In Re: Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation

Filing 4415

OPINION AND ORDER #106426: For the foregoing reasons, the Commonwealth's Motion for Reconsideration is GRANTED, the Court's December 3, 2015 opinion is VACATED as to the finding that the Court lacks personal jurisdiction over Trammo Petroleum, and Trammo Petroleum is reinstated as a defendant. The Clerk of the Court is directed to close this motion (Dkt. No. 677). (As further set forth in this Opinion) (Signed by Judge Shira A. Scheindlin on 4/15/2016) Filed In Associated Cases: 1:00-cv-01898-SAS-DCF, 1:07-cv-10470-SAS(kl) Modified on 5/4/2016 (ca).

Reconsideration of this Court’s December 3, 2015 opinion dismissing Trammo
Petroleum (“TP”) for lack of personal jurisdiction (the “Challenged Opinion”).1
For the following reasons, that motion is GRANTED, the Challenged Opinion is
VACATED as to the finding that the Court lacked personal jurisdiction, and TP is
reinstated as a defendant.
II.

BACKGROUND
The Commonwealth filed this action on June 12, 2007. TP and a

related entity Trammo Caribbean, Inc. (“Caribbean”) (together the “Trammo
Defendants”), however, were not named as defendants until the Third Amended
Complaint (“TAC”) was filed on December 3, 2012.
A.

Initial Motion to Dismiss
On April 12, 2013, the Trammo Defendants moved to dismiss on the

grounds that the statute of limitations had expired and, as to TP, that this Court
lacked personal jurisdiction because TP never conducted business in Puerto Rico.2
On July 16, 2013, this Court granted the Trammo Defendants’ motion to dismiss
1

See In re MTBE Prods. Liab. Litig., No. 07 Civ. 10470, Dkt. No. 656
(S.D.N.Y. Dec. 3, 2015). A Corrected Opinion and Order was issued by this Court
on December 7, 2015. See In re MTBE Prods. Liab. Litig., No. 07 Civ. 10470,
2015 WL 9777725, at *1 (S.D.N.Y. Dec. 7, 2015) [hereinafter Challenged
Opinion].
2

See generally Memorandum of Law in Support of Motion to Dismiss
of Trammo Petroleum, Inc. and Trammo Caribbean, Inc. (Dkt. No. 208).
2

on statute of limitations grounds (the “SOL Opinion”). In view of that holding the
Court did not decide the question of personal jurisdiction.3
On July 10, 2013 — prior to the SOL Opinion but after briefing ended
for the motion to dismiss — the Trammo Defendants produced approximately five
hundred pages of documents (the “2013 Production”) that the Commonwealth now
asserts provide a basis for personal jurisdiction over TP.4 While these documents
were not submitted to the Court at the time, the Commonwealth claims that it was
“prepared to supplement the record with this new evidence,” but the Court issued
the SOL Opinion before plaintiff submitted any of these documents.5
B.

Motion for Reconsideration
On July 31, 2013, the Commonwealth moved to reconsider the SOL

Opinion arguing, inter alia, that this Court applied the incorrect Puerto Rican
statute of limitations tolling rule. In Fraguada Bonilla v. Hospital Auxilio Mutuo,
which was issued after the filing of the initial Complaint but prior to the filing of

3

See In re MTBE Prods. Liab. Litig., 959 F. Supp. 2d 476 (S.D.N.Y.
2013) [hereinafter SOL Opinion].
4

See The Commonwealth’s Motion for Reconsideration of the Court’s
Order Dismissing Trammo Petroleum, Inc. for Lack of Personal Jurisdiction (“Pl.
Mem.”) at 2.
5

Id.
3

the TAC, the Puerto Rico Supreme Court overturned the prevailing tolling rule.6 In
the SOL Opinion, this Court held that the new Fraguada tolling rule should apply
to TAC defendants rather than the tolling rule in place at the time the initial
Complaint was filed.7 The choice of the proper tolling rule was critical to
determining whether the statute of limitations had run because under the prior rule
“‘[t]imely filing of a complaint by an injured party against a joint and several
co-tortfeasor automatically tolls the statute of limitations against all of the other
co-tortfeasors,’”8 whereas under the Fraguada rule “‘the statute of limitations
against each [tortfeasor must] be tolled individually.’”9
Despite moving for reconsideration of the SOL Opinion, which would
necessarily require the Court to address the undecided personal jurisdiction ground
if the action was timely, the Commonwealth did not submit the documents from
the 2013 Production. On August 2, 2013, this Court denied the motion for
reconsideration as “a quintessential attempt to reargue those issues already

6

See generally 186 D.P.R. 365 (2012).

