Unitednet, Ltd. v. Tata Commc'ns Am.
| Decision Date | 17 May 2022 |
| Docket Number | 1:21-cv-01081-KWR-JFR |
| Parties | UNITEDNET, LTD. and LEVI RUSSELL, Plaintiffs, v. TATA COMMUNICATIONS AMERICA, INC., TATA COMMUNICATIONS INDIA, LTD., TATA SONS PRIVATE, LTD., STEVEN LUCERO, and LATINGROUP, LLC, Defendants. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court upon Defendants' Steven Lucero and Latin Group, LLC Motion to Dismiss Based on Forum Non Conveniens (Doc. 4) filed February 1, 2022. Having reviewed the parties' pleadings and the relevant law, the Court finds that the motion is NOT WELL-TAKEN, and therefore, is DENIED WITHOUT PREJUDICE.
This case arises from an unsuccessful business deal. Plaintiff Unitednet, Ltd. is a foreign corporation doing business in the United Kingdom. See Doc. 1, ¶ 1. Plaintiff Levi Russell, a resident of the United Kingdom, was a director for Unitednet. Id. ¶¶ 2, 30. In 2016, Plaintiff Unitednet entered into a Sale and Purchase Agreement (the “Agreement”) with Tata Communications (UK) Ltd Tata Communications (Netherlands) B.V., and Tata Communications (Bermuda) Ltd. (collectively, the “Tata Signatories”), [1] non-parties to this suit, to purchase a telecommunications system. The system is an undersea and land-based fiber optic network that spans 1, 100 miles and runs from the United Kingdom to the Netherlands. Id. ¶ 19. The acquisition was never completed, and Plaintiffs allege that the Agreement was terminated as a result of tortious conduct by Defendants, non-signatories to the Agreement.
The idea of the acquisition began in 2013. Plaintiffs allege that Defendant Steven Lucero, a resident of New Mexico, expressed interest in purchasing the network from the Tata Signatories. Id. ¶¶ 20-21. The chairman of Defendant Tata Sons Private, Ltd. (“Tata Sons”), a foreign corporation based in India, and Defendant Lucero reached an agreement in principle with the Tata Signatories to sell the network at a price below market value. Id. ¶ 21. In January 2014, Defendant Latin Group, LLC (“LGL”), a Delaware corporation with its principal place of business in New Mexico, to which Defendant Lucero is allegedly the principal owner, entered into a preliminary agreement with the Tata Signatories to purchase the network. Id.
Defendant Lucero, a key player in the deal, later decided to purchase the network through a different entity, and thus, Unitednet, at the direction of Lucero, was formed for the purpose of completing the transaction. Id. ¶¶ 14, 29-30. Defendant Lucero allegedly induced Plaintiff Russell to work on the deal “with promised compensation in the form of a percentage share of Plaintiff Unitednet.” Id. ¶ 14.
From 2013 to 2017, Plaintiff Russell alleges that he spent “hundreds of days and thousands of hours working with Tata [Signatories'] executives, legal counsel, sales personnel, and operations employees” to complete the purchase. Id. ¶¶ 34-35. However, as the parties began to work towards the acquisition, Defendant Lucero allegedly “played a dual game in which he exerted near total control over the negotiations for the purchase” of the network, including controlling the negotiations on behalf of Plaintiff Unitednet, while simultaneously “working behind the scenes” with Defendants Tata Communications America, Inc. (“Tata America”), a corporation with its principal place of business in Virginia, Tata Communications India, Ltd. (“Tata India”), a foreign corporation based in India, and others, to control the position that the Tata Signatories would take in negotiations. Id. ¶ 22.
All told, Plaintiffs allege that Defendants Lucero, Tata Sons, Tata America, and Tata India conspired to change the structure of the deal to demand an approach to purchasing the network that was “contrary to industry standards” to prevent Plaintiff Unitednet from acquiring the network. Id. ¶ 59. Plaintiffs allege that these Defendants then “conspired to manufacture deadlines” for Unitednet's acquisition of funding. Id. ¶¶ 60, 68-69.
