United Coals, Inc. v. ATTIJARIWAFA BANK

Filing 36

MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS MOTION TO DISMISS ECF NO. 4 . Defendants Motion to Dismiss is DENIED as ordered in this Courts March 30, 2020 Order ECF No. 32 . Signed by District Judge Thomas S. Kleeh on 4/14/2020. (copy counsel of record)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
UNITED COALS, INC.
Plaintiff,
v.

Civil Action No.:
(Kleeh)

1:19-cv-95

ATTIJARIWAFA BANK,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT’S
MOTION TO DISMISS [ECF NO. 4]
Pending before the Court is Defendant Attijariwafa Bank’s
Motion to Dismiss and Notice Pursuant to Rule 44.1 of the Federal
Rules of Civil Procedure.

The issues have been fully briefed and

the matter is ripe for decision. For the reasons discussed herein,
the Court DENIES the motion.
I.

PROCEDURAL HISTORY

Plaintiff filed this action in the Circuit Court of Harrison
County, West Virginia on November 5, 2018.

ECF No. 1-1 at 19.

Its Complaint alleges two causes of action:

breach of contract

and promissory estoppel.

Id. at ¶¶104-113 and 114-123.

Defendant

removed the matter to the United States District Court for the
Northern District of West Virginia on April 24, 2019.

ECF No. 1.

This Court entered its First Order and Notice establishing certain
deadlines on April 30, 2019.

ECF No. 2.

By the parties’ joint

United Coals v. Attijariwafa Bank

Civil Action No. 1:19-CV-95

MEMORANDUM OPINION DENYING DEFENDANT’S MOTION TO DISMISS [ECF NO. 4]

motion, the Court stayed those deadlines.

ECF No. 11.

Defendant

filed its Motion to Dismiss on jurisdictional grounds on May 17,
2019.

ECF No. 4.

Plaintiff responded in opposition and Defendant

filed its reply brief on June 28, 2019.

ECF Nos. 15 and 20.

This

Court entered its Order denying the Motion to Dismiss on March 30,
2020.

ECF No. 32.

This Memorandum Opinion now follows outlining

the Court’s analysis in detail.
II.

FACTUAL BACKGROUND

According to the Complaint, 1 Plaintiff United Coals, Inc.
(“United”) had interest in establishing a business relationship
with the Electricity Branch of the Moroccan National Office of
Electricity and Drinking Water (“ONEE”).

ECF No. 1-1 at ¶6.

To

that end, United appointed a registered agent in Morocco, Richard
G. Leon (“Leon”).

Id. at ¶2.

Leon was initially appointed

United’s agent around October 10, 2013. See Declaration of Jeffrey
A. Goldizen, ECF No. 15-1, at ¶5.
Morocco.

Id.

He was United’s only agent in

United also initiated contact and a business

relationship with Defendant Attijariwafa Bank (“the Bank”).

The Court is mindful of the burdens applicable to a Rule 12(b)(2)
motion.
“In deciding whether the plaintiff has proved a prima
facie case of personal jurisdiction, the district court must draw
all reasonable inferences arising from the proof, and resolve all
factual disputes, in the plaintiff's favor.”
See Mylan Labs.,
Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993)(citations
omitted).
1

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A non-addressed letter announcing Leon’s agency was provided
to the Bank. Id. Of note, that letter indicates Leon was appointed
United’s sole representative with respect to “(i) procuring debt
or equity capital from banks or other sources from the country of
Morocco, (ii) procuring coal purchase contracts from the country
of Morocco and (iii) pursuing such other business activities and
ventures as may benefit United Coals, Inc.”

Id. at Ex. 1.

The

same letter notes Leon was appointed by “United Coals, Inc., West
Virginia, USA.”

Id.

Specific notice of Leon’s agency was provided to the Bank in
a letter addressed to Mr. Mohammed Kamal ED-DAHABI dated December
30, 2013.

Id. at ¶7 and Ex. 2.

That same letter outlines the

contracts United secured with ONEE and requests the Bank open an
account for United to handle the two transactions.

Id. at Ex. 2.

United was specific that the account would be used to manage the
letter of credit with ONEE and must be able to send and receive
international wire transfers both to and from the United States of
America.

Id.

The letter, authored by Goldizen, was sent on

United’s letterhead noting its Clarksburg, West Virginia location
and was notarized by a West Virginia notary public.

Id.

United alleges it contracted with ONEE to ship coal to ONEE
at the Port of Casablanca, Morocco.

