Al Thani v. Hanke

• Decision Date: 17 February 2022
• Docket Number: 20 Civ. 4765 (JPC)
• Parties: MOHAMMED THANI A.T. AL THANI, Plaintiff, v. ALAN J. HANKE et al., Defendants.
• Court: U.S. District Court — Southern District of New York

MOHAMMED THANI A.T. AL THANI, Plaintiff,
v.
ALAN J. HANKE et al., Defendants.

No. 20 Civ. 4765 (JPC)

United States District Court, S.D. New York

February 17, 2022

OPINION AND ORDER

JOHN P. CRONAN UNITED STATES DISTRICT JUDGE

Plaintiff Mohammed Thani A.T. Al Thani filed an Amended Complaint against Defendants Alan J. Hanke, IOLO Global LLC (“IOLO” and with Hanke, the “Hanke Defendants”), Sidney Mills Rogers III, Laura Romeo, Amy Roy-Haeger, the SubGallagher Investment Trust, and Sherry Sims on September 25, 2020, alleging a violation of section 206 of the Investment Advisers Act of 1940, 15 U.S.C. § 80b-6, along with several common law claims. Dkt. 35 (“Amended Compl.”). Pending before the Court is Roy-Haeger's motion to dismiss the Amended Complaint for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2) or, in the alternative, to transfer the claims against her to Florida. The Court previously stayed Roy-Haeger's motion and granted Al Thani's request for jurisdictional discovery. Al Thani v. Hanke, No. 20 Civ. 4765 (JPC), 2021 WL 1895033, at *20 (S.D.N.Y. May 11, 2021) (“Al Thani I”). Jurisdictional discovery is now complete, and Al Thani and Roy-Haeger have submitted supplemental briefing in connection with Roy-Haeger's motion. For the reasons that follow, Roy-Haeger's motion to dismiss the Amended Complaint for lack of personal jurisdiction or to transfer venue is denied.

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I. Background

The Court incorporates by reference the factual background and procedural history set out in its May 11, 2021 Opinion and Order. See Al Thani I, 2021 WL 1895033, at *1-4. As such, the Court provides background only to the extent necessary to resolve Roy-Haeger's motion to dismiss for lack of personal jurisdiction or to transfer venue.

A. Facts

The following facts, which are taken from the Amended Complaint and from the documents attached thereto and incorporated therein by reference, are assumed true for purposes of this Opinion and Order. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002). In deciding Roy-Haeger's instant motion, the Court is also permitted to “consider materials outside the pleadings, including affidavits and other written materials.” Jonas v. Estate of Leven, 116 F.Supp.3d 314, 323 (S.D.N.Y. 2015) (citing MacDermid, Inc. v. Deiter, 702 F.3d 725, 727 (2d Cir. 2012)); MTS Logistics, Inc. v. Innovative Commodities Grp., LLC, 442 F.Supp.3d 738, 742 n.1 (S.D.N.Y. 2020) (“On a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2), the Court may look beyond the four corners of the complaint and consider materials outside the pleadings, including accompanying affidavits, declarations, and other written materials.”); Concesionaria DHM, S.A. v. Int'l Fin. Corp., 307 F.Supp.2d 553, 555 (S.D.N.Y. 2004) (noting that “in deciding a motion to dismiss for improper venue, the court may examine facts outside the complaint to determine whether venue is proper” (internal quotation marks omitted)).

Roy-Haeger resides in and is a citizen of Florida. Amended Compl. ¶ 12. The Amended Complaint alleges that Roy-Haeger conspired with the Hanke Defendants to defraud Al Thani “out of millions of dollars through a marketed investment program represented as a means of generating significant returns based on [Al Thani]'s investment.” Id. ¶ 1. As part of this scheme, the Hanke Defendants induced Al Thani to enter into two Management and Deposit Agreements (“MDAs”)

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and various addenda to these MDAs, under which Al Thani entrusted the Hanke Defendants with $6.5 million. Id. ¶¶ 1-4, 35. Under the terms of the MDAs, the Hanke Defendants agreed to manage the funds invested by Al Thani with the promise of massive monetary returns. Id. ¶ 2. Al Thani, however, never received any returns on his investment nor the principal $6.5 million that he invested. Id. ¶ 4.