7

See SOL Opinion, 949 F. Supp. 2d at 496.

8

Challenged Opinion, 2015 WL 9777725, at *2 (quoting Arroyo v.
Hospital La Concepcion, 130 D.P.R. 596 (1992)).
9

Id. at *3 (quoting Fraguada Bonilla v. Hospital Auxilio Mutuo, 186
D.P.R. 365 (2012)).
4

considered.”10
C.

Motion to Revise Prior Orders
On July 2, 2014, the Commonwealth once again challenged the SOL

Opinion in a motion to revise prior orders based on the passage of “Law 53” by the
Puerto Rican legislature — a statute exempting claims by the Commonwealth for
“non-patrimonial public goods” from the statute of limitations.11 In opposition, TP
argued that Law 53 did not apply, but, in the alternative, reiterated its earlier
argument that the Court lacked personal jurisdiction.12 In reply, the
Commonwealth for the first time submitted several documents, discussed below,
from the 2013 Production.13 These documents, which the Commonwealth
correctly notes were not addressed by the Court in the Challenged Opinion, form
much of the basis for the present motion for reconsideration. The Commonwealth,

10

In re MTBE Prods. Liab. Litig., No. 07 Civ. 10470, 2013 WL
4008632, at *2 (S.D.N.Y. Aug. 2, 2013) (quotations omitted).
11

See generally The Commonwealth of Puerto Rico’s Memorandum of
Law in Support of Motion to Revise Prior Orders (Dkt. No. 430).
12

See generally Trammo Petroleum, Inc.’s and Trammo Caribbean,
Inc.’s Memorandum of Law in Opposition to the Commonwealth of Puerto Rico’s
Motion to Revise Prior Orders (Dkt. No. 436).
13

See Reply Declaration of John D.S. Gilmour, counsel for the
Commonwealth, in Support of the Commonwealth of Puerto Rico’s Motion to
Revise Prior Orders (“Gilmour Decl.”) (Dkt. No. 445).
5

however, once more failed to provide a number of purchase agreements found in
the 2013 Production that it finally submitted with the present motion.
On August 29, 2014, the Court denied the Commonwealth’s motion to
revise prior orders because the waters of the Commonwealth are patrimonial goods
not subject to Law 53, and, in the alternative, Law 53 violates the separation of
powers doctrine in the Constitution of Puerto Rico.14 Once again, the Court
declined to decide TP’s personal jurisdiction argument.15
D.

Shell Defendants’ Motion for Summary Judgment
On June 12, 2015, two additional TAC defendants, Shell Western

Supply and Trading Limited and Shell International Petroleum Company Limited,
moved for summary judgment on statute of limitations grounds that mirrored the
Trammo Defendants’ argument in the April, 2013 motion.16 The Commonwealth
once again argued that this Court applied the incorrect Puerto Rico tolling rule to

14

See In re MTBE Prods. Liab. Litig., No. 07 Civ. 10470, 2014 WL
4290433, at *3-5 (S.D.N.Y. Aug. 29, 2014).
15

See id.

16

See generally Memorandum of Points and Authorities in Support of
the Motion for Summary Judgment of Shell Western Supply and Trading Limited
and Shell International Petroleum Company Limited (Dkt. No. 607).
6

defendants added in the TAC.17 In support of this argument, the Commonwealth
submitted numerous intervening decisions from the Puerto Rico Court of Appeals
and the District Court for the District of Puerto Rico which provided near
unanimous support for its interpretation.18
In an opinion issued on December 3, 2015, this Court overruled the
law of the case, holding that Fraguada “ended [but did not invalidate] tolling
[under the previous rule] and restarted the running of the [one-year] statute of
limitations for imperfectly jointly and severally liable co-tortfeasors.”19 Claims
against defendants added by the TAC were timely under this interpretation because
the TAC was filed “less than four months [after Fraguada was decided] on
December 3, 2012, well within the one-year statute of limitations.”20
E.

