722 F.3d 81 (2nd Cir. 2013), 12-770-cv, Dorchester Financial Securities, Inc. v. Banco BRJ, S.A.

Docket Nº:12-770-cv.
Citation:722 F.3d 81
Opinion Judge:PER CURIAM:
Party Name:DORCHESTER FINANCIAL SECURITIES, INC., Plaintiff-Appellant, v. BANCO BRJ, S.A., Defendant-Appellee.
Attorney:T.J. Morrow, Morrow & Co., New York, NY, for Plaintiff-Appellant Dorchester Financial Securities, Incorporated. Lyndon M. Tretter, Hogan Lovells U.S. LLP, New York, NY, for Defendant-Appellee Banco BRJ, S.A.
Judge Panel:Before: CABRANES, WESLEY, Circuit Judges, and FURMAN, District Judge.[*]
Case Date:July 03, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
FREE EXCERPT

Page 81

722 F.3d 81 (2nd Cir. 2013)

DORCHESTER FINANCIAL SECURITIES, INC., Plaintiff-Appellant,

v.

BANCO BRJ, S.A., Defendant-Appellee.

No. 12-770-cv.

United States Court of Appeals, Second Circuit.

July 3, 2013

Argued: Jan. 30, 2013.

Page 82

T.J. Morrow, Morrow & Co., New York, NY, for Plaintiff-Appellant Dorchester Financial Securities, Incorporated.

Lyndon M. Tretter, Hogan Lovells U.S. LLP, New York, NY, for Defendant-Appellee Banco BRJ, S.A.

Before: CABRANES, WESLEY, Circuit Judges, and FURMAN, District Judge.[*]

PER CURIAM:

Plaintiff-Appellant Dorchester Financial Securities, Inc. (" Dorchester" ), appeals from a judgment of the United States District Court for the Southern District of New York (Kimba M. Wood, Judge ), entered on January 25, 2012, dismissing its complaint against Defendant-Appellee Banco BRJ, S.A. (" BRJ" ) for lack of personal jurisdiction. We conclude that Dorchester made a prima facie showing of personal jurisdiction over BRJ, and thus carried its burden in the absence of an evidentiary hearing or trial on the merits. Accordingly, we VACATE and REMAND.

BACKGROUND

Although this suit has a long and somewhat tortured history, the facts relevant to this appeal are relatively few. Dorchester, a Florida corporation with offices in New York, initially filed suit against BRJ, a Brazilian bank, and another defendant in 2002.1 See Tretter Decl. Ex. F; id. ¶¶ 3-4.

Page 83

In its 2002 complaint, Dorchester alleged claims for breach of contract and fraud based on BRJ's purported failure to honor an irrevocable $250 million letter of credit. See id. ¶¶ 13-16, 27-32. When BRJ failed to answer the 2002 complaint or otherwise appear, Dorchester sought and obtained a default judgment; following an inquest, the district court entered judgment against BRJ in the amount of $112,279,452.05. Order, Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., et al. (" Dorchester" ), 02 Civ. 7504 (S.D.N.Y. Nov. 25, 2003). In 2010, however, Dorchester moved to vacate the judgment under Rule 60(b)(6) of the Federal Rules of Civil Procedure after it learned that the default judgment was unenforceable in Brazil because it had not served process by letters rogatory. See Pet. to Vacate, Dorchester, 02 Civ. 7504 (S.D.N.Y. Dec. 5, 2010). On February 24, 2011, the district court granted Dorchester's motion to vacate and permitted Dorchester to file a new action. See Order, Dorchester, 02 Civ. 7504 (S.D.N.Y. Feb. 24, 2011).

On March 7, 2011, Dorchester filed a new complaint, which, on August 31, 2011, was superseded by a first amended complaint, also alleging breach of contract and fraud. Compl., Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A. (" Dorchester II" ), 11 Civ. 1529 (S.D.N.Y. Mar. 7, 2011); Am. Compl., Dorchester II, 11 Civ. 1529 (S.D.N.Y. Aug. 31, 2011). Thereafter, BRJ moved to dismiss the first amended complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. In response to the motion, Dorchester proffered several bases for personal jurisdiction over BRJ. Most relevant for present purposes, Dorchester submitted as an attachment to its memorandum of law a letter agreement dated October 3, 2001, in which BRJ purportedly agreed that the letter of credit " shall be governed by ... the laws of the State of New York" and that " sufficient contacts exist with the State of New York from this transaction," and consented to " submit to personal jurisdiction in the City and State of New York for any claim or action arising from this transaction." Mem. Law Opp'n to Mot. to Dismiss (" Mem. Law Opp'n" ), Ex. G, at 2. Dorchester also presented copies of (1) the letter of credit agreement identifying the beneficiary as Dorchester, located at " 2, PENNSYLVANIA PLAZA, SUITE 1500, NEW YORK" ; (2) an unauthenticated message from BRJ to Dorchester sent care of a bank in New York through the Society for Worldwide Interbank Financial Telecommunication (more commonly known as " SWIFT" ), a Belgian messaging service specializing in the transmission of financial messages; and (3) a letter addressed from BRJ to Dorchester at 2 Pennsylvania Plaza, New York, New York, demanding $250,000 in exchange for the letter of credit. Mem. Law Opp'n, Exs. H, J, Q.

In support of its motion to dismiss, BRJ contended that these documents were forgeries. Specifically, through sworn declarations and supporting documentation, BRJ submitted evidence tending to show that (1) it had no record of any prior relationship with Dorchester or the company that allegedly introduced Dorchester to Banco; (2) it had never issued financial instruments of the size or nature of the purported letter of credit; (3) the signatures on the documents submitted by Dorchester were forgeries; (4) " Luis Alcazar," who purportedly negotiated the letter of credit on BRJ's behalf, was never a BRJ employee; and (5) the unauthenticated SWIFT message was not sent by a BRJ

Page 84

employee. See Decl. of Luiz Augusto de Queiroz ¶¶ 3, 10, 13-15. More broadly, one of BRJ's directors affirmed that BRJ had never conducted any business in the United States, never issued a letter...

To continue reading

FREE SIGN UP