Consulting Concepts Int'l, Inc. et al v. Kingdom of Saudi Arabia et al
OPINION AND ORDER GRANTING MOTION TO DISMISS AND DENYING MOTION FOR PRE-ANSWER JURISDICTIONAL DISCOVERY re: 50 MOTION to Dismiss the Complaint for Forum Non Conveniens and for Lack of Jurisdiction Under the Foreign Sovereign Immunities Act . filed by Kingdom of Saudi Arabia, Consumer Protection Association, 89 FIRST MOTION for Discovery Pre-answer jurisdictional discovery. filed by Massimiliano Pincione, Consulting Concepts Int'l, Inc. Defendants' moti on to dismiss is granted, and Plaintiffs' motion for pre-answer jurisdictional discovery is denied. The Clerk of Court shall terminate the open motions (ECF Nos. 50, 89) and close the case. The oral argument scheduled for April 6, 2021, is canceled. SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 4/1/21) (yv) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CONSULTING CONCEPTS INT’L, INC. and
KINGDOM OF SAUDI ARABIA and
CONSUMER PROTECTION ASSOCIATION,
ALVIN K. HELLERSTEIN, U.S.D.J.:
OPINION AND ORDER
GRANTING MOTION TO
DISMISS AND DENYING
MOTION FOR PRE-ANSWER
19 Civ. 11787 (AKH)
In December 2019, Plaintiffs brought parallel lawsuits in this Court and the
English High Court of Justice, demanding compensation for certain consulting services provided
to Defendants Kingdom of Saudi Arabia and Consumer Protection Association. See ECF
No. 10. Defendants now move to dismiss the Complaint against them, pursuant to
Rules 12(b)(1) and 12(b)(3) of the Federal Rules of Civil Procedure, for lack of subject matter
jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq. and under the
doctrine of forum non conveniens. See ECF No. 50. In connection with Defendants’ motion,
Plaintiffs seek pre-answer jurisdictional discovery on sovereign immunity issues. See ECF
No. 89. For the reasons discussed below, Defendants’ motion to dismiss is granted, and
Plaintiffs’ motion for pre-answer discovery is denied.
The instant case stemmed from a contract dispute between the parties for the
payment of consulting services. See Am. Compl. (ECF No. 10), at ¶ 1. Plaintiff Consulting
Concepts International, Inc. (“CCI”) is a corporation organized and headquartered in the State of
New York. See id. at ¶ 6. Plaintiff Massimiliano Pincione (“Pincione”), a New York resident, is
CCI’s principal and shareholder. See id. at ¶ 7. In June 2013, Defendant Kingdom of Saudi
Arabia (“Saudi Arabia”), through Defendant Consumer Protection Association (“CPA”), its
agency or instrumentality, retained Plaintiffs to perform certain asthma- and non-asthma-related
consulting services in Saudi Arabia. See id. at ¶¶ 11, 35. On June 4, 2013, CPA and CCI
executed a contract (the “Contract”) setting forth the parties’ responsibilities. See Br. (ECF
No. 87), Ex. C. The Contract provides, among other things, that CCI and CPA “will collaborate
to develop and implement strategies, programs and public policies to address the root causes of
Asthma, its prevalent misdiagnosis, treatment compliance and pediatric continuing-education in
the Kingdom of Saudi Arabia, as well as to promote proven therapeutic protocols to enhance and
improve the life of Saudi Arabia’s youth.” Id. at 1. The Contract also provides that “[t]he
parties [ ] will submit themselves to the jurisdiction of the laws of the United Kingdom for any
and all disputes arising from this agreement.” Id. at 1. Plaintiffs assert that they completed
asthma- and non-asthma-related consulting services as of January 2014, and that Defendants
have not made any payments to Plaintiffs on account of their services. See Am. Compl.,
at ¶¶ 16, 40.
On December 24, 2019, Plaintiffs brought the instant action to recover
compensation and damages from Defendants in the amount of $45,055,500.00 for asthma-related
services and $12,000,000.00 for non-asthma-related services. See id. at ¶ 1. The Amended
Complaint alleges breach of contract, account stated, quantum meruit, and unjust enrichment.
