). Then,

“[i]n April 2008, CSN, to fulfill IRB’s premium obligation to NICO, wired over
$20 million into
a ‘premium account’ located in Ridgewood, New Jersey which was owned and
controlled by
Catalyst Re to be used to pay the premium owed by IRB to NICO (as well
as to other IRB
retrocessionaires).” (Id.

¶ 31).

On or about April 22, 2008, Catalyst Re wired approximately $9

million of the premium funds from CSN to NICO. (Id.

¶ 32).

Plaintiff alleges that “[fjollowing NICO’s issuance of the 2008 Retrocessiona
l Contract,
IRB affirmed and acknowledged the validity of that contract on a number
of occasions. CSN’s
agent, Faber Global, also confirmed to NICO the existence of the 2008 Retroc
essional Contract.”
(Id.

¶ 33).

It is the existence and circumstances surrounding this 2008 Retrocessiona
l Contract,

4

and CSN’s payment of the approximately $9 million premium to NICO, via Cataly
st Re, which is
at the center of this dispute.

b. Alleged Repudiation of the 2008 Retrocessional Contract
In 2008, CSN filed a claim for property loss under the 2007 and 2008 CSN Policie
s, but
later limited its claim to coverage of the Original Period of the 2007 CSN-Sul Ameri
ca Policy.
(Id.

¶ 34). CSN then filed a coverage action in Brazil against Sul America and IRB relating to

coverage under the 2007 CSN-Sul America Policy (the “Coverage Action”). (Id.
¶ 34). This claim
was settled in November 2013, and IRB thereafter turned to NICO for coverage under
the 2007
Retrocessional Contract. (Id.

¶ 35). IRB’s coverage claim with NICO was ultimately resolved in

arbitration. (Id.).
On November 26, 2014, CSN c-mailed NICO requesting that NICO pay CSN
the $9
million premium that Catalyst Re had wired to NICO to effectuate the 2008 Reinsu
rance Contract
between NICO and IRB. (Id.

¶ 36). In that same e-mail, CSN explained that it had filed a lawsuit

in Brazil (the “Court Action”) against IRB (separate from the above-discussed Covera
ge Action)
when IRB failed to acknowledge that it was the reinsurer of CSN’s 2008 Policy
. (Id.). The Court
Action was settled by way of a Settlement Agreement executed on November
27, 2013. (Id. ¶ 38).
In the November 26, 2014 e-mail to NICO, CSN stated “that IRB, in the Settlem
ent Agreement,
had confirmed that it was, in fact, the reinsurer of the 2008 CSN Policy but
denied that it had
purchased any retrocessional coverage, including the 2008 Retrocessional
Contract with NICO,
for its reinsurance of the 2008 CSN Policy.” (Id.

¶ 39). CSN informed NICO that IRB agreed to

help CSN retrieve the $9 million premium that CSN paid to NICO to secure
the completion of the
2008 Retrocessional Contract. (Id.).

5

c. NICO’s Allegations and Relief Sought

Against this backdrop, Plaintiff alleges that “[t]he Settlement Agreement was an [sic]
wrongful and collusive act by IRB and CSN to deprive NICO of premium that it had rightfu
lly and
duly earned more than five years earlier in 2008 as consideration for assuming substa
ntial risk of
loss under the 2008 Retrocessional Contract (i.e., up to $189,680,000 in losses) from Februa
ry 21,
2008 to February 21, 2009, when the agreement was in full force and effect.
” (Id.

¶ 43).

Accordingly, Plaintiff requests a judgment from this Court:
(1) Declaring that the 2008 Retrocessional Contract is a binding and enforceable agreem
ent
between IRB and NICO; (2) Declaring that CSN is not in privity with NICO under
the
2008 Retrocessional Contract or any other agreement; (3) Declaring that CSN has no
rights
or interests in any of the premium paid to NICO under the 2008 Retrocessional Contra
ct;
[and] (4) Declaring that CSN has no rights or interests in any of the premium paid
to NICO
under the 2008 Retrocessional Contract.
(Id. at 17).
In addition to seeking declaratory relief, Plaintiff alleges the following claims agains
t CSN,
which are premised upon its allegedly wrongful execution of the Settlement
Agreement: (1)
tortious interference with a contractual relationship (Count II); (2) unjust enrichm
ent (Count IV);
(3) injurious falsehood (Count V), and; (4) civil conspiracy (Count VII). In Count
III, Plaintiff
alleges tortious interference with economic advantage against Catalyst Re, specifi
cally alleging
that NICO entered into the 2008 Retrocessional Contract based in part
upon Catalyst Re’s
representations, on behalf of CNS and IRB, that the these parties intende
d to effectuate that
5
Contract.

II.

LEGAL STANDARD

Count IV of the Complaint alleges prima facia tort as against IRB only. (Compi.
at 15). As 1KB has been
dismissed from this case, this Count is now moot.

6

Once a defendant files a motion to dismiss for lack of personal jurisdiction pursua
nt to
Federal Rule of Civil Procedure 12(b)(2), the “plaintiff must prove by affidavits or other
competent
evidence that jurisdiction is proper.” Metcalfe v. Renaissance Marine, Inc., 566 F.3d
324, 330 (3d
Cir. 2009) (internal citations omitted).

Where, as here, the district court does not hold an

evidentiary hearing, a plaintiff need only establish a “prima facie case of personal jurisdi
ction and
the plaintiff is entitled to have its allegations taken as true and all factual dispute
s drawn in its
favor.” Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir. 2004). Additi
onally, “[i]f the
contents of the plaintiff’s complaint conflict with the defendant’s affidavits, the distric
t court must
construe all reasonable inferences that can be drawn from the papers in the plainti
ff’s favor.”
I-Iaffen v. Butler Specialties, Inc., No. l0-cv-2833, 2011 WL 831933 at *2 (D.N.J
. Mar. 3,2011)

