ProShipLine, Inc. v. Aspen Infrastructures, Ltd., No. 08-0838 (2d Cir. 2009)

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08-0838-cv ProShipLine, Inc. v. Aspen Infrastructures, Ltd. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2008 4 (Argued: March 12, 2009 Decided: October 22, 2009) 5 Docket No. 08-0838-cv 6 ------------------------------------- 7 PROSHIPLINE, INC., 8 Plaintiff-Appellant, 9 - v. - 10 ASPEN INFRASTRUCTURES, LTD., 11 Defendant-Appellee. 12 ------------------------------------- 13 14 Before: 15 McLAUGHLIN and SACK, Circuit Judges, and KAPLAN, District Judge.* Appeal from a judgment of the United States District 16 Court for the Southern District of New York. 17 (Robert W. Sweet, Judge) vacated a maritime attachment, 18 concluding that (1) maritime jurisdiction was absent, (2) both 19 the party that attached the funds and the party that owned the 20 funds were present in another jurisdiction -- the Southern 21 District of Texas, and (3) the party that had sought and secured 22 the attachment abused the ex parte nature of the attachment 23 process. * The district court We disagree with the district court as to the first The Honorable Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation. 1 ground for vacatur, but agree with it as to the second, and 2 therefore affirm without reaching the third. 3 Affirmed. 4 5 6 JOHN SULLIVAN (Andrew R. Brown, of counsel) Hill Rivkins & Hayden LLP, New York, New York, for Plaintiff-Appellant. 7 8 9 10 11 12 JOHN ORZEL (Vincent M. DeOrchis, of counsel) DeOrchis & Partners, LLP, New York, New York, for DefendantsAppellees. SACK, Circuit Judge: ProShipLine, Inc., the plaintiff-appellant, and EP- 13 Team, Inc., not a party to this proceeding, are engaged in a 14 breach-of-contract dispute with Aspen Infrastructures, Ltd., the 15 defendant-appellee. 16 simple matter, however, has metastasized, spreading across 17 several proceedings spanning a variety of districts, states, and 18 continents. 19 pending in the Southern District of New York. 20 secured an ex parte order of maritime attachment against EP- 21 Team's assets. 22 ex parte order of attachment against Aspen's assets worth close 23 to two million dollars. 24 vacated ProShipLine's attachment of Aspen's assets, concluding, 25 inter alia, that both Aspen and ProShipLine are present in the 26 Southern District of Texas. 27 ProShipLine challenges the vacatur. What appears to have been a relatively Two separate proceedings related to this dispute are In one, Aspen In the second, ProShipLine sought and secured an On Aspen's motion, the district court On appeal in this second case only, 2 We affirm. BACKGROUND 1 2 The Parties 3 The facts underlying this appeal, including those set 4 forth in the district court's Opinion and Order of February 1, 5 2008, see ProShipLine, Inc. v. Aspen Infrastructures, Ltd., 533 6 F. Supp. 2d 422, 424-26 (S.D.N.Y. 2008) ("ProShipLine"), upon 7 which we rely, are uncontested. 8 associated with Suzlon Energy Ltd. ("Suzlon"). 9 and Suzlon collectively as "Aspen." Aspen is an Indian corporation We refer to Aspen Aspen manufactures and 10 markets wind turbines -- windmills that convert wind energy into 11 electricity. 12 then ships them to purchasers in market countries, including the 13 United States, for installation. 14 ocean-going vessels that it time-charters. 15 ensure that the vessels are used efficiently when not carrying 16 Aspen products, i.e., to avoid "deadhead" return of empty vessels 17 from market countries to India, Aspen entered into the contract 18 carriage business, soliciting cargos from the market countries 19 with destinations in Asia. 20 It manufactures turbine components in India and Aspen ships these components on In an attempt to On April 9, 2006, as part of this effort, Aspen and EP- 21 Team entered into a "Sales and Logistics Service Agreement," by 22 which EP-Team was appointed as Aspen's general sales and port 23 service agent in the United States. 24 arrangement, EP-Team established ProShipLine -- the appellant 25 here -- to act as Aspen's agent. 3 In connection with this 1 Under the agreement, either party had the right to 2 terminate the "arrangement" on 30 days' notice "without stating 3 any cause" and at "any time during the currency of [the] 4 agreement." 5 providing that it would be construed and enforced in accordance 6 with English law, and a forum selection clause providing that all 7 disputes arising from the agreement would be resolved by 8 arbitration in Singapore. 9 The contract contained a choice-of-law clause Aspen eventually became dissatisfied with the 10 arrangement. By email dated July 5, 2007, Aspen informed EP-Team 11 that as of August 1, 2007, Aspen "will have alternate 12 arrangements in place" for its shipping services and that as of 13 that date "Proshipline will [cease] to be our agent[]." 14 from Sanjivv G. Bangad to David Pulk and Neil Johnson (July 5, 15 2007). 16 that the email constituted a "purported termination" of the 17 agreement "in violation of the Services Agreement" and was 18 "actionable by EP-Team." 19 Bangad (July 6, 2007). 