See id. Three days later, on December 27, 2019, Plaintiff CCI filed a claim against Defendant
CPA in the High Court of Justice in England, also seeking compensation and damages related to
their asthma- and non-asthma-related consulting work. See Br., Ex. F. On September 29, 2020,
Defendants moved in this Court to dismiss for lack of subject matter jurisdiction under the
Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq. and under the doctrine of forum non
conveniens. See ECF No. 50. In support of their positions, Plaintiffs and Defendants submitted
declarations of their respective experts, James M. Turner, Q.C. and Gavin Kealey, Q.C., on
issues of English law. See ECF Nos. 52, 79, 102. Plaintiffs also filed on January 13, 2021, a
motion for pre-answer jurisdictional discovery on sovereign immunity issues. See ECF No. 89.
As discussed in the following section, Defendants’ motion to dismiss is granted, and Plaintiffs’
motion for pre-answer discovery is denied.
There are three issues of contention before the Court: (i) whether the Court lacks
subject matter jurisdiction over Defendants under the Foreign Sovereign Immunities Act,
(ii) whether the Contract contains an enforceable forum-selection clause that requires dismissal
of the case for forum non conveniens, and (iii) whether Plaintiffs are entitled to pre-answer
jurisdictional discovery on sovereign immunities issues. The Court discusses these three issues
Foreign Sovereign Immunities Act.
Defendants contend that the Court lacks subject matter jurisdiction over
Defendant Saudi Arabia under the Foreign Sovereign Immunities Act. See Br., at 36. It is
“axiomatic that ‘[f]ederal courts are courts of limited jurisdiction. They possess only that power
authorized by Constitution and statute.’” Acorne Products, LLC v. Tjeknavorian, 33 F. Supp. 3d
175, 180 (E.D.N.Y. 2014) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994)). The Court, therefore, must independently examine issues of subject matter
jurisdiction before reaching other potential grounds for dismissal. See Rhulen Agency, Inc. v.
Ala. Ins. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir. 1990) (finding that subject matter jurisdiction
is a threshold issue that a court must consider before addressing the merits of any particular
case); Zhou v. Peng, 286 F. Supp. 2d 255, 262 (S.D.N.Y. 2003) (“[I]ssues of the Court’s subject
matter jurisdiction may be raised at any time, including . . . sua sponte by the Court.”).
The Foreign Sovereign Immunities Act (“FSIA”) “is the sole source for subject
matter jurisdiction over any action against a foreign state.” Kensington Int’l Ltd. v. Itoua, 505
F.3d 147, 154 (2d Cir. 2007) (quoting Cabiri v. Gov’t of the Republic of Ghana, 165 F.3d 193,
196 (2d Cir. 1999)). The FSIA provides that “a foreign state or an ‘agency or instrumentality of
a foreign state[ ]’ is immune from federal court jurisdiction unless a specific exception to the
FSIA applies.” Anglo-Iberia Underwriting Mgmt. Co. v. P.T. Jamsostek, 600 F.3d 171, 175
(2d Cir. 2010) (quoting 28 U.S.C. § 1603(b)). “When [a] defendant claims immunity under the
FSIA,” that defendant must first “present[ ] a prima facie case that it is a foreign sovereign.”
Figueroa v. Ministry for Foreign Affs. of Sweden, 222 F. Supp. 3d 304, 307 (S.D.N.Y. 2016)
(quoting Cargill Int’l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir. 1993)). “Once
the defendant presents a prima facie case that it is a foreign state [within the meaning of the
FSIA], ‘the plaintiff [then] has the burden of going forward with evidence showing that, under
exceptions to the FSIA, immunity should not be granted.’” Kensington, 505 F.3d at 153 (quoting
Cabiri, 165 F.3d at 196).