(quoting 4 Wright & Miller, Federal Practice and Procedure: Civil 3d 1067.6 (3d
ed. 2002)). The
plaintiff, however, retains “the burden of demonstrating [that the defendants’]
contacts with the
forum state are sufficient to give the court in personam jurisdiction.” Mesalic v. Fiberfl
oat Corp.,
897 F.2d 696, 699 (3d Cir. 1990). “These contacts must be shown ‘with reasonable
particularity.”
Weilness Pubi ‘g v. Barefoot, 128 Fed. App’x 266, 268 (3d Cir. 2005) (unpub
lished) (quoting
Mellon Bank v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992)).
“A federal court sitting in New Jersey has jurisdiction over parties to the extent
provided
under New Jersey state law.” Miller Yacht, 384 F.3d at 96 (3d Cir. 2004). “New
Jersey’s longarm statute provides for jurisdiction coextensive with the due process requirements
of the United
States Constitution.” Id. (citing N.J. Ct. R. 4:4-4(c)). A district court sitting
in New Jersey may
therefore exercise personal jurisdiction over a non-resident defendant if the

defendant has “certain

minimum contacts with [New Jersey] such that the maintenance of the suit
does not offend
‘traditional notions of fair play and substantial justice.” Henry Heide, Inc.
v. WRH Prods. Co.,

7

Inc., 766 F.2d 105, 108 (3d Cir. 1985) (quoting Int’l Shoe Co. v. Washington,
326 U.S. 310, 316
(1945)).
“Minimum contacts can be analyzed in the context of general jurisdiction
or specific
jurisdiction.” Metcalfe, 566 F.3d at 334. “General jurisdiction results from,
among other things,
‘systematic and continuous’ contact between a non-resident defendant and the
forum state.”
Spuglio v, Cabaret Lounge, 344 F. App’x 724, 725 (3d Cir. 2009) (unpublished)
(quoting Int’l
Shoe, 326 U.S. at 320). “Specific jurisdiction over a defendant exists when
that defendant has
‘purposefully directed his activities at residents of the forum and the litigation results
from alleged
injuries that arise out of or relate to those activities.” Miller Yacht, 384 F.3d at
96 (quoting Burger
King Corp.

V.

Rudzewicz, 471 U.S. 462, 472 (1985)).

Here, NICO has not argued that this Court has general jurisdiction over CSN.
(See P1.’s
Opp. Br. at i). Accordingly, the Court only considers whether it has specifi
c jurisdiction over
CSN.
III.

ANALYSIS

The parties dispute whether this Court has personal jurisdiction over CSN. To
summarize,
CSN contends that it does not have sufficient contacts with New Jersey to
satisfy due process, and
that even if it did have such contacts, the Court’s exercise ofjurisdiction over
CSN would violate
traditional notions of fair play and substantial justice. (CSN’s Mov. Br. at
i). NICO, for its part,
argues that the Court has specific jurisdiction over CSN because CSN has
purposefully directed
its activities into New Jersey, and further because CSN’s demand agains
t NICO for the return of
the premium is directly related to and arises out of CSN’s activities with
New Jersey. (P1’s. Opp.
Br. at i). Alternatively, if the Court is not inclined to find that it has specifi
c jurisdi

ction over CSN,

8

NICO asks the Court to permit jurisdictional discovery as to the nature and
extent of CSN’s
contacts with Catalyst Re in this matter. (Pl.’s Opp. Br. at 12).
A. Summary of Specific Jurisdiction Analysis

“Specific jurisdiction is established when a non-resident defendant has ‘purpo
sefully
directed’ his activities at a resident of the forum and the injury arises from or is
related to those
activities.” Gen. Elec. Co. v. Deutz AG, 270 F.3d 144, 150 (3d Cir. 2001) (quotin
g Burger King
Corp. v. Rztdzewicz, 471 U.S. 462, 472 (1985)). In other words, specific jurisdi
ction exists where
the “cause of action arises out of the defendant’s forum-related activities,
such that the defendant
should reasonably anticipate being haled into court in that forum.” Abel v. Kirbar
an, 267 F. App’x

106, 108 (3d Cir. 2008) (internal citations and quotations omitted).
Three elements must be met to establish specific jurisdiction. HS Real Co.,
LLC et al. v.
Sher, 526 F. App’x 203, 206 (3d Cir. 2013). First, the defendant “must have
purposefully availed
itself of the privilege of conducting activities within the forum.” Id.
(internal citations and
quotations omitted). Second, “plaintiffs’ claims must arise out of or relate to
at least one of the
contacts with the forum.” Id. (internal citations and quotations omitted). Assum
ing the first two
elements are met, the court moves on to the third element, which consid
ers whether the exercise
of jurisdiction comports with traditional notions of fair play and substantial
justice. 0 ‘Connor
Sandy Lane Hotel co., Ltd., 496 F.3d 312, 317 (3d Cir. 2007). The Court
addresses each element,
in turn.

B. CSN Purposefully Availed Itself of the Privilege of Conducting
Activities within New
Jersey

To satisfy the first element ofpersonal jurisdiction, a plaintiffmust provid

e evidence of “some

9

act by which the defendant purposefully avail{ed] itself of the privilege of conduc
ting activities
within the forum State, thus invoking the benefits and protections of its laws.”
Asahi Metal Indus.
Co. v. Superior Court of California, 480 U.S. 102, 109 (1987) (quoting Burger
King, 471 U.S. at
475). Stated differently, a plaintiff must show that the non-resident defend
ant “deliberate[lyj

target[ed]

.

.

.

the forum.” Sandy Lane, 496 F.3d at 317. “The purpose of the requirement of

evidence of purposeful acts is to ensure that a defendant will not be subject to a
forum’s jurisdiction
solely on the basis of random or attenuated contacts or of the unilateral activit
y of another person
or entity.” Mastondrea v. Occidental Hotels Management, S.A., 391 N.J. Super.
261, 268 (App.
Div. 2007) (citing Burger King, 471 U.S. at 475).
A defendant need not be physically present in a state to have availed himself ofthe

privilege

of conducting activities there. See, e.g., Burger King, 471 U.S. at 472. Indeed, Courts
have found
that a defendant purposefully availed itself of the forum state where the defend
ant reached into
that state remotely, such as via telephone or e-mail communications. See, e.g.,
Sandy Lane Hotel
Co., Ltd., 496 F.3d at 318 (finding that a defendant “deliberately reached into”
the forum state by
mailing a brochure to the state’s residents and exchanging phone calls to secure
an agreement);
One World Botanicals v. Gulf Coast Nutritionals, 987 F. Supp. 317, 323 (D.N.J
. 1997) (finding
sufficient minimum contacts with the forum state based upon defendant’s one-tim
e shipment of
products into the forum in response to a fax order received from the forum)
; Vanz, LLC v. Mattia
& Associates, No. l3-cv-l393, 2014 WL 1266220 at *2..3 (D.N.J. Mar. 26, 2014)
(Wiggenton, J.)
(“Various forms of communications between parties, including written corresp
ondenc

e, telephone

calls, and emails, factor into the minimum contacts analysis.”) (quotations
omitted); Am. Bd. of

mt.

Med. V. Rushford, No. 14-cv-6428, 2015 WL 5164791 (D.N.J. Sept.
2, 2015) (Hayden, J.)

(finding defendant purposefully availed itself of the forum state by sendin
g e-mails and placing a

10

phone call into that state).
CSN maintains that it lacks any meaningful contacts with New Jersey under
which
jurisdiction could arise. CSN contends that its “communication with a broker
in New Jersey—
even the (inaccurate) allegation that the broker was CSN’s agent—does
not constitute
jurisdictionally meaningful contacts with New Jersey, at least vis-à-vis NICO.” (CSN’
s Mov. Br.
at 2). More specifically, CSN contends that its contact (in the singular) with New
Jersey consisted
of “the mere act of wiring funds into New Jersey,” which cannot support jurisdi
ction.

(CSN’s

Mov. Br. at 11-12). According to CSN, its “contact with Catalyst does not reflect
any attempt by
CSN to participate in or engage with any market in New Jersey” and that, “{o]n
the contrary, the
purpose of CSN’ s contacts with Catalyst was to obtain access to the international
market for
retrocessional coverage outside of New Jersey.” (Id. at 12). As such, CSN argues
that its contact
with a New Jersey broker was fortuitous, as the broker could have been located
anywhere. (Id.).
In response, NICO argues that CSN’s contacts with New Jersey are far more extens
ive than
CSN’s wiring of funds into an account located in New Jersey. To support this
position, Plaintiff
relies heavily upon a declaration of Alexandre Leventhal, the Managing Directo
r of Catalyst Re.
(See Pl.’s Opp. Br. at 12-23; McNally Deci., Ex. R, ECF No. 39-i, Declaration
of Alexandre
Leventha!, “Leventhal Dee!.”). Specifically, attached to Mr. Leventhal’s declara
tion is an October
10, 2007 contract between CSN and Catalyst Re (“CSN-Catalyst Re Contract”).
(Leventhal Dee!.,
Ex. 1),
Pursuant to the terms of the CSN-Catalyst Re Contract, CSN paid Cataly
st Re a flat fee for
its brokerage services. (Leventhal Dee!.

¶ 9).

According to Mr. Leventhal, “[w]hen CSN and

Catalyst Re entered [into this Contract), Catalyst Re began performing under
that Contract almost
immediately.” (Id.

¶ 7).

Moreover, “Catalyst Re’s performance under the Contract on the 2007

11

Extension Period and 2008 Renewal Period included extensive dealings with
CSN and multiple
CSN communications, both oral and written, directed to and with Catalyst Re
in New Jersey.” (Id.

¶ 8). Finally, as conceded by CSN, CSN transmitted the premium payment for the 2008
Retrocessional Contract to a New Jersey bank account in Catalyst Re’s name.
(Id.

¶ 10).

A. Summary of CSN’s Direct Contacts with New Jersey

The Court finds that CSN has purposefully availed itself of the privilege of doing
business
in New Jersey through its direct contacts with its New Jersey reinsurance broker
, Catalyst Re.
To begin with, it is evident that CSN purposefully directed its contacts into New
Jersey
when it entered into a three-year irrevocable contract with Catalyst Re, a New
Jersey reinsurance
broker, on October 10, 2007. (Leventhal Dec.

¶ 3; CSN-Catalyst Re Contract § 3). Per the terms

of that Contract, Catalyst Re was to render “professional services of intermediary
and consultancy
for {CSN’s] reinsurance area.” (CSN-Catalyst Re Contract). Also pursuant
to that Contract, CSN
incurred certain obligations vis-à-vis, New Jersey—namely, it was required
to “arrange with Sul
America and IRB, the designation of Catalyst Re USA as the only reinsur
ance broker for the
placement of coverage for excess of the domestic capacity with regard
to the Operational Risk
policy of CSN.” (CSN-Catalyst Re Contract

§ 4.a.).

Aside from the existence of the CSN-Catalyst Re Contract, the record includes
specific instances of CSN reaching out to Catalyst Re in New Jersey.

evidence of

For example, Mr.

Leventhal’s declaration explains that with regards to the 2007 Extension
Period and the 2008
Renewal Period, CSN engaged in “extensive dealings with CSN
and multiple CSN
communications, both oral and written, directed to and with Cataly
st Re in New Jersey.”
(Leventhal Decl.

¶ 8). Specifically, on April 2, 2008, CSN e-mailed Mr. Leventhal a letter

12

addressed to Mr. Jerome Halgan of the Berkshire Group (the parent corporation
of NICO) that
6
advised Mr. Halgan that CSN will provide the premium payment necessary to
effectuate the 2008
Retrocessional Contract. (McNally Deci.

¶ 4,

Ex. B). Then, by letter dated April 20, 2008 and

mailed to Mr. Leventhal in New Jersey, CSN notified Mr. Leventhal that
it will be transferring
funds to Catalyst Re, and expressly permitted Catalyst Re to transfer these
funds to secure
retrocessional coverage from “one or more of the international reinsurers.”
(McNally Deci.

¶ 5,

Ex. C.). True to its word, CSN transferred nearly $20 million to a “premium
account” registered
to Catalyst Re in Ridgewoocl, New Jersey, approximately $9 million of which
was then wired to
NICO. (Compi.

¶ 31; McNally DecI. ¶ 7, Ex.

E).

