Dan-Bunkering (Am.), Inc. v. Tecnologias Relacionadas Con Energia y Servicios Especializados
| Decision Date | 10 July 2020 |
| Docket Number | 17 Civ. 9873 (KPF) |
| Parties | DAN-BUNKERING (AMERICA), INC., Plaintiff, v. TECNOLOGIAS RELACIONADAS CON ENERGIA y SERVICIOS ESPECIALIZADOS, S.A. de C.V., and ARDICA CONSTRUCCIONES, S.A. de C.V., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Dan-Bunkering (America), Inc. ("Dan-Bunkering") brought this action against Defendants Tecnologias Relacionadas con Energia y Servicios Especializados, S.A. de C.V. ("TRESE") and Ardica Construcciones, S.A. de C.V. ("Ardica"), claiming that Defendants had breached an agreement (the "Bunker Supply Agreement") between the parties pursuant to which, among other things, TRESE and Ardica had agreed to pay Dan-Bunkering $570,586.00. After TRESE defaulted in this action, Dan-Bunkering and Ardica proceeded to discovery and are now before the Court with cross-motions for summary judgment. Dan-Bunkering contends that it is entitled to summary judgment because Ardica admittedly failed to repay the amount it owed as set forth in the Bunker Supply Agreement. For its part, Ardica argues that the Bunker Supply Agreement was not supported by consideration and is therefore not a valid contract. For the reasons explained below, the Court grants Dan-Bunkering's motion and denies Ardica's motion.
From late 2015 to early 2016, Dan-Bunkering agreed to supply marine fuel products to TRESE, on credit, in connection with the "Agosto 12 Platform," a floating platform positioned in the Gulf of Mexico and used to produce compressed natural gas for Pemex, a Mexican energy company. (Dan-Bunkering 56.1 ¶¶ 1-2, 4; see also Chester Decl., Ex. E). At that time, TRESE and Ardica were members in a joint venture that provided services to Pemex in connection with the Agosto 12 Platform. (Dan-Bunkering 56.1 ¶¶ 1-2, 4). Dan-Bunkering in fact supplied TRESE with marine fuel products on credit through a distributor, Enermar, and TRESE owed Dan-Bunkering the sum of $452,845.67 (the "Outstanding Amount") for the delivered products. (Id. at ¶ 5). Despite Dan-Bunkering having supplied TRESE with the marine fuel products, TRESE never paid Dan-Bunkering any portion of the Outstanding Amount. (Id. at ¶ 6).
As a result, Dan-Bunkering engaged in a course of negotiation with TRESE and Ardica to recover the Outstanding Amount, employing both implicit and explicit threats of legal action. On August 22, 2016, Oscar Obregon of Dan-Bunkering emailed a payment plan to Ricardo Silva of TRESE, which plan would allow TRESE to pay back the Outstanding Amount with interest and related costs over a period of seven months for a total of $570,586. (Dan-Bunkering 56.1 ¶ 7). Silva responded to Obregon's email later in the day on August 22, 2016, agreeing to repay $570,586 over seven months (with minor modifications to two monthly installments), and copied Jacobo Arias, majority owner/Chief Executive Officer of Ardica, and Leobardo George, Ardica's outside counsel, the latter of whom was providing legal services to TRESE at the time. (Id. at ¶ 8). In his email, Silva communicated his gratitude "in advance for [Obregon's] invaluable intervention to avoid legal problems, which do not benefit anyone," and expressed confidence that "this will be the beginning of a long-term service and collaboration relationship." (Id. at ¶ 9).2
Dan-Bunkering prepared a contract to document the parties' agreement and sent it to TRESE for its and Ardica's signatures. (Dan-Bunkering 56.1 ¶ 10). The contract was titled "Bunker Supply Agreement" and was dated August 29, 2016. (Id.). On September 2, 2016, TRESE signed the Bunker Supply Agreement and forwarded it to Dan-Bunkering, but Ardica was delayed in providing its signature. (Id. at ¶ 11). TRESE claimed that Arias, who was tosign the contract on behalf of Ardica, was feeling ill and that this was causing the delay. (Id. at ¶ 12). Obregon followed up on September 14, 2016, with an email to Arias, stating:
Ricardo Silva confirmed that you are Ardica's legal representative and that you would sign such contract. If we do not receive your signature today, my office will immediately proceed legally seizing the jack-up platform from your sour gas compression project, preventing you from operating further with Pemex (in addition to taking other legal actions). I kindly ask you to help me avoid such situation by sending me this executed agreement throughout the day.
(Id. at ¶ 13; Chester Decl., Ex. G).