The Challenged Personal Jurisdiction Opinion
Consistent with its new ruling, the Court vacated its earlier statute of

17

See The Commonwealth of Puerto Rico’s Memorandum of Law in
Opposition to Shell Western Supply and Trading Limited’s and Shell International
Petroleum Company Limited’s Motion for Summary Judgment Based on Statute of
Limitations (Dkt. No. 622) at 11-16.
18

See generally In re MTBE Prods. Liab. Litig., No. 07 Civ. 10470,
2015 WL 8471020 (S.D.N.Y. Dec. 7, 2015) (summarizing cases interpreting
Fraguada).
19

Id. at *5.

20

Id. at *6.
7

limitations decisions in a companion opinion issued the same day, reinstating
several previously dismissed defendants.21 Based on that ruling the Court then
considered for the first time TP’s argument that the Court lacks personal
jurisdiction — over two years after the motion had been made. The Court
considered only the evidence presented in the Commonwealth’s initial opposition
papers, but failed to consider the documents submitted by the Commonwealth
more than a year later in its reply in support of the July 2, 2014 motion to revise
prior orders.22 In considering only the first limited submission, I concluded that
“[t]hese documents are insufficient to support personal jurisdiction even when
viewed in the light most favorable to the Commonwealth.”23
The documents fell into two categories. First, there were a series of
emails referring generically to “Trammo.” These emails “contain discussions
among Peerless [Oil and Chemicals, Inc.], Total Petroleum Puerto Rico (‘Total’),
and Gasolinas de Puerto Rico about the details of Peerless supplying gasoline to
Total, and the documentation reflects Total’s notes about the supply scheme,

21

Following reinstatement on December 3, 2015, Caribbean was
voluntarily dismissed by the Commonwealth on December 14, 2015. See Notice of
Voluntary Dismissal (Dkt. No. 665).
22

See Challenged Opinion, 2015 WL 9777725, at *8-9.

23

Id. at *9.
8

including the chain of supply and relevant price points.”24 I reasoned that “[t]he
emails [related to a gasoline supply contract with Peerless Oil and Chemicals, Inc.]
that refer to ‘Trammo’ must [] be read to refer to Caribbean” because “Caribbean
— not TP — had a gasoline supply contract with Peerless at that time.”25
Second, the Commonwealth pointed to the “2004 annual report from
the United States Energy Information Agency (‘EIA’) naming ‘Trammo Petro Inc.’
as the importer of approximately 25,000 barrels of MTBE from Venezuela to
Guayanilla, Puerto Rico in November 2004.”26 I held, based on “extensive
affidavits and documentation” provided by TP, that the single shipment of MTBE
attributed to “Trammo Petro Inc.” was a recording error because a U.S. Customs
Broker Invoice and Caribbean’s internal records attributed this shipment to
Carribean.27 No other documents were considered by the Court.
F.

Documents Submitted by the Commonwealth
1.

Documents Submitted with the Motion to Revise Prior
Orders

In support of its motion to revise prior orders, the Commonwealth

24

Id. at *8.

25

Id. at *9.

26

Id. at *8.

27

Id. at *9.
9

submitted several documents from the 2013 Production. One of these documents
is an “Agreement for Supply of Motor Gasoline, Low Sulfur Diesel and Kerosene”
(“Supply Agreement”) between “Trammo Petroleum, Inc.” and “Peerless Oil &
Chemicals, Inc.”28 The agreement, dated May 15, 2002, is a requirement contract
under which TP, as seller, would deliver a minimum of 200,000 barrels per month
of gasoline, diesel, and kerosene to Peerless’ storage tanks in Peñuelas, Puerto
Rico.29 In addition, TP warranted that it had “obtained all permits and
authorizations that are necessary for the execution, delivery and performance . . . of
this Agreement.”30 Finally, the agreement provided that Peerless would make
available certain storage tanks, not only for delivery of Peerless’ own fuel
requirements, but also “for storage of products to be sold to third parties [by
TP].”31
In addition to the Supply Agreement, the Commonwealth submitted a
June 17, 2002 agreement between TP and Caribbean assigning the entirety of the

28

Supply Agreement, Ex. B to Gilmour Decl., at TC000361. See also
Exs. A-1, A-2, A-3 to Declaration of William C. Petit, counsel for the
Commonwealth, in Support of the Commonwealth’s Motion for Reconsideration
(“Petit Decl.”) (Dkt. No. 679) at TC000361.
29

See id. at TC000362, TC000376.