Courts in this district have found that a defendant purposefully availed itself
of the benefit
of doing business in New Jersey on significantly less contacts than those
discussed above. See,
e.g., Am. Bd. of mt. Med. V. Rushford, No. 14-cv-6428, 2015 WL 5164791 (D.N.J
. Sept. 2, 2015)
(Hayden, J.) (finding defendant purposefully availed itself of the forum state
by sending e-mails
and placing a phone call into that state); see also One World Botanicals v.
Gulf Coast Nutritionals,
987 F. Supp. at 323 (finding sufficient minimum contacts with the
forum state based upon
defendant’s one-time shipment of products into the forum in response to a
fax order received from
the forum).
At the outset, the Court rejects CSN’s argument that the location of its
New Jersey broker,
and therefore CSN’s contacts with New Jersey, were “fortuitous.” (CSN’
s Mov. Br. at 12). Here,
CSN has purposefully availed itself of the New Jersey market by enterin

g into a multi-year contract

for the provision of consulting services with a corporation “duly organi
zed and validly existing
under the law of New Jersey with its principal place of business” located
in New Jersey. (Compi.

6

Compl. ¶4.

13

¶ 2).

Thus, CSN benefitted from engaging in business with a New Jersey broker whose
business

activities are authorized by the State. In addition to engaging a New Jersey-based
broker, CSN
directed both e-mail and mail communications to Catalyst Re in New Jersey, and
also wired $20
million to a New Jersey bank account in order that Catalyst Re could transmit the
money as CSN
desired. In light of these purposeful and not insignificant contacts with New Jersey,
the Court
finds that the first element of the specified jurisdiction analysis—whether the defend
ant has
“minimum contacts” with the forum, is satisfied.
B. For Jurisdictional Purposes, the Court fmds that Catalyst Re’s Activi
ties in New
Jersey can be Imputed to CSN on an Agency Theory

In addition to a defendant’s direct contacts with the forum, “[a] ctivities of a
party’s agent
may count toward the minimum contacts necessary to support jurisdiction.”
Grand Ent. v. Star
Media Sales, Inc., 988 F.2d 476, 483 (3d Cir. 1993). NICO contends that Cataly
st Re acted as an
agent of CSN with regards to certain events leading up to the alleged format
ion of the 2008
Retrocessional Contract, and that these actions can be imputed to CSN for
the purposes of the
Court’s jurisdictional analysis. (Pl.’s Opp. Br. at 15). In response, CSN rejects
the notion that
Catalyst Re was its “agent,” noting that it was IRB, rather than CSN, who had
the requisite control
over Catalyst Re as required under agency law. (CSN’s Mov. Br. at 11, n.6;
CSN’s Reply Br. at
9).
Under New Jersey law, “fain agency relationship arises when one party author

izes another

to act on its behalf while retaining the right to control and direct any such
acts.” Rodriguez v.
Hudson County Collision, Co., 296 N.J. Super. 213, 200 (1997); see also
Sylvan Learning Syst.,
Inc. v. Gordon, 135 F. Supp. 2d 529 (D.N.J. 2000). An agency relationship
arises “when one party
consents to have another act on its behalf, with the principal controlling
and directing the acts of
the agent.” Sears Mortgage Corp. v. Rose, 134 N.J. 326, 337 (1993); Edwin
I Dobson, Jr., Inc. v.
14

Rutgers, State University, 157 N.J. Super. 357, 390 (Law Div. 1978) (holding
a consultant that

was paid by Rutgers was not an agent of Rutgers where the University “did not have
the right to
direct

[ ] the consultant as to how to perform its work”). That said, in New Jersey, “[tjhere need

not be an agreement between parties specifying an agency relationship; rather, the
law will look at
their conduct and not to their intent or their words as between themselves but to their
factual
relation.” Rose, 124 N.J. at 338. (internal quotations omitted). “Moreover, direct contro
l over [an]
agent is not absolutely necessary; a court must examine the totality of the
circumstances to
determine whether an agency relationship existed even though the principal did
not have direct
control over the agent.” Id. (citing 2 C.J.S. Agency

§ 36, at 599-600 (1972)).

NICO argues that, in addition to CSN’s direct contacts with New Jersey, “the actions
of
Catalyst Re in New Jersey, including communicating with NICO and CSN, prepar
ing NICO’s
invoice regarding the premium for the Renewal Period, and wiring the premium
to NICO from its
New Jersey-based bank account, were all performed by Catalyst Re as an agent
for CSN, and
therefore provide additional grounds for this Court to exercise jurisdiction over
CSN.” (Pl.’s Opp.
Br. at 15). NICO contends that an agency-principal relationship was plainly establi
shed by the
CSN-Catalyst Re Contract. (Id. at 20). Specifically, NICO notes that the
CSN-Catalyst Re
Contract authorized Catalyst Re to advise CSN with regards to retrocessional covera
ge of the 2007
and 2008 CSN Policies, to provide services to CSN related to securing that
coverage, and to
maintain regular contact with CSN regarding that coverage. (Id. at 20).
Plaintiff also directs the
Court to CSN’s communications to Mr. Leventhal, directing him to inform
NICO that it will pay
the premium under the 2008 Retrocessional Contract and further directi
ng Mr. Leventhal to
effectuate that payment by wiring to NICO the funds it had placed in Cataly
st Re’s New Jersey
bank account. (Id.). According to the Complaint, Catalyst Re acted as an
agent for CSN when it

15

asked NICO for an extension of time, at CSN’ s request, for which it could pay the
premium for
the 2008 Retrocessional Contract and when, also at CSN’s request, it wired the funds
to NICO.
(Id.

¶J 26-28 70).
CSN contends that Catalyst Re was not its agent, but rather was “at most, a
non-agent

independent contractor of CSN.” (CSN’s Mov. Br. at 11, n.6). In support of this positio
n, CSN
notes that Mr. Leventhal, by way of his declaration, did not claim to be CSN’s
agent. (Id.).
Further, CSN argues that the CSN-Catalyst Re contract states that Cataly
st Re provided
“consulting services” to CSN with respect to the reinsurance for CSN’s insurance
program, and
that it was IRB, rather than CSN, that had the ability to control or direct the actions
of Catalyst Re
with respect to placing reinsurance. (Id.). CSN specifically directs the Court to a provis
ion of the
CSN-Catalyst Re Contract that reads, in part: “In compliance with the placem
ent instructions
issued by [IRBJ, Catalyst Re USA and/or Catalyst Re Brazil will maintain perman
ent contact with
this entity, in order to update it on the progress of placement of the program.”
(CSN’s Reply Br.
at 9, citing CSN-Catalyst Re Contract

§ 4.d).

