Saint Tropez Inc. v. Ningbo Maywood Industry and Trade Co., Ltd. et al
MEMORANDUM AND ORDER denying 39 Motion for Default Judgment; denying 22 Motion to Dismiss. Accordingly, for the foregoing reasons, we deny Ningbo's motion to dismiss the Complaint and deny without prejudice plaintiff's motion for default judgment against Retro Fox. (Signed by Judge Naomi Reice Buchwald on 7/16/2014) Copies Mailed by Chambers. (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SAINT TROPEZ INC.,
MEMORANDUM AND ORDER
- against -
13 Civ. 5230 (NRB)
NINGBO MAYWOOD INDUSTRY AND TRADE CO.,
LTD. and RETRO FOX NEW YORK LLC,
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Maywood Industry and Trade Co., Ltd. (“Ningbo”) and Retro Fox
equitable relief as a result of Ningbo’s failure to properly
manufacture and deliver certain trademarked apparel identified
in two purchase order contracts.
The Complaint alleges that
roughly 41 percent of the goods identified in the contracts
were never delivered to plaintiff, and that those goods that
were delivered arrived late and were nonconforming.
to mitigate its claimed damages, plaintiff moved by order to
show cause for seizure of the undelivered goods, which had been
shipped to Retro Fox, Ningbo’s New York-based consignee.
August 8 and 22, 2013, the Court ordered the goods seized.
appearance in the case, the Court permitted plaintiff to sell
the seized goods, and ordered that the proceeds be held in
Retro Fox has not responded to the Complaint and has not
appeared in this action by counsel.
Ningbo appeared on October
28, 2013 for the limited purpose of opposing the jurisdiction
presently before the Court is Ningbo’s motion to dismiss the
Complaint pursuant to Federal Rule of Civil Procedure (“Rule”)
12(b)(5) for insufficient service of process, Rule 12(b)(2) for
lack of jurisdiction, and Rule 12(b)(6) for failure to state a
claim upon which relief can be granted.
Also before the Court
is plaintiff’s cross-motion for default judgment against Retro
dismiss the Complaint is denied and plaintiff’s cross-motion
The Purchase Order Contracts
place of business in Miami Beach, Florida.
Compl. ¶ 1.
January 16 and February 28, 2013, plaintiff entered into two
manufacturer, for the manufacture and delivery of goods labeled
with plaintiff’s trademarked “Black Ice” logo.
Id. ¶ 13.
contracts listed the goods to be delivered and provided the
following relevant information: (1) Ningbo, with an address in
identified as the buyer, and the address listed under its name
was 214 West 39th Street in Manhattan, which is the address of
plaintiff’s exclusive sales and operations agent, Commonwealth
Licensing Corporation (“Commonwealth”) (Jacklone Aff. ¶ 1); (3)
in the “Ship To” field, the contracts simply stated, “TBA”2; (4)
While the following facts are derived primarily from the Complaint
(“Compl.”) and the exhibits annexed thereto, we also cite to the Declaration
of Michael Gruber (“Gruber Decl.”), filed July 31, 2013, and the exhibits
annexed thereto; the Affidavit of Dean Jacklone (“Jacklone Aff.”), filed
December 26, 2013; the Affidavits of Steven Ki, filed on December 26, 2013
(“2013 Ki Aff.”), January 23, 2014 (“Jan. 2014 Ki Aff.”), and March 31, 2014
(“March 2014 Ki Aff.”), and the exhibits annexed thereto; and the Affidavits
of Yafei Ge, filed on November 26, 2013 (“2013 Ge Aff.”), January 9, 2014
(“Jan. 2014 Ge Aff.”), and April 2, 2014 (“April 2014 Ge Aff.”).
2 However, three of the four bills of lading list “New York, NY” as both the
place of delivery and the port of discharge (the other lists “Los Angeles,
Gruber Decl., Exs. 2-5.
The bills of lading also list Retro Fox,
with an address in Flushing, New York, as the consignee of the goods. Id.
the contracts also stated that the goods were to be “LDP – NJ”3
and “In warehouse”4 by “6/6/2013” and “6/18/2013”; and (5) the
Compl., Exs. A, B.
The Negotiation of the Contracts
Dean Jacklone, an officer and principal of Commonwealth,
plaintiff, he negotiated the contracts in New York with two
individuals who represented Ningbo: Steven Ki, Ningbo’s sales
agent, and Yafei Ge, Ningbo’s CEO.
Jacklone Aff. ¶¶ 5, 8.
addition to meeting with Ki and Ge in New York on several
occasions, Jacklone stated that he also negotiated with Ge’s
business partner Helen, who was in China.
delivered to New York.
Id. ¶ 5.
Id. ¶¶ 5, 14.
See 2013 Ki Aff.; Jan. 2014 Ki Aff.
Specifically, he stated:
(1) that he managed Ningbo’s sales and customer relationships
in New York; (2) that he helped Ningbo secure the purchase
order contracts with plaintiff; (3) that Ge and Helen directed
Invoices sent to Retro Fox further identify New York as the port of
discharge. Id., Exs. 2-4.
“LDP” is an abbreviation for “landed duty paid.”
According to Dean
Jacklone, the Commonwealth employee who negotiated the contracts on
plaintiff’s behalf, “LDP – NJ” means that “the Customs port of entry for the
goods would be the Port of New York and New Jersey, where container ships
dock and unload.” Jacklone Aff. ¶ 12.
4 The contracts do not specify the location of the warehouses.
him not to accept prices lower than certain amounts or agree to
delivery schedules without their consent; (4) that Ningbo had
agreed to pay him a commission for his work; (5) that he had
several meetings with Ge and Jacklone in New York regarding the
contracts with plaintiff; (6) that Ge was frequently in New
York for business, including Ningbo’s business with plaintiff,
and was in New York for a multi-month period when plaintiff’s
purchase orders were generated and in process; and (7) that
Manhattan’s Garment District.
Aff.; March 2014 Ki Aff.
See 2013 Ki Aff.; Jan. 2014 Ki
Attached to one of Ki’s affidavits
were emails between Ki, Ge, and Helen which supported Ki’s
statements regarding Ge’s presence in New York and Ki’s work as
a commissioned sales agent for Ningbo.
See Jan. 2014 Ki Aff.,
Ge, in her affidavit, acknowledged that she did travel to
New York5 and at least once spoke to Ki in person.
Jan. 2014 Ge
2013 Ge Aff. ¶¶ 10-12; Jan. 2014 Ge Aff. ¶ 18.
In fact, an email between Ge (also known as “Jaen”), Helen, and Ki reveals
that Ge had a cell phone with a New York City area code. See 2013 Ki Aff.,
between Ningbo and plaintiff, was neither an employee nor an
agent of Ningbo.6
Jan. 2014 Ge Aff. ¶¶ 6, 17, 19.
III. Ningbo’s Alleged Breach and the Instant Suit
According to the Complaint, 59 percent of the goods were
delivered to plaintiff, albeit late and with numerous defects.
Compl. ¶ 8.
The other 41 percent, which were shipped but not
delivered, were held in warehouses, consigned to Retro Fox.
customer in New York at a profit of $341,250.
Jacklone Aff. ¶ 5.
Id. ¶¶ 24, 28;
However, because of Ningbo’s failure to
canceled its order.
Compl. ¶ 28.
alleges damages of $341,250 in lost profits plus an additional
$12,000 in warehouse charges and other expenses.
Id. ¶ 24.
On July 26, 2013, plaintiff sued Ningbo for breach of
interference with contract, and requested an order of replevin
or for specific performance so that it could obtain and sell
the undelivered goods.
Also on July 26, plaintiff moved by
order to show cause for seizure of the goods.
Later that day,
another District Judge, sitting in Part I, signed the order to
However, emails between Ge, Helen, and Ki show that Ningbo had arranged to
pay Ki a commission for his work involving the contracts with plaintiff.
See 2013 Ki Aff., Ex. D; Jan. 2014 Ge Aff., Ex. 1.
Service of Process
overnight mail (ECF No. 12), and again on August 2, 2013 by
“nail and mail” service (ECF No. 8).
Plaintiff attempted to
effectuate service on Ningbo by mailing a copy of the summons
and complaint to Ningbo at its address in China and to Retro
Fox’s address in New York (under the theory that Retro Fox
could accept service on Ningbo’s behalf).
In addition, on July 29, 2013, Jacklone provided a copy of
Jacklone Aff. ¶¶ 19, 20; 2013 Ki Aff. ¶ 22.
Ki stated that he
gave these documents to Ge later that day in an office on West
37th Street in Manhattan where Ge frequently worked when she was
in New York.
March 2014 Ki Aff. ¶ 2.
Ki also helped Ge find
an attorney in Flushing, New York to represent Ningbo.
Terrence Worms, testified that he had spoken with Ki on the
phone and had met with Ge on two occasions in August 2013 to
discuss the possibility of representing Ningbo.8
Tr. 5, 9, 13-
Worms further testified that Ge had given him a copy of
the summons and complaint before one of their meetings.
The testimony of Worms, combined with the affidavits of
References preceded by “Tr.” refer to the transcript of the hearing held on
May 20, 2014 regarding service of process.
8 Ultimately, Ningbo did not to retain Worms.
Jacklone and Ki, provide convincing evidence that Ge was served
Tr. 25, 26.
Seizure of the Goods
After the time expired for Ningbo and Retro Fox to respond
to the Complaint and order to show cause, the Court ordered the
goods seized and permitted them to be sold, provided that the
proceeds would be held in escrow pending the outcome of the
litigation or further order of the Court.
On October 31, 2013,
conference that all of the goods had been sold.
telephone conference on April 9, 2014, counsel stated that the
proceeds of the sales amounted to approximately $100,000.
The Present Motions
Complaint and to vacate the prior orders of the Court on three
grounds: first, that Ningbo was not properly served under the
rather than the United Nations Convention on Contracts for the
Although Ge, in an affidavit, denied receiving a copy of the summons and
complaint, the evidence is otherwise, as the Court so found at the May 20
hearing. Tr. 25, 26.
International Sale of Goods (“CISG”).
On December 26, 2013,
judgment against Retro Fox.
Motion to Dismiss Under Rule 12(b)(5)
Ningbo first argues that the Complaint should be dismissed
because plaintiff’s attempt to serve it through registered mail
Matters (the “Hague Convention”), Nov. 15, 1965, 20 U.S.T. 361,
Convention applies to service abroad on a Chinese corporation,
and that plaintiff failed to follow the proper procedures for
serving process under that Convention, service was nonetheless
properly effected here through the delivery of the summons and
complaint to Ge, Ningbo’s CEO.
Indeed, under Rule 4(h)(1)(B),
a foreign corporation may be served in a judicial district of
the United States “by delivering a copy of the summons and
complaint to an officer or agent authorized to receive service
See Volkswagenwerk Aktiengesellschaft v. Schlunk,
486 U.S. 694, 707 (1988) (“The only transmittal to which the
demonstrate that Ge was furnished with a copy of the summons
and complaint while she was in New York, we hold that plaintiff
Dickerson v. Napolitano, 604 F.3d 732, 752-53 (2d Cir. 2010)
(“When a defendant moves to dismiss under Rule 12(b)(5), the
therefore deny Ningbo’s motion to dismiss the Complaint under
Motion to Dismiss Under Rule 12(b)(2)
Ningbo also contends that the Complaint must be dismissed
because the Court lacks personal jurisdiction over it.
defeat a Rule 12(b)(2) motion to dismiss for lack of personal
jurisdiction before discovery is conducted, a plaintiff “need
“Plaintiffs can make this showing through their own affidavits
and supporting materials . . . that, if credited, would suffice
to establish jurisdiction over the defendant.”
In re Ski Train
Fire in Kaprun, Austria on Nov. 11, 2000, 230 F. Supp. 2d 376,
We therefore need not address plaintiff’s argument that Ki was an agent
who could receive service of process on behalf of Ningbo.
If he was an
agent, then service was properly effected by Jacklone’s delivery of the
summons and complaint to him.
If he was not an agent, then he was an
appropriate person under Rule 4(c)(2) to serve the summons and complaint on
381 (S.D.N.Y. 2002) (citing Whitaker v. Am. Telecasting Inc.,
261 F.3d 196, 208 (2d. Cir. 2001)).
In deciding whether a
plaintiff has met this burden, “all allegations are construed
in the light most favorable to the plaintiff and doubts are
controverting presentation by the moving party.”
A. I. Trade
However, where a “defendant rebuts plaintiff[’s] unsupported
allegations with direct, highly specific, testimonial evidence
regarding a fact essential to jurisdiction -- and plaintif[f]
Consulting, Inc., 425 F. Supp. 2d 402, 420 (S.D.N.Y. 2006).