Plaintiffs do not dispute that Defendants are “foreign states” within the meaning
of the FSIA. (Plaintiff alleges that Defendant CPA is an agency or instrumentality of Saudi
Arabia.) Am. Compl., at ¶¶ 8, 9. However, Plaintiffs argue that the “commercial activity”
exception to sovereign immunity applies to confer jurisdiction. See id. at ¶ 3; Opp’n (ECF
No. 86), at 39. Section 1605(a)(2) of the FSIA provides in relevant part:
A foreign state shall not be immune from the jurisdiction of courts
of the United States or of the States in any case . . . in which the
action is based [i] upon a commercial activity carried on in the
United States by the foreign state; or [ii] upon an act performed in
the United States in connection with a commercial activity of the
foreign state elsewhere; or [iii] upon an act outside the territory of
the United States in connection with a commercial activity of the
foreign state elsewhere and that act causes a direct effect in the
28 U.S.C. § 1605(a)(2).
To pursue any of these three theories, a plaintiff must show “some form of (1) a
‘commercial activity’ carried on by or of the foreign state[,] (2) a nexus between the activity and
the basis of the plaintiff’s claims, and (3) a geographic connection with the United States.”
Pablo Star Ltd. v. Welsh Gov’t, 378 F. Supp. 3d 300, 307 (S.D.N.Y. 2019), aff’d, 961 F.3d 555
(2d Cir. 2020), cert. denied, No. 20-640, 2021 WL 78181 (U.S. Jan. 11, 2021).
As provided by the FSIA, a “commercial activity” may be “either a regular course
of commercial conduct or a particular commercial transaction or act.” 28 U.S.C. § 1603(d). The
text further instructs that “[t]he commercial character of an activity shall be determined by
reference to the nature of the course of conduct or particular transaction or act, rather than by
reference to its purpose.” Id. “[A] state engages in commercial activity . . . where it exercises
only those powers that can also be exercised by private citizens as distinct from those powers
peculiar to sovereigns.” Saudi Arabia v. Nelson, 507 U.S. 349, 350 (1993). Whether the foreign
state acts “with a profit motive or instead with the aim of fulfilling uniquely sovereign
objectives” is irrelevant. Figueroa, 222 F. Supp. 3d at 310 (quoting Anglo-Iberia, 600 F.3d
at 177). Instead, the key inquiry is “whether the particular actions that the foreign state performs
(whatever the motive behind them) are the type of actions by which a private party engages in
trade and traffic or commerce.” Id. (internal quotation marks omitted).
The Supreme Court has explained that determining whether a plaintiff’s claim is
“based upon” a commercial activity requires courts to “look[ ] to the ‘basis’ or ‘foundation’ for a
claim,” or to “the ‘gravamen of the complaint.’” OBB Personenverkehr AG v. Sachs, 136 S. Ct.
390, 395 (2015). Courts first must “identify[ ] the particular conduct on which the [plaintiff's]
action is ‘based.’” Id. (alterations in original) (quoting Nelson, 507 U.S. at 356). In doing so,
courts should look at “the gravamen of the complaint” as well as “those elements . . . that, if
proven, would entitle a plaintiff to relief.” Id. (alteration in original) (internal quotation marks
and citations omitted). “Courts then must consider the degree of closeness that exists between
the commercial activity and the gravamen of the plaintiff’s complaint.” Pablo Star, 378 F. Supp.
3d at 308 (internal citations and quotation marks omitted). For a claim to be “based upon” a
commercial activity, there must be “a significant nexus . . . between the commercial activity in
this country upon which the exception is based and a plaintiff’s cause of action.” Kensington,
505 F.3d at 155 (quoting Reiss v. Société Centrale Du Groupe Des Assurances Nationales, 235
F.3d 738, 747 (2d Cir. 2000)) (omission and emphasis in original). This requisite “degree of
closeness . . . is considerably greater than common law causation requirements.” Id. at 156
(internal quotation marks omitted).
