Akerblom v. Ezra Holdings Ltd.

• Citation: 848 F.Supp.2d 673
• Decision Date: 25 January 2012
• Docket Number: Civil Action No. 4:11–cv–00694.
• Parties: Ove William AKERBLOM, Plaintiff, v. EZRA HOLDINGS LTD., et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

848 F.Supp.2d 673

Ove William AKERBLOM, Plaintiff,

v.EZRA HOLDINGS LTD., et al., Defendants.

Civil Action No. 4:11–cv–00694.

United States District Court,

S.D. Texas,

Houston Division.

Jan. 25, 2012.

William B. Underwood, III, Underwood Jones Scherrer and Malouf P.L.L.C., Houston, TX, for Plaintiff.

Philip G. Eisenberg, Derrick Bryan Carson, Nicholas P. Dickerson, Locke Lord Bissell & Liddell L.L.P., Houston, TX, for Defendants.

MEMORANDUM AND ORDER

KEITH P. ELLISON, District Judge.

Before the Court are three Motions: Defendant Emas Subsea Services, LLC's Motion to Dismiss for Failure to State a Claim (“Emas Subsea's Motion”) (Doc. No. 5); Defendants Ezra Holdings Limited, Ezra Energy Services PTE Ltd., and Emas Offshore Limited's Motion to Dismiss for Lack of Personal Jurisdiction and, Alternatively, on the Basis of Forum Non Conveniens (“EHL's Motion”) (Doc. No. 3), and Defendant Lee Chye Tek Lionel a/k/a Lionel Lee's Motion to Dismiss on the Basis of Forum Non Conveniens (“Lee's Motion”) (Doc. No. 4). After considering the Motions, all responses and replies thereto, the supplemental briefing, and the applicable law, the Court concludes that Emas Subsea's Motion and EHL's Motion must be GRANTED. The Court orders additional briefing and affidavits on Lee's Motion, to be submitted by February 10th, 2012, addressing the adequacy of the Singaporean forum.

I. BACKGROUND¹

In 2009, the offshore support and marine services company Ezra Holdings Limited (“EHL”) approached Ove William Akerblom (“Akerblom” or “Plaintiff”) with an oral offer to purchase Intrepid Global Pte. Ltd. (“IGPL”), a company in which Akerblom had a majority ownership. For several months, the managing director of EHL, Lee Chye Tek Lionel (“Lee”), and Akerblom discussed Akerblom's potential acquisition of IGPL. Akerblom was presented with a written offer to purchase IGPL in September 2009. He rejected that offer, however, due to concerns with the transfer of EHL stock, his employment agreement, and the infusion of cash into IGPL.

Lee then approached Akerblom a second time, and made various representations about the potential purchase. For example, among other promises, Lee suggested that EHL would transfer 1,500,000 shares of EHL to Akerblom, which would vest over a four year period; Akerblom would be provided with a five year employment contract with EHL and the Emas Subsea division of Emas Offshore Limited (“EOL”); Akerblom would retain a ten percent ownership of IGPL; and the Emas Subsea division of EOL would be integrated with IGPL. In October 2009, Akerblom entered into both an agreement to transfer ninety percent of the outstanding shares of IGPL to EHL, and a service agreement under which Akerblom was to be appointed managing director IGPL and receive monthly payments of $35,000. According to Akerblom, he would not have entered into these agreements but for Lee's specific representations on behalf of EHL. Akerblom was told that Greg McCavanagh (“McCavanagh”), an associate director of Emas Subsea Services, LLC (“Emas Subsea”), would report directly to him. Akerblom also claims that during a Business Process Operations Review meeting held with EHL, Emas Subsea created an organizational chart that confirmed that Akerblom “was in charge of Emas Subsea Globally” and “in charge of operations in West Africa.”

From October 2009 to June 2010, Akerblom and IGPL employees provided significant support to EHL's various programs. Additionally, Akerblom presented Lee with various opportunities for IGPL, which Lee declined to take, resulting in a minimum loss of $400 million in revenue to IGPL. According to Akerblom, IGPL offered to assist EHL and Emas Marine Services (“EMS”) in Nigeria, as IGPL had extensive operational experience in that country. In response, EHL and EMS took employees from IGPL and placed them in the service of EMS, resulting in significant losses to IGPL, both financially and to its reputation. Akerblom also took steps, in early 2010, to develop business relationships in Ghana, one of the new frontiers in the oil and gas business. Nonetheless, Lee unilaterally determined that IGPL would not do business in Ghana, resulting in an astronomical loss of revenue to IGPL and Akerblom.