“In deciding a question of personal jurisdiction, district
courts must conduct a two-part analysis, looking first to the
jurisdiction comports with federal due process.”
Collezioni, Ltd. v. Confezioni Semeraro Paolo, S.R.L., 264 F.3d
32, 37 (2d Cir. 2001).
A. New York’s Long-Arm Statute
Under New York’s long-arm statute, a New York court may
exercise personal jurisdiction over a non-domiciliary who in
person or through an agent: (1) “transacts any business within
jurisdiction under this statute, the claims must arise out of
the acts that form the basis for personal jurisdiction.
As discussed below, plaintiff has adequately made a prima facie
showing of personal jurisdiction under both the “transacting
business” and “supplying goods” prongs.
1. Ningbo Transacted Business in New York
“A nondomiciliary ‘transacts business’ under C.P.L.R. §
302(a)(1) when he purposefully avails himself of the privilege
of conducting activities within New York, thus invoking the
benefits and protections of its laws.”
CutCo Indus., Inc. v.
alterations and quotation marks omitted).
“No single event or
contact connecting the defendant to the forum state need be
demonstrated; rather, the totality of all defendant’s contacts
jurisdiction would be proper.”
“While the defendant need
not be physically present in the state for a court to exercise
attributable to the one sought to be held which occurs in New
JP Morgan Chase Bank, N.A. v. Law Office of Robert Jay
Gumenick, P.C., 08 Civ. 2154 (VM), 2011 U.S. Dist. LEXIS 46319,
at *12-13 (S.D.N.Y. Apr. 21, 2011) (internal quotation marks
“[T]he overriding criterion necessary to establish a
transaction of business is some act by which the defendant
activities within New York.”
Licci ex rel. Licci v. Lebanese
Canadian Bank, SAL, 673 F.3d 50, 61 (2d Cir. 2012) (internal
quotation marks omitted).
Plaintiff alleges several examples of Ningbo transacting
business in New York: Ki, acting as Ningbo’s sales agent,11
frequently met with Jacklone, plaintiff’s agent, in New York to
Ningbo’s CEO, traveled to New York to participate in several of
located in Flushing, New York, serve as the consignee of the
goods, which, according to the bills of lading, were to be
customer in New York.
As dictated by the statute, the transaction of business can be conducted
either by defendant “in person or through an agent.”
N.Y. C.P.L.R. §
302(a)(1). The term “agent” is broadly interpreted in this context. Grove
Press, Inc. v. Angleton, 649 F.2d 121, 122 (2d Cir. 1981).
require a formal agency relationship, the Court looks to the realities of
the commercial situation.
CutCo, 806 F.2d at 366.
To be considered an
agent for jurisdictional purposes, one must have transacted business in New
York “for the benefit of, and with the knowledge and consent of” the
Under this standard, Ki qualifies as Ningbo’s agent, and
his actions may be imputed to Ningbo. The fact that he was never ultimately
paid a commission for his work is of no moment.
Scholastic, Inc. v.
Stouffer, No. 99 Civ. 11480 (AGS), 2000 U.S. Dist. LEXIS 11516, at *18-19
(S.D.N.Y. Aug. 14, 2000) (finding agency relationship despite the fact that
agent was never paid for his services).
Worldwide Inventions, Inc., 245 F. Supp. 2d 543, 549 (S.D.N.Y.
essential to the formation of the contract or advanced the
alterations and quotations marks omitted)); Scholastic, Inc.,
2000 U.S. Dist. LEXIS 11516, at *13 (activity sufficient to
solicitation of business by defendants, contract negotiations
between the parties, meetings at which defendants were present,
Moreover, there is no question that these activities are
closely connected to plaintiff’s claims against Ningbo, thus
satisfying § 302(a)(1)’s requirement that each cause of action
must arise out of the acts that form the basis for personal
See Best Van Lines, Inc. v. Walker, 490 F.3d
239, 246 (2d Cir. 2007) (“[A} suit will be deemed to have
arisen out of a party’s activities in New York if there is an
articulable nexus, or a substantial relationship, between the
(internal quotation marks omitted)).
“transacting business” prong of § 302(a)(1).
2. Ningbo Contracted to Supply Goods in New York
The “supplying goods” prong of § 302(a)(1) provides an
jurisdiction in New York if it “contracts anywhere to supply
goods . . . in the state.”