Plaintiffs’ allegation, that their action “is based upon a commercial activity,
carried on in the United States by a foreign state and/or upon an act performed in the United
States in connection with a commercial activity of the foreign state elsewhere,” is conclusory and
contradicted by the parties’ agreement. Am. Compl., at ¶ 4; ECF 53-.1 The Proposed Second
Plaintiffs here do not assert subject matter jurisdiction under the third clause of the “commercial activity”
exception. See Am. Compl., at ¶ 4; ECF No. 56, at ¶ 19. Nor could they, based on facts alleged in their Amended
Complaint or the Proposed Second Amended Complaint. The third clause of the “commercial activity” exception is
satisfied if the lawsuit is “(1) based . . . upon an act outside the territory of the United States; (2) that was taken in
connection with a commercial activity of [the foreign state] outside this country; and (3) that caused a direct effect in
the United States.” Morris v. People’s Republic of China, 478 F. Supp. 2d 561, 567 (S.D.N.Y. 2007) (internal
citation omitted). An effect is “direct” under the third clause “if it follows as an immediate consequence of the
Amended Complaint, submitted after Defendants’ motion to dismiss was filed, is equally
deficient. See ECF No. 56. Even assuming Defendants’ activity at issue is “commercial” in
nature, the Court cannot find that Plaintiffs have shown a “significant nexus” between
Defendants’ commercial activity and Plaintiffs’ claim. The relevant inquiry is not “whether the
foreign state generally engages in commercial activity in the United States, but . . . whether the
particular conduct giving rise to the claim is a part of commercial activity having substantial
contact with the United States.” Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1018 (2d Cir.
1991). The gravamen of Plaintiffs’ claim is that Defendants have failed to make payments on
account of Plaintiffs’ consulting services, and there is no question that the consulting services
were directed at Saudi Arabia. See Am. Compl., at ¶¶ 16, 40. As the Second Circuit explained,
the failure to respond to a payment demand, and even the failure to pay, are not “acts” under the
FSIA. Rogers v. Petroleo Brasileiro, S.A., 673 F.3d 131, 138 (2d Cir. 2012) (“[T]he failure to
act is not itself an act in the United States.” (internal alteration and citation omitted)). On the
other hand, “[t]he decision by a foreign sovereign not to perform [a contractual obligation] is
itself an act,” but it is one occurring “in the foreign state.” Guirlando v. T.C. Ziraat Bankasi
A.S., 602 F.3d 69, 76 (2d Cir. 2010) (emphasis added). Plaintiffs have not carried their burden of
defendant’s” activity, meaning that, “between the foreign state’s commercial activity and the effect, there was no
intervening element.” Guirlando v. T.C. Ziraat Bankasi A.S., 602 F.3d 69, 74 (2d Cir. 2010) (internal quotation
marks omitted). This requirement is “satisfied where the parties to a transaction, including the sovereign defendant,
specifically agree or specifically contemplate that payment will be made to a United States bank account, and the
plaintiff’s cause of action arises out of that transaction.” Skanga Energy & Marine Ltd. v. Arevenca S.A., 875
F.Supp.2d 264, 271 (S.D.N.Y. 2012). To sustain jurisdiction under the third clause, the Second Circuit also applies
a “legally significant acts test,” which “requires that the conduct having a direct effect in the United States be legally
significant conduct in order for the commercial activity exception to apply.” Virtual Countries, Inc. v. Republic of
South Africa, 300 F.3d 230, 240 (2d Cir. 2002) (internal quotation marks and citation omitted). Without any
allegation of “direct effect” or “legally significant acts” in either the Amended Complaint or the Proposed Second
Amended Complaint, the Court is left to “connect the dots” itself and cannot find that Plaintiffs have established
subject matter jurisdiction over Defendants under the third clause of the “commercial activity” exception. MMA
Consultants 1, Inc. v. Republic of Peru, 245 F. Supp. 3d 486, 510 (S.D.N.Y.), aff’d, 719 F. App’x 47 (2d Cir. 2017).
establishing a “degree of closeness” between Defendants’ activity and the gravamen of
Plaintiffs’ claim, and the Court finds that it has no jurisdiction over Defendants under the FSIA.
Forum Non Conveniens.
Apart from the issue of jurisdiction under the FSIA, the Amended Complaint
should be dismissed under Rule 12(b)(3) of the Federal Rules of Civil Procedure because of
forum non conveniens. The parties’ contract provides that “[t]he parties [ ] will submit
themselves to the jurisdiction of the laws of the United Kingdom for any and all disputes arising
from this agreement.” Br., Ex. C, at 1 (the “Term”).2 Plaintiffs argue that the Term is not a
mandatory forum-selection clause but only a choice-of-law clause. See Opp’n, at 21. But the
language “will submit themselves to the jurisdiction” plainly is mandatory. The Supreme Court
made clear that the “appropriate way to enforce a forum selection clause pointing to a state or
foreign forum is through the doctrine of forum non-conveniens.” Atl. Marine Const. Co., Inc. v.
U.S. Dist. Ct. of W. Dist. of Tex., 134 S. Ct. 568, 580 (2013). The doctrine of forum non
conveniens allows a court to “dismiss an action on the ground that a court abroad is the more
appropriate and convenient forum for adjudicating the controversy.” Sinochem Int’l Co. v.
Malaysia Int’l Shipping Corp., 549 U.S. 422, 425 (2007). “District courts enjoy broad discretion
in applying this principle . . . .” Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153
(2d Cir. 2005). “Where the parties have contractually selected a forum,” there is a “presumption
in favor” of that forum. Fasano v. Yu Yu, 921 F.3d 333, 335 (2d Cir. 2019) (citing Martinez v.
Bloomberg LP, 740 F.3d 211, 218 (2d Cir. 2014)). Indeed, “a valid forum-selection clause
As both parties acknowledge, the United Kingdom does not have a unitary legal system, and references to the
“United Kingdom” by international parties to international commercial contracts are generally intended to refer to
“England and Wales.” See Turner Decl. (ECF No. 79), at ¶ 28; Kealy Reply Decl. (ECF No. 102), at ¶ 9.
[should be] given controlling weight in all but the most exceptional cases.” Atlantic Marine, 134
S. Ct. at 581.
The Contract Contains a Forum-Selection Clause.
In the Second Circuit, courts interpreting a forum-selection clause resolve
“questions of enforceability . . . under federal law, while interpretive questions—questions about
the meaning and scope of a forum selection clause—are resolved under the substantive law
designated in an otherwise valid contractual choice-of-law clause.” Martinez, 740 F.3d at 223–
24. The parties agree that English law governs the Contract.3 See Opp’n, at 6; Reply (ECF
No. 88), at 9. The plain meaning of the Term suggests that the parties selected England and
Wales as their choice of forum. As discussed infra, that choice is also enforceable as a matter of
The Term is to be understood in the same way under English law. As
Defendants’ expert––Mr. Kealy––explains, there is no requirement under English law that “a
specific form of words must be used to express a forum-selection agreement.” See Kealey Decl.
(ECF No. 52), at ¶ 38. The Term provides for the parties’ submission to the “jurisdiction” of
England and Wales for “any and all disputes,” and under both English case law and common
usage, “jurisdiction” denotes “forum.” 4 See Amoco (UK) Exploration Company v British
Plaintiffs in their Opposition Brief argue that the Court should apply federal law to interpret the Term. See Opp’n,
at 18–19. This argument is meritless given the Second Circuit’s clear mandate in Martinez to resolve interpretive
questions under the substantive law selected by the parties.
The Court agrees with Mr. Kealey’s comment that the Term was not well drafted, especially in light of the parties’
erroneous reference to the laws of the “United Kingdom” as opposed to the laws of “England and Wales.” See
Kealey Decl., at ¶ 32. Plaintiffs’ expert, Mr. Turner, also recognizes this clear mistake. See Turner Decl., at ¶ 28(6)
n.28 (recognizing that the parties made a mistake because they “must have meant ‘English’ when they said ‘U.K.’”).
This mistake also suggests the possibility that other “infelicity of expression may have affected the Term.” Kealey
Reply Decl., at ¶ 47 (citing Wood v. Capita Insurance Services Ltd  UKSC 24;  AC 1173  (holding
“the court must consider the quality of drafting of the clause”)). A more sensible construction of the Term would
read: “The parties above will submit themselves to the jurisdiction [and] the laws of [England] for any and all
disputes arising from this agreement.” Kealey Reply Decl., at ¶ 48.
