David Benrimon Fine Art LLC v. Durazzo, 17 Civ. 6382 (JFK)
| Decision Date | 26 October 2017 |
| Docket Number | No. 17 Civ. 6382 (JFK),17 Civ. 6382 (JFK) |
| Parties | DAVID BENRIMON FINE ART LLC, Plaintiff, v. RAPHAEL DURAZZO and TORRELIONE SAS, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Nathan Andrew Holcomb, Esq.
Luke William Nikas, Esq.
BOIES, SCHILLER & FLEXNER LLP
FOR DEFENDANTS RAPHAEL DURAZZO and TORRELIONE SAS:
Giorgio Adib Sassine, Esq.
Before the Court is Plaintiff David Benrimon Fine Art LLC's ("Plaintiff") motion for a preliminary anti-suit injunction to enjoin a suit between Defendant Torrelione SAS ("Torrelione") and Plaintiff in Paris Commercial Court. For the reasons discussed below, Plaintiff's motion is denied.
Unless otherwise noted, the following facts are drawn from the amended complaint. Plaintiff is a New York limited liability company located at 730 Fifth Avenue, New York, NY 10019. (Am. Compl. ¶ 13.) Defendant Raphael Durazzo ("Durazzo") is a citizen of France and the chairperson of Torrelione. (Id. ¶ 14.) Torrelione is a single-shareholder limited liability company with a registered office at 7 Rue Boileau, 75016 Paris, France. (Id. ¶ 15.)
This action involves a dispute over a painting by Josef Albers, titled Study for Homage to the Square: Soft Pulse, dated 1962 (the "Painting"). (Id. ¶ 1.) On February 21, 2017, Plaintiff and Durazzo agreed that Plaintiff would transfer the Painting to Durazzo in exchange for payment of $347,500. (Id. ¶ 3.) Plaintiff claims that the parties agreed that the transaction would be cancelled if Durazzo failed to pay Plaintiff before March 1, 2017. (Id. ¶ 19.) On February 21, 2017, Plaintiff sent Torrelione an invoice for the Painting. (Durazzo Decl. Ex. 1 at 9.) The only terms provided in the invoice were the purchase price and that the payment would be made by wire transfer to Plaintiff's JP Morgan Chase bank account in the United States. (See id.) No provisions were included regarding the payment due date, forum selection, or choice of law that governed the parties' agreement. (See id.)
Durazzo did not pay $347,500 to Plaintiff before March 1, 2017. (Am. Compl. ¶ 21.) Nevertheless, on March 5, 2017, Durazzo asked Plaintiff for reprieve, explaining that the funds would be in his account within one or two days and he would immediately wire the money to Plaintiff at that time. (Id. ¶22.) On March 7 at 8:55 A.M., Durazzo represented to Plaintiff that the money had been wired to Plaintiff's account. (Id. ¶ 23.) By the end of the morning on March 7, the money still had not arrived. (Id.) Plaintiff called Durazzo on March 7 to explain that Durazzo had breached the parties' agreement and that Plaintiff was cancelling the parties' deal pursuant to the original terms if the money did not arrive by the end of day on March 7. (Id.) On March 8, Durazzo sent Plaintiff a wire confirmation stating the wire would be settled on March 10, which was inconsistent with Durazzo's statement that he wired the funds to Benrimon on March 7. (Id. ¶ 25.) Despite Torrelione's wire transfer of the full payment amount, (Defs.' Counterclaims ¶ 27), Plaintiff informed Durazzo that they did not have an agreement to complete the sale and sent Durazzo a voided invoice. (Id. ¶ 27.)
On July 3, 2017, Plaintiff received a copy of a Writ of Summons to appear before the Paris Commercial Court (the "Paris Action"). (Id. ¶ 41.) Torrelione's lawsuit in Paris alleges breach of contract and seeks damages against Plaintiff. (Id.) Durazzo is not a party to the Paris Action. (Pl.'s Mem. of L. in Supp. of Order to Show Cause at 5.) On August 22, 2017,Plaintiff filed an amended complaint1 with this Court seeking a declaratory judgment that Plaintiff did not breach the parties' contract and an anti-suit injunction enjoining Durazzo's suit in Paris, and included a claim for tortious interference with prospective economic advantage against Torrelione and Durazzo (together, "Defendants"). On September 28, 2017, the Court issued an order to show cause as to why an order for a preliminary anti-suit injunction should not be issued. (See Order to Show Cause, ECF No. 14 (filed Sept. 29, 2017).) The Court heard arguments on October 24, 2017.
