United Coals, Inc. v. ATTIJARIWAFA BANK
Filing
85
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS MOTION TO LIMIT THE SCOPE OF DISCOVERY TO JURISDICTIONAL ISSUES 77 AND DENYING OTHER PENDING MOTIONS WITHOUT PREJUDICE 41 AND 71 . Defendants Motion for Limited Discovery 77 is GRANTED and Defendants Motion for Judgment on the Pleadings 41 and Defendants Motion to Strike 71 are DENIED WITHOUT PREJUDICE. Signed by Chief District Judge Thomas S Kleeh on 9/30/2022. (jb)
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 GRANTING DEFENDANT’S MOTION TO
LIMIT THE SCOPE OF DISCOVERY TO JURISDICTIONAL ISSUES [ECF NO.
77] AND DENYING OTHER PENDING MOTIONS WITHOUT PREJUDICE
[ECF NO. 41 AND 71]
Pending before the Court is Defendant Attijariwafa Bank’s
Motion to Limit the Scope of Discovery to Facts Relevant to the
Issue of Personal Jurisdiction.
[ECF No. 77].
The issues have
been fully briefed and the matter is ripe for decision.
reasons discussed herein, the Court GRANTS the motion.
For the
The Court
further DENIES WITHOUT PREJUDICE Defendant’s Motion for Judgment
on the Pleadings with Respect to Plaintiff’s Promissory Estoppel
Claim as Set Forth in Count II of Plaintiff’s Complaint [ECF No.
41] and Plaintiff’s Motion to Strike the Account Application, the
Account Agreement and the English Translation Thereof [ECF No. 71]
considering the need to assess this Court’s jurisdiction.
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.
United Coals v. Attijariwafa Bank
1:19-CV-95
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
LIMIT THE SCOPE OF DISCOVERY TO JURISDICTIONAL ISSUES [ECF NO.
77] AND DENYING OTHER PENDING MOTIONS WITHOUT PREJUDICE
[ECF NO. 41 AND 71]
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.
motion, the Court stayed those deadlines.
By the parties’ joint
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.
A subsequent Memorandum Opinion issued.
ECF
No. 36.
Thereafter, the parties filed other motions.
its
Motion
for
Judgment
on
the
Pleadings
Defendant filed
with
Respect
to
Plaintiff’s Promissory Estoppel Claim as Set Forth in Count II of
Plaintiff’s Complaint [ECF No. 41] while Plaintiff filed a Motion
to Strike the Account Application, the Account Agreement and the
English Translation Thereof [ECF No. 71].
Defendant also filed
its Motion to Limit the Scope of Discovery to Facts Relevant to
the Issue of Personal Jurisdiction [ECF No. 77] which is the
primary subject of this Order.
2
United Coals v. Attijariwafa Bank
1:19-CV-95
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
LIMIT THE SCOPE OF DISCOVERY TO JURISDICTIONAL ISSUES [ECF NO.
77] AND DENYING OTHER PENDING MOTIONS WITHOUT PREJUDICE
[ECF NO. 41 AND 71]
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 as
United’s agent around October 10, 2013.
Goldizen, ECF No. 15-1, at ¶ 5.
Morocco.
Id.
See Decl. of Jeffrey A.
He was United’s only agent in
United also initiated contact and a business
relationship with Defendant Attijariwafa Bank (“the Bank”).
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
These facts are taken from the Complaint and were presumed true
in deciding Defendant’s initial jurisdictional challenge which was
subject to a prima facie proof standard.
As discussed herein,
Plaintiff ultimately must prove jurisdiction by a preponderance of
the evidence without any presumption of credibility bestowed upon
the Complaint’s allegations.
1
3
United Coals v. Attijariwafa Bank
1:19-CV-95
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
LIMIT THE SCOPE OF DISCOVERY TO JURISDICTIONAL ISSUES [ECF NO.
77] AND DENYING OTHER PENDING MOTIONS WITHOUT PREJUDICE
[ECF NO. 41 AND 71]
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
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 Contract 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.
4
United Coals v. Attijariwafa Bank
1:19-CV-95
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
LIMIT THE SCOPE OF DISCOVERY TO JURISDICTIONAL ISSUES [ECF NO.
77] AND DENYING OTHER PENDING MOTIONS WITHOUT PREJUDICE
[ECF NO. 41 AND 71]
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
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.
at ¶¶ 14-18.
5
Id.