30

Id. at TC000372-73.

31

Id. at TC000366.
10

Supply Agreement to Caribbean.32 James J. Goughary is the sole signatory on the
assignment, acting in his capacity as Senior Vice President (“SVP”) for both
companies.33 The Commonwealth also produced an amendment to the Supply
Agreement dated July 10, 2002 — almost a month after the assignment — signed
by Goughary in his capacity as the SVP for “Trammo Petroleum, Inc.”34
2.

Documents Submitted with the Present Motion

At a December 14, 2015 conference, the Commonwealth notified the
Court that it intended to make the present motion. The Commonwealth
represented that it had obtained a “[F]rame [A]greement”35 from the Trammo
Defendants on November 6, 2015.36 The Court granted the Commonwealth
permission to submit this new evidence in support of the present motion.37 The
Frame Agreement memorializes the sale of “Trammo’s Puerto Rico petroleum
business relating to Colonial Caribbean[, Inc.]” in consideration for which Colonial
32

See Assignment and Amendment of the Supply Agreement, Ex. C to
Gilmour Decl. See also Exs. B, C to Petit Decl.
33

See id. at TC000357.

34

Id. at TC000358-60.

35

Transcript of December 14, 2015 Conference (“12/14/15 Tr.”) at 7:9-

36

See Pl. Mem. at 3.

37

See 12/14/15 Tr. at 9:7-24.

11.

11

Caribbean shall, inter alia, “pay Trammo US$100,000.”38 The agreement, as a
term for the transfer of gasoline inventory, requires that BNP Paribas “will
terminate its liens on Trammo’s collateral in Puerto Rico.”39 These references to
“Trammo” are important, the Commonwealth contends, because the Frame
Agreement uses “Trammo” to refer to Trammo Petroleum, Inc. and “Trammo
Caribbean” to refer to Trammo Caribbean, Inc.40
In addition to the production of the Frame Agreement, the
Commonwealth submitted several documents from the 2013 Production that had
never been provided to the Court.41 Under Local Rule 6.3, these documents were
improperly submitted on a motion for reconsideration and will not be considered
by the Court.42

38

Frame Agreement, Ex. H to Petit Decl., at TC_PRII000001.

39

Id.

40

See id.

41

See Exs. B at TC000355, D-G to Petit Decl.; Ex. A to Reply
Declaration of William C. Petit, counsel for the Commonwealth, in Support of the
Commonwealth’s Motion for Reconsideration (Dkt. No. 690).
42

See Local Rules of the United States District Courts for the Southern
and Eastern Districts of New York 6.3 (“No affidavits shall be filed by any party
unless directed by the Court.”). See also R.F.M.A.S., Inc. v. Mimi So, 640 F. Supp.
2d 506, 510 (S.D.N.Y. 2009) (rejecting affidavits submitted with a motion for
reconsideration under Local Rule 6.3 because the movant “never sought
permission to file affidavits in connection with its motion”).
12

III.

APPLICABLE LAW
A.

Reconsideration
The standard for granting a motion for reconsideration is strict.

“‘[R]econsideration will generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked.’”43 “Reconsideration of a
court’s previous order is an ‘extraordinary remedy to be employed sparingly in the
interests of finality and conservation of scarce judicial resources.’”44 Typical
grounds for reconsideration include “an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error or prevent manifest
injustice.”45
B.

