Seahavn, Ltd. v. Glitnir Bank

• Decision Date: 16 February 2010
• Docket Number: No. 62721-0-I.,No. 62029-1-I.,62029-1-I.,62721-0-I.
• Citation: 226 P.3d 141,154 Wn. App. 550
• Court: Washington Court of Appeals
• Parties: SEAHAVN, LTD., a British Virgin Islands limited liability company, Appellant, v. GLITNIR BANK, formerly known as Islandsbanki Hf., Reykjavik, an Icelandic corporation, Respondent.

226 P.3d 141

154 Wn. App. 550

SEAHAVN, LTD., a British Virgin Islands limited liability company, Appellant, v. GLITNIR BANK, formerly known as Islandsbanki Hf., Reykjavik, an Icelandic corporation, Respondent.

No. 62029-1-I.

No. 62721-0-I.

Court of Appeals of Washington, Division 1.

February 16, 2010.

Joseph E. Bringman, Amanda J. Beane, Harry H. Schneider, Kate Vaughan, Perkins Coie LLP, Attorney at Law, Seattle, WA, for Appellant.

Richard Yarmuth, Jordan Gross, Rachel L. Hong, Yarmuth Wilsdon Calfo PLLC, Seattle, WA, Ivana J. Cingel, Scott T. Nonaka, O'Melveny & Myers LLP, San Francisco, CA, for Respondent.

PUBLISHED OPINION IN PART

SCHINDLER, C.J.

¶ 1 A British Virgin Islands limited liability company, SeaHAVN Ltd. (SeaHAVN), appeals the trial court's decision to dismiss its breach of contract lawsuit against an Icelandic bank, Glitnir Bank (Glitnir), for lack of personal jurisdiction under Washington's long-arm statute, chapter 4.28 RCW. SeaHAVN contends that based on the execution of a nondisclosure agreement in Seattle and Glitnir Bank's other limited contacts in Washington, the court erred in finding no specific or general jurisdiction over Glitnir under our long-arm statute. SeaHAVN also contends the court erroneously concluded that an award of attorney fees under the long-arm statute was mandatory. In the alternative, SeaHAVN asserts the court abused its discretion in determining the amount of fees. Because the trial court did not err in deciding Washington does not have jurisdiction over Glitnir or in awarding attorney fees to Glitnir, we affirm.

FACTS

¶ 2 The facts are not in dispute. Formed in 1997, SeaHAVN Ltd. is a British Virgin Islands limited liability company. SeaHAVN is not registered to do business in Washington. SeaHAVN's principal place of business is in Monte Carlo, Monaco. SeaHAVN owns and operates factory freezer fishing trawlers in the North Atlantic and Indian Oceans and off the coast of West Africa. SeaHAVN's primary markets are in Europe, Asia, and West Africa. SeaHAVN's chief executive officer and general counsel James A. Wexler works on contract and lives in the Seattle area. SeaHAVN's chief operating officer Arne Longva also lives in Seattle.

¶ 3 Glitnir Bank, formerly Islandsbanki hf., is a public limited company formed under the laws of Iceland. Glitnir's headquarters are located in Reykjavik, Iceland. Glitnir provides comprehensive banking services only in Iceland, but maintains an office in Europe, Asia, and Canada.

¶ 4 Glitnir has no physical presence in Washington. Glitnir has never maintained an office in Washington or registered to do business in the state. Glitnir has never paid taxes, maintained a bank account, a mailing address or an agent for service of process in Washington. In addition, Glitnir's advertising does not target Washington residents.

¶ 15 In August 2004, SeaHAVN's London based broker Nigel Christie of RP & C International Ltd., met in London with the chief executive officer of Glitnir, Bjarni Armannsson, to discuss obtaining a loan to purchase two factory freezer trawlers, the "Poseidon" and the "Pegasus," from a Greek shipping company, Laskaridis Shipping, Ltd., for $16 million each. Laskaridis owned and operated the fishing trawlers in the Southeast Pacific and Southern Oceans. SeaHAVN planned to use the trawlers to expand its fishing operations to the Southeast Pacific and Southern Oceans.

¶ 6 On August 25, Christie sent an e-mail to Glitnir business manager Kjartan Olafsson in Iceland. The e-mail included as an attachment, an Executive Summary of SeaHAVN's plan to acquire the two trawlers from Laskaridis, together with projected revenues. The Executive Summary company profile notes SeaHAVN's "European and Mauritanian based SeaHAVN management locations in Las Palmas; Spain; Monaco; Nouakchott and Nouadhibou, Mauritania." The conclusion of the Executive Summary states:

We have attempted to keep this Executive Summary brief and will be able to elaborate on the points mentioned or provide detailed information, where necessary. A detailed business plan is available with complete management, resource assessments, feasibility study and financial projections.

¶ 7 In the e-mail, Christie says that he will call Olafsson the following week "to discuss this further and would very much like to set up a meeting between you and your colleagues and Jim Wexler and myself in the early part of September, so that Jim can lay out the proposed acquisition and build programme in much more detail." Christie also says that he and RP & C are bound by a confidentiality agreement with SeaHAVN and asks Glitnir to "treat the attached information, and any further information that we may send you, in the utmost confidence." Christie then states that "[i]n due course, I would ask you to sign a confidentiality agreement that mirrors the one which we have signed."

¶ 8 Following a series of e-mails and telephone calls between Christie and Glitnir, Christie told Wexler that Glitnir agreed to "sign a confidentiality agreement once they receive it." In an e-mail to Wexler, Christie suggested that Wexler send the confidentiality agreement "as an email attachment to me, and address it to: Islandsbanki, Kirkjusandi, IS-155 Reykjavik, Iceland, and I will forward it on to the right persons there." According to Wexler, "[p]rior to our meeting in Seattle on September 22, 2004, the document had been revised several times by Glitnir's attorneys and SeaHAVN to its final form, which was mutually acceptable."

¶ 9 On September 22, Glitnir loan officer Helgi Eiriksson met with Wexler at a hotel in Seattle for approximately two and a half hours to discuss SeaHAVN's plan to acquire the two trawlers from Laskaridis. At the meeting, Wexler on behalf of SeaHAVN, and Eiriksson on behalf of Glitnir, signed a "Notice of Confidentiality/Non-Circumvention/Non-Competition" agreement (NonDisclosure Agreement, "NDA").

¶ 10 The NDA is on SeaHAVN letterhead. The letterhead identifies Wexler as the chairman and chief executive officer of SeaHAVN. The address on the letterhead is "c/o Moore Stephens Services, L'Estoril Avenue Princesse Grace, Monte Carlo, 98000 Monaco." The NDA letter is addressed to "Islandsbanki, Kirkjusandi, IS-155 Reykjavik, Iceland, c/o Nigel Christie Executive Director, RP & C International Ltd., 56 Green Street, Mayfair, London WIK 6RY."

¶ 11 Under the terms of the NDA, Glitnir agreed to keep confidential the information provided by SeaHAVN to obtain financing to purchase the fishing trawlers. The NDA letter provides in pertinent part:

As we discussed with Nigel Christie, RP & C International, Ltd., please review, sign and return this confidentiality/non-circumvention/noncompetition letter regarding materials and information submitted to you by Mr. Christie that are related to our project to purchase one or more 105meter operating factory freezer fishing trawler (the Vessel') and construct new 50meter fishing vessels in the United States. By signing below you acknowledge that receipt of all information or materials from SeaHAVN or its agents including materials and information provided to you by Mr. Christie so far and/or hereafter provided to you, including but not limited to all information related to certain guarantors and their guarantees that may be utilized in funding/financing our proposed purchase/operation of the vessel(s), will be kept confidential by you and your associates, attorneys, advisors and agents including any corporations, partnerships or other business entities that you and/or your associates may do business under. Such information and materials are being provided for your review in connection with your consideration of providing funding for our purchase/operation/construction of the vessel(s). Neither the information contained in such information or materials in whole or in part may be reproduced without the express written permission of SeaHAVN, Ltd., unless intended for internal use at Islandsbanki in connection with your determination of providing funding/financing for SeaHAVN Ltd.

By accepting such materials and information you acknowledge that you have agreed and will continue to agree to the terms of this notice and agree that you shall be responsible for safeguarding and maintaining the confidentiality of such information and materials. Further, you hereby acknowledge and agree that all such information and materials provided by SeaHAVN, Ltd. and/or its directors, officers, agents, attorneys or other representatives, are confidential and proprietary information of SeaHAVN, Ltd., that if not safeguarded may cause substantial economic damage to SeaHAVN, Ltd. In light of the involvement of some of your directors, officers, shareholders, partners, associates and agents in the fishing industry you realize the necesity [sic] of taking precautions AND SHALL TAKE SUCH PRECAUTIONS to guarantee that none of such material and information, ... shall be utilized other than in your determination of providing funding/financing to SeaHAVN and shall not utilize the information contained therein or provided to you subsequently by SeaHAVN Ltd. or its agents for any other purpose or for the benefit of any other client ... All materials are to be returned immediately upon the request of SeaHAVN, Ltd. or its agent, other than those required to be kept by the bank according to Icelandic law or internal policies.

This agreement shall not apply to information that Islandsbanki can verify it has previously known from sources other than SeaHAVN, Ltd. ...

¶ 12 After the September 22 meeting, Wexler provided additional information to Eiriksson by e-mail and by phone about the plan to purchase the fishing trawlers from Laskaridis. Wexler stated that SeaHAVN wanted to "secure a loan for at least one and preferably all four operating 105m factory freezer trawlers currently managed by the Laskaridis Group." According to Wexler, Laskaridis had agreed to provide "long-term...