Plaintiffs further allege these Defendants conspired to require that Unitednet provide a letter from a bank or investor showing that Unitednet had secured $10.75 million in funds for the deal. Id. ¶¶ 38, 62-63. According to Plaintiffs, this funding letter requirement was merely a “ruse” devised by Defendants Lucero, Tata America, and Tata India to hinder Unitednet's completion of the transaction. Id. ¶¶ 40-42. Plaintiffs maintain that Defendant Lucero was responsible for securing funding for Unitednet's purchase of the network, yet Lucero repeatedly failed to do so. Id. ¶¶ 64, 75. Plaintiffs assert that despite attempting to meet all the demands placed on Unitednet, Defendant Lucero actively sought to prevent Plaintiff Unitednet from securing funding, and instead, intended to complete the purchase of the network with another company, namely, Defendant LGL. Id. ¶¶ 58, 68.
Eventually, after months without the requisite funding letter, Defendant Tata America notified Plaintiffs of the termination of the Agreement with the Tata Signatories. Id. ¶ 79. Plaintiffs allege that Defendant Lucero conspired with Defendants Tata Sons, Tata America, and Tata India to terminate the deal. Id. ¶ 80. Plaintiffs nonetheless attempted to revive the Agreement through alternative means of funding and the Tata Signatories asked for time to consider this new proposal. Id. ¶ 83. However, Plaintiffs allege that Defendant Lucero worked with Defendants Tata Sons, Tata America, and Tata India to interfere with the decision of the Tata Signatories. Id. ¶ 84. The Tata Signatories rejected Plaintiffs' offer and the deal collapsed. Id. ¶ 83.
As a result, Plaintiffs Unitednet and Russell filed suit asserting the following claims:
Defendants Lucero and LGL filed the instant motion to dismiss for forum non conveniens. They argue that Plaintiffs' suit is centered on the Agreement, which has an exclusive forum selection clause that requires this case be brought in the Courts of England and Wales. See Doc. 4, at 1-2.
The appropriate way to enforce a forum selection clause pointing to a foreign forum is through the doctrine of forum non conveniens. See Atl. Marine Const. Co. v. U.S. Dist Ct., 571 U.S. 49, 60 (2013). Forum non conveniens “permits a court to dismiss a case when an adequate alternative forum exists in a different judicial system and there is no mechanism by which the case may be transferred.” Kelvion, Inc. v. PetroChina Canada Ltd., 918 F.3d 1088, 1091 (10th Cir. 2019). “The central purpose of any forum non conveniens inquiry is to ensure that the trial is convenient.” Yavuz v. 61 MM, Ltd., 576 F.3d 1166, 1172 (10th Cir. 2009) (“Yavuz II”) (quoting Gschwind v. Cessna Aircraft Co., 161 F.3d 602, 605 (10th Cir. 1998)).
Ordinarily, there are two threshold questions in the forum non conveniens determination: first, “whether an adequate alternative forum exists, ” and second, “whether foreign law applies to the dispute.” See Yavuz II, 576 F.3d at 1171. “[T]he court must confirm that foreign law is applicable, because forum non conveniens is improper if foreign law is not applicable and domestic law controls.” Archangel Diamond Corp. Liquidating Tr. v. Lukoil, 812 F.3d 799, 804 (10th Cir. 2016) (internal quotations and citations omitted). A defendant bears the burden of proving that an alternative forum exists, and that this forum “is both available and adequate.” See Gschwind, 161 F.3d at 606.
If both questions are answered affirmatively, a court must then evaluate private-interest factors, such as the convenience of the parties, and various public-interest considerations. See Atl. Marine, 571 U.S. at 62-63. There is a “strong presumption in favor of the plaintiffs choice of forum, which may be overcome only when the private and public interest factors clearly point towards trial in the alternative forum.” See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981). Gschwind, 161 F.3d at 606. But if a defendant seeking dismissal is a resident of the forum, then the defendant must make a stronger case than others for dismissal. Id. at 609 ().
“The calculus changes, however, when the parties' contract contains a valid forumselection clause, which represents the parties' agreement as to the most proper forum.” Atl.Marine, 571 U.S. at 63 (internal quotations omitted). Under Atlantic Marine Construction Co. v. United States District Court, the Court must perform a modified analysis of forum non conveniens when a valid forum selection clause is involved. 571 U.S. at 62. A court must first determine whether the forum selection clause controls. Kelvion, 918 F.3d at 1091. A valid forum selection clause must be “given controlling weight in all but the most exceptional cases.” See Atl. Marine, 571 U.S. at 59-60. Where there is a valid forum selection clause, the Court must then adjust its usual forum non conveniens analysis: first, “the plaintiff's choice of forum merits no weight, ” and second, a court “must deem the private-interest factors to weigh entirely in favor of the preselected forum” an...
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