Rule 12(b)(2)
A plaintiff has the burden of proving personal jurisdiction by a

43

Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d
Cir. 2012) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)).
44

Oji v. Yonkers Police Dep’t, No. 12 Civ. 8125, 2013 WL 4935588, at
*1 (S.D.N.Y. Sept. 11, 2013) (quoting Parrish v. Sollecito, 253 F. Supp. 2d 713,
715 (S.D.N.Y. 2003)).
45

Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245,
1255 (2d Cir. 1992) (quotation omitted). Accord Shrader, 70 F.3d at 257
(describing grounds for reconsideration as “matters, in other words, that might
reasonably be expected to alter the conclusion reached by the court”).
13

preponderance of the evidence.46 “[A] plaintiff need only allege facts constituting
a prima facie showing of personal jurisdiction to survive a Rule 12(b)(2) motion.”47
The plaintiff may make such a showing with “an averment of facts that, if credited,
would suffice to establish jurisdiction over the defendant.”48 “The Court may rely
on the allegations contained in the complaint as well as on affidavits submitted by
the parties, and must draw all inferences and resolve any doubts in favor of the
plaintiffs notwithstanding contrary information proffered by the moving parties.”49
However, the Court “will not draw argumentative inferences in the plaintiff’s
favor, nor must we accept as true a legal conclusion couched as a factual
allegation.”50
A court must undertake a “two-step inquiry” to determine if it can

46

See Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir.

1996).
47

M & M Packaging v. Kole, 183 Fed. App’x 112, 114 (2d Cir. 2006)
(alteration in original) (citations omitted).
48

Penguin Grp. (USA) Inc. v. American Buddha, 609 F.3d 30, 35 (2d
Cir. 2010) (quotation marks and citations omitted).
49

General Elec. Capital Corp. v. Titan Aviation, LLC, No. 06 Civ. 4795,
2007 WL 107752, at *3 (S.D.N.Y. Jan. 16, 2007) (citing A.I. Trade Fin., Inc. v.
Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993)).
50

In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 659, 673 (2d Cir.
2013) (citations and quotations omitted).
14

exercise personal jurisdiction over a defendant.51 “First, we determine whether the
defendant is subject to jurisdiction under the law of the forum state . . . Second, we
consider whether the exercise of personal jurisdiction over the defendant comports
with the Due Process Clause of the United States Constitution.”52 Because Puerto
Rico’s long-arm statute “extends personal jurisdiction as far as the Federal
Constitution permits,” the only inquiry is whether the exercise of jurisdiction
comports with the demands of the Due Process Clause.53 Personal jurisdiction may
be exercised “‘if the defendant has certain minimum contacts with [the State] such
that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice.’”54
The Commonwealth alleges only specific jurisdiction over TP in this
case.55 Specific jurisdiction requires both a “minimum contacts” and a

51

Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 224 (2d

Cir. 2014).
52

Id.

53

Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir. 1994) (citing Dalmau
Rodriguez v. Hughes Aircraft Co., 781 F.2d 9, 12 (1st Cir. 1986)).
54

Sonera Holding, 750 F.3d at 225 (quoting Goodyear Dunlop Tires
Operations, S.A. v. Brown, 131 S.Ct. 2846, 2853 (2011)) (quotations omitted)
(alterations in original).
55

See Plaintiffs’ Opposition to Motion to Dismiss by Defendants
Trammo Petroleum, Inc. and Trammo Caribbean, Inc. (Dkt. No. 261) at 2.
15

“reasonableness” inquiry. First, the plaintiff must demonstrate that “the claim
arises out of, or relates to, the defendant’s contacts with the forum.”56 As the
Supreme Court recently explained, “the relationship [between the defendant and
the forum state] must arise out of contacts that the ‘defendant himself’ creates with
the forum State.”57 Though “a defendant’s contacts with the forum State may be
intertwined with his transactions or interactions with the plaintiff or other
parties . . . a defendant’s relationship with a plaintiff or third party, standing alone,
is an insufficient basis for jurisdiction.”58 “Due process requires that a defendant
be haled into court in a forum State based on his own affiliation with the State, not
based on the ‘random, fortuitous, or attenuated’ contacts he makes by interacting
with other persons affiliated with the State.”59
Second, jurisdiction must be reasonable.60 Courts weigh the following
56

Licci ex rel. Licci v. Lebanese Canadian Bank, 732 F.3d 161, 170 (2d
Cir. 2013). Accord Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)
(for the proper exercise of specific jurisdiction, the defendant must have
“purposefully directed” his activities toward the forum and the litigation must
“arise out of or relate to” those activities).
57

Walden v. Fiore, 134 S.Ct. 1115, 1122 (2014) (quoting Burger King,
471 U.S. at 475).
58

Id. at 1123 (citation omitted).