Id. at ¶6-8.

Those shipments

were covered by two different contracts, ONEE Contract No. 415 and
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MEMORANDUM OPINION DENYING DEFENDANT’S MOTION TO DISMISS [ECF NO. 4]

ONEE Contract No. 425.

ECF No. 1-1 at ¶6.

Contract No. 415 was

for a shipment of 192,000 metric tons of steam coal in six cargoes
while Contact No. 425 called for 96,000 metric tons of steam coal
delivered

to

the

Port

of

Casablanca

in

three

cargoes.

Id.

Together, the ONEE contracts had a gross value of $26,784,000 to
United.

ECF No. 15-1, at ¶4.

ONEE agreed to pay United through irrevocable documentary
credit at a prime bank in favor of United.

EFC No. 1-1 at ¶10.

Initially, as of December 30, 2013, United expected ONEE to apply
to the Bank for issuance of the letters of credit pursuant to the
terms of Contract No. 415 and Contract No. 425.

Id. at ¶11.

In

the December 30, 2013 letter described above, United opened an
account with Defendant Attijariwafa Bank to accept and distribute
wire transfers and manage its Line of Credit with ONEE.

ONEE later

decided to have a different bank issue the required letters of
credit.

Id. at ¶13.

Plaintiff intended to fulfill its coal shipment obligations
to ONEE with coal purchased from Emerald International Corporation
(“Emerald”), a Kentucky-based coal company.

Id. at ¶¶23-24.

The

coal was located near New Orleans, Louisiana and was to be shipped
directly from the state of Louisiana to a Casablanca, Morocco port.
Id. at ¶14.

Prior to entering into any contractual relationship

with Emerald, United arranged for transport of the coal with a
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Bahamas-based broker, Agriculture & Energy Carriers, Ltd.

Id.

Eventually, the M/V Mardinik vessel was designated to transport
the coal.

That vessel was based at Myrtle Grove, Louisiana.

Id.

at ¶¶14-18.
United opened its account, 0541 R 000428033, with the Bank’s
Casablanca, Morocco branch.

Id. at ¶34.

United alleges at least

one agreement was in place between it and the Bank with respect to
that account.

Declaration of James L. Marketos, ECF No. 15-2 at

¶¶5-7 and Ex. 1. 2
The Complaint alleges a number of transactions and events
related to United’s claims against the Bank.

Specifically, United

alleges the Bank repeatedly promised to provide letters of credit
to support United in its efforts to perform its obligations under
the ONEE contracts.

ECF No. 1-1 at ¶¶55, 62 and 80.

United

further alleges it took action or refrained from acting in reliance
on the Bank’s promises.

Id. at ¶57.

United alleges its reliance

on the Bank caused it financial harm as the Bank allegedly never
fulfilled its promises.

Id. at ¶¶68, 71, 72 and 79.

United

further alleges communications between the Bank and Leon, United’s
authorized Moroccan agent.

Id. at ¶25; ECF No. 15-1 at ¶14.

In

Two other documents apparently bear Goldizen’s signature and may
be agreements between United and the Bank. Id. at ¶¶8-9. Those
agreements are related to the same transactional relationship made
subject of the Complaint.
2

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its response to the pending motion, United also identifies five
(5) communications it alleges were direct from the Bank to Jeffrey
A.

Goldizen,

United’s

West

Virginia-based

President

and

sole

shareholder:
1. April 9, 2014 email 3 forwarding proof of payment of a Bank
fee (ECF No. 15-1 at ¶15);
2. April 10, 2014 email regarding issuance of a letter of
credit (Id.);
3. April 28, 2014 letter advising of a letter of credit (Id.);
4. April

28,

2014

email

forwarding

acknowledgment

of

Plaintiff’s order to wire funds to Emerald (Id.); and,
5. April 30, 2014 email forwarding a letter (15-1 at ¶15).
There were numerous communications with United’s agent in Morocco
however. 4

Id. at ¶14; see also Compl.

Goldizen states Leon kept

him “regularly abreast of such communications.”

Id.

One of the email addresses listed on these communications,
presumably Goldizen’s email address, is [e-mail].
It is unclear if the Bank’s officials were aware of the
significance of the “wv” portion of that email address; however,
it certainly indicates, again, United’s location and base of
operations was not a secret.
3

The century-old principles of agency mandate that such
communications be considered made to United as a matter of law.
See Syl. Pt. 1, Buckeye Saw Mfg. Co. v. Rutherford, 64 S.E. 444
(W. Va. 1909) (“Notice to an agent in the course of his employment
in relation to a matter within the scope of his authority is
4

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III. APPLICABLE STANDARD
When a federal court's personal jurisdiction is challenged
under Federal Rule of Civil Procedure 12(b)(2), it is ultimately
the plaintiff's burden to prove that jurisdiction exists by a
preponderance of the evidence.