20 informed EP-Team that there was "no contract" between Aspen and 21 EP-Team, that the agreement did not purport to appoint EP-Team as 22 the exclusive agent for Aspen in America, and that ProShipLine 23 was "failing to perform in accordance with the agreement or its 24 spirit in any event." 25 Shannon, Gracey, Ratliff and Miller, LLP (July 13, 2007). 26 letter dated July 30, 2007, EP-Team told Aspen that "as of Email By letter to Aspen dated July 6, 2007, EP-Team asserted Letter from Richard A. Lowe to Sanjeev By letter dated July 13, 2007, Aspen Letter from Christopher Chauncy to 4 By 1 Midnight July 31, 2007, [EP-Team/ProShipLine will] not be in a 2 position to act in any capacity on behalf of [Aspen]." 3 from Richard A. Lowe to Christopher Chauncy (July 30, 2007). Letter 4 Procedural History 5 In October 2007, Aspen named EP-Team as a defendant in 6 a proceeding in the Southern District of New York over which 7 Judge Robert W. Sweet was reassigned to preside. 8 Infrastructures Ltd. v. E.P. Team, Inc., No. 07 Civ. 8813 9 (S.D.N.Y. Oct. 12, 2007). See Aspen Some two months later, by verified 10 complaint dated December 3, 2007, ProShipLine, without EP-Team, 11 initiated the instant litigation against Aspen, seeking a Writ of 12 Maritime Attachment and Garnishment in the amount of $6,390,000. 13 See Verified Complaint, ProShipLine, Inc. v. Aspen 14 Infrastructures, Ltd., No. 07 Civ. 10969 (S.D.N.Y. Dec. 3, 2007) 15 (Doc. No. 1). 16 Action" and the latter -- the case now before us on appeal -- as 17 the "Second New York Action." We refer to the former as the "First New York 18 On December 4, 2007, Judge John F. Keenan, sitting as 19 Part I judge, issued the order in the Second New York Action in 20 the full amount. 21 Maritime Attachment and Garnishment, ProShipLine, Inc. v. Aspen 22 Infrastructures, Ltd., No. 07 Civ. 10969 (S.D.N.Y. Dec. 4, 2007) 23 (Doc. No. 5). 24 counsel "gave notice that an electronic fund transfer belonging 25 to [Aspen] in the amount of US$1,999,964.00 had been restrained." 26 Declaration of John A. Orzel ¶ 6 (Jan. 9, 2008). See Order Directing Clerk to Issue Process of On Saturday, January 5, 2008, ProShipLine's 5 Thereafter, the 1 case, having been deemed to be related to the First New York 2 Action, was assigned to Judge Robert W. Sweet. 3 Reassignment, ProShipLine, Inc. v. Aspen Infrastructures, Ltd., 4 No. 07 Civ. 10969 (S.D.N.Y. Dec. 18, 2007) (Doc. No. 8).1 5 January 10, 2008, Aspen moved in the Second New York Action to 6 vacate ProShipLine's attachment of its funds. 7 Inc. v. Aspen Infrastructures, Ltd., No. 07 Civ. 10969 (S.D.N.Y. 8 Jan. 10, 2008) (Doc. No. 10). 9 February 1, 2008, the district court vacated that attachment. 10 See Notice of On See ProShipLine, By Opinion and Order dated See ProShipLine, 533 F. Supp. 2d at 427. 11 The district court based its vacatur on three grounds: 12 (1) the court lacked maritime jurisdiction because the agreement 13 at issue was an executory requirements contract, id.; (2) Aspen 14 is present in the Southern District of Texas, where ProShipLine 15 has its headquarters and principal place of business, id.; and 16 (3) ProShipLine abused the ex parte nature of the maritime 17 attachment rules, id. at 427-29. 18 ProShipLine appeals, asserting that the district court 19 erred in all three respects. We affirm solely on the ground that 20 the district court did not err in concluding that the parties 21 were both present in the Southern District of Texas. 1 In addition to the two New York actions, the parties have been engaged in various other proceedings. See EP-Team, Inc. v. Aspen Infrastructure, Ltd., No. 4:07 Civ. 2549 (S.D. Tex. Aug. 6, 2007); ProShipLine, Inc. v. Aspen Infrastructures, Ltd., No. 3:07 Civ. 5660 (W.D. Wash. Nov. 27, 2007); ProShipLine, Inc. v. M/V Beluga Revolution, No. 4:07 Civ. 04170 (S.D. Tex. Dec. 7, 2007); Aspen Infrastructures, Ltd. v. EP-Team, Inc., ARB No. 063 of 2007 (Sing. Int'l Arb. Ctr. 2007). 6 DISCUSSION 1 2 I. Standard of Review 3 "We generally review the district court's decision 4 vacating a maritime attachment order for abuse of discretion." 5 Aqua Stoli Shipping Ltd. v. Gardner Smith Pty Ltd., 460 F.3d 434, 6 439 (2d Cir. 2006). 7 discretion when its decision rests on an error of law or a 8 clearly erroneous finding of fact." 9 the legal predicate for an exercise of discretion[] . . . de 10 novo." A district court "necessarily abuses its Id. Therefore, we "review[] Id. 11 II. Maritime Jurisdiction 12 Federal law controls the interpretation of maritime 13 contracts so long as the dispute is not "inherently local." 14 Norfolk S. Ry. Co. v. James N. Kirby, Pty Ltd., 543 U.S. 14, 23 15 (2004); accord Kossick v. United Fruit Co., 365 U.S. 731, 735 16 (1961). 17 connection with [a] maritime commercial venture . . . are 18 therefore maritime in nature [and] the Court has jurisdiction of 19 the claims brought thereunder pursuant to 28 U.S.C. § 1333." 20 Williamson v. Recovery Ltd. P'ship, 542 F.3d 43, 49 (2d Cir. 21 2008) (internal quotation marks omitted), cert. denied sub nom. 22 Columbus Exploration, LLC v. Williamson, 129 S. Ct. 946 (2009). 