714 F.3d 714 (2nd Cir. 2013), 12-568-cv, Magi XXI, Inc. v. Stato della Citta del Vaticano

Docket Nº:12-568-cv.
Citation:714 F.3d 714
Opinion Judge:DRONEY, Circuit Judge:
Party Name:MAGI XXI, INC., Plaintiff-Appellant, v. STATO DELLA CITT
Attorney:Bernard Kobroff, Goetz Fitzpatrick LLP, New York, NY, for Appellant. David Dunn (Benjamin J.O. Lewis, on the brief), Hogan Lovells U.S. LLP, New York, NY, for Appellee.
Judge Panel:Before: CHIN and DRONEY, Circuit Judges, and RESTANI, Judge. [**]
Case Date:April 30, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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714 F.3d 714 (2nd Cir. 2013)

MAGI XXI, INC., Plaintiff-Appellant,

v.

STATO DELLA CITTÀ DEL VATICANO a/k/a The Holy See, Defendant-Appellee,

Gerald P. Colapinto, Second Renaissance, LLC, Defendants.[*]

No. 12-568-cv.

United States Court of Appeals, Second Circuit.

April 30, 2013

Argued: Feb. 21, 2013.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Bernard Kobroff, Goetz Fitzpatrick LLP, New York, NY, for Appellant.

David Dunn (Benjamin J.O. Lewis, on the brief), Hogan Lovells U.S. LLP, New York, NY, for Appellee.

Before: CHIN and DRONEY, Circuit Judges, and RESTANI, Judge. [**]

DRONEY, Circuit Judge:

Plaintiff-Appellant Magi XXI, Inc. (" Magi" ) appeals from a judgment of the United States District Court for the Eastern District of New York dismissing the counts of its amended complaint directed against Defendant-Appellee Stato della Città del Vaticano a/k/a The Holy See (the " Vatican State" ). Those counts allege fraud, negligence, breach of contract, unjust enrichment, and conversion, in connection with a licensing program involving artwork and artifacts in the Vatican Library collection. The district court held that venue in the Eastern District of New York was improper based on forum selection clauses contained in sublicense agreements. We AFFIRM the judgment of the district court.

BACKGROUND

Magi is a New York corporation with its principal place of business in Long Beach,

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New York. The Vatican State is the territory over which the Holy See of the Roman Catholic Church exercises sovereignty. The Vatican Office of Publications, acting on behalf of the Vatican State, has the authority to enter into contracts with third parties for the commercial exploitation of the artwork and artifacts in the Vatican Library collection. Defendant Second Renaissance, LLC (" Second Renaissance" ) is a limited liability company with its principal place of business in Corona, California. Defendant Gerald P. Colapinto is the President of Second Renaissance.

On May 22, 2000, the Vatican Office of Publications and Second Renaissance entered into a Master License Agreement. The Master License Agreement stated that the Vatican State " owns or controls all artwork, artifacts, manuscripts, and items within or under the control of the [Vatican Library]," and that the Vatican Office of Publications " alone has the power to license the right to make reproductions and adaptations of items in the Vatican Library Collection." Under the Master License Agreement, the Vatican Office of Publications granted to Second Renaissance the rights to produce and market specific lines of products based on reproductions of artifacts in the Vatican Library and, subject to certain conditions, to sublicense those rights. As to sublicensing, the Master License Agreement provided that Second Renaissance would

have the right to sell, sublicense or assign the rights granted herein, provided that: (1) the proposed buyer, assignee and/or sublicensee is identified by [Second Renaissance] in writing; (2) the buyer, sublicensee and/or assignee is approved in writing by [the Vatican Office of Publications] or is fifty percent (50%) or more owned or controlled by [Second Renaissance], and (3) the proposed buyer, sublicensee or assignee agrees to be bound by the terms and conditions of this Agreement.