See Carefirst of Maryland, Inc. v.

Carefirst Pregnancy Centers, Inc., 334 F.3d 390, 396 (4th Cir.
2003) (citation omitted); see also Clark v. Milam, 830 F.Supp.
316, 318-19 (S.D.W. Va. 1993).

When the court addresses the

jurisdictional question “on the basis only of motion papers,
supporting legal memoranda and the relevant allegations of a
complaint, the burden on the plaintiff is simply to make a prima
facie showing of a sufficient jurisdictional basis to survive the
jurisdictional challenge.”

New Wellington Financial Corp. v.

Flagship Resort Development Corp., 416 F.3d 290, 294 (4th Cir.
2005). A plaintiff’s burden is not considered particularly heavy.
See Stand Energy Corp. v. Columbia Gas Transmission Corp., Docket
No. 2:04-CV-0867, 2005 WL 1926639, at *2 (S.D.W. Va. August 8,
2005) (citing 5A Charles A. Wright & Arthur R. Miller, Federal
Practice

and

Procedure

§1351

(1990)).

“Mere

allegations

of

personal jurisdiction are sufficient for a party to make a prima

notice to his principal, whether he communicates his knowledge to
his principal or not.”).
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facie showing.”

Clark, 830 F. Supp. at 319 (internal quotations

and citations omitted).

“In determining whether the plaintiff has

made the requisite showing, the court must construe all relevant
allegations of the pleadings and draw all reasonable inference in
favor of the existence of jurisdiction.”

Carefirst, 334 F.3d at

396.
Two conditions must be satisfied for a district court to
assert personal jurisdiction over a non-resident defendant: (1) a
state long-arm jurisdiction statute must authorize jurisdiction
over the non-resident defendant; and (2) the court's exercise of
personal jurisdiction over the nonresident defendant must “comport
with the Due Process Clause.”

Mylan Lab, Inc., 2 F.3d at 59–60.

Because “the West Virginia long-arm statute is coextensive with
the full reach of due process, it is [sometimes] unnecessary ...
to go through the normal two-step formula for determining the
existence of personal jurisdiction.”

In re Celotex Corp. v. Rapid

Am.

(4th

Corp.,

124

F.3d

619,

627–28

Cir.

1997)

(citation

omitted); see also York v. Property and Casualty Ins. Co. of
Hartford, No. 2:12cv06582, 2013 WL 5504435 (S.D.W. Va. Oct. 3,
2013) (“[T]he statutory inquiry merges with the constitutional
inquiry,

and

the

two

inquires

essentially

become

one.”).

Therefore, the court's inquiry primarily focuses on whether the

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exercise of personal jurisdiction over the non-resident defendant
is consistent with the Due Process Clause.
It

is

well

established

that

the

exercise

of

personal

jurisdiction over the non-resident defendant is consistent with
the Due Process Clause “if the defendant has sufficient ‘minimum
contacts’ with the forum such that requiring the defendant to
defend its interests in the forum does not ‘offend traditional
notions of fair play and substantial justice.’”

International

Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

When assessing

the

“minimum

contacts,”

courts

should

consider

whether

the

defendant's contacts with the forum also provide the basis for the
suit. Carefirst, 334 F.3d at 397.
If the defendant's contact with the forum state provides the
basis for the suit, courts may exercise what is known as “specific
jurisdiction.” Id.

To determine whether specific jurisdiction

exists, the Court should consider the following: “(1) the extent
to which the defendant has purposefully availed itself of the
privilege of conducting activities in the state; (2) whether the
plaintiff's claims arise out of those activities directed at the
state; and (3) whether the exercise of personal jurisdiction would
be

constitutionally

‘reasonable.’”

Id.

If

the

defendant's

contact with the forum state does not provide the basis for the
suit,

a

court

may

only
9

exercise

“general

United Coals v. Attijariwafa Bank

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jurisdiction.”

Id.

General

jurisdiction

is

appropriate

only

where the defendant's contacts with the forum are “continuous and
systematic.”