23 Contracts that are "by their terms entered into in In Norfolk Southern Railway Co., the Supreme Court 24 rejected a "spatial approach," 543 U.S. at 24, for determining 25 whether contracts are "maritime in nature," id. at 26. 26 observed that maritime commerce "is often inseparable from some 7 The Court 1 land-based obligations," especially in light of the fact that 2 "[t]he international transportation industry clearly has moved 3 into a new era -- the age of multimodalism, door-to-door 4 transport based on efficient use of all available modes of 5 transportation by air, water, and land." 6 quotation marks omitted). 7 endorsed a "conceptual approach" which, guided by "the 8 fundamental interest giving rise to maritime jurisdiction [--] 9 the protection of maritime commerce" -- focuses upon "whether the Id. at 25 (internal Instead, the Supreme Court has 10 principal objective of a contract is maritime commerce." 11 (internal quotation marks omitted); accord Williamson, 542 F.3d 12 at 49; Folksamerica Reinsurance Co. v. Clean Water of New York, 13 Inc., 413 F.3d 307, 311, (2d Cir. 2005); Sompo Japan Ins. Co. v. 14 Union Pac. R.R. Co., 456 F.3d 54, 71 n.17 (2d Cir. 2006).2 2 Id. In cases prior to Norfolk Southern Railway Co., this Circuit required that courts "first make a 'threshold inquiry' into the subject matter of the dispute." See Folksamerica, 413 F.3d at 312 (emphasis in original). In other words, we have held that "[b]efore attempting to categorize contractual rights as maritime or non-maritime, a federal court must first consider whether an issue related to maritime interests has been raised." Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 199 (2d Cir. 1992). The panel in Folksamerica noted "some uncertainty as to the extent to which this Court's 'threshold inquiry' test survives . . . Norfolk Southern Railway Co." 413 F.3d at 313. In Norfolk Southern Railway Co., the Supreme Court "focused entirely on the underlying contract" and did not explicitly engage in such a "threshold inquiry." See Folksamerica, 413 F.3d at 313-14. We recognized, however, that Norfolk Southern Railway Co. is "readily distinguishable" from cases in this Circuit that we have found did not survive our threshold inquiry. Id. at 313. This case is also readily distinguishable from our prior "threshold inquiry" cases, so we need not examine "how Norfolk Southern Railway Co. might circumscribe our 'threshold inquiry' doctrine, if at all." Id. 8 1 III. Maritime Attachment 2 "The power to grant attachments in admiralty [i.e., 3 maritime attachments] is an inherent component of the admiralty 4 jurisdiction given to the federal courts under Article III of the 5 Constitution." 6 purpose [of the power] has been two-fold: first, to gain 7 jurisdiction over an absent defendant; and second, to assure 8 satisfaction of a judgment." 9 because it is frequently, but not always, more difficult to find Aqua Stoli, 460 F.3d at 437. Id. The "historical "Maritime attachments arose 10 property of parties to a maritime dispute than of parties to a 11 traditional civil action. 12 their assets are often transitory." 13 "traditional policy underlying maritime attachment," which is "to 14 permit the attachments of assets wherever they can be found and 15 not to require the plaintiff to scour the globe to find a proper 16 forum for suit or property of the defendant sufficient to satisfy 17 a judgment," has been "implemented by a relatively broad maritime 18 attachment rule, under which the attachment is quite easily 19 obtained." Maritime parties are peripatetic, and Id. at 443. The Id. 20 Rule B of the Supplemental Rules for Certain Admiralty 21 and Maritime Claims to the Federal Rules of Civil Procedure (the 22 "Supplemental Rules") sets forth the process by which a party can 23 attach another party's assets. 24 25 26 27 28 The rule provides: If a defendant is not found within district when a verified complaint for attachment . . . [is] filed, a complaint may contain a prayer for attach the defendant's tangible or 9 the praying verified process to intangible 1 2 3 4 5 6 7 personal property -- up to the amount sued for -- in the hands of garnishees named in the process. . . . The court must review the complaint and affidavit and, if the conditions of this Rule B appear to exist, enter an order so stating and authorizing process of attachment and garnishment. 8 Fed. R. Civ. P., Adm. Supp. Rule B(1) ("Supp. Rule B(1)"). 9 The plaintiff must file with the complaint an "affidavit stating 10 that, to the affiant's knowledge, or on information and belief, 11 the defendant cannot be found within the [judicial] district." 12 Id.; see also Aqua Stoli, 460 F.3d at 438. 13 attachment "may be [and normally are] requested and granted ex 14 parte, though notice of the attachment to the defendant via 15 appropriate service is required." 16 (citing Supp. Rules B(2), E(3)). 