N.Y. C.P.L.R. § 302(a)(1).
although the two purchase order contracts at issue say “LDP –
NJ,” and the goods were ultimately sent to warehouses in New
Jersey and California, plaintiff has offered several reasons to
believe that Ningbo intended for the goods to be shipped to New
First, three of the four bills of lading list New York
as the place of delivery and the port of discharge.
Decl., Exs. 2-4.
The bills of lading also list Retro Fox, with
its New York address, as the consignee.
Invoices sent to
Retro Fox confirm that New York was the designated port of
Finally, Jacklone stated in his affidavit that
he “obtained Ningbo’s commitment to specially manufacture and
deliver to New York the goods,” and that “LDP – NJ” meant that
the “Customs port of entry for the goods would be the Port of
New York and New Jersey.”
Jacklone Aff. ¶¶ 5, 12.
statements are supported by an email attached to his affidavit
in which Helen, Ningbo’s co-owner, indicated her understanding
that the port of discharge for the goods was supposed to be New
Jacklone Aff., Ex. 1 (“The port should be N.Y [sic] not
LA ,[sic] right?”).
APC Commodity Corp. v. Ram Dis Ticaret A.S., 965 F. Supp.
461 (S.D.N.Y. 1997), is instructive on this issue.
case, the Court found that the defendant had contracted to
supply goods to New York even though the goods were ultimately
shipped to Port Elizabeth, New Jersey.
APC, 965 F. Supp. at
The Court relied on a fax sent by the plaintiff to the
defendant stating “CFR / New York,” and bills of lading which
listed New York as the port of discharge.
The Court held
Id.; see also Bohn v. Bartels, 620 F. Supp. 2d
jurisdiction over a nondomiciliary who contracts outside this
State to supply goods or services in New York even if the goods
are never shipped or the services are never supplied in New
York” (internal quotation marks omitted)); Laumann Mfg. Corp.
v. Castings USA, 913 F. Supp. 712, 717 (E.D.N.Y. 1996) (“The
key issue is that the nondomiciliary contracted and intended to
send goods to New York.”).
showing that Ningbo contracted to supply goods in New York.
Because plaintiff’s claims arose out of these contracts, we
hold that the Court has personal jurisdiction over Ningbo under
the second prong of § 302(a)(1).
B. Due Process is Satisfied
Having concluded that there is an adequate basis for the
exercise of personal jurisdiction over Ningbo, the Court must
next determine whether the exercise of jurisdiction over it
activities within the forum State, thus invoking the benefits
and protections of its laws.”
Burger King Corp. v. Rudzewicz,
471 U.S. 462, 475 (1985) (internal quotation marks omitted);
see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
297 (1980) (“[T]he defendant’s conduct and connection with the
forum state [must be] such that he should reasonably anticipate
being haled into court there.”).
There are two aspects of the
due process analysis: (1) the minimum contacts inquiry, and (2)
the reasonableness inquiry.
Chloe v. Queen Bee of Beverly
Hills, LLC, 616 F.3d 158, 171 (2d Cir. 2010).
proper under the CPLR, due process will be satisfied because
CPLR § 302 does not reach as far as the constitution permits.”
Here, Ningbo had sufficient minimum contacts
with New York that the exercise of personal jurisdiction over
it satisfies due process for the same reasons discussed above:
Ki and Ge negotiated the contracts with Jacklone in New York,
Ningbo designated New York as the place of delivery and port of
discharge for most of the goods, and Ningbo consigned the goods
to Retro Fox.
See Chloe, 616 F.3d at 171 (concluding that
“assertion of personal jurisdiction over [defendant] comports
with due process for the same reasons that it satisfies New
York’s long-arm statute”).
With respect to the reasonableness inquiry, even where an
out-of-state defendant is deemed to have purposefully availed
itself of the forum state, a plaintiff “must still demonstrate
that the exercise of jurisdiction does not ‘offend traditional
reasonable under the Due Process Clause.”
Id. at 173 (quoting
Asahi Metal Indus. Co. v. Superior Court of Cal., Solano Cnty.,
480 U.S. 102, 113 (1987)).
In determining the reasonableness
of exercising jurisdiction, courts must consider the following
factors: (1) “the burden on the defendant,” (2) “the interests
of the forum State,” (3) “the plaintiff’s interest in obtaining
obtaining the most efficient resolution of controversies,” and
(5) “the shared interest of the several States in furthering
fundamental substantive social policies.”