Helicopteros Nacionales de Colombia, S.A. v. Hall,

466 U.S. 408, 415 (1984). 5
IV.

DISCUSSION

A. Long-Arm Statute
Defendant contends Plaintiff cannot satisfy either of the two
prongs required in this analysis.

With respect to the West

Virginia long-arm statute initially, the Court disagrees.

W. Va.

Code §56-3-33 provides that a party may be served process in the
State of West Virginia if it transacts any business in the state.
That term is not defined in that section of code; however, W. Va.
Code §31-D-1501, part of the West Virginia Business Corporation
Act, provides:
(d) A foreign corporation is deemed to be
transacting business in this state if:
(1) The corporation makes a contract to be
performed, in whole or in part, by any party
thereto in this state;
(2) The corporation commits a tort, in whole
or in part, in this state; or
(3) The corporation manufactures, sells,
offers for sale or supplies any product in a
defective condition and that product causes
injury to any person or property within this
state notwithstanding the fact that the
No allegation of general jurisdiction is made here and the Court
finds, based on the record before it, that no continuous or
systematic contacts exist.
Thus, the court will only consider
whether it has specific jurisdiction in this case.

5

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corporation had no agents, servants or
employees or contacts within this state at the
time of the injury.
W. Va. Code §31D-15-1501(d)(1) (emphasis added).

United and the

Bank allegedly entered into an “Account Agreement” and are the
only parties to that agreement.
1.

See ECF No. 15-2 at ¶¶5-7 and Ex.

At a minimum, that agreement implicated action by United, a

party to the contract, that would take place, in whole or in part,
in West Virginia.

Thus, the West Virginia long-arm statute is

satisfied.
B.

Due Process
1.

Purposeful Availment

Of course, that does not end the inquiry.

As noted, there

must be a sufficient basis for this Court to exercise jurisdiction
to satisfy the Bank’s Due Process rights.

Under Carefirst, the

Court must first consider whether the Bank purposefully availed
itself of jurisdiction in the state of West Virginia.

Several

factors can carry Plaintiff’s burden on this issue; however, many
of those are not present here.

The Fourth Circuit has explained

as follows:
In the business context, these factors
include, but are not limited to:
• whether the defendant maintains offices or
agents in the forum state, see McGee v. Int'l
Life Ins. Co., 355 U.S. 220, 221, 78 S.Ct.
199, 2 L.Ed.2d 223 (1957);

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• whether the defendant owns property in the
forum state, see Base Metal Trading, Ltd. v.
OJSC, 283 F.3d 208, 213 (4th Cir.2002);
• whether the defendant reached into the forum
state
to
solicit
or
initiate
business, see McGee, 355 U.S. at 221, 78 S.Ct.
199; Burger King, 471 U.S. at 475–76, 105
S.Ct. 2174;
• whether the defendant deliberately engaged
in
significant
or
long-term
business
activities in the forum state, see Burger
King, 471 U.S. at 475–76, 481, 105 S.Ct. 2174;
• whether the parties contractually agreed
that the law of the forum state would govern
disputes, see Burger King, 471 U.S. at 481–
82, 105 S.Ct. 2174;
• whether the defendant made in-person contact
with the resident of the forum in the forum
state
regarding
the
business
relationship, see Hirschkop & Grad, P.C. v.
Robinson, 757 F.2d 1499, 1503 (4th Cir. 1985);
• the nature, quality and extent of the
parties' communications about the business
being transacted, see English & Smith, 901
F.2d at 39; and
• whether the performance of contractual
duties
was
to
occur
within
the
forum, see Peanut Corp. of Am. v. Hollywood
Brands, Inc., 696 F.2d 311, 314 (4th Cir.
1982).
Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 273, 278
(4th

Cir.

2009).

The

Fourth

Circuit

has

observed

“[t]he

purposeful-availment test is flexible, and our analysis proceeds
on a case-by-case basis.”

Tire Eng'g & Distribution, LLC v.

Shandong Linglong Rubber Co., 682 F.3d 292, 302 (4th Cir. 2012).
United concedes the Bank has never operated in the state of
West Virginia, had employees here or visited the state.

12

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MEMORANDUM OPINION DENYING DEFENDANT’S MOTION TO DISMISS [ECF NO. 4]

parties’ agreement did not choose to apply West Virginia law.
Plaintiff itself admits that it – not the Bank - initiated the
business relationship at issue. 6
is also relevant.

The length of the relationship

All of these factors counsels against a finding

that jurisdiction lies in this case; however, while significant,
the Fourth Circuit has not found these factors to be dispositive
or even more significant than other factors. Nor are these factors
the exclusive universe to be considered.

