Hovensa L.L.C. v. Technip Italy S.P.A. et al, No. 1:2008cv01221 - Document 26 (S.D.N.Y. 2009)
Court Description: MEMORANDUM AND ORDER granting in part and denying in part 15 Motion to Dismiss For the foregoing reasons, we grant defendants' motion to dismiss for failure to join an indispensable party in so far as it relates to claims alleging a breach of the construction agreement. Additionally, we grant defendants' motion to dismiss Technip S.A. Accordingly, Count One and Three are dismissed in their entirety. Defendant's motion to dismiss Claim Two of plaintiff's amended complaint is denied insofar as it pertains to Technip Italy's alleged breach of the E&P agreement. Finally, Hovensa is directed to inform this Court within two weeks as to whether it will pursue this litigation in this forum or utilize another forum in which the entirety of the dispute may be litigated. (Signed by Judge Naomi Reice Buchwald on 3/16/2009) Copies Mailed By Chambers.(tve)
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USDSSDNY Doc. 26 DOCUMENT ELECTRONICALLY FILED Hovensa L.L.C. v. Technip Italy S.P.A. et al UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DOC I: --;d~--:-::::-,t1 DATE PILED: i3 U, ----------------------------------------X HOVENSA, L.L.C., Plaintiff, MEMORANDUM AND ORDER - against 08 Civ. 1221 (NRB) TECHNIP ITALY S.P.A. and TECHNIP S.A., Defendants. ----------------------------------------X NAOMI REICE BUCIIliALD UNITED STATES DISTRICT JUDGE Plaintiff corporation, Technip claims matter S.A., under this ("Technip a New action Italy"), French York jurisdiction ("Hovensa"), L.L.C. commenced S.p.A. Italy Hovensa, against an corporation, state based law. on a Virgin Islands defendants Technip Italian for corporation, breach Plaintiff diversity of alleges of and contract subject citizenship. Plaintiff further alleges that venue in the Southern District of New York is appropriate based on contractual provisions in two contracts, one between Hovensa and Technip Italy and one between Hovensa L.L.C. and TVPI Ltd. ("TVPI,"), a non-party that is a citizen of the Virgin Islands, providing for exclusive venue and jurisdiction in the Southern District of New York. Defendants move pursuant to Federal Rule of Civil Procