Wilson v. Dantas

DeGrasse, J.

(dissenting in part). This appeal is from an or*189der granting a motion to dismiss the complaint by the only remaining defendants, Opportunity Equity Partners, Ltd. (Opportunity Ltd.), Opportunity Invest II, Inc. (Opportunity Invest) and Daniel Valente Dantas (collectively, the Opportunity defendants). The Opportunity defendants moved below for dismissal on the grounds of lack of personal jurisdiction and forum non conveniens. I dissent because I disagree with the majority’s conclusion that personal jurisdiction under CPLR 302 (a) (1) can be inferred from the complaint. Dismissal of the complaint was also warranted under CPLR 327.

Plaintiff, while employed by Citibank in the 1990s, devised a stratagem that enabled Citibank to make private equity investments in large Brazilian companies that were being privatized. At that time, the Office of the Comptroller of the Currency prohibited Citibank from managing any fund that would invest directly in Brazil. Therefore, plaintiff, acting with Dantas, a Brazilian citizen, created Opportunity Ltd., a Cayman Islands corporation. Opportunity Invest, a British Virgin Islands corporation, was the majority shareholder of Opportunity Ltd. Both entities are alleged to have been controlled and dominated by Dantas. The underlying Brazilian investment enterprise was carried out under three agreements that involved the Opportunity defendants and were executed on December 30, 1997: a shareholders’ agreement, a limited partnership agreement and an operating agreement. Plaintiff, who owns shares of Opportunity Ltd., was a party to the shareholders’ agreement but not the limited partnership agreement or the operating agreement.

The majority correctly cites Licci v Lebanese Can. Bank, SAL (20 NY3d 327, 334 [2012]) for the proposition that the issue of jurisdiction under CPLR 302 (a) (1) requires a determination of (1) whether the Opportunity defendants transacted business in New York and, if so, (2) whether plaintiff’s causes of action arise from such transaction. The majority speaks of “a broader transaction of business in New York from which plaintiff’s causes of action arise.” Although the shareholders’ agreement is related to other contracts with Citibank, the complaint makes it clear that plaintiff’s causes of action arise out of the shareholders’ agreement only. The following excerpt from the declaratory judgment cause of action, which mirrors the contract cause of action, is illustrative:

“116. Specifically, Plaintiff asks this Court to declare the following:
*190“a. Plaintiff and the Opportunity Defendants entered into the Shareholder Agreement, and this Agreement created a quasi-partnership relationship among them;
“b. The quasi-partnership created fiduciary duties owed to Plaintiff by the Opportunity Defendants, including but not limited to fair dealing, utmost good faith, loyalty, candor, and just and equitable treatment;
“c. These fiduciary duties include the duty to disclose material information to Plaintiff, including but not limited to the terms being negotiated, and agreed upon, in the Settlement Agreement;[1]
“d. These fiduciary duties, and the duty of just and equitable conduct, include the duty to make adequate disclosures, which duty was violated when the Opportunity Defendants negotiated a Settlement Agreement that barred Plaintiff from access to its terms, when the Opportunity Defendants secured distributions of the disinvestment profits solely to themselves and to the exclusion of Plaintiff, and when thereafter they refused to honor the obligation to pay Plaintiff the reasonable value of his interest in those profits, and when they failed to honor his demand to exercise his put option.”

With respect to contracts, “[u]nder New York law, the transacts-business standard can be satisfied where both the negotiations and execution of a contract took place within New York” (Grand Riv. Enters. Six Nations, Ltd. v Pryor, 425 F3d 158, 166-167 [2d Cir 2005], citing George Reiner & Co. v Schwartz, 41 NY2d 648, 652-653 [1977]). In his opening brief, plaintiff cites an exhibit to the complaint in which it is stated that “the Shareholder Agreement was simultaneously executed in New York” by the Opportunity defendants and plaintiff. The mere execution of agreements in New York, however, does not constitute the transaction of business under CPLR 302 (a) (1) (see Standard Wine & Liq. Co. v Bombay Spirits Co., 20 NY2d 13, 17 [1967]; Abbate v Abbate, 82 AD2d 368, 384 [2d Dept 1981]).

