Ing Bank N.V. v. Portland

Decision Date16 June 2016
Docket NumberCase No. 3:15-cv-00805-JWD-RLB
PartiesING BANK N.V., Plaintiff, v. M/V PORTLAND, IMO NO. 9497854, HER ENGINES, TACKLE, EQUIPMENT, FURNITURE, APPURTENANCES, ETC. IN REM, ET AL. Defendants.
CourtU.S. District Court — Middle District of Louisiana
ORDER AND RULING ON MOTIONS TO COMPEL DISCOVERY AND SUFFICIENT DISCLOSURES AND TO VACATE RULE B ATTACHMENT
I. INTRODUCTION

Before the Court is the Motion to Compel Sufficient Disclosures ("Motion for Disclosure"), (Doc. 24), and the Motion to Compel Discovery ("Motion for Discovery") (collectively, "Plaintiff's Motions" or "Relevant Motions"), (Doc. 26),1 filed by ING Bank N.V. ("ING," "Bank," or "Plaintiff"), and the Motion to Vacate the Rule B Attachment of the M/V Portland and Reduce Security ("Motion to Vacate"), (Doc. 18), filed by Azuline Shipping andTrading Company ("Azuline"). Appearing "specially," "restrictively," and "solely" as the claimant of one in rem defendant herein, Portland M/V, IMO No. 9497854 ("Portland"), as well as her engines, tackle, equipment, furniture, equipment, furniture, appurtenances, and every part, Azuline opposes Plaintiff's Motions with the Memorandum in Opposition to ING's Motion to Compel Sufficient Initial Disclosures ("Opposition to Motion for Disclosure"), (Doc. 25), and the Memorandum in Opposition to ING's Motion to Compel Discovery ("Opposition to Motion for Discovery") (collectively, "Azuline's Oppositions"), (Doc. 31). These five motions echo points made in several other filings, including Plaintiff's Motion for Leave to File Verified First Amended Complaint ("Motion to Amend"),2 (Doc. 39); Plaintiff's First Amended Verified Complaint ("Amended Complaint"), (Doc. 42); and Azuline's Notice of Opposition to ING's Motion for Leave to File Verified First Amended Complaint, (Doc. 43), ("Opposition to Leave");and Azuline's Answer and Affirmative Defenses to the Verified First Amended Complaint ("Amended Answer"), (Doc. 44). Unlike this matter's substantive law, the single issue raised in the Relevant Motions and presently contested by ING and Azuline (collectively, "Parties") is whether Plaintiff is entitled to discovery into facts supporting the jurisdictional claim, one initially advanced in its first pleading ("Complaint"), (Doc. 1), and further amplified in the Amended Complaint, (Doc. 42), that Portland "was and is beneficially owned, operated and managed by" A.M. Nomikos Transworld Maritime Agencies, S.A. ("Nomikos"), "and is the alter ego of the registered vessel owner, Azuline," (Doc. 26-1). Plaintiff aks this Court to allow it to conduct such discovery, as it is essential to establishing this tribunal's subject-matter jurisdiction ("jurisdictional discovery") and remains questionable only by virtue of Azuline's resistance to Plaintiff's every attempt at uncovering the relationship, if any, between Azuline, the Portland's recorded owner, and Nomikos, this same vessel's purported manager. Azuline, in turn, requests the Court to do the very opposite by granting its Motion to Vacate.

While both Parties rely on a handful of contrary cases,3 three longstanding principles guide this Court's resolution of this dispute. First, the scope of discovery under the Federal Rules of Civil Procedure4 is broad, bounded by a few construed limits. Second, whenever a factual question regarding a court's jurisdiction exists, a party is traditionally entitled to receive an opportunity to secure and present evidence related to this threshold issue, and the decision regarding such discovery's appropriateness lies wholly within the relevant trial court's discretion. Third (and relatedly), if such discovery is permitted, it should be circumspectlymonitored and tightly demarcated. In general, then, the party is normally allowed to do no more than necessary to verify allegations of specific facts crucial to a federal court's jurisdictional determination. Undeniably, admiralty, the substantive law which governs this suit, often compels the application of unique principles. Nevertheless, these precepts' retain their potency whenever jurisdictional questions arise at a case's commencement.

Accordingly, having employed these tenets, this Court concludes that, in the Complaint, the Plaintiff has alleged sufficient facts that, if substantiated, would amply support this Court's in rem jurisdiction over the Portland and in personam jurisdiction over Nomikos, the defendant being sued in personam and Azuline's alleged alter ego, allegations properly and effectively augmented in the Amended Complaint. Due to the evident plausibility of Plaintiff's alter ego claims, the Rules, which prioritize the just and efficient adjudication of every action and entitle any party to discovery into any non-privileged matter that is relevant to its opponent's claims or defenses, strongly militate in favor of Plaintiff's invocation of Rule 26, the statutory basis for both the Motion for Disclosures and the Motion for Discovery. This result, in turn, is supported by the overwhelming weight of the jurisprudence construing the Supplemental Rules for Admiralty or Maritime Claims.5 Though Defendant has offered up a few cases to buttress its response, these opinions are too few in number and too questionable in reasoning to persuade this Court to disregard this venerable axiom.