17 Orders of maritime Aqua Stoli, 460 F.3d at 438 The Admiralty Rules do not explain what it means to be 18 "found within [a] district." Cf. Supp. Rule B, Advisory 19 Committee Notes (1966 Adoption) (noting that "[t]he subject seems 20 one best left for the time being to development on a case-by-case 21 basis"). 22 requirement . . . present[s] a two-pronged inquiry: first, 23 whether (the respondent) can be found within the district in 24 terms of jurisdiction, and second, if so, whether it can be found 25 for service of process." 26 Line, Inc., 320 F.2d 580, 582 (2d Cir. 1963) (internal quotation 27 marks omitted); see also STX Panocean (UK) Co., Ltd. v. Glory 28 Wealth Shipping Pte Ltd., 560 F.3d 127, 130 (2d Cir. 2009). 29 differently, to be found within the jurisdiction so as to render This Court has noted, however, that "the Seawind Compania, S.A. v. Crescent 10 Put 1 an attachment inappropriate, the respondent must not only be 2 found for service of process,3 but also be "engaged in sufficient 3 activity in the district to subject it to jurisdiction even in 4 the absence of a resident agent expressly authorized to accept 5 process." Seawind, 320 F.2d at 583.4 3 We appear to have concluded that, at least in certain circumstances, an entity may be "found" within a judicial district even where the actual service contemplated would physically occur in another district within the same state. See Chilean Line Inc. v. United States, 344 F.2d 757, 761-62 (2d Cir. 1965). Subsequently, however, we suggested that to be "found" within a district for purposes of Rule B an entity must be "'found within the geographical confines of the district for service of process.'" Aqua Stoli, 460 F.3d at 443. At least one district court judge in this Circuit has noted and explored this tension. See Amber Int'l Nav., Inc. v. Repinter Int'l Shipping Co., S.A., No. 09 Civ. 3897, 2009 WL 1883251, at *1, 2009 U.S. Dist. LEXIS 55779, at *2 (S.D.N.Y. June 30, 2009) (Gerard E. Lynch, Judge) (noting that "the case law critical to determining whether [the defendant] is found within this district for purposes of Rule B is in a state of disarray in this Circuit"). We note that we are dealing here with equitable vacatur rather than vacatur for failure to comply with Rule B. In any event, as is discussed in further detail below, Aspen was found to maintain a "general agent within th[e] district [at issue -- the Southern District of Texas --] who could be served with process," ProShipLine, Inc. v. M/V Beluga Revolution, No. H-07-4170, 2007 WL 4481101, at *1, 2007 U.S. Dist. LEXIS 92674, at *2-*3 (S.D. Tex. Dec. 18, 2007), and we affirm that finding. Therefore, not faced with a situation where Aspen's general agent was not present in the Southern District of Texas, but otherwise present in the state, for service of process, we neither address nor resolve this tension here. 4 The time for determining whether a defendant is 'found' in the district is set at the time of the filing of the verified complaint that prays for attachment and the affidavit required by Rule B(1)(b). . . . A defendant cannot defeat the security purpose of attachment by appointing an agent for service of process after the complaint and affidavit are filed. 11 1 We thus interpret the Rule to adopt a "'somewhat 2 arbitrary compromise which assumes that the plaintiff will not 3 require the protection of an attachment for security, nor should 4 the defendant be subjected to it,'" if the defendant is shown to 5 meet both prongs of the Seawind test, and "'assumes on the other 6 hand that the plaintiff's interests are not adequately 7 protected'" if the defendant is not so shown. 8 F.3d at 443 (quoting Integrated Container Serv., Inc. v. 9 Starlines Container Shipping, Ltd., 476 F. Supp. 119, 122 10 Aqua Stoli, 460 (S.D.N.Y. 1979)).5 11 IV. Vacatur 12 The defendant -- i.e., the owner of the attached funds 13 -- or "any other person with an interest in the property seized," 14 Supp. Rule E, Advisory Committee Notes (1985 Amendment), can make 15 a motion pursuant to Rule E of the Supplemental Rules to contest 16 the validity of the attachment. 17 the attached funds] to a prompt hearing at which the plaintiff 18 [is] required to show why the arrest or attachment should not be 19 vacated." 20 the constitutional requirement of due process by guaranteeing to 21 the [defendant] a prompt post-seizure hearing at which he can 22 attack the complaint, the arrest, the security demanded, or any Supp. Rule E(4)(f). Rule E "entitle[s the owner of The rule is "designed to satisfy Supp. Rule B, Advisory Committee Notes (2005 Amendments). 5 Federal law "defines the requirements necessary for satisfaction of Rule B," but federal courts "look to the relevant state law to determine if those requirements are met." STX Panocean, 560 F.3d at 128. 12 1 other alleged deficiency in the proceedings." 2 Advisory Committee Notes (1985 Amendment). 3 Supp. Rule E, At such a hearing, the plaintiff -- the party who has 4 sought the attachment -- bears "the burden of showing why the 5 seizure should not be vacated." 6 Advisory Committee Notes (1966 Adoption) (noting that the 7 plaintiff has "the burden of establishing that the defendant 8 cannot be found within the district"). 