Asahi, 480 U.S. at
reasonableness grounds should be ‘few and far between.’”
Am., Inc. v. Frontline Processing Corp., 721 F. Supp. 2d 228,
Robertson-Ceco Corp., 84 F.3d 560, 575 (2d Cir. 1996)).
Although there may be some burden on Ningbo in defending
business here suggests that it is not an unreasonable burden.
See Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305
F.3d 120, 129-30 (2d Cir. 2002) (“Even if forcing the defendant
to litigate in a forum relatively distant from its home base
were found to be a burden, the argument would provide defendant
only weak support, if any, because the conveniences of modern
communication and transportation ease what would have been a
serious burden only a few decades ago.” (internal quotation
The second factor appears to be neutral in
this case, as do the fourth and fifth factors.
And the third
plaintiff has a strong interest in obtaining redress for its
claims, and New York may be the only place in the United States
in which Ningbo is subject to personal jurisdiction on these
Jacklone and Ki are located and where Ningbo’s consignee and
codefendant Retro Fox is headquartered.
Having considered these factors, the Court concludes that
this is not one of the few and far between cases in which the
exercise of jurisdiction would be unreasonable despite the fact
that plaintiff has satisfied the state law and minimum contacts
In short, the exercise of personal jurisdiction over
substantial justice, such that it satisfies the reasonableness
inquiry of the Due Process Clause.”
Chloe, 616 F.3d at 173
(internal citation and quotation marks omitted).
III. Motion to Dismiss Under Rule 12(b)(6)
Finally, Ningbo moves to dismiss the Complaint pursuant to
Rule 12(b)(6) on the grounds that plaintiff improperly brought
this action under the UCC rather than the CISG.
On a motion to
dismiss under Rule 12(b)(6), the Court must accept as true all
factual allegations in the complaint and draw all reasonable
inferences in the plaintiff’s favor.
ATSI Commc’ns, 493 F.3d
at 98; Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d
signatory nations, that creates a private right of action in
Petrochemicals, Inc., 760 F. Supp. 2d 426, 430 (S.D.N.Y. 2011).
between parties from different contracting states unless the
Group Imp. & Exp. Co. v. Level 8 Apparel, LLC, No. 11 Civ. 4405
(ALC), 2014 U.S. Dist. LEXIS 53688, at *15 (S.D.N.Y. Mar. 28,
Plaintiff is located in the United States and Ningbo is located
in China, both of which are signatories to the CISG.
There is no allegation that the parties agreed
to exclude the application of the CISG to the contracts at
issue in this case.
Thus, plaintiff’s claims are governed by
Ningbo argues that the Complaint must be dismissed because
it is erroneously premised on the applicability of the UCC.
However, the Complaint cites neither the CISG nor the UCC.13
Unfortunately, “there are few cases discussing claims arising under the
Profi-Parkiet Sp. Zoo v. Seneca Hardwoods LLC, No. 13 Civ. 4358
(PKC)(LB), 2014 U.S. Dist. LEXIS 71289, at *10 (E.D.N.Y. May 23, 2014).
However, “the available case law establishes . . . that federal district
courts have subject matter jurisdiction over such claims.” Id.
13 Although plaintiff relied on the UCC in its applications to seize and sell
the goods, it did not explicitly rely on it in the Complaint.
Rather, it simply alleges that Ningbo failed to timely deliver
conforming goods as required by its contracts with plaintiff,
and seeks various forms of equitable relief, including replevin
and specific performance, to mitigate the resulting damages.
This is not incompatible with the CISG.
Indeed, the CISG permits buyers to obtain damages when
sellers breach their contractual obligations, and it does not
prohibit a court from ordering replevin, specific performance,
Under the CISG, “[t]he seller must deliver the goods,
 if a date is fixed by or determinable from the contract, on
that date,” CISG art. 33(a), and “must deliver goods which are
contract and which are contained or packaged in the manner
required by the contract,” id. art. 35(1).
“The seller is
liable in accordance with the contract and [the CISG] for any
passes to the buyer . . . .”
Id. art. 36(1).
“If the seller
fails to perform any of its obligations under the contract or
including loss of profit, suffered . . . as a consequence of
the breach,” id. art. 74 -- and “may require performance by the
seller of his obligations,” id. art. 46(1).14
Thus, the CISG
satisfy its contractual obligations and authorizes the Court to
order specific performance.