Drawing all reasonable inferences in favor of Plaintiff see Miller Yacht, 384 F.3d
at 97,
the Court finds that, at least for jurisdictional purposes, Plaintiff has proffered
sufficient evidence
as to the existence of an agency relationship between Catalyst Re and CSN such
that Cataly

st Re’s

actions with regards to the 2008 Retrocessional Contract can be imputed to CSN
as its “principal.”
First, the Catalyst Re-CSN Contract provides that Catalyst Re would
“submit for the
approval of CSN, a chronogram of the project, whether it be with respect
to the actions required
for the extension of the expiring policy or with respect to renewals themse
lves.” (CSN-Catalyst
Re Contract

§ 6.1). In other words, it is apparent that CSN had at least some degree of control

over Catalyst Re’s operations in regard to securing the 2008 Retrocessiona
l Contract. Further, the

16

Court rejects C SN’s argument that an agency relationship could not have existed
where it was IRB
that ultimately directed Catalyst Re’s actions, as New Jersey agency law does
not require direct
control over the agent in order to find an agency arrangement. See Rose, 124
N.J. at 338.
Second. Plaintiff has directed the Court to specific acts taken by Catalyst Re at the
behest
of CSN. For instance, after learning that IRB would not be able to fulfill its premiu
m obligation
under the 2008 Retrocessional Contract, “CSN, out of concern that such delay
might negatively
impact its recovery of losses under the 2008 CSN Policy, instructed Mr. Leventhal
to communicate
to NICO, on its behalf and as its agent, that CSN would guarantee payment of the
premium owed
by IRB to NICO under the 2008 Retrocessional Contract.” (Compi.

¶ 26). Plaintiff also alleges

that Mr. Leventhal, acting as CSN’s agent, wrote to NICO informing it that CSN
would pay the
approximately $9 million premium and requesting an extension of time by which
the payment. (Id.

CSN could make

¶ 28). Additionally, after CSN wired $20 million to Catalyst Re’s bank account,

Catalyst Re transmitted approximately $9 million of the premium funds to NICO.
(Id.

¶ 32).

In summary, the Court will consider the following actions of Catalyst Re
as imputed to
CSN for the remaining analysis: (1) Catalyst Re seeking retrocessional
coverage of CSN’ s
insurance policy (See Pl.’s Opp. Br. at 20; CSN-Catalyst Re Contract); (2)
Catalyst Re writing to
NICO to request an extension of the time period for which the premium may
be due to secure that
coverage (Compl.

¶ 28) and; (3) securing the alleged 2008 Retrocessional Contract by wiring to

NICO the $9 million premium that CSN had transmitted to Catalyst Re’s New
(Compi.

Jersey bank account.

¶J 31-32).

Notably, the Complaint does not allege that Catalyst Re acted as an agent
for CSN in the actual negotiation of the
2008 Retrocessional Contract. (Compl.
57, 69). Rather, the Complaint alleges that Catalyst Re “acted as an
agent
for [RB in the negotiation, placement and issuance of the 2008 Retroc
essional Contract,” and that as an “agent for
IRB, Catalyst Re took actions to put in place retrocessional covera
ge for the 2008-2009 year, including proactively
seeking retrocessional coverage from NTCO, negotiating the terms and conditi
ons of the 2008 Retrocessional Contract,
and otherwise making statements to NICO regarding the 2008 Retrocessiona
l Contract on IRB ‘s behalf.” (Id. ¶ 69)
(emphasis added). The Complaint does allege, however, that “Catalyst Re
acted as an agent for CSN in connection

17

ii.

Whether Plaintiff’s claims “arise out of or relate to” CSN’s contacts with
New
Jersey

Having found that Plaintiff has purposefully availed itself of the benefits of
conducting
business in New Jersey, the Court must now consider whether the claims
at issue “arise out of or
relate to” those contacts discussed above. Sandy Lane, 495 F.3d at 318 (citing
Helicopteros, 466
U.S. at 414).
CSN asserts that NICO’s claims against it cannot be said to “arise under or

relate to” CSN’s

limited contacts with New Jersey. According to CSN, the “principle [sic]
issue in dispute” is
whether the alleged 2008 Retrocessional Contract between NICO and IRB was
effective. (Id. at
10). CSN takes the position that these claims against it “have virtually nothing
to do with the state
of New Jersey and everything to do with the Republic of Brazil,” as the Compl
aint alleges tortious
activity that occurred in Brazil by a Brazilian company (CSN) and a
Brazilian reinsurance
company (IRB). (Id. at 9-10). Moreover, CSN states that the Complaint
does not allege any
tortious acts by CSN in New Jersey, any injury to NICO or any other party
that was suffered in
New Jersey, or any contacts between CSN and NICO that occurred in New
Jersey. (Id. at 10).
Rather, CSN posits that the dispositive issues of the existence of the 2008
Retrocessional Contract
is contingent upon events occurring solely within Brazil, application of Brazili

an law, and evidence

arising out of prior legal proceedings between CSN and IRB in Brazil.
(Id. at 11).
Plaintiff responds that its claims relate directly to CSN’s contacts with
New Jersey. (P1. ‘s
Opp. Br. at 23-26). Plaintiff has stated that “[t]he only reason that NICO
initiated this action is
with the 2008 Retrocessional Contract” and that “[ijn its role as agent
of CSN, Catalyst Re sought an extension (at
CSN’s request) of the time within which premium for the 2008 Retroc
essional Contract could be paid, wiring funds
(at CSN’s request) to NICO in fulfillment of IRB’s obligations.”
(Id. ¶ 70). Thus, the Court’s fmding that Catalyst
Re acted as CSN’s agent is limited to those specific allegations
of agency alleged in the Complaint, as well as
Plaintiff’s argument offered in its opposition brief that the CSN-C
atalyst Re Contract provided that Catalyst Re would
act as CSN’s agent by advising Plaintiff with regards to retrocessional
coverage and by providing other services to
CSN to ensure that the requirements of international reinsurers were met.
(Pl.’s Opp. Br. at 20).