Roy-Haeger's alleged role in the scheme involved “impersonat[ing] bank officials to dupe unwitting investors into believing Hanke and IOLO had actually invested their money in a trading program, ” Id. ¶ 5, and “participat[ing] in multiple phone calls to perpetrate the fraud, ” Id. ¶ 110; see also Id. ¶¶ 12, 47, 61, 120, 125-126. For example, on August 1, 2019, Hanke and Roy-Haeger participated in a telephone call with Al Thani's advisors, during which Hanke falsely presented Roy-Haeger as “the head of compliance at the trading firm IOLO was allegedly using to manage [Al Thani]'s funds, ” with Roy-Haeger representing that “she ran background checks on investors who wanted to use Hanke.” Id. ¶ 47; see Id. ¶ 12 (“Upon information and belief, Roy-Haeger is not a compliance officer with any bank or any fund.”). During the August 1, 2019 call, Hanke and Roy-Haeger also informed Al Thani's advisors that “the delay in receiving funds was the result of accounting errors and logistics issues related to paying off the projects associated with the funds.” Id. ¶ 47. On April 1, 2020, Hanke and Roy-Haeger had another telephone conference with Al Thani's advisors to discuss the delays in Hanke sending payments to Al Thani. Id. ¶ 61. During the April 1, 2020 call, Roy-Haeger “claimed that she expected several projects to complete, freeing up the funds to disburse within the week.” Id. Later that week, Hanke assured Al Thani's advisors that “he had spoken to Roy-Haeger and that at least one project was on track to complete within the week, with funds coming soon after.” Id. Al Thani, however, never received any funds from these supposed transactions. Id.

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Relying on materials obtained during jurisdictional discovery, Al Thani contends that Roy-Haeger “exercised a degree of control over Hanke sufficient to satisfy the agency relationship test” for purposes of personal jurisdiction over her in New York. Dkt. 250 (“Supplemental Opposition”) at 1. For example, on January 10, 2020, Hanke attended an in-person meeting in New York with Al Thani's representatives, including a man named Steve Papi (the “January 2020 Meeting”). Contemporaneous emails between Hanke and Roy-Haeger, as well as Roy-Haeger's deposition testimony, demonstrate that Roy-Haeger was aware of the January 2020 Meeting in New York. Dkt. 251 (“Ducharme Declaration”), Exh. A (“Roy-Haeger Dep. Tr.”) at 104:3-10 (“Q. So you were aware that Mr. Hanke was meeting with Mr. Papi in New York, correct? A. Correct. Q. And the purpose of the meeting was to [] provide Mr. Papi with an update as to the transaction, correct? A. Correct.”)^[1]; id., Exhs. B, C (email conversations between Hanke and Papi scheduling the January 2020 Meeting that Hanke forwarded to Roy-Haeger).^[2]

In advance of the January 2020 Meeting, Hanke emailed Roy-Haeger, expressing that he “need[s] some support and answers.” Id., Exh. B at 1; see also id., Exh. C at 1 (January 6, 2020 email from Hanke to Roy-Haeger forwarding an email from Papi regarding the January 2020 Meeting and stating that “[t]his has to get handled.”). Roy-Haeger testified that, in response to Hanke's emails, she sent details of the transaction to Hanke so that Hanke could provide those details to Al Thani's advisors at the January 2020 Meeting:

Q. And so this essentially was Mr. Hanke asking you for details again of the transaction, so he could then provide those details to Mr. Al Thani's representatives at a meeting that they were contemplating in New York, correct

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A. Correct.

Q. And did you then speak with Mr. Hanke and provide him details on the transaction?

A. I am assuming I did. I was working to get him something in writing, and the result of that was the letter. Whenever [Hanke] would ask for updates I would give him whatever the current update was.

Q. And so you would have essentially told Mr. Hanke what he could say to Mr. Papi at this meeting in terms of the status of the transaction, correct?

A. I would have given him whatever the most recent update was that I could get. Yes.

Roy-Haeger Dep. Tr. at 102:4-103:2; see also Id. at 85:9-23 (“Q. And at a point in time Mr. Al Thani's representatives as well as Mr. Barker, Mr. Martino started getting upset that the transaction wasn't paying out, correct? A. Correct. Q. And so you would provide these updates as a way to alleviate their concerns, correct? A. I would provide whatever updates I could based on the request for [Hanke] to have somebody other than himself giving the updates, so that they could hear it from a closer source to the person that had executed that trade agreement.”). The Amended Complaint alleges that during the January 2020 Meeting, “Hanke blamed the delays [in receiving payment] on a frozen trade account with Standard Chartered Bank in Dubai, where the funds were purportedly held” and “falsely represented that the issue would be cleared up and the funds deposited soon.” Amended Compl. ¶ 55. Also at that meeting, Hanke allegedly “provided one of [Al Thani]'s advisers with what he claimed were electronic screenshots of bank account statements as a ‘proof of funds' showing funds that could be used to pay [Al Thani].” Id. The Amended Complaint alleges that “[t]hese screenshots were fake and were meant to falsely create the impression that the MDA transactions were real.” Id. Al Thani, however, “received no funds from the accounts shown in these supposed ‘proof of funds' screenshots.” Id.

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Al Thani also points to other instances in which Roy-Haeger provided allegedly “fraudulent updates . . . on the status of the investment that Hanke could then pass along to [Al Thani]'s advisors in email communications and during several in-person meetings.” Supplemental Opposition at 8 (citing Roy-Haeger Dep. Tr. at 94:10-95:16); see also Id. at 7-9. During her deposition, Roy-Haeger acknowledged that she “essentially w[as] dictating what Mr. Hanke would say to Mr. Al Thani's representatives by providing this update because [she] w[as] the source of the information.” Roy-Haeger Dep. Tr. at...