See, e.g., Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985) (noting it is an
“inescapable fact of modern commercial life that a substantial
amount

of

business

is

transacted

solely

by

mail

and

wire

communications across state lines, thus obviating the need for
physical presence within a State in which business is conducted.”).
The Bank argues the only two factors which may form the basis
of a jurisdictional finding are (1) “the nature, quality and extent
of the parties’ communication about the business being transacted”
and (2) “whether the performance of contractual duties was to occur
within the forum.”

While that may be true, those factors can be

This is certainly not dispositive. “A prospective defendant need
not initiate the relevant ‘minimum contacts’ to be regarded as
purposefully availing himself of the privileges of conducting
activity in the forum state.” Christian Sci. Bd. of Directors of
First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 216 (4th
Cir. 2001).
6

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sufficient to satisfy this prong of the minimum contacts standard.
Based on the record provided and considering the minimal burden
Plaintiff must carry, the Court finds Plaintiff has made a prima
facie showing on purposeful availment.
The Bank focuses on the five contacts made directly with
United here in West Virginia.

The Bank’s focus is too narrow not

only with respect to the quantity of direct contacts but also its
analysis

of

the

totality

of

the

parties’

relationship

pertains to minimum contacts with West Virginia.

as

it

In other words,

the Court must consider the qualitative weight of the contacts and
the overall context of the contacts and the parties’ relationship.
Specifically, the Bank urges this Court to disregard any contacts
with anyone even if related to the agreements and relationship
made subject of the Complaint if that contact was not physically
present within the borders of West Virginia. As an initial matter,
the contacts with United’s agent in Morocco are contacts with
United by operation of law.

Granted, “[t]he general rule of

imputation of knowledge from agent to principal rests upon a legal
fiction

and

a

presumption.

The

fiction

is

that

when

the agent acts within the scope of the agency relationship, there
is an identity of interest between principal and agent.”

Martin

Marietta Corp. v. Gould, Inc., 70 F.3d 768, 773 (4th Cir. 1995)

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(applying Maryland agency law).

The legal fiction of agency

applies, nonetheless.
There is nothing in the record before the Court indicating
United’s Moroccan-based agent acted outside the scope of his agency
in his dealings with the Bank.

“An agent in the restricted and

proper sense is a representative of his principal in business or
contractual relations with third persons ... .”

Syl. Pt. 2, Teter

v. Old Colony Co., 441 S.E.2d 728, 730 (W. Va. 1994).

As noted,

black letter law over a century in age mandates “”[n]otice to
an agent in

the

course

of

matter within the scope of
his principal,

whether

his principal or not.”
at 44.

his

employment

his

in

authority

relation

is

he communicates his

to

a

notice

to

knowledge

to

Syl. Pt. 1, Buckeye Saw Mfg. Co., 64 S.E.

To ignore the contacts with United’s Moroccan agent would

be to ignore the law – legal fiction or not.
The five “direct” contacts with individuals located within
the State’s borders are also significant.

All of those contacts

were with United’s president Jeffrey Goldizen.

The communications

were not meaningless pleasantries or mass email communications
where Goldizen just happened to be on a mailing list.
correspondence

all

dealt

with

substantive

issues

related

The
to

letters of credit being issued pursuant to the agreement(s) between
the parties – and necessary to United’s performance under the ONEEE
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contracts, which the Bank knew was the sole reason for its business
with United.

The contacts also were related to the core of

Plaintiff’s claims – the Bank allegedly made promises which it
failed to fulfill damaging United.
United’s status as a West Virginia corporation was not a
secret at the time the parties contemplated their relationship nor
during

its

business

interactions.

As

outlined,

the

Bank

communicated directly with United in West Virginia on multiple
occasions.

Those communications were in addition to, as the Bank

described

it,

United’s

agent

business” on United’s behalf.
at ¶75).
Leon.

in

Morocco

conducting

“certain

ECF No. 5 at 2 (citing ECF No. 1-1

United describes it as “countless communications” with

ECF No. 15 at 4 (citing ECF No. 15-1 at ¶14).

As Leon was

United’s agent, a fact clearly communicated to the Bank in two
different letters and recognized by the Bank as Leon is included
on the “direct” communications with Goldizen, those communications
are with United, in West Virginia, by operation of law.
United alleges the existence of at least one agreement, the
Account Agreement, as the basis of its breach of contract claim.
United

and

the

Bank

are

the

parties

to

that

agreement.