United Coals v. Attijariwafa Bank
1:19-CV-95
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
LIMIT THE SCOPE OF DISCOVERY TO JURISDICTIONAL ISSUES [ECF NO.
77] AND DENYING OTHER PENDING MOTIONS WITHOUT PREJUDICE
[ECF NO. 41 AND 71]
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.
Decl. 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
its response to the pending motion, United also identifies five
(5) communications it alleges were directly from the Bank to
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
6
United Coals v. Attijariwafa Bank
1:19-CV-95
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
LIMIT THE SCOPE OF DISCOVERY TO JURISDICTIONAL ISSUES [ECF NO.
77] AND DENYING OTHER PENDING MOTIONS WITHOUT PREJUDICE
[ECF NO. 41 AND 71]
Jeffrey A. Goldizen, United’s West Virginia-based President and
sole shareholder:
1. April 9, 2014 email3 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 (ECF No. 15-1 at
¶ 15).
There were, however, numerous communications with United’s agent
in Morocco.4
Id. at ¶ 14; see also Compl.
Goldizen states that
Leon kept him “regularly abreast of such communications.”
Id.
One of the email addresses listed on these communications,
presumably Goldizen’s email address, is jeff@golddiggerswv.com.
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.
4
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
notice to his principal, whether he communicates his knowledge to
his principal or not.”).
3
7
United Coals v. Attijariwafa Bank
1:19-CV-95
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
LIMIT THE SCOPE OF DISCOVERY TO JURISDICTIONAL ISSUES [ECF NO.
77] AND DENYING OTHER PENDING MOTIONS WITHOUT PREJUDICE
[ECF NO. 41 AND 71]
III. DICUSSION
The Federal Rules of Civil Procedure do not provide a roadmap
for district courts to assess jurisdictional challenges.
Grayson v. Anderson, 816 F.3d 262, 267 (4th Cir. 2016).
See
Under
Rule 12(b)(2), a defendant must affirmatively raise a personal
jurisdictional challenge, but the plaintiff bears the burden of
demonstrating personal jurisdiction at every stage following such
a challenge.
See Combs v. Bakker, 886 F.2d 673, 676 (4th Cir.
1989) (emphasis added).
Under the same rule, the burden is “on
the plaintiff ultimately to prove the existence of a ground for
jurisdiction by a preponderance of the evidence.”
Id.
And a Rule
12(b)(2) challenge raises an issue for the court to resolve,
generally as a preliminary matter. Id. (“[T]he jurisdictional
question
thus
raised
[under
Rule
12(b)(2)]
is
one
for
the
judge[.]”).
District courts can, as was done initially here, assess Rule
12(b)(2) solely on the basis of motion papers, supporting legal
memoranda, affidavits, and the allegations in the complaint.
See
Grayson, 816 F.3d at 268. There, a plaintiff need only demonstrate
jurisdiction by a prima facie standard and the Court is required
to draw all reasonable inferences in favor of the plaintiff.
See
Carefirst of Md., Inc. v. Carefirst Pregnancy Ctr’s, Inc., 334
8
United Coals v. Attijariwafa Bank
1:19-CV-95
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
LIMIT THE SCOPE OF DISCOVERY TO JURISDICTIONAL ISSUES [ECF NO.
77] AND DENYING OTHER PENDING MOTIONS WITHOUT PREJUDICE
[ECF NO. 41 AND 71]
F.3d 390, 396 (4th Cir. 2003). However, “[a] threshold prima facie
finding that personal jurisdiction is proper does not finally
settle the issue; plaintiff must eventually prove the existence of
personal jurisdiction by a preponderance of the evidence, either
at trial or at a pretrial evidentiary hearing.”
New Wellington
Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290, 294 n.5
(4th Cir. 2005).
“[D]istrict
courts
“have
broad
discretion
in
[their]
resolution of discovery problems that arise in cases pending before
[them].”
Mylan Labs., Inc. v. Akzo, 2 F.3d 56, 64 (4th Cir. 1993).
“In
discretion,
its
jurisdictional issue.”
a
court
may
permit
discovery
as
to
the
State v. Exxon Mobile Corporation, 406 F.