The complaint itself provides no basis for the majority’s apparent inference that the agreement was negotiated here. Al*191though paragraph 32 mentions negotiations between plaintiff and Dantas, it is not stated where the negotiations took place. Words with the root “negotiat” appear in the complaint 34 other times. Not one of these words, however, is used in reference to the shareholders’ agreement or the other two agreements plaintiff invokes. It is also undisputed that plaintiff and Dantas both resided in Brazil during the four months preceding the execution of the agreements plaintiff invokes. In light of this fact, there is no reason to infer, as the majority does, that the agreements were negotiated in New York as opposed to Brazil. This is not a matter of what the majority describes as an inartfully drafted pleading. Rather, the complaint is simply devoid of jurisdictional facts that could have been alleged had they existed. The lack of discovery cited by the majority is of no moment. Plaintiff could have requested jurisdictional discovery pursuant to CPLR 3211 (d), but did not do so. I therefore assume that it was unnecessary.

The majority also posits that even if the shareholders’ agreement had not been negotiated in New York, plaintiff’s cause of action would arise from an “integrated whole” that includes the limited partnership agreement and the operating agreement. This broad transaction theory is at odds with the Second Circuit’s determination that plaintiff’s right to seek compensation stemmed solely from the shareholders’ agreement and an alleged oral agreement with Dantas (Wilson v Dantas, 746 F3d 530, 537 [2d Cir 2014]). During colloquy before the district court, plaintiff’s counsel conceded that his causes of action were based on nothing more than a put option set forth in the shareholders’ agreement.

Grounds for dismissal of the complaint under the doctrine of forum non conveniens are even more compelling. Codified in CPLR 327 (a), the forum non conveniens doctrine permits a court to stay or dismiss an action where it is determined that the action would be better adjudicated in another forum (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]). Brazil, the place of residence of plaintiff and Dantas, where the underlying transactions took place, offers such a forum (see e.g. Patriot Exploration, LLC v Thompson & Knight LLP, 16 NY3d 762 [2011]). As stated above, Opportunity Ltd. and Opportunity Invest are foreign entities. Therefore, no party to this action is a New York resident or entity. Moreover, the resolution of this case will require the application of Cayman Islands law, as required by the *192shareholders’ agreement. In reliance on section 94 (d) of the Caymans Companies Law, a Cayman Islands statute, the complaint’s declaratory judgment cause of action calls for relief “[i]n accordance with the procedure followed by the courts of the Cayman Islands, and the Privy Council.”2 The complaint here provides much more than “[b]road allegations that issues of [Cayman Islands] law will arise” (compare Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 74 [1984] [cited by the majority]). “The applicability of foreign law is an important consideration in determining a forum non conveniens motion and weighs in favor of dismissal” (Flame S.A. v Worldlink Intl. [Holding] Ltd., 107 AD3d 436, 438 [1st Dept 2013], lv denied 22 NY3d 855 [2013] [internal quotation marks omitted]). The majority erroneously adopts plaintiff’s argument that litigation in Brazil or the Cayman Islands would cause hardship because there is no right to trial by jury in either of those jurisdictions. Although the majority is not reinstating the declaratory judgment cause of action, the complaint undermines plaintiff’s hardship argument by calling for a determination in accordance with the procedural law of the Cayman Islands. Neville v Anglo Am. Mgt. Corp. (191 AD2d 240 [1st Dept 1993]) and Gyenes v Zionist Org. of Am. (169 AD2d 451 [1st Dept 1991]), which the majority cites, are distinguishable. Unlike the New York residents who brought those wrongful death and personal injury actions, plaintiff negotiated and executed an agreement that provided for the adjudication of his disputes “in accordance with the laws of the Cayman Islands.” Contractual choice of law provisions are enforceable (see Union Bancaire Privee v Nasser, 300 AD2d 49, 50 [1st Dept 2002]). The third, fifth and ninth causes of action were correctly dismissed for reasons stated by the majority.

Mazzarelli, J.P., and Clark, J., concur with Acosta, J.; De-Grasse, J. dissents in part in a separate opinion.

Order, Supreme Court, New York County, entered August 27, 2013, modified, on the law, to deny the motion as to the first, second, fourth and sixth through eighth causes of action, and otherwise affirmed, without costs.

. The settlement agreement ended litigation among Citibank, Opportunity Ltd. and Dantas. Plaintiff was not a party to that lawsuit.

. The English Privy Council functions as the Cayman Islands’ highest appellate court (International Equity Invs., Inc. v Opportunity Equity Partners, Ltd., 407 F Supp 2d 483, 498 [SD NY 2005], affd 246 Fed Appx 73 [2d Cir 2007]).