The

Agreement requires certain acts from United which, because it is
a West Virginia corporation with operations based in West Virginia,

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necessitates that at least some aspects of contract performance
are required to be done in this jurisdiction.
As noted, the Complaint outlines repeated promises from the
Bank to provide letters of credit to United so that it could
finance

and

contracts.

perform

its

various

obligations

under

the

ONEE

United clearly communicated its business interests in

Morocco to the Bank and did so in writing at least twice via
written

correspondence.

United,

according

to

the

Complaint,

advised the Bank of the need for the letters of credit and took
action in reliance on the Bank’s promises to provide that financing
and

acted

to

its

detriment

based

on

those

promises

(e.g.,

continuing to incur demurrage charges on its appointed vessel).
The Bank knew the stakes involved in United’s business dealings
and,

according

to

the

Complaint,

promised

to

assist.

These

promises and failure to fulfill those promises not only allegedly
negatively affected United but created a “substantial connection”
by the Bank with United and this forum.

In fact, a single act can

form a “substantial connection” jurisdictional basis; however, as
United alleges, the Bank made multiple promises it failed to
satisfy. See Knisely v. National Better Living Ass’n, Inc., Docket
No. 3:14-CV-15, 2015 WL 1868819, at *9, (N.D.W. Va. April 23,
2015)(quoting

Burger

King,

471

U.S.

at

476

n.18));

see

also

Christian Science Board of Directors of First Church of Christ,
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Scientist, 259 F.3d 209 (4th Cir. 2001)(noting “jurisdiction is
proper where the defendant ... has created continuing obligations
between himself and residents of the forum.”)(internal quotations
and citation omitted)).
Considering all of the factors outlined in Carefirst and
considering

United’s

“burden

is

not

...

particularly

heavy,”

United has carried its burden to establish, with a prima facie
showing, that the Bank purposefully availed itself of the forum
jurisdiction such that, on this factor, this Court’s exercise of
jurisdiction is not constitutionally offensive.

Stand Energy

Corp., 2005 WL 1926679 at *2.
2.

Conduct Directed Toward West Virginia

This Court must also consider whether the claims at issue
arise out of conduct directed toward the State of West Virginia.
See Carefirst, 334 F.3d at 397.

United asserts two claims in its

Complaint – breach of contract and promissory estoppel.
generally Compl.

See

The Bank has highlighted how it did not direct

any attention of its own volition to the state of West Virginia.
Thus, it stands to reason that the only contact it had with this
forum is the relationship with United.

That relationship is

governed, United alleges, by agreements enforceable through a
breach of contract claim or, alternatively, the Bank’s alleged
conduct is actionable under a promissory estoppel theory.
18

Again,

United Coals v. Attijariwafa Bank

Civil Action No. 1:19-CV-95

MEMORANDUM OPINION DENYING DEFENDANT’S MOTION TO DISMISS [ECF NO. 4]

United’s status as a West Virginia-based company was not unknown
to the Bank.

United alleges it stood to profit significantly here

in West Virginia but for the Bank’s alleged breach of the parties’
agreement(s). 7

There is a direct link between the contact and

conduct the Bank engaged in vis-à-vis United and the state of West
Virginia.
3.
Lastly,

Constitutional Reasonableness
the

constitutional

jurisdiction must be weighed.

reasonableness

of

personal

See Carefirst, 334 F.3d at 397.

Here, the Court must ensure that litigating in this jurisdiction
is not “so gravely difficult and inconvenient” to place the Bank
at a “severe disadvantage in comparison to his opponent.”

CFA

Institute v. Institute of Chartered Financial Analysts of India,
551 F.3d 285, 296 (4th Cir. 2009).

The Fourth Circuit has noted

three factors – burden on the defendant, interest of West Virginia
as the forum state and the plaintiff’s interest in obtaining relief
– in conducting this analysis.

Id.

United makes a passing reference to the so-called “effects test”
outlined in Consulting Engineers Corp., 561 F.3d 273, as another
potential ground upon which personal jurisdiction could exist in
this case. The Court will not consider this test because, as the
Bank correctly notes, promissory estoppel claims sound in
contract, not tort.
See George v. Laboratory Corp. of America
Holdings, 522 F. Supp.2d 761, 765 (N.D.W. Va. 2007). The “effects
test” assesses if personal jurisdiction is appropriate in tort
actions.
See Consulting Engineers Corp., 562 F.3d at 280; see
also Carefirst, 334 F.3d at 398 n.7 (setting forth test factors).
7

19

United Coals v. Attijariwafa Bank

Civil Action No. 1:19-CV-95

MEMORANDUM OPINION DENYING DEFENDANT’S MOTION TO DISMISS [ECF NO. 4]

In CFA Institute v. Institute of Chartered Financial Analysts
of India, the Fourth Circuit assessed these factors in finding
personal jurisdiction over the defendant satisfied Due Process
requirements.