The Master License Agreement also contained a forum selection clause and a choice of law clause, which provided:

Any disagreements between [the Vatican Office of Publications] and [Second Renaissance] shall be resolved exclusively in the Sovereign State of Vatican City.1 [Second Renaissance] hereby consents to jurisdiction in the Sovereign State of Vatican City. All disputes relating to this Agreement between [the Vatican Office of Publications] and [Second Renaissance] shall be governed by the laws of the Sovereign State of Vatican City, and [Second Renaissance] and [the Vatican Office of Publications] hereby consent thereto. Any proceedings shall be conducted in the English language.

On July 18, 2001, pursuant to the Master License Agreement, Magi entered into seven sublicense agreements with Second Renaissance (the " Sublicense Agreements" ) for the production by Magi of candles, chocolates, confections, flowers, stamps, wrapping paper/gift bags, and fundraising materials, which would all bear the name, logo, and seal of the Vatican Library.2 The Sublicense Agreements were approved by the Vatican Office of Publications, as required by the Master License Agreement. The Sublicense Agreements also all contained the following forum selection and choice of law clauses, which were identical to the ones contained in the Master License Agreement:

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Any disagreements between [Second Renaissance] and [Magi] shall be resolved exclusively in the Sovereign State of Vatican City. [Second Renaissance] and [Magi] each hereby consents to jurisdiction in the Sovereign State of Vatican City. All disputes relating to this Agreement between [Second Renaissance] and [Magi] shall be governed by the laws of the Sovereign State of Vatican City, and [Second Renaissance] and [Magi] each hereby consents thereto. All proceedings shall be conducted in the English language.

The Sublicense Agreements also provided that if any conflict arose between the Sublicense Agreements and the Master License Agreement, the latter would control.

On July 17, 2007, Magi filed suit against Colapinto, Second Renaissance, and the Vatican State in the United States District Court for the Eastern District of New York. In its amended complaint, Magi alleged that Colapinto and Second Renaissance did not provide Magi with the contracted-for access to artwork and commercially usable images of the materials that Second Renaissance had, in turn, licensed from the Vatican Library. Magi further alleged that Colapinto and Second Renaissance had misrepresented the nature of Colapinto's relationship with the Vatican State as well as the availability of certain images in the Vatican Library. Magi also claimed that the Vatican State was aware of Second Renaissance's and Colapinto's purported misrepresentations, and that Second Renaissance and Colapinto had acted as agents for the Vatican State in the course of breaching the Sublicense Agreements. Magi alleged fraud, negligence, breach of contract, unjust enrichment, and conversion, and sought damages and rescission of the Sublicense Agreements.3 On October 12, 2010, the Vatican State filed separate motions to dismiss based on (1) subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1), and (2) the forum selection clauses and/or forum non conveniens. 4

On August 24, 2011, after reviewing the amended complaint and declarations submitted

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by the parties, the district court (Mauskopf, J. ) granted the Vatican State's motion to dismiss for improper venue on the basis of the forum selection clauses in the Sublicense Agreements, and therefore found it unnecessary to decide the Vatican State's motion to dismiss for lack of subject matter jurisdiction. See Magi XXI, Inc. v. Stato della Città del Vaticano, 818 F.Supp.2d 597 (E.D.N.Y.2011). In its Memorandum and Order, the district court identified five separate grounds for determining that the Vatican State is a " closely related" party to Second Renaissance, and that it was foreseeable to Magi that the Vatican State would seek to enforce the forum selection clauses against Magi. The district court summarized its reasoning as follows:

There are multiple grounds for this conclusion: (1) the Vatican State's interests in the sublicense agreements are derivative of and directly related to [Second Renaissance]'s conduct in entering into and allegedly violating those agreements; (2) [Second Renaissance]'s rights in the sublicense agreements are derivative of and depend on the rights it acquired from the Vatican State; (3) the Master License Agreement entitled the Vatican State to exercise significant control over the form and content of the sublicense agreements; and (4) plaintiff alleges the signatories ( [Second Renaissance] and Colapinto) are the non-signatory's (Vatican State) agents for liability purposes and its claims against all three defendants are essentially identical. Moreover, the...

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