For these reasons, as discussed more fully below, this Court GRANTS the Motion for Disclosures and the Motion for Discovery and DENIES WITHOUT PREJUDICE Azuline's Motion to Vacate.6

II. BACKGROUND
A. RELEVANT FACTS

Prior to this suit, O.W. Bunker & Trading A/S and O.W. Bunker China, Ltd. (collectively, "Bunker") made a number of deliveries to three separate vessels: the Portland; the M/V/ Annika N., IMO No. 9514054 ("Annika"); and M/V Melchior, IMO No. 9100102 ("Melchior") (collectively, "Supplied Vessels"). (Doc. 1 at 2-3; Dc. 42 at 2-3.) In the process, Bunker issued invoices to Furness Withy Chartering Ltd. ("Furness"), "Nomikos' broker for the procurement, supply and delivery of bunkers, lubricants and other marine fuel to the Portland and the other Supplied Vessels." (Doc. 1 at 4.) The invoices appended to the Complaint bear this out, as the first two are addressed to "A.M. Nomikos / Transworld Maritime Agencies SA / C/O Furness Withy Chartering Co." (See, e.g., Doc. 1-2 at 1, 5; Doc. 1-3 at 1, 5; Doc. 1-4 at 5.) According to the Complaint, Nomikos had multiple "alter egos," including AMN Bulk Carriers, Inc. and A.M. Nomikos & Sons (UK) Ltd. (Doc. 1 at 11, 13-14; Doc. 42 at 11; see also Doc. 16 at 2.) Most relevantly to the case at hand, the Portland was alleged to be "beneficially owned, operated and managed by Nomikos and Nomikos' wholly owned and controlled subsidiary," Azuline,7 (Doc. 1 at 2, 4; Doc. 42 at 2, 4; Doc. 42 at 3, 4, 18, 19, 20-21), Portland's "registeredowner,"8 (Doc. 1 at 4). According to the Demetriades Affidavit, Azuline is a Librarian corporation with a registered office of 80 Broad Street, Monrovia, Liberia, "wholly owned" by Bass Holding SA ("Bass"), another Liberian company located at the same registered office. (Doc. 18-3 ¶¶ 4 -6).

"[A] banking and financial services corporation or business entity organized and existing under the laws of The Netherlands," ING eventually became the "assignee of certain accounts, assets and maritime liens" once owned Bunker. (Doc. 1 at 2; Docs. 1-1, 1-2, 1-3, 1-4; Doc. 42 at 2.) Allegedly, Plaintiff holds the accounts receivables owed by Nomikos for bunkers supplied and delivered to the Subject Vessels. (Doc. 1 at 2; Dc. 42 at 2.) When Bunker defaulted on its $70 million obligation to ING, (Doc. 1 at 3; Doc. 42 at 3), and after it declared bankruptcy, (Doc. 18-2 at 2 -3), pursuant to Section 1333 of the United States Code's twenty-eighth title,9 Admiralty Rules C and B, and Rule 9(h), ING exercised its discretion to proceed against the Portland in rem and Nomikos in personam. (Doc. 1 at 6-7; Doc. 42 at 7.) Pursuant to this Court's orders, ING secured the Portland's arrest and attachment, (Docs. 7, 8), and the release of the vessel was secured pursuant to a letter of undertaking given by United Kingdom Mutual Steam Ship Assistance Association (Europe) Limited (UKE), (Doc. 10-1). Subsequently, when ING sought to obtain initial disclosures and further discovery from Nomikos' alleged alter ego,Azuline, (Doc. 24-1 at 1; Doc. 26-1 at 4), after Azuline filed the Motion to Vacate, Azuline refused to supply any information. (See, e.g., Doc. 26-1 at 6-7.) Azuline did so for one apparent reason: as its responses indicate, (Doc. 26-1 at 4-5), the Complaint's purported deficiency under Rule E(2)(a). See infra Part II.C.

B. PROCEDURAL HISTORY

On November 30, 2015, ING filed four documents: the Complaint, (Doc. 1); the Motion for Issuance of a Warrant of Arrest Pursuant to Admiralty Rule C ("Motion for Arrest"), (Doc. 2); and the Motion Authorizing Issuance of a Writ of Attachment and Garnishment Pursuant to Supplemental Admiralty Rule B ("Motion for Attachment"), (Doc. 3); and the Motion to Allow Vessel to Move Within Port ("Motion to Allow"), (Doc. 4). On that same day, this Court granted the Motion for Arrest, (Doc. 6), the Motion for Attachment, (Docs. 7, 8), and the Motion to Allow, (Doc. 9). This arrest and attachment was released at ING's request on December 3, 2015. (Doc. 10.) Azuline submitted the Notice of Verified Statement of Rights or Interest on December 16, 2015. (Doc. 13.) A scheduling order was entered on December 21, 2015. (Doc. 14.)

On January 21, 2016, Nomikos answered the Complaint. (Doc. 15.) Azuline tendered the Motion to Vacate on March 14, 2016. (Doc. 18.) Plaintiff filed the Motion for Disclosure on March 29, 2016, (Doc. 24); the Opposition to Motion for Disclosure arrived on April 8, 2016, (Doc. 25). The Motion for Discovery came on April 8, 2016, (Docs. 26, 27-1), and Azuline's counter was first filed on April 15, 2016, (Doc. 31), and formally docketed on April 19, 2016, (Doc. 37). In chambers, oral argument was held on April 22,...

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