American Offshore Limited  EWHC 484 (Comm) (finding forum selection when the
contract provides that it “is to be construed and take effect in accordance with the English Law
and the parties hereto irrevocably submit to the exclusive jurisdiction of England and Wales”);
Jurisdiction, Oxford English Dictionary (2d ed. 1989) (defining the word “jurisdiction” as
“[a]dministration of justice; exercise of judicial authority, or of the functions of a judge or legal
tribunal; power of declaring and administering law or justice; legal authority or power”).
Plaintiffs argue in response that the Term is only a choice-of-law clause as a matter of plain
meaning. See Opp’n, at 21. The Court disagrees. Plaintiffs’ expert––Mr. Turner––
acknowledges that “[j]urisdiction is a distinct concept from choice of law,” but disregards the
word “jurisdiction” in urging that the Term is but a choice-of-law clause. See Turner Decl.,
at ¶ 35. Under English law, “no part of a contract should be treated as inoperative or surplus,”
such that “the contractual language in dispute must be read as a whole in order to ascertain its
objective meaning. It is necessary that the court ‘has read the language in dispute and the
relevant parts of the contract that provide its context.’” Kealey Reply Decl., at ¶¶ 17–18
(quoting Wood (n.4) ) (citing Kim Lewison, Interpretation of Contracts § 7.24 (7th ed.
2020)). As Mr. Kealey states, under English law, there is “no prescribed form of words required
for a jurisdiction clause; and the cases demonstrate that the word ‘courts’ is not a prerequisite.”
Kealey Reply Decl., ¶ 26.
English law, like New York law, applies “business common sense” to ascertain
the objective meaning of a contractual term. Kealey Reply Decl., at ¶ 37. The U.K. Supreme
Court ruled that, “where there are rival meanings, the court can give weight to the implications of
rival constructions by reaching a view as to which construction is more consistent with business
common sense,” and “[t]his unitary exercise involves an iterative process by which each
suggested interpretation is checked against the provisions of the contract and its commercial
consequences are investigated.” Wood (n.4) –. Here, the parties agree that they selected
English law to govern “any and all disputes” arising from the Contract. Br., Ex. C, at 1; see also
Opp’n, at 6; Reply, at 9. It would make business common sense for the parties to also select
English courts as the forum to adjudicate claims under English law. See Sinochem International
Oil (London) Ltd v Mobil Sales & Supply Corp & Anor (No.2)  1 Lloyd’s Rep 670, 676
(“[T]here is not much point in choosing a specific law to accompany a jurisdiction clause unless
the intention is to make the Courts where such law operates exclusive.”). Plaintiffs offer no
convincing arguments to the contrary. It defies business common sense to maintain parallel
lawsuits in both New York and England when the resolution of the parties’ disputes depends
exclusively on the application of English law.5 It also defies business common sense for the
international parties to select the law of a neutral forum as the governing law but submit
themselves to the home forum of one of the parties. As a matter of plain meaning and business
common sense, the Court concludes that the Contract designates England and Wales as the
parties’ choice of forum.
The Forum-Selection Clause Is Enforceable.
Federal law also enforces the forum-selection clause. See Martinez, 740 F.3d
at 223–24 (noting that “questions of enforceability . . . under federal law . . .”). Three factors are
to be considered: whether (1) the clause was reasonably communicated to the party resisting its
enforcement; (2) the clause is mandatory or permissive; and (3) the claims and parties to the
dispute are subject to the clause.” Fasano, 921 F.3d at 335 (citing Magi XXI, Inc. v. Stato della
The Amended Complaint contains eight counts, all of which are common law claims. See generally Am. Compl.
While the Court appreciates Messrs. Kealey’s and Turner’s assistance with the instant motion, instructing two
Queen’s Counsels to opine on points of English law at each stage of the litigation before this Court does not seem to
be a common sense mode of dispute resolution that the commercial parties could have reasonably intended.