Arias did not respond to this email but, the next day, Silva responded to Obregon, explaining that Arias was "doing a little better" with his illness and that TRESE would send a copy of the Bunker Supply Agreement signed by Ardica as soon as possible. (Dan-Bunkering 56.1 ¶ 14; Chester Decl., Ex. G). Arias signed the Bunker Supply Agreement on behalf of Ardica and it was emailed to Dan-Bunkering on September 16, 2016. (Id. at ¶ 15). The Bunker Supply Agreement states that:
[Dan-Bunkering] has previously supplied TR[ESE] with Products. TR[ESE] now owes Dan-Bunkering an amount of USD 452,845.67 (the "Outstanding Amount"). In consideration of this TR[ESE] and [Ardica] agree[] to appoint [Dan-Bunkering] as their sole[] and exclusive supplier of Products during the terms of this Agreement and to repay the Outstanding Amount plus interests as specified below in this Agreement.
(Chester Decl., Ex. H (Bunker Supply Agreement or "BSA") § 2.1 (emphasis added)). It also expressly states that Ardica and TRESE "jointly agree[] to pay[Dan-Bunkering] an outstanding amount of USD 452,845.67 plus interests during the Term of this agreement." (BSA 1).
The Bunker Supply Agreement provides that the total amount to be repaid to Dan-Bunkering is $570,586 (consisting of $452,845.67 for previously delivered but unpaid marine fuel products, plus interest and costs), and that the amount is to be repaid over seven months according to an installment plan. (BSA § 7.1). The installment plan is explicated as follows:
(Id.). The Bunker Supply Agreement also states that the payment "constitutes an unconditional obligation on the part of [TRESE] and [Ardica] and the obligation shall be enforceable immediately and without the need for prior judgment." (Id. at § 7.2).
The Bunker Supply Agreement was more than just an agreement for Ardica and TRESE to refinance an amount TRESE previously owed to Dan-Bunkering. It also provided terms by which TRESE and Ardica would purchasemarine fuel product from Dan-Bunkering, as their exclusive supplier. (Dan-Bunkering 56.1 ¶ 20; see generally BSA). Ardica and TRESE were "obliged to order [marine fuel] by sending a written Nomination to [Dan-Bunkering] stating delivery place, delivery date and window, the specific Product required and the name of the vessel which is to be supplied." (BSA § 4.1; Dan-Bunkering 56.1 ¶ 21).3
After TRESE and Ardica failed to make the first few required installment payments under the Bunker Supply Agreement, Dan-Bunkering sent TRESE several emails inquiring as to the status of the payments and whether it would be feasible to receive payments directly from Pemex. (Dan-Bunkering 56.1 ¶ 24). In one such email, Jim Jensen of Dan-Bunkering told Silva, "[u]nless you promptly start providing on the promises that you gave I will have no other option than to hand the case over to our legal department for collection." (Chester Decl., Ex. I). On January 5, 2017, TRESE assured Dan-Bunkering that it was trying to obtain resources and that "as soon as this happens, we will be making payments to your company." (Id.). TRESE also explained that it would not be possible for Dan-Bunkering to receive payments directly from Pemex. (Dan-Bunkering 56.1 ¶ 25). In response, on January 9, 2017, Dan-Bunkering explicitly threatened to: "[s]tart legal proceedings to collect funds"; "report [TRESE] and [Ardica] to the Credit bureau"; and "[a]rrest the [Agosto 12Platform] for unpaid bunkers and immediately stop all operation offshore." (Chester Decl., Ex I).
On January 12, 2017, Obregon emailed TRESE yet again, reiterating that Dan-Bunkering had several legal options to collect the debt and would utilize each of them as it saw appropriate. (Dan-Bunkering 56.1 ¶ 26). This time, Obregon copied Arias and others from Ardica, sharing with them the previous emails between Dan-Bunkering and TRESE. (Id.; Chester Decl., Ex. I). Ardica's Luz Maria Carillo forwarded Obregon's January 12, 2017 message to George, who responded the same day, requesting more information concerning the origin of the debt and its relation to the Agosto 12 Platform project. (Dan-Bunkering 56.1 ¶ 27). Obregon responded by sending a copy of the Bunker Supply Agreement Ardica had signed and stating that "I think you would agree with us that we have been very patient and supportive towards TRESE and Ardica by not initiating legal actions some months earlier, however we have reached the limit when we must act." (Chester Decl., Ex. I). On January 28, 2017, Dan-Bunkering provided further details about the underlying debt as requested by Ardica, including invoice numbers, original amounts, and information that the deliveries were in connection with the Agosto 12 Platform. (Dan-Bunkering 56.1 ¶ 28). George responded the same day, promising that "[s]oon you will have news of Ardica." (Id. at ¶ 29).
On February 8, 2017, Arias and George, on behalf of Ardica, attended a meeting in Mexico City with Jensen and Ulrich Rasmussen, on behalf of Dan-Bunkering, to discuss the debt. (Dan-Bunkering 56.1 ¶ 30). In a...
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