Therefore, because the Complaint states claims and seeks
Ningbo’s motion to dismiss the Complaint under Rule 12(b)(6).
Plaintiff’s Cross-Motion for Default Judgment Against
Lastly, we address plaintiff’s cross-motion for default
judgment against Retro Fox, which has not appeared in this
action despite having been served with process on August 2,
Plaintiff alleges that Retro Fox interfered with its
contracts “by refusing to allow Plaintiff its goods,” and seeks
damages “in at least the sum of $75,000 to be proven at trial.”
Compl. ¶ 43.
If plaintiff wishes to pursue a default judgment against
Retro Fox, it must first seek a certificate of default from the
Clerk of Court and then submit a proposed order of default
judgment to this Court pursuant to Rule 55 and Local Civil Rule
Notably, the CISG allows courts to look to domestic law when deciding
whether to order specific performance. Article 28 states in pertinent part
that “a court is not bound to enter a judgment for specific performance
unless the court would do so under its own law in respect of similar
contracts of sale not governed by this Convention.” CISG art. 28.
requirements, we deny its motion without prejudice to renewal
upon compliance with the applicable rules.
See Kendall v.
Cuomo, 12 Civ. 3438 (ALC), 2013 U.S. Dist. LEXIS 138424, at *4
(S.D.N.Y. Sept. 26, 2013) (holding that because plaintiff had
not “sought, nor been issued, a certificate of default from the
Clerk of the Court . . . he did not meet the first step for
obtaining an entry of default judgment and his motion must be
denied”); Badalamenti v. Country Imported Car Corp., No. 10
Civ. 4993 (SJF), 2012 U.S. Dist. LEXIS 46267, at *6-7 (E.D.N.Y.
Feb. 22, 2012) (denying motion for default judgment due to
However, if plaintiff pursues a default judgment against
Retro Fox, it should be aware that a determination of damages
will not be made until after the claims against Ningbo are
determine how and to what extent Retro Fox caused plaintiff
See Long Island Hous. Servs. v. Greenview Props., No.
07 Civ. 0352 (ADS)(WDW), 2007 U.S. Dist. LEXIS 95976, at *2
(E.D.N.Y. Dec. 3, 2007), Report and Recommendation, adopted by
2008 U.S. Dist. LEXIS 5704 (E.D.N.Y. Jan. 11, 2008) (“When
there are multiple defendants who may be jointly and severally
liable for damages alleged by plaintiff, and some but less than
all of those defendants default, the better practice is for the
district court to stay its determination of damages against the
defaulters until plaintiff’s claim against the nondefaulters is
against Retro Fox “in at least the sum of $75,000 to be proved
at trial,” and provides no basis for calculating these damages,
a default judgment will be limited to $75,000.
See Fed. R.
Civ. P. 54(c) (“A default judgment must not differ in kind
pleadings.”); Silge v. Merz, 510 F.3d 157, 160 (2d Cir. 2007)
(“By limiting damages to what is specified in the ‘demand for
considering default can look at the damages clause, satisfy
himself that he is willing to suffer judgment in that amount,
and then default without the need to hire a lawyer.”); Berkley
Reg’l Ins. Co. v. James T. Redding, Inc., No. ELH-12-2578, 2013
U.S. Dist. LEXIS 144205, at *2-3 (D. Md. Oct. 3, 2013), Report
and Recommendation, adopted by 2013 U.S. Dist. LEXIS 150640 (D.
complaint in order to obtain default judgment in excess of
amount demanded in original complaint despite use of the term
“at least” before the amount); 10 Moore’s Federal Practice §
55.34 (3d ed. 2014) and cases cited therein.
deny Ningbo' s
plaintiff's motion for default judgment against Retro Fox.
New York, New York
July 16, 2014
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Copies of the foregoing Order have been mailed on this date to
Attorneys for Plaintiff
Richard Turyn, Esq.
Daniele Dermesropian, Esq.
Ballon Stoll Bader & Nadler, P.C.
729 Seventh Avenue, 17th Floor
New York, NY 10019
Attorney for Defendant Ningbo
Ripal J. Gajjar, Esq.
Law Offices of Joe Zhenghong Zhou and Associates, PLLC
136-20 38th Avenue, Suite lOH
Flushing, NY 11354
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