9 demonstrate that "1) it has a valid prima facie admiralty claim 10 against the defendant; 2) the defendant cannot be found within 11 the district; 3) the defendant's property may be found within the 12 district; and 4) there is no statutory or maritime law bar to the 13 attachment." 14 omitted); accord Transportes Navieros y Terrestres S.A. de C.V. 15 v. Fairmount Heavy Transp. N.V., 572 F.3d 96, 103 (2d Cir. 2009). 16 Id.; accord Supp. Rule B, The plaintiff must Aqua Stoli, 460 F.3d at 445 & n.5 (footnote The "hard-and-fast rule" established by the 17 Supplemental Rules "may occasionally sweep too broadly," but 18 "Congress chose a determinate rule rather than a flexible 19 standard to ensure that attachments may be obtained with a 20 minimum of litigation." 21 Aqua Stoli, 460 F.3d at 443. "Superficial compliance with Rule B, while necessary," 22 however, "is not sufficient [to determine that a] maritime 23 attachment is appropriate." 24 with an attachment secured in conformity with Rule B, equitable 25 vacatur pursuant to Rule E may nonetheless be in order. 26 disavowed the notion "that district courts are without any Williamson, 542 F.3d at 52. 13 Even We have 1 equitable discretion to vacate maritime attachments that comply 2 with Rule B." 3 cautioned that equitable vacatur is appropriate "only in certain 4 limited circumstances." 5 determine the full scope of a district court's vacatur power" 6 under the Supplemental Rules, Williamson, 542 F.3d at 52, but 7 certain principles are well-established. 8 vacatur may be appropriate where the defendant can demonstrate 9 that "1) [it] is subject to suit in a convenient adjacent Aqua Stoli, 460 F.3d at 444. Id. Yet we have "[W]e have not yet had occasion to For example, equitable 10 jurisdiction; 2) the plaintiff could obtain in personam 11 jurisdiction over the defendant in the district where the 12 plaintiff is located; or 3) the plaintiff has already obtained 13 sufficient security for the potential judgment, by attachment or 14 otherwise." 15 16 Aqua Stoli, 460 F.3d at 445.6 V. Analysis A. Maritime Jurisdiction7 17 On appeal, ProShipLine contends that the district court 18 erred in concluding that it lacked jurisdiction to order the 19 attachment on the ground that the contract did not confer 6 Although the plaintiff bears the burden of demonstrating that the attachment "was properly ordered and complied with the requirements of Rules B and E," we have noted that the Supplemental Rules "require[] the defendant to establish any equitable grounds for vacatur." Aqua Stoli, 460 F.3d at 445 n.5. 7 Whether or not we are required to address the jurisdictional issue first -- i.e., whether Article III admiralty jurisdiction is present -- even though we affirm on another ground, cf. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (limiting "the 'doctrine of hypothetical jurisdiction'"), we think it advisable to do so as part of a complete analysis of the issues on appeal. 14 1 admiralty jurisdiction. 2 We agree that this was error, and conclude that there is 3 admiralty jurisdiction here. 4 See ProShipLine, 533 F. Supp. 2d at 427. The court proffered two reasons to support its 5 decision: first, that the dispute concerned "the alleged breach 6 of an executory contract," id.;8 and second, that the contract 7 concerned the "provi[sion of] services to any vessel under 8 Aspen's control expected to call at U.S. ports in the future," 9 and was therefore "'analogous to requirements contracts that 10 courts have found to be outside of admiralty jurisdiction, rather 11 than the one-transaction supply or repair contracts that fall 12 within admiralty jurisdiction,'" id. at 427 (quoting Dolco Invs., 13 Ltd. v. Moonriver Dev., Ltd., 486 F. Supp. 2d 261, 267-68 14 (S.D.N.Y. 2007) (Robert W. Sweet, Judge)). 15 We conclude, however, that a contrary result is 16 mandated by Norfolk Southern Railway Co. and its progeny, under 17 which a contract confers maritime jurisdiction so long as its 18 "principal objective . . . is maritime commerce." 8 Norfolk S. Ry. "An executory contract . . . is one in which the promisee's rights do not immediately come into existence but are conditioned upon some further performance, usually by the promisee." Fed. Deposit Ins. Co. v. Malin, 802 F.2d 12, 17 (2d Cir. 1986); cf. Black's Law Dictionary 369 (8th ed. (2009)) (defining "executory contract" as "[a] contract that remains wholly unperformed or for which there remains something still to be done on both sides, often as a component of a larger transaction"); In re Wireless Data, Inc., 547 F.3d 484, 488 n.1 (2d Cir. 2008) (noting that under the Bankruptcy Code, an executory contract is "a contract under which the obligation of both the bankrupt and the other party to the contract are so far unperformed that the failure of either to complete performance would constitute a material breach excusing the performance of the other" (internal quotation marks omitted)). 15 1 Co., 543 U.S. at 25. The agreement at issue here specifically 2 "'reference[s] maritime service[s] or maritime transactions.'" 