18

CSN’s wrongful and improper demand for the premium amounts that it had arrang
ed, through
Catalyst

Re,

to

be

paid

to

NICO,”

and further, that “[blecause CSN’s activities directed at and within New Jersey
were centered
entirely around ensuring that NICO and IRB s other retrocessionaires were paid the
premium, it is
‘

beyond any reasonable dispute that NICO’s claims arise out of and relate to CSN’s
activities in
New Jersey.” (Id. at 23). Stated differently, NICO posits that “CSN’s contacts with
New Jersey
are relevant to the central issue of whether NICO is entitled to keep the premiu
m advanced by
CSN.” (Id.).
The specific jurisdiction analysis is claim-specific. Sandy Lane, 496 F.3d at 318.
Thus, a
court must consider whether the defendant’s contacts with the forum arise under or
relate to each
claim alleged by Plaintiff. See Miller Yacht, 384 F.3d at 104 (“In analyzing jurisdi
ctional contacts
on a claim-by-claim basis, we have been careful to note that forum contacts suppor
ting a contract
claim are not necessarily relevant to establishing jurisdiction over a tort claim.”);
see also Remick
v. Manfredy, 238 F.3d 248 (3d Cir. 2001) (separately analyzing specific jurisdiction
over plaintiffs
contract and tort claims).
Thus, in order to consider whether CSN’s contacts with New Jersey are sufficiently
related
to Plaintiffs claims, the Court must first identify the precise nature of those claims
. Plaintiffs
claims appear to stem from two separate agreements, representing two distinc
t chains of events.
First, Plaintiffs claims for declaratory relief (specifically, its request for a
judent as to the
existence of the 2008 Retrocessional Contract and CSN’s lack of rights
with regards to the $9
million premium) relate to the existence of the 2008 Retrocessional Contra
ct, and therefore sound
in contract law. (Compl.

¶ 47).

Second, Plaintiffs tort claims against CSN are grounded in the

alleged wrongful Settlement Agreement entered into between IRB and
CSN, under which the

19

parties disclaimed the existence of the 2008 Retrocessional Contract. (See
Compi, Counts II, IV,
V, Vu).
8
In O’connor v. Sandy Lane Hotel co., Ltd., the Third Circuit provided
guidance to district

courts applying the relatedness requirement. 496 F.3d at 318. The Court noted
that some Circuits
applying this requirement have adopted a “but-for” test of causation, which asks
whether the
claims would have arisen in the absence of defendant’s contacts with the forum.
Id. at 3 19 (citing
to First Circuit case law). Although the Circuit held that this test “is vastly
overinclusive in its
calculation of a defendant’s reciprocal obligations” and therefore does not
constitute the entirety
of the relatedness analysis, it recoguized that this analysis provides a helpfu
l starting place. Id.
(beginning the relatedness analysis with a determination as to whether defend
ant’s contacts with
the forum were a “but-for cause of [plaintiffs] injury”). To that end, this
Court first considers
whether CSN’s contacts with New Jersey, discussed above, are a but-for
cause of Plaintiffs
claims.
Considering Plaintiff’s allegations in the context of CSN’s contacts with
New Jersey, the
Court finds that CSN’s contacts are certainly a “but-for cause” of
NICO’s claims for both
declaratory relief and claims in tort. If CSN had not directed communicatio
ns into New Jersey in
order to secure the assistance of a reinsurance intermediary, Cataly
st Re would never have
negotiated the 2008 Retrocessional Contract on IRB’s behalf, and
CSN would never have
transmitted to NICO. via its New Jersey “agent,” the $9 million premiu
m to consummate that
Count III of the Complaint does not appear to be directed towards CSN.
(See Compl. at 10-12). Specifically, the
“wherefore clause” states: “NICO demands judgement against IRB
and Catalyst Re
(Id. at 12). Accordingly,
the Court did not address whether it has specific jurisdiction over CSN
with regards to this Count. However, even if
the Court construed the Complaint as alleging tortious interference
with economic advantage against CSN, the Court
would find that the this claim does not arise out of or relate to CSN’s
contacts with New Jersey for the same reasons
discussed herein with regards to the tort claims specifically alleged
against CSN.
...“

Additionally, Count VI of the Complaint, alleging prima facia tort,
was only asserted against IRB, who has been
dismissed from this case. Therefore, the Court need not consider Count
VI in this analysis.

20

Contract. Moreover, had that chain of events not taken place, IRB and CSN
would not have
entered into a Settlement Agreement which disclaimed the existence of the
2008 Retrocessional
Contract and affirmed CSN’s rights to recover the $9 million premium.
Thus, CSN’s contacts
with New Jersey are certainly a but-for cause of NICO’s alleged injuries.
Our inquiry does not stop here. Rather, the Court must now decide whether a “mean
ingful
link exists between [CSN’s] legal obligation[s] that arose in th[isj forum
and the substance of

[NICO’s] claims.” Id. at 324. Stated differently, the Third Circuit explain
ed that the relatedness
analysis should hew closely to the reciprocity principle upon which specifi
c jurisdiction
rests.
With each purposeful contact by an out-of-state resident, the forum state’s
laws
will extend certain benefits and impose certain obligations. Specific jurisdi
ction is the cost
of enjoying the benefits. The relatedness requirement’s function is to mainta
in balance in
this reciprocal exchange. In order to do so, it must keep the jurisdictional exposu
re that
results from a contact closely tailored to that contact’s accompanying
substantive
obligations.
.

.