In examining the burden on an India-based defendant

sued in the state of Virginia, the court noted the fact the
defendant was able to secure counsel rendering the burdens of
litigation “no more substantial than that encountered by other
entities that choose to transact business in Virginia.”
296.

Id. at

Like the defendant in CFA Institute, the Bank here has been

able to secure competent counsel admitted to practice in West
Virginia and before this Court.

Having secured competent and

capable counsel, the Bank is situated no worse than any other
entity based elsewhere that has sufficient contacts with West
Virginia.

Although the Bank correctly points to the potential

logistical issues associated with witnesses far-flung from West
Virginia, the modern world of communication and technology has
certainly lessened if not eliminated such obstacles. 8

The Bank

also appears to have sufficient resources to engage in commercial
litigation.

See ECF No. 15-2 at ¶11 and Ex. 3.

Its own website

As counsel and the Court endeavor to litigate and adjudicate
during the COVID-19 outbreak, the world in which lawyers toil for
depositions and the like has shrunk even more than before the
pandemic with the prevalence of Zoom, FaceTime, Skype and other
virtual discovery platforms.
8

20

United Coals v. Attijariwafa Bank

Civil Action No. 1:19-CV-95

MEMORANDUM OPINION DENYING DEFENDANT’S MOTION TO DISMISS [ECF NO. 4]

notes it is the largest bank in Morocco with operations in twentyfour other countries and the sixth largest asset total of any bank
in all of Africa.

As the Fourth Circuit stated, defendants are

“not shielded from liability” being “headquartered” in foreign
jurisdictions.

CFA Institute, 551 F.3d at 296.

The nature of United and the Bank’s relationship also made
the possibility of litigation foreseeable.

See id. (noting “the

inequity of being haled into a foreign forum is mitigated if it
was reasonably foreseeable that the defendant could be subject to
suit there.”).

Again, United made no secret that it was West

Virginia-based company and operated in the coal industry here.
United alleges the combined value of the ONEE contracts that
necessitated the parties’ relationship was combined in excess of
$26,000,000.
contracts

As the Bank spells out in its briefing, the ONEE

involved

international

complex

shipments

of

issues
tons

of

with

multiple

coal.

parties

According

to

and
the

Complaint, the Bank repeatedly promised United the letters of
credit it needed to perform under the ONEE contracts and which
were governed by the agreement(s) between United and the Bank.
However,

the

Bank

never

fulfilled

those

promises.

The

Bank

certainly stood to benefit from the relationship with a West
Virginia entity or it would never have agreed to open accounts for
United’s benefit or promised the letters of credit described in
21

United Coals v. Attijariwafa Bank

Civil Action No. 1:19-CV-95

MEMORANDUM OPINION DENYING DEFENDANT’S MOTION TO DISMISS [ECF NO. 4]

the Complaint.

That benefit was not the result of “random,

fortuitous or attenuated” contact with United.
471 U.S. at 480 (citations omitted).

See Burger King,

The burden on the Bank is

certainly manageable and not offensive to the Constitution.
The Supreme Court has long recognized a State’s interest in
providing an appropriate forum for its citizens to litigate and
redress alleged injuries.
interest’

“A State generally has a ‘manifest

in providing its residents with

convenient forum for redressing injuries inflicted
state actors.”

a
by out-of-

Burger King Corp., 471 U.S. at 473; see also

BeoCare Group, Inc. v. Morrisey, 124 F. Supp.3d 696, 706 (W.D.N.C.
2015) (“Additionally, each state has an interest in resolving the
grievances of its businesses ...).

This factor inures to United’s

benefit under the analysis.
Finally, United has “a valid and substantial interest” in
litigating its rights here.

See CFA Institute, 551 F.3d at 297.

United has been incorporated as a West Virginia corporation since
1979.

See West Virginia Secretary of State Business Organization

Database,
http://apps.sos.wv.gov/business/corporations/organization.aspx?o
rg=103882.