Akerblom believes that in March 2010, it became clear that EHL was attempting to “push Akerblom and IGPL out of their system.” At this time, EHL established Emas Subsea Pte. Ltd. (“Emas Subsea Ltd.”) and began shifting business from IGPL to Emas Subsea Ltd. At a meeting in May 2010, Lee at first indicated that Akerblom “would be in charge of the overall marine construction business,” only to decide, on the second day of the meeting, that Akerblom would be in charge of operations only. When Akerblom refused to accept this change in his duties, Lee expressed dissatisfaction with Akerblom and falsely accused him of not delivering projects.

Over the next several months, various meetings were held in Houston, Texas concerning the potential of Akerblom to repurchase the shares of IGPL held by EHL. Lee presented Akerblom with an offer to buy back IGPL by returning the 1,500,000 shares of EHL stock to EHL and payment of $650,000 to EHL. Lee told him “his choice was to accept this deal or that Lee would see to it that Akerbom was ruined economically and forced into personal bankruptcy.” Indeed, Lee soon thereafter notified Akerblom that IGPL was no longer a pat of EHL, resulting in the effective termination of the service agreement between Akerblom and IGPL. Akerblom also believes that Lee started a crusade to ruin another company in which Akerblom held an interest, Intrepid Offshore Contractors (“IOC”), by instructing EHL personnel to force one of the owners of IOC to terminate a team of eleven people, including Akerblom. Akerblom claims that EHL and Lee also induced another EHL entity, Ezra Marine Services Pte. (“Ezra Marine”), to cancel and default on an existing contract with IOC. In November 2010, the Secretary and General Counsel of EHL notified Akerblom that he was to return the 1,500,000 shares of EHL and repay EHL $650,000, or EHL would pursue “other approaches to bring about a resolution of this matter.”

Akerblom brought this lawsuit against EHL, Ezra Energy Services Pte. Ltd. (“Ezra Energy”), Emas Offshore Limited (“Emas Offshore”), Emas Subsea, and Lee (collectively, “Defendants”) in state court, alleging breach of contract, common law fraud, statutory fraud, breach of fiduciary duty, intentional infliction of emotional distress, intentional interference with an existing contract, and civil conspiracy. The case was removed to this Court pursuant to 28 U.S.C. §§ 1332(a)(2), 1441, and 1446. Defendants then filed several Motions to Dismiss: Emas Subsea Services, LLC's Motion to Dismiss for Failure to State a Claim; Ezra Holdings Limited, Ezra Energy Services Pte. Ltd., and Emas Offshore Limited's Motion to Dismiss for Lack of Personal Jurisdiction and, Alternatively, on the Basis of Forum Non Conveniens; and Lee Chye Tek Lionel's Motion to Dismiss on the Basis of Forum Non Conveniens.

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(6)

Federal Rule of Civil Procedure 8(a) requires that a plaintiff's pleading include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). If a plaintiff fails to satisfy Rule 8(a), a defendant may file a motion to dismiss the plaintiff's claims under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6); see also Bank of Abbeville & Trust Co. v. Commonwealth Land Title Ins. Co., 201 Fed.Appx. 988, 990–91 (5th Cir.2006) (citing 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1203 (3d ed.2004)). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide the plaintiff's grounds for entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’ ” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). That is, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). A claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The plausibility standard is not akin to a “probability requirement,” but asks for more than a sheer possibility that a defendant has acted unlawfully. Id. A pleading need not contain detailed factual allegations, but must set forth more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted).

Ultimately, the question for the court to decide is whether the complaint states a valid claim when viewed in the light most favorable to the plaintiff. Shandong Yinguang Chem. Indus. Joint Stock Co., Ltd. v. Potter, 607 F.3d 1029, 1032 (5th Cir.2010) (citing In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007)). The court must accept well-pleaded facts as true, but legal conclusions are not entitled to the same assumption of truth. Iqbal, 129 S.Ct. at 1950. The court should not “ ‘strain to find inferences favorable to the plaintiffs' ” or “accept ‘conclusory allegations, unwarranted deductions, or legal conclusions.’ ” R2 Investments LDC v. Phillips, 401 F.3d 638, 642 (5th Cir.2005) (quoting Southland Sec. Corp. v. INSpire Ins. Solutions, Inc., 365 F.3d 353, 361 (5th Cir.2004)).

B. Personal Jurisdiction

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