Id. at 323 (internal quotations and citations omitted).
A. Plaintiff’s Claims for Declaratory Relief relating to the Existe
nce of the 2008
Retrocessional Contract and CSN’s Rights to the $9 Millio
n Premium are
Sufficiently Related to CSN’s Contacts with New Jersey

The Court finds that Plaintiff’s claims for declaratory relief are suffici
ently related to
CSN’s contacts with New Jersey such that CSN could have reasonably
expected to be haled to
Court in New Jersey based upon those activities. Specifically, NICO seeks
a judgment from this
Court:
(1) Declaring that the 2008 Retrocessional Contract is a binding and enforc
eable agreement
between IRB and NICO; (2) Declaring that CSN is not in privity
with NICO under the
2008 Retrocessional Contract or any other agreement; (3) Declaring that
CSN has no rights
or interests in any of the premium paid to NICO under the 2008 Retroc
essional Contract;
[and] (4) Declaring that CSN has no right and is not otherwise entitled
to payment from
NICO of any amount relating to, arising out of, or in connec
tion with the 2008
Retrocessional Contract.
(Compi, at 17).
21

Each of these declarations sought by Plaintiff relate to the existence and format
ion of the
2008 Retrocessional Contract. As discussed above, CSN purposefully directe
d its activities into
New Jersey when it entered into a three-year irrevocable contract with
a New Jersey reinsurance
broker precisely for the purpose of securing, among other coverage, the
2008 Retrocessional
Contract now in dispute. (See CSN-Catalyst Re Contract). CSN also benefit
ed from the New
Jersey market by transmitting, via Catalyst Re, the premium necessary
to effectuate the 2008
Retrocessional Contract from a New Jersey bank account to NICO. (Comp
i.

¶J

30-32). Thus,

CSN cannot now argue that Plaintiff’s claims for declaratory relief as to the
existence of the 2008
Retrocessional Contract (a direct fruit of the CSN-Catalyst Re Contract)
and CSN’s rights to the
$9 million premium transmitted to NICO do not sufficiently relate to its contac
ts in New Jersey.
The Court is cognizant of CSN’ s argument that its contacts in this
regard are not
sufficiently related to Plaintiff’s claims because Plaintiff was not injured in
New Jersey, Plaintiff
is located outside of New Jersey, and because Plaintiff does not allege
any wrongful acts that
occurred in New Jersey. (CSN’s Reply Br. at 4). However, CSN’s argum
ents miss the mark. As
the Third Circuit has explained, “[t]he animating principle behind the related
ness requirement is
the notion of a tacit quid pro quo that makes litigation in the forum reason
able foreseeable.” Sandy
Lane, 496 F.3d at 322.

Based upon CSN’s actions in relation to securing the alleged 2008

Retrocessional Contract, the Court is not persuaded that CSN could not
have foreseen being haled
into Court on allegations as to the very existence of that Contract and CSN’s
rights to the money
it transmitted through New Jersey. Accordingly, the Court finds that
a “meaningful link” exists
between CSN’s contacts with New Jersey and Plaintiff’s claims for
declaratory relief, rendering
specific jurisdiction as to Count I proper.
B. Plaintiff’s Tort Claims Relating to the Settlement Agreement
are Not Sufficiently

22

Related to CSN’s Contacts with New Jersey
In addition to claims arising under the formation and existence of the 2008 Retroc
essional
Contract, Plaintiff brings tort claims against CSN. Unlike the declaratory relief
sought, which
relates directly to CSN’s involvement in the 2008 Retrocessional Contract, Plainti
ffs claims for
declaratory relief are premised upon the CSN-IRB Settlement Agreement that was
entered into in
Brazil.
Specifically, in Count II of the Complaint, Plaintiff alleges that “[b]y enterin
g into the
Settlement Agreement, CSN tortuously induced IRB to breach the 2008 Retroc
essional Contract
to the extent IRB purportedly conveyed upon CSN rights to the approximatel
y $9 million in
premium received by NICO for assuming substantial risk of loss under the 2008
Retrocessional
Contract.” (Compl.

¶ 52).

In Count IV, Plaintiff alleges that “[t]he retention of a benefit received

by CSN in connection with the 2008 Retrocessional Contract, in light ofIRB
‘s and CSN’s denial
[via the Settlement Agreement] that the 2008 Retrocessional Contract exists,
is unjust.” (Id. ¶ 74)
(emphasis added).

Similarly, Plaintiffs claims for injurious falsehood (Count V) and civil

conspiracy (Count VII) are grounded in the alleged wrongfully executed
Settlement Agreement
(Id.

¶J 79, 96).
The Court finds that it lacks specific jurisdiction over CSN with regard
s to Plaintiffs tort

claims arising from the Settlement Agreement. Unlike NICO’s claims for declara
tory relief, which
relate directly to CSN’s very efforts to secure the 2008 Retrocessional
Contract, these claims arise
out of actions taken by CSN in Brazil. To that end, the Court finds
that it was not reasonably
foreseeable that CSN would be haled to Court in New Jersey based
upon its decision to execute a
Settlement Agreement in Brazil in order to resolve an action that arose
in Brazil and to which
NICO, nor any New Jersey resident, appears to have been a party. Accord
ingly, the Court declines

23

to exercise specific jurisdiction over CSN as to Counts II, IV, V, and VII of the Compl
aint.
iii.

This Court’s Exercise of Jurisdiction over CSN Comports with Traditional
Notions of Fair Play and Substantial Justice

Having found that minimum contacts exist with regards to Count I of Plaintiff’s
Complaint,
the Court “next consider[s] whether the exercise of jurisdiction would otherw
ise comport with
‘traditional notions of fair play and substantial justice.” Sandy Lane, 496
F.3d at 324 (quoting
Int’l Shoe, 326 U.S. at 316).
CSN contends that this Court’s exercise ofjurisdiction over CSN would violate
traditional
notions of fair play and substantial justice in light of its position as a Brazilian
company. (CSN’s
Mov, Br. at 14-19). Specifically, as a foreign defendant, CSN asserts that it
would suffer a great
burden in having to litigate thousands of miles from home in a foreign legal
system. (Id. at 1617). Moreover, CSN states that judicial efficiency and policy considerations,
as well as New
Jersey’s alleged lack of any interest in this matter, militate toward a finding

of no jurisdiction. (Id.

18). In support of this argument, CSN directs the Court to cases where
courts have declined
jurisdiction over a foreign defendant where the Plaintiff was not a resident
of the forum. (Id. at
16). Lastly, CSN states that Brazil has an interest in litigating this action
as it is “closely related
to the dispute between CSN and IRB in Brazil [wJhich implicated import
ant statutory and public
policy issues in Brazil.” (Id.).
9
In response, NICO rejects CSN’s argument that subjecting it to litigati
on in New Jersey
would violate traditional notions of fair play and substantial justice.
(Pl.’s Opp. Br. at 26-32).