A district court may enjoin a party from pursuing litigation in a foreign jurisdiction. Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 652 (2d Cir. 2004). While parallel actions are ordinarily permitted, "an anti-suit injunction may be appropriate when used to protect the jurisdiction and judgment of the enjoining court." Eastman Kodak Co. v. Asia Optical Co., 118 F. Supp. 3d 581, 586 (S.D.N.Y. 2015). However, "principles of comity counsel that injunctions restraining foreign litigation be usedsparingly and granted only with care and great restraint." Paramedics, 368 F.3d at 652 (internal quotations and citation omitted).
The Court may enjoin a party from pursuing a foreign action provided "two threshold requirements are met: first, the parties must be the same in both proceedings, and second, resolution of the case before the enjoining court must be dispositive of the action to be enjoined." Eastman Kodak, 118 F. Supp. 3d at 586. If these threshold requirements are met, courts weigh five additional factors identified in China Trade & Dev. Corp. v. M.V. Choong Yong, 837 F.2d 33 (2d Cir. 1987): (1) the threat to the enjoining court's jurisdiction posed by the foreign action; (2) the potential frustration of strong public policies in the enjoining forum; (3) the vexatiousness of the foreign litigation; (4) the possibility of delay, inconvenience, expense, inconsistency, or a race to judgment; and (5) other equitable considerations. Id. While a court must consider each of these factors, the first two—whether the foreign action threatens the enjoining forum's jurisdiction or its strong public policies—are given greater weight. Id. at 587. The discretionary factors will tend to weigh in favor of an anti-foreign-suit injunction "that is sought to protect a federal judgment." Id. (citation omitted).
The threshold requirements for an anti-suit injunction are satisfied. To satisfy the first requirement, the parties need not be identical. See Paramedics, 369 F.3d at 652-53. This requirement is met if the parties are "sufficiently similar." See id. at 652. Although Durazzo is not a party to the Paris Action, he is the chairperson of Torrelione and was named in this action on "the basis of [his] corporate relationship with [Torrelione]," thus, "the China Trade 'same party' requirement is satisfied." Stolt Tankers BV v. Allianz Seguros, S.A., No. 11 CIV. 2331 SAS, 2011 WL 2436662, at *5 (S.D.N.Y. June 16, 2011).
Under the second threshold factor, the resolution of the case before this Court must be dispositive of the Paris Action. In determining whether the action before this Court will be dispositive, the Court "must determine the substance of the case before the enjoining court." Eastman Kodak, 118 F. Supp. 3d at 588. The issues in both proceedings are the same, namely whether Plaintiff breached the parties' agreement. Accordingly, the resolution of this action will be dispositive of the Paris Action. Thus, the second threshold requirement is met.
However, the China Trade factors do not weigh in favor of enjoining the Paris Action. First, the Paris Action does not pose a threat to this Court's jurisdiction. Plaintiff argues that the Paris Action is a "parallel proceeding addressing thesame issue before this Court" and the Paris Commercial Court could reach the merits of the claims first, resulting in a judgment with potential res judicata effects. (Pl.'s Mem. at 7.) However, "the initiation before a foreign court of a suit concerning the same parties and issues as a suit already pending in a United States court does not, without more, justify enjoining a party from proceeding in the foreign forum." China Trade, 837 F.2d at 36; see also Hamilton Bank, N.A. v. Kookmin Bank, 999 F. Supp. 586, 588 (S.D.N.Y. 1998) (). A threat to the enjoining court's jurisdiction is greatest when "a foreign court is not merely proceeding in parallel but is attempting to carve out exclusive jurisdiction over the action." Bank Leumi USA v. Ehrlich, No. 12-CV-4423 (AJN), 2015 WL 12591663, at *6 (S.D.N.Y. Sept. 23, 2015) (quoting China Trade, 837 F.2d at 36). The enjoining court's jurisdiction is also threatened "when a foreign suit threatens to undermine [a] federal judgment." Id. (internal quotation marks omitted). Neither of those circumstances applies here. There has been no judgment in this action, and although the Paris Commercial Court may determine the same liability issues before this Court, the Paris Commercial Court "has not attempted to enjoin the proceedings in New York . . . nor . . . sought to prevent the southerndistrict from exercising its jurisdiction over this case." China Trade, 837 F.2d at 37.
Plaintiff also argues that the Paris Action is a threat to this Court's jurisdiction because personal jurisdiction over Plaintiff in the Paris Action is predicated on Article 14 of the French Civil Code, under which the French nationality of the plaintiff is a sufficient ground for jurisdiction. (Pl.'s Reply Mem. at 4.) Plaintiff contends that this theory of jurisdiction is incompatible with due process in the United States. (Id. at 5.) Although the Court acknowledges that there is nothing in U.S. law comparable to Article 14, "there is no evidence from which to infer that [Torrelione] filed its suit in [Paris] in an attempt to evade our Constitution's notions of due process." Hamilton Bank, 999 F. Supp. at 589-90 (...
To continue reading
Request your trial