3 Williamson, 542 F.3d at 49 (quoting Norfolk S. Ry. Co., 543 U.S. 4 at 24); accord Folksamerica, 413 F.3d at 312. 5 furnishing of services, supplies, or facilities to vessels . . . 6 in maritime commerce or navigation." 7 v. Oceanic Operations Corp., 682 F.2d 377, 379 (2d Cir. 1982) 8 (internal quotation marks omitted). 9 appointed EP-Team "as its sales agent to establish a sales and It concerns "the CTI-Container Leasing Corp. By the agreement, Aspen 10 management operation to secure freight and associated revenue" to 11 fill the excess capacity on Suzlon's time-chartered vessels. 12 Team was charged with facilitating voyages from the United States 13 to India to ensure a full and efficient use of the vessels. 14 this basis, there is maritime jurisdiction. 15 EP- On We find unconvincing the district court's suggestion 16 that there can be no maritime jurisdiction if the contract under 17 which relief is sought is executory in nature. 18 years ago, the Supreme Court concluded that an alleged breach of 19 an executory contract conferred maritime jurisdiction. 20 Archawski v. Hanioti, 350 U.S. 532, 533 (1956); accord Compania 21 Argentina De Navegacion Dodero v. Atlas Maritime Corp., 144 F. 22 Supp. 13, 14 (S.D.N.Y. 1956) (rejecting the proposition that 23 executory contracts are not within the admiralty jurisdiction of 24 the federal courts and concluding that "[i]f such was ever the 25 law, it is certainly not the law since the decision of the United 16 More than fifty See 1 States Supreme Court in Archawski v. Hanioti, [350 U.S. 532, 533- 2 34 (1956)]"). And as the Seventh Circuit observed even earlier: 3 4 5 6 7 8 9 10 11 12 13 14 15 Boutin v. Rudd, 82 F. 685, 686-87 (7th Cir. 1897); S.S. Overdale 16 Co. v. Turner, 206 F. 339, 341 (E.D. Pa. 1913) (noting that a 17 "purely executory [contract] for performance of some maritime 18 service" confers maritime jurisdiction); cf. The Yankee, 37 F. 19 Supp. 512, 514 (E.D.N.Y. 1941) (concluding that an "executory 20 contract to render a maritime service" in "the absence of part 21 performance" does not confer admiralty jurisdiction). 22 long as a contract is maritime in nature, the fact that it is 23 executory does not foreclose maritime jurisdiction. 24 If the contract contemplate[s] maritime service, and ha[s] reference to maritime transactions, it is within the jurisdiction of the admiral[ty]. This doctrine is no longer subject to contention. [I]t has been held, and, we think, without dissent, that executory contracts of a maritime character are within the jurisdiction of the admiralty, and that damages for breach of such a contract may be awarded by the courts of admiralty. Thus, so We are similarly unpersuaded by the district court's 25 conclusion that "'requirements contracts,'" as opposed to "'one- 26 transaction supply or repair contracts,'" are necessarily 27 "'outside of admiralty jurisdiction.'" 28 2d at 427 (quoting Dolco Invs., Ltd., 486 F. Supp. at 268). 29 assuming the cases cited by the district court in this regard -- 30 the most recent of which predates Norfolk Southern Railway Co. by 31 nearly a half century, see Compania Argentina De Navegacion 32 Dodero, 144 F. Supp. 13 (S.D.N.Y. 1956), two of which directly 17 ProShipLine, 533 F. Supp. Even 1 conflict with the district court's conclusion that executory 2 contracts do not confer admiralty jurisdiction, see id. at 14; 3 S.S. Overdale Co., 206 F. at 341, and none of which are binding 4 on this court -- have merit, they are distinguishable. 5 case in which the contract was found not to confer maritime 6 jurisdiction, the contracted-for service held not to give rise to 7 maritime jurisdiction was in some fundamental way non-maritime in 8 nature. 9 contract for the sale of coal to a fleet of steamships not In each See S.S. Overdale Co., 206 F. at 341 (requirements 10 maritime contract); Garcia v. Warner, Quinlan Co., 9 F. Supp. 11 1010, 1011 (S.D.N.Y. 1934) (year-long requirements contract for 12 the sale of fuel oil to a fleet of steam ships not maritime 13 contract); see also Diefenthal v. Hamburg Am. Line, 46 F. 397 14 (E.D. La. 1891) (requirements contract for the sale of meat, 15 eggs, and vegetables for a year at fixed prices not maritime 16 contract). 17 Obviously, non-maritime businesses need coal, fuel oil, 18 and eggs, too. But the service under contract here -- the 19 arranging of sea voyages and port services -- has an undeniably 20 maritime flavor. 21 contract "[makes] reference to a[] particular maritime service or 22 . . . to the navigation, business, or commerce of the sea"); cf. 23 Williamson, 542 F.3d at 49 (noting that services or contracts 24 that make sense outside of the context of maritime commerce, such 25 as "standard non-compete, nondisclosure, and lease contract 26 agreements," can nonetheless be properly considered maritime See S.S. Overdale, 206 F. at 341 (maritime 18 1 contracts if they "reference maritime service or maritime 2 transactions"). 