Supp.3d 420, 437 (D. Md. 2019) (citing Mylan Labs, 2 F.3d at 64);
see also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13
(1978) (“For example, where issues arise as to jurisdiction or
venue, discovery is available to ascertain the facts bearing on
such issues.”); Coastal Laboratories, Inc. v. Jolly, 502 F. Supp.3d
1003, 1016 (D. Md. 2020) (“[A] court may hold an evidentiary
hearing
or
permit
issue . . . .) .
discovery
as
to
the
jurisdictional
“In some cases, where the record suggests some
indicia of personal jurisdiction, limited jurisdictional discovery
9
United Coals v. Attijariwafa Bank
1:19-CV-95
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
LIMIT THE SCOPE OF DISCOVERY TO JURISDICTIONAL ISSUES [ECF NO.
77] AND DENYING OTHER PENDING MOTIONS WITHOUT PREJUDICE
[ECF NO. 41 AND 71]
may be warranted to ascertain more facts.”
Id. at 448 (citations
omitted).
The Court initially found Plaintiff had satisfied its prima
facie
burden
and
denied
Defendant’s
Rule
12(b)(2)
Candidly, that finding was the proverbial close call.
motion.
Of course,
personal jurisdiction is “an essential element of the jurisdiction
of a district . . . court,” without which the court is “powerless
to proceed to an adjudication.”
Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574, 584 (1999) (citation omitted).
Considering the
significance of the question, the level of proof – assessed with
a
presumption
of
credibility
applying
to
the
Complaint’s
allegations and all reasonable inferences made in Plaintiff’s
favor – relied upon in denying Defendant’s motion and the remaining
burden Plaintiff must carry under a different standard of proof,
the Court believes it appropriate to resolve that question before
the merits of Plaintiff’s claims.
Thus, Defendant’s motion to
conducted limited discovery on the jurisdictional question is
GRANTED.
The parties shall complete targeted jurisdictional discovery
on
or
before
January
30,
2023.
At
the
conclusion
of
such
discovery, Defendant may renew its jurisdictional challenge, if
appropriate, by filing a Rule 12(b)(2) on or before February 17,
10
United Coals v. Attijariwafa Bank
1:19-CV-95
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
LIMIT THE SCOPE OF DISCOVERY TO JURISDICTIONAL ISSUES [ECF NO.
77] AND DENYING OTHER PENDING MOTIONS WITHOUT PREJUDICE
[ECF NO. 41 AND 71]
2023.
The Court’s Local Rules shall govern the briefing schedule
thereafter.
If Defendant does not believe a Rule 12(b)(2) motion
is warranted after jurisdictional discovery, it shall file a Notice
stating the same with the Court on or before February 10, 2023.
With limited discovery being appropriate and a determination
on the jurisdictional question necessary before the merits are
litigated,
the
Court
turns
to
the
other
pending
motions:
Defendant’s Motion for Judgment on the Pleadings with Respect to
Plaintiff’s Promissory Estoppel Claim as set Forth in Count II of
Plaintiff’s Complaint & Demand for Jury Trial [ECF No. 41] and
Plaintiff’s
Motion
and
Renewed
Motion
to
Strike
the
Account
Application, the Account Agreement, and the English Translation
Thereof [ECF No. 71].
Plaintiff must still satisfy its burden to
show jurisdiction by a preponderance of the evidence.
If it
cannot, this Court is powerless to address any other question
presented.
“A judgment which lies without the jurisdiction of a
court, even one of superior jurisdiction and general authority,
is, upon reason and authority, a nullity.”
In re Terry, 128 U.S.
289, 305 (1888); see also Sandler v. Tarr, 345 F. Supp. 612, 621
(D. Md. 1972) (“An order issued without jurisdiction is null and
void — it never existed.”). Thus, both of those motions are DENIED
WITHOUT PREJUDICE subject to resolution of any jurisdictional
11
United Coals v. Attijariwafa Bank
1:19-CV-95
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO
LIMIT THE SCOPE OF DISCOVERY TO JURISDICTIONAL ISSUES [ECF NO.
77] AND DENYING OTHER PENDING MOTIONS WITHOUT PREJUDICE
[ECF NO. 41 AND 71]
challenge.
The parties are granted leave to refile any motion
seeking similar relief if Plaintiff demonstrates this Court has
jurisdiction.
IV.
Therefore,
Motion
for
for
Limited
the
CONCLUSION
reasons
Discovery
set
[ECF
forth
No.
above,
77]
is
Defendant’s
GRANTED
and
Defendant’s Motion for Judgment on the Pleadings [ECF No. 41] and
Defendant’s Motion to Strike [ECF No. 71] are DENIED WITHOUT
PREJUDICE.
The Clerk is directed to forward this Memorandum Opinion and
Order to all counsel of record.
Entered:
September 30, 2022
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
12
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