It seeks relief for the alleged breach of contract and

other claims against the Bank which, as alleged in the Complaint,

22

United Coals v. Attijariwafa Bank

Civil Action No. 1:19-CV-95

MEMORANDUM OPINION DENYING DEFENDANT’S MOTION TO DISMISS [ECF NO. 4]

skewered a business endeavor worth in excess of $26,000,000.
United has a clear interest in obtaining relief. 9
Based on the Court’s analysis of all the required factors,
the Bank’s contacts and relationship with United satisfy both the
West Virginia long-arm statute as well as the Due Process Clause.
The exercise of jurisdiction here is constitutionally reasonable.
Thus,

the

Bank’s

motion

must

be

denied

with

respect

to

the

jurisdictional challenge.
C.

Forum Selection Clause

The Bank also argues United’s Complaint should be dismissed
based on a purported forum selection clause.
that clause is mandatory.

The Bank contends

The Fourth Circuit has provided the

following guidance on forum selection clauses:
As a general matter, courts enforce forum
selection
clauses
unless
it
would
be
unreasonable to do so. See M/S Bremen v.
Zapata Off-Shore Co., 407 U.S. 1, 15 (1972).
This presumption of enforceability, however,
only applies if the forum selection clause is
mandatory
rather
than
permissive.
See
Albemarle Corp. v. AstraZeneca UK Ltd., 628
F.3d 643, 650–51 (4th Cir. 2010). A mandatory
clause requires litigation to occur in a
specified forum; a permissive clause permits
litigation to occur in a specified forum but
United also makes allegations against not only the Moroccan
commercial courts but also the government of Morocco. ECF No. 15
at 19-20. This Court need not consider those allegations given
its finding that United has a separate interest in obtaining relief
in this jurisdiction and, therefore, this Court makes no findings
whatsoever related to these accusations.
9

23

United Coals v. Attijariwafa Bank

Civil Action No. 1:19-CV-95

MEMORANDUM OPINION DENYING DEFENDANT’S MOTION TO DISMISS [ECF NO. 4]

does not bar litigation elsewhere. Id. A
permissive forum selection clause does not
justify dismissal on the grounds that the
plaintiff filed suit in a forum other than the
one specified in the clause. See, e.g., Weber
v. PACT XPP Techs., AG, 811 F.3d 758, 768 (5th
Cir. 2016).
BAE Sys. Tech. Sol. & Servs., Inc. v. Republic of Korea’s Def.
Acquisition Program Admin., 884 F.3d 463, 470 (4th Cir. 2018).
Unless a forum selection clause contains “specific language
of exclusion,” the Court should find it to be permissive and
conferring jurisdiction in one forum, rather than excluding other
jurisdiction.

Id.

(citing

Albemarle

(internal citations omitted).

Corp.,

628

F.3d

at

651)

Forum selection clauses should not

be found to be mandatory unless they describe a particular forum
as the “sole” or “only” or “exclusive” forum. Id. at 472.
The Clause at issue here reads:
The Parties agree that all disputes concerning
interpretation and implementation of this
Agreement shall fall under the jurisdiction of
the Casablanca Commercial Court. In the event
the parties enter into other contracts such as
a loan or security contract which contains
different clauses concerning jurisdiction,
the parties expressly agree to give priority
to the jurisdiction provisions of these
contracts.
ECF No. 5 at Exs. A and B.

The plain terms of this provision do

not purport to exclude any particular jurisdiction, including West
Virginia.

The provision likewise does not indicate an agreement

24

United Coals v. Attijariwafa Bank

Civil Action No. 1:19-CV-95

MEMORANDUM OPINION DENYING DEFENDANT’S MOTION TO DISMISS [ECF NO. 4]

that the Casablanca Commercial Court is the “sole”, “only” or
“exclusive”

jurisdiction

for

disputes

between

the

parties.

Instead, it conveys jurisdiction there but does not limit a party’s
right

to

litigate

elsewhere

under

the

clear

holding

of

BAE.

Defendant’s motion with respect to the forum selection clause is
denied.
V.
Therefore,

for

the

CONCLUSION

reasons

set

forth

above,

Defendant’s

Motion to Dismiss is DENIED as ordered in this Court’s March 30,
2020 Order [ECF No. 32].
The Clerk is directed to forward this Memorandum Opinion to
all counsel of record.
It is so ORDERED.
DATE:

April 14, 2020

/s/ Thomas S. Kleeh
UNITED STATES DISTRICT COURT JUDGE

25