3 For these reasons, we conclude, contrary to the 4 conclusion of the district court, that federal maritime 5 jurisdiction exists. 6 B. Presence in the Southern District of Texas 7 We must decide, then, whether the district court abused 8 its discretion in vacating the attachment. 9 did not. 10 We conclude that it As we have noted, equitable vacatur may be appropriate 11 where "the plaintiff and defendant are both present in the same 12 district and would be subject to jurisdiction there, but the 13 plaintiff goes to another district to attach the defendant's 14 assets." 15 F.3d at 51. 16 sought an ex parte order of attachment in the Southern District 17 of New York despite the fact that both Aspen and ProShipLine were 18 present in the Southern District of Texas and subject to 19 jurisdiction there. 20 Aqua Stoli, 460 F.3d at 444-45; accord Williamson, 542 The record supports the conclusion that ProShipLine On December 10, 2007, in connection with ProShipLine, 21 Inc. v. M/V Beluga Revolution, No. 4:07 Civ. 04170 (S.D. Tex. 22 Dec. 7, 2007), one of the two proceedings in the Southern 23 District of Texas associated with this dispute, ProShipLine and 24 EP-Team secured a writ of maritime attachment against Aspen's 25 assets aboard the M/V Beluga Revolution, one of Aspen's vessels 26 then docked in the Southern District of Texas. 19 Aspen sought 1 vacatur of the attachment in part on the basis that Aspen was 2 "found within the district." 3 Revolution, No. H-07-4170, 2007 WL 4481101, at *1, 2007 U.S. 4 Dist. LEXIS 92674, at *3 (S.D. Tex. Dec. 18, 2007). 5 connection with the dispute, the parties -- Aspen, EP-Team, and 6 ProShipLine -- "concede[d] that Aspen is present in [the Southern 7 District of Texas] as a result of its substantial and ongoing 8 commercial activities [in the district]." 9 Dist. LEXIS 92674, at *1. 10 ProShipLine, Inc. v. M/V Beluga In Id. at *1, 2007 U.S. On December 14, 2007, the United States District Court 11 for the Southern District of Texas (John R. Froeschner, 12 Magistrate Judge) conducted a hearing on Aspen's motion for 13 vacatur. 14 18, 2007, the district court found "that Aspen maintains a 15 general agent within this district who could be served with 16 process" that "qualifies as a [managing] agent for purposes of 17 service of process under Rule 4(h) of the Federal Rules of Civil 18 Procedure." 19 On the basis of Aspen's "contacts with the district" and because 20 it "can be found within the geographical confines of the district 21 for service of process," the district court vacated the 22 attachment as "improperly issued." 23 92674, at *4. 24 Id. As set forth in its Opinion and Order of December Id. at *1, 2007 U.S. Dist. LEXIS 92674, at *2-*3. Id., 2007 U.S. Dist. LEXIS In the proceedings before Judge Sweet, the district 25 court concluded that "[b]y its Opinion and Order dated December 26 18, 2007, the United States District Court for the Southern 20 1 District of Texas has already found that Aspen is present within 2 that district, where ProShipLine has its headquarters and 3 principal place of business." 4 427. 5 vacated the attachment. ProShipLine, 533 F. Supp. 2d at The district court adopted that finding, and on that basis 6 Id. at 429. We conclude that vacatur on this ground was proper. 7 ProShipLine is estopped from relitigating this factual issue -- 8 that Aspen is present within the Southern District of Texas -- 9 because it was "'actually litigated [by Aspen and ProShipLine] 10 and decided by a court of competent jurisdiction in a prior 11 action.'" 12 112 (2d Cir. 2008).9 13 that the Southern District of Texas is an inconvenient venue in 14 which to litigate: 15 business are located there, see ProShipLine, 533 F. Supp. 2d at 16 427. 17 district. 18 ProShipLine to have chosen to initiate litigation against Aspen ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 547 F.3d 109, And ProShipLine cannot plausibly contend Its headquarters and principal place of ProShipLine does not argue that it is not present in the 9 Indeed, the district has been convenient enough for Following the February 1, 2008, Opinion and Order on appeal in this case, the district court for the Southern District of Texas (Lee H. Rosenthal, District Judge) affirmed the magistrate judge's order and findings. See ProShipLine, Inc. v. M/V Beluga Revolution, No. H-07-4170, 2008 WL 447707, at *3, 2008 U.S. Dist. LEXIS 12056, at *7 (S.D. Tex. Feb. 19, 2008) (overruling the objections of ProShipLine and EP-Team and affirming the magistrate judge's Opinion and Order, in part based on its conclusion that the "record in this case supports the Magistrate Judge's determination that [Aspen] maintained a general agent within this district that could be served with process"); see also ProShipLine, Inc. v. M/V Beluga Revolution, No. H-07-4170, 2008 WL 2673832, 2008 U.S. Dist. LEXIS 50721 (S.D. Tex. July 2, 2008) (denying ProShipLine and EP Team's motion for reconsideration). 21 1 in two separate actions there. 2 Infrastructure, Ltd., No. 4:07 Civ. 2549 (S.D. Tex. Aug. 8, 3 2007); ProShipLine, Inc. v. M/V Beluga Revolution, No. 4:07 Civ. 4 04170 (S.D. Tex. Dec. 7, 2007). 