Citta del Vaticano, 714 F.3d 714, 721 (2d Cir. 2013)). “If the district court concludes that the
presumption applies, it must then consider a fourth factor—whether the presumption of
enforceability has been properly rebutted by ‘a sufficiently strong showing that enforcement
would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or
overreaching.’” Id. at 336 (quoting Phillips v. Audio Active Ltd., 494 F.3d 378, 384 (2d Cir.
2007)) (internal quotation marks omitted). Although federal law should be used to determine
whether an otherwise mandatory and applicable forum clause is enforceable, “[i]n answering the
interpretive questions posed by parts two and three of the four-part framework, however, [courts]
normally apply the body of law selected in an otherwise valid choice-of-law clause.” Martinez,
740 F.3d at 217–18. The parties here do not dispute that the first and third factors are met,
namely, that the forum-selection clause was “reasonably communicated to the party resisting its
enforcement,” and that “the claims and parties to the dispute are subject to the clause.” Fasano,
921 F.3d at 335.6 The Court, therefore, limits its analysis to the second and fourth factors.
With respect to the second factor, the Term provides that the parties “will submit
themselves to the jurisdiction . . . for any and all disputes . . . .” Br., Ex. C, at 1. This language
indicates that the Term is “mandatory” rather than “permissive.” Fasano, 921 F.3d at 335.; see
also DataCatalyst, LLC v. Infoverity, LLC, No. 20-cv-310, 2020 U.S. Dist. LEXIS 46990, *5
(S.D.N.Y. Mar. 17, 2020) (applying the parties’ choice of law to the “determination of whether
the clause is permissive or mandatory”). Under the Brussels Regime, which remains binding on
the United Kingdom after Brexit,7 the parties’ chosen jurisdiction “shall be exclusive unless the
Plaintiffs do not contend in their Opposition Brief that the Term was not reasonably communicated or that the
claims and parties involved in the instant action are not subject to the Term’s “any and all disputes” language. Br.,
Ex. C, at 1; see also First Cap. Asset Mgmt., Inc. v. Brickellbush, Inc., 218 F. Supp. 2d 369, 393 (S.D.N.Y. 2002)
(ruling that arguments not addressed in an opposition brief are “waived”).
See Justice Committee, Third Special Report, 2016-17, HL 651, at 3 (UK).
parties have agreed otherwise.” Council Regulation No. 1215/2012, art. 25, 2012 O.J. (L. 351)
1, 11 (EC) (the “Brussels I Recast”). English case law also supports this presumption in favor of
exclusivity. See Generali Italia S.p.A. & Ors v Pelagic Fisheries Corp. & Anor  EWHC
1228 (Comm)  (finding exclusive jurisdiction “because of the presumption of exclusivity
arising under Article 25 of Brussels I Recast, and because the choice of English law in
conjunction with the reference to English jurisdiction is a powerful factor in favour of construing
the choice of English jurisdiction as exclusive”) (internal quotation marks and citation omitted).
As to the fourth factor, the Second Circuit noted that “exception to enforceability
is interpreted narrowly.” S.K.I. Beer Corp. v. Baltika Brewery, 612 F.3d 705, 711 (2d Cir. 2010).
This fourth step, the Bremen test from M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972),
asks whether the presumptively valid forum-selection clause is invalid because “(1) its
incorporation was the result of fraud or overreaching; (2) the law to be applied in the selected
forum is fundamentally unfair; (3) enforcement contravenes a strong public policy of the forum
in which suit is brought; or (4) trial in the selected forum will be so difficult and inconvenient
that the plaintiff effectively will be deprived of his day in court.” Martinez, 740 F.3d at 228.
Here, the Amended Complaint does not present any factual allegations that these criteria are met.
There is no suggestion that the Contract was the product of fraud or overreaching, or that the
Contract contravenes a strong public policy of the forum state. Moreover, as both parties
acknowledge, litigation between the parties has been pending in England since December 2019,
and England is more than an adequate and available forum. Plaintiffs have therefore failed to
present any factors that would warrant the non-enforcement of the forum-selection clause in this
Accordingly, the Amended Complaint is dismissed for lack of jurisdiction and
because of forum non conveniens.