Notably, CSN has not represented to this Court that any action betwee
n NICO and CSN has in fact been initiated
in Brazil CSN has also argued that “a judgement in this matter will not
afford NICO complete relief and will leave
NICO susceptible to a contrary judgment in Brazil and other jurisdictions
will recognize the Brazilian judgment”
based upon the alleged failure of improper service. (CSN’s Reply Br.
at 11-12; CSN’s Mov. Br. at 18-19). As the
dispute over improper service will be dealt with after the Court’s jurisdi
ctional ruling, the Court will not consider
this argument herein.

24

Plaintiff refutes CSN’ s argument that New Jersey lacks any interest in this matter
and that CSN’ s
contacts do not implicate the rights of New Jersey citizens, noting that New Jersey
has an interest
in protecting the business dealings of its corporate citizens such as Catalyst
Re. (Id. at 29). NICO
also contends that the State “has an interesting in protecting the rights of
the investing public,
including its residents, against companies like CSN that sell American Depository
Receipts on the
New York Stock Exchange and which may have made false and mislea
ding statements in their
SEC filings.” (Id. at 30).
When a court has found that minimum contacts exist sufficient to assert jurisdi
ction over a
defendant, the defendant “must present a compelling case that the presen
ce of some other
considerations would render jurisdiction unreasonable.” Burger King, 471
U.S. at 477; see also
Grand. Ent., 988 F.2d at 483 (“The burden on a defendant who wishes
to show an absence of
fairness or lack of substantial justice is heavy.”). “When minimum contac
ts have been established,
often the interests of the plaintiff and the forum in the exercise ofjurisdiction
will justify even the
serious burdens placed on the alien defendant.” Asahi, 480 U.S. at 114.
Plaintiff has not met this heavy burden. “[Tjhe determination of reason
ableness of the
exercise of jurisdiction in each case will depend on an evaluation of severa
l factors.” Asahi, 480
U.S. at 113. Specifically, courts consider: “the burden on the defendant,
the interests of the forum
State, and the plaintiffs interest in obtaining relief.” Id. Additional consid
erations include “the
procedural and substantive interests of other nations” id. at 113
and “the interstate [and
international] judicial system’s interest in obtaining the most efficient

resolution of controversies.”

Sandy Lane, 496 F.3d at 324 (quoting Burger King, 471 U.S. at 477).
The Court notes that some of these factors weigh in favor of relinquishing

jurisdiction over

the Brazilian defendant. First, the Court agrees with CSN that
it will be burdensome for the

25

Brazilian corporation to litigate in New Jersey in a foreign legal system. Howev
er, the Court notes
that because of the international nature of this dispute, NICO would undou
btedly face the same
burdens were it to litigate in Brazil. See Sandy Lane, 496 F.3d at 325 (“[R}e
quiring the [plaintiffs]
to litigate in Barbados would saddle them with a burden at least equal to
[defendant’s] burden in
Pennsylvania.”). Additionally, that Plaintiff is not a New Jersey resident tends
to militate in favor
of relinquishing jurisdiction. Yet, the Court disagrees with Plaintiff that New
Jersey lacks any
interest in the instant litigation because NICO “is not located in the forum
state and no rights of
forum citizens are implicated by claims against CSN.” (CSN’s Mov. Br. at
17). The instant action
implicates a New Jersey resident, Catalyst Re, with whom CSN purposefully
entered into a longterm business relationship. Thus, regardless of whether Catalyst Re asserts any
claims against
CSN,’° New Jersey certainly has an interest in the instant action.
Moreover, the fact that New Jersey “may not be the best forum” or even
a “convenient
one” does not require this Court to relinquish jurisdiction over a foreign defend
ant. Sandy Lane,
496 F.3d at 325. In light of CSN’s purposeful and significant contacts into
New Jersey, the Court
finds this forum to be a reasonable one, and due process requires no more
than that. Id.
IV.

The Court Declines to Grant Jurisdictional Discovery

In its opposition brief, NICO has asked the Court to permit jurisdictional
discovery if the
Court finds specific jurisdiction lacking. (Pl.’s Opp. Br. at 33).
The Third Circuit has stated that unless a plaintiff’s claim of person
al jurisdiction is
“clearly frivolous,” courts “are to assist the plaintiff by allowing jurisdi
ctional discovery prior to
granting a motion to dismiss on lack of personal jurisdiction ground
s. Toys “R” Us, Inc. v. Step
Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003). “If a plaintiff presents
factual allegations that suggest
Pursuant to this Court’s June 10, 2015 Order, Catalyst Re was not require
d to file an answer or otherwise respond
to the Complaint until after the Court’s disposition of the parties’ person
al jurisdiction dispute. (See ECF No. 55).

26

‘with reasonable particularity’ the possible existence of the requisite ‘contacts betwee
n [the partyj
and the forum state,” the plaintiffs right to jurisdictional discovery should be
sustained. Id.
[-lere, Plaintiff has asked for jurisdictional discovery only as to “nature and extent
of CSN’s
contacts with Catalyst Re in this matter.” (Pl.’s Opp. Br. at 33). As discussed
in detail above, the
extent of the CSN-Catalyst Re relationship bears upon this Court’s jurisdiction over

NICO’ s claims

for declaratory relief (premised upon the existence of the 2008 Retrocession
al Contract), over
which this Court has already determined that it has specific jurisdiction.
The Court finds that
jurisdictional discovery as to the relationship between CSN and Catalyst Re would

have no bearing

on this Court’s specific jurisdiction analysis with regards to NICO’s tort claims
arising out of the
Settlement Agreement that was executed in Brazil.

Therefore, the Court declines to grant

jurisdictional discovery.
V.

CONCLUSION

For the reasons stated herein, the Court grants in part and denies in part CSN’s
motion to
dismiss for lack of personal jurisdiction. An appropriate Order accompanies
this Opinion.
IT IS SO ORDERED.
DATED: February

¶j7

,2016

STATES DISTRICT JUDGE

27