5 See EP-Team, Inc. v. Aspen ProShipLine contends that Aspen's position in this 6 action -- that it is present in the same district as ProShipLine 7 - "undercut[s] the claims Aspen has made in the [First New York 8 Action] against EP-Team." 9 brought to this Court's attention, however, any inconsistent ProShipLine Br. 23 n.3. It has not 10 misrepresentations in this regard. 11 district court's opinion in this action and the subsequently 12 issued opinion in the First New York Action, Aspen 13 Infrastructures, Ltd. v. E.P. Team, Inc., No. 07 Civ. 8813, 2008 14 WL 2963491, 2008 U.S. Dist. LEXIS 59030 (S.D.N.Y. Aug. 1, 2008), 15 reveals no such inconsistencies. 16 And our review of the Equitable vacatur of writs of attachment, in contrast 17 to vacatur for failure to comply with Rule B, turns not on the 18 owner of the attached funds' relationship with the jurisdiction 19 of attachment, but on both parties' relationship with another 20 jurisdiction. 21 "the plaintiff [must be able to] obtain in personam jurisdiction 22 over the defendant in [a] district where the plaintiff is 23 located." 24 For equitable vacatur to be granted on this basis, Aqua Stoli, 460 F.3d at 445. In the First New York Action, EP-Team moved for 25 equitable vacatur of the order authorizing Aspen's attachment of 26 EP-Team's assets in the Southern District of New York on the 22 1 grounds that both it and Aspen were present in the Southern 2 District of Texas. 3 Inc., No. 07 civ. 8813, 2008 WL 2663491, at *1, 2008 U.S. Dist. 4 LEXIS 59030, at *2-*3. 5 motion, concluding that "EP-Team's submissions on this motion 6 [were] insufficient to establish its [presence in that] 7 jurisdiction." 8 Vacatur of the writ of attachment in the First New York Action 9 was thus based on EP-Team's lack of presence in the Southern 10 Aspen Infrastructures, Ltd. v. E.P. Team, The district court denied EP-Team's Id. at *2, 2008 U.S. Dist. LEXIS 59030, at *5. District of Texas. 11 By contrast, vacatur of the writ of attachment in the 12 Second New York Action -- this one -- depends upon the presence 13 of ProShipLine and Aspen, not EP-Team, in the Southern District 14 of Texas. 15 demonstrated that both of them are present in that district. 16 Because ProShipLine and EP-Team are separate legal entities, it 17 does not necessarily follow from ProShipLine's presence in the 18 Southern District of Texas that EP-Team is also present there. 19 Cf. Aspen Infrastructures, Ltd. v. E.P. Team, Inc., 2008 WL 20 2963491, at *2, 2008 U.S. Dist. LEXIS 59030, at *5 (noting that 21 "the responsibilities of EP-Team and [ProShipLine] with respect 22 to these various proceedings and the underlying agreement are 23 elusive"). 24 Aspen has, according to the district court, Even were the judgments in the First and Second New 25 York actions inconsistent, moreover, inconsistency itself is not 26 sufficient to require reversal of the vacatur of the maritime 23 1 attachment here. The propriety of the decision in the First New 2 York Action is not before us. 3 proposition that the district court vacated the writ of 4 attachment in the case before us on appeal -- the Second New York 5 Action -- in error, we affirm. 6 attachment of Aspen's funds solely because Aspen's attachment of 7 another entity's funds in a separate action might have been 8 improper. 9 Action was wrong, if it was, appeal from that decision, if In the absence of support for the ProShipLine is not entitled to an To the extent that the decision in the First New York 10 available, is the avenue for recourse in this Court.10 11 C. Abuse of The Ex Parte Nature of Rule B Process 12 Having concluded that vacatur was proper, we need not, 13 and do not, address whether the district court erred in 14 concluding, in the alternative, that ProShipLine's actions 15 constituted an abuse of the ex parte nature of Rule B process. 16 We offer no views on that issue and none should be inferred from 17 this opinion. 10 Our review reveals no inconsistencies between the judgments of the New York court and the judgment of the Texas court. The Texas district court's vacatur of the writ of the Texas attachment for failure to comply with Rule B depended solely on whether Aspen, not EP-Team or ProShipLine, was found in the Southern District of Texas. See Proshipline, Inc. v. M/V Beluga Revolution, 2007 WL 4481101, at *1, 2007 U.S. Dist. LEXIS 92674, at *3; Supp. Rule B(1) (providing that attachment is only appropriate where "defendant is not found within the district"). Given that Aspen was found in that district, the maritime attachment did not meet the basic requirements of Rule B, and was vacated as "improperly issued." Proshipline, Inc. v. M/V Beluga Revolution, 2007 WL 4481101, at *1, 2007 U.S. Dist. LEXIS 92674, at *4. And it does not necessarily follow from Aspen's presence in the district that EP-Team -- a completely separate entity -would be present in the same jurisdiction. 24 CONCLUSION 1 2 3 For the foregoing reasons, the judgment of the district court is affirmed. 25

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