59

Id. (quoting Burger King, 471 U.S. at 475).

60

See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292

(1980).
16

factors in evaluating the “reasonableness” requirement of due process:
(1) the burden that the exercise of jurisdiction will impose on the
defendant; (2) the interests of the forum state in adjudicating the
case; (3) the plaintiff’s interest in obtaining convenient and
effective relief; (4) the interstate judicial system’s interest in
obtaining the most efficient resolution of the controversy; and (5)
the shared interest of the states in furthering substantive social
policies.61
“While the exercise of jurisdiction is favored where the plaintiff has made a
threshold showing of minimum contacts at the first stage of the inquiry, it may
be defeated where the defendant presents ‘a compelling case that the presence
of some other considerations would render jurisdiction unreasonable.’”62
IV.

DISCUSSION
A.

Reconsideration Is Procedurally Proper
TP’s argument that “plaintiff’s motion does not meet any of the

recognized standards in the Rules of this Court for reconsideration” is unfounded.63
The Supply Agreement as well as the assignment and subsequent amendment of

61

Asahi Metal Indus. Co. v. Superior Ct. of Cal., 480 U.S. 102, 113-14

(1987).
62

Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 165 (2d Cir.
2010) (quoting Burger King, 471 U.S. at 477).
63

Trammo Petroleum, Inc.’s Memorandum of Law in Opposition to the
Commonwealth of Puerto Rico’s Motion for Reconsideration (“Def. Mem.”) (Dkt.
No. 683) at 1.
17

the Supply Agreement submitted in support of the Commonwealth’s motion to
revise prior orders were overlooked by this Court in the Challenged Opinion.64 In
addition, the Frame Agreement, which was not produced by the Trammo
Defendants until November 6, 2015, constitutes new evidence pertinent to a
determination of personal jurisdiction. Though this evidence was available to the
Commonwealth prior to the issuance of the Challenged Opinion, it was produced
by TP nearly three years after the initial motion to dismiss for personal jurisdiction.
I reasoned at the December 14 conference that due to the unusual procedure
posture of this case whereby the Court sua sponte vacated the SOL Opinion, it was
only then that the Commonwealth “had reason to note [it] should have submitted
[the Frame Agreement].”65 Therefore, the Frame Agreement is new evidence
properly before the Court.
B.

The Commonwealth Has Made a Prima Facie Showing of
Personal Jurisdiction
The Commonwealth has carried its burden of demonstrating that the

documents from the 2013 Production and the Frame Agreement establish a prima
facie case of personal jurisdiction over TP. The Court’s prior conclusion that “no
64

See id. at 15 (conceding that “Exhibits A and B to the 2015 Petit Decl.
were also exhibits to the 2014 Gilmour Decl. and came from the same July 10,
2013 document production”).
65

12/14/15 Tr. at 9:12-17.
18

fair inference can be drawn” that TP conducted business in Puerto Rico is
undermined by the records now before the Court.66
The existence of the Supply Agreement by itself provides substantial
support for the Commonwealth’s allegation that TP supplied “gasoline and/or other
products containing MTBE” into Puerto Rico.67 While the Commonwealth does
not dispute the fact that the Supply Agreement was assigned to Caribbean on June
17, 2002,68 the Commonwealth argues that TP nonetheless “performed under that
agreement, which forms the basis of the Commonwealth’s claims against [TP].”69
In support of this allegation, the Commonwealth notes that TP, not Caribbean,
modified the Supply Agreement in a signed writing on July 10, 2002, which
postdates the assignment.70 Adding further credence to this allegation is the EIA
2004 annual report naming “Trammo Petro Inc.” as the importer of approximately

66

Challenged Opinion, 2015 WL 9777725, at *9.

67

TAC ¶ 21.

68

See Assignment and Amendment of the Supply Agreement at

TC000357.
69

Pl. Mem. at 6.