Plaintiffs separately move for pre-answer jurisdictional discovery on sovereign
immunity issues. See ECF No. 89. Plaintiffs’ motion is denied. The Second Circuit has made
clear that plaintiffs facing a sovereign immunity challenge have no automatic right to discovery.
See Arch Trading Corp. v. Republic of Ecuador, 839 F.3d 193, 206 (2d Cir. 2016) (“[A] court
must be circumspect in allowing discovery before the plaintiff has established that the court has
jurisdiction over a foreign sovereign defendant under the FSIA.’” (internal citation omitted)).
Instead, plaintiffs must “establish a prima facie case that the district court ha[s] jurisdiction over
[the defendant]” before discovery is granted. See Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181,
186 (2d Cir. 1998) (“Since the [plaintiffs] did not establish a prima facie case that the district
court had jurisdiction over [the defendant], the district court did not err in denying discovery on
that issue.”); see also Fagan v. Republic of Austria, No. 08 Civ. 6715(LTS) (JCF), 2011 WL
1197677, at *20 (S.D.N.Y. Mar. 25, 2011) (“The plaintiffs’ motion for jurisdictional discovery
and an evidentiary hearing regarding subject matter and personal jurisdiction is denied because
they failed to meet their burden of proffering evidence to demonstrate even prima facie the
existence of such jurisdiction.” (internal citations omitted)). In EM Ltd. v. Republic of
Argentina, 473 F.3d 463 (2d Cir. 2007), the Second Circuit noted that sovereign immunity
provides “immunity not only from liability,” but from the expense of discovery as well:
a federal trial court has wide latitude over the management of
discovery, see Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d
Cir. 2004), but in the FSIA context, “discovery should be ordered
circumspectly and only to verify allegations of specific facts
crucial to an immunity determination.” First City, Texas-Houston,
N.A. v. Rafidain Bank, 150 F.3d 172, 176 (2d Cir. 1998) (quoting
Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 534 (5th Cir.
1992) (internal quotation marks omitted)); cf. Kelly v. Syria Shell
Petroleum Dev. B.V., 213 F.3d 841, 849 (5th Cir. 2000) (“FSIA
immunity is immunity not only from liability, but also from the
costs, in time and expense, and other disruptions attendant to
EM, 473 F.3d at 486. Here, Plaintiffs have not, to date, made out a prima facie case for the
Court’s exercise of jurisdiction over Defendants, because they have not offered facts
demonstrating that the presumption of immunity can be overcome. See First Fid. Bank, N.A. v.
Gov’t of Antigua & Barbuda-Permanent Mission, 877 F.2d 189, 195 (2d Cir. 1989) (“The FSIA
begins with a presumption of immunity which the plaintiff must overcome by showing that the
defendant sovereign’s activity falls under one of the statutory exceptions.”). Specifically,
Plaintiffs have failed to identify any “specific facts that it desires to controvert” or “disputed
facts” that are “peculiarly within the knowledge of the sovereign.” Compania del Bajo Caroni
(Caromin) v. Bolivarian Republic of Venezuela, 556 F. Supp. 2d 272, 282 (S.D.N.Y. 2008)
(internal quotation marks omitted); see also EM, 473 F.3d at 486 (“[D]iscovery should be
ordered circumspectly and only to verify allegations of specific facts crucial to an immunity
determination.” (internal quotation marks and citation omitted)).
Accordingly, Plaintiffs’ motion for jurisdictional discovery is denied.
For the foregoing reasons, Defendants’ motion to dismiss is granted, and
Plaintiffs’ motion for pre-answer jurisdictional discovery is denied. The Clerk of Court shall
terminate the open motions (ECF Nos. 50, 89) and close the case. The oral argument scheduled
for April 6, 2021, is canceled.
April 1, 2021
New York, New York
ALVIN K. HELLERSTEIN
United States District Judge
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