421 F.3d 129 (2nd Cir. 2005), 04-2158, USHA (India), Ltd. v. Honeywell Intern., Inc.
|Docket Nº:||Docket No. 04-2158-CV.|
|Citation:||421 F.3d 129|
|Party Name:||USHA (INDIA), LTD., individually and on behalf of USHA Amorphous Metals, Ltd., USHA Information Systems, Ltd., individually and on behalf of USHA Amorphous Metals, Ltd., and RKKR Infotech Private, Ltd., individually and on behalf of USHA Amorphous Metals, Ltd., Plaintiffs-Appellants, v. HONEYWELL INTERNATIONAL, INC., formerly known as AlliedSignal,|
|Case Date:||August 29, 2005|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued: May 13, 2005.
Final Submission: June 13, 2005.
[Copyrighted Material Omitted]
Richard C. Ebeling, Law Office of Richard C. Ebeling, Jefferson Valley, NY, for Plaintiffs-Appellants.
Jonathan F. Putnam, Kirkland & Ellis LLP, New York, NY, for Defendants-Appellees (Shiva S. Farouki, David T. Huang, Kirkland & Ellis LLP, for Defendants-Appellees, David Leichtman, Morgan Lewis & Bockius LLP, New York, NY, for Defendant-Appellee Hitachi Metals America, Ltd., of counsel).
Before: FEINBERG, CARDAMONE, and SACK, Circuit Judges.
SACK, Circuit Judge.
The plaintiffs brought suit in the United States District Court for the Southern District of New York (Denny Chin, Judge ), alleging claims arising under the laws of the Republic of India. The plaintiffs asserted that they chose to bring suit in the Southern District of New York principally because, as a result of prospective delay in India's courts, India did not provide an adequate alternative forum. The district court, after hearing expert testimony from both sides, concluded that India did provide an adequate forum, and dismissed the case on the ground of forum non conveniens.
We, as did the district court, see Usha (India), Ltd. v. Honeywell Int'l Inc., No. 03 Civ. 0494, 2004 WL 540441, at *1, 2004 U.S. Dist. LEXIS 4236, at *2 (S.D.N.Y. Mar. 17, 2004), take the facts of the underlying dispute from the amended complaint and assume them to be true for purposes of reviewing the forum non conveniens dismissal.
The plaintiffs, Usha (India), Ltd. ("Usha India"), Usha Information Systems, Ltd. ("UIS"), and RKKR Infotech Private, Ltd. ("RKKR"), are corporations organized and existing under the laws of the Republic of India, with their principal offices in India. Usha Amorphous Metals, Ltd. ("UAML"), also an Indian corporation, is a joint venture that was created and initially owned by Usha India and defendant Honeywell International, Inc. ("Honeywell"). Usha India's holdings in UAML were transferred to UIS and then to RKKR. UIS and
RKKR are therefore successors-in-interest to Usha India with respect to UAML.
Honeywell is a Delaware corporation with its principal office in New Jersey. Hitachi Metals, Ltd., is a corporation organized and existing under the laws of Japan. Hitachi Metals America, Ltd., a New York corporation with its principal office in New York, is a wholly owned subsidiary of Hitachi Metals, Ltd.
In the late 1980s, Honeywell, which manufactured and sold amorphous metal products 1 under the name Metglas TM, sought to manufacture and sell such products in the Republic of India. At that time, the laws of India forbade non-Indian companies from owning a one-hundred-percent interest in an Indian company or from otherwise establishing a direct presence in India. In 1987, Honeywell therefore agreed with Usha India to create an Indian-based joint venture, UAML, to make and sell amorphous metal products. On March 23, 1987, Usha India and Honeywell executed a Memorandum of Understanding setting forth the parties' agreement to form an Indian corporation under the Indian Companies Act of 1956. Under the resulting shareholders' agreement, Usha India would own sixty percent of the equity in UAML, and would sponsor three of the five members of its board of directors. Honeywell would own forty percent of the equity and would appoint the remaining two directors.
In 1993, the parties agreed that Honeywell would increase its equity interest in UAML to fifty percent. Honeywell thereupon purchased additional shares of UAML capital stock from Usha India for the equivalent of approximately $153,000.
Thereafter, the partners decided to expand operations in India. Usha India agreed to contribute real estate in exchange for more UAML shares, while Honeywell agreed to contribute technology in exchange for the same number of new shares. This agreement was memorialized in a "Technology Transfer Agreement" executed in February 1994. The plaintiffs allege that the transfer agreement was a "sham" and that Honeywell's actual intention was to destroy UAML. Am. Compl. ¶ 33. They further assert that "[w]hile weakening UAML, and stalemating the Usha-sponsored Directors from taking remedial action, Honeywell was secretly implementing a plan to create a wholly owned subsidiary in India, the purpose of which was to arrogate UAML's business for itself." I...
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