70

See Assignment and Amendment of the Supply Agreement at

TC000360.
19

25,000 gallons of MTBE into Guayanilla, Puerto Rico.71
The newly disclosed Frame Agreement provides even further support
for finding personal jurisdiction over TP. The Frame Agreement, which was
drafted by William Markstein, the Assistant Secretary of TP and Vice President
and Assistant Secretary of Caribbean,72 references “Trammo’s Puerto Rico
petroleum business” and “Trammo’s collateral in Puerto Rico.”73 The plain
language of the Frame Agreement — which in its first paragraph makes clear that
“Trammo” refers to “Trammo Petroleum, Inc.” — explicitly links TP to gasoline
business conducted in Puerto Rico.74 Bolstering this reading of the Frame
Agreement is the requirement that payment be made to TP, not Caribbean.75 It is
precisely these gasoline-related contacts that the Commonwealth alleges give rise
to liability for TP. This satisfies both the requirement of minimum contacts with
71

EIA Report, Ex. 2 to the Declaration of Daniel Boone, counsel for the
Commonwealth, in Support of Plaintiffs’ Opposition to Motion to Dismiss by
Defendants Trammo Petroleum, Inc. and Trammo Caribbean, Inc. (Dkt. No. 262)
at 7.
72

See Declaration of William E. Markstein, Assistant Secretary of TP
and Vice President and Assistant Secretary of Caribbean, in Opposition to the
Commonwealth of Puerto Rico’s Motion for Reconsideration (Dkt. No. 684) ¶¶ 1,
29.
73

Frame Agreement at TC_PRII000001.

74

Id.

75

See id.
20

the forum and that the exercise of personal jurisdiction be reasonable.
TP argues, as it has previously, that this is a case of mistaken identity
and submits nearly a hundred pages of exhibits in support of this assertion.
Although TP admits for the first time that it did indeed enter into the Supply
Agreement with Peerless, it maintains that no deliveries were made under that
agreement until after it was assigned to Caribbean.76 The later amendment to the
Supply Agreement by TP “was just an error,”77 as was the reference to “Trammo
Petro Inc.” in the EIA report, and as were the references to “Trammo” in the Frame
Agreement drafted by TP’s own employee.78 TP requests layer upon layer of
favorable inferences to permit this Court to conclude that it does not have personal
jurisdiction over TP. Such findings would fly in the face of the motion to dismiss
standard requiring the Court to “‘draw all reasonable inferences in favor of the
plaintiffs.’”79 Indeed, on a motion to dismiss, a court is compelled to find for the

76

See Def. Mem. at 8.

77

Id. at 10.

78

See id. at 10-12.

79

In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 151 (2d
Cir. 2015), as amended (Dec. 17, 2015) (quoting Town of Babylon v. Fed. Hous.
Fin. Agency, 699 F.3d 221, 227 (2d Cir. 2012)).
21

Dated:

New York, New York
April 15, 2016

23

- Appearances Liaison Counsel for Plaintiffs:
Robert J. Gordon, Esq.
Robin L. Greenwald, Esq.
William A. Walsh, Esq.
Weitz & Luxenberg, P.C.
180 Maiden Lane
New York, NY 10038
[phone]
Counsel for the Commonwealth:
William C. Petit, Esq.
John D.S. Gilmour, Esq.
Jackson Gilmour & Dobbs, P.C.
3900 Essex, Suite 700
Houston, TX 77027
[phone]
Jorge L. Flores, Esq.
Legal Counsel
Puerto Rico Department of Justice
Olimpo Street, Pda. 11
San Juan, PR 00907
[phone]
John K. Dema, Esq.
Law Offices of John K. Dema, P.C.
1236 Strand Street, Suite 103
Christiansted, VI 00820
[phone]
Orland H. Martinez, Esq.
Orland H. Martinez Law Offices
Centra de Seguros, Suite 413
701 Ponce de Leon Avenue
24

San Juan, PR 00907
[phone]
Michael Axline, Esq.
Miller Axline
1050 Fulton Avenue, Suite 100
Sacramento, CA 95825
[phone]
Liaison Counsel for Defendants:
James A. Pardo, Esq.
Lisa A. Gerson, Esq.
Michael J. Dillon, Esq.
McDermott Will & Emery LLP
50 Rockefeller Plaza, 11th Floor
New York, NY 10020
[phone]
Counsel for Trammo Defendants:
Barry R. Temkin, Esq.
Robert S. Goodman, Esq.
Sara N. Lewis, Esq.
Mound Cotton Wollan & Greengrass
One New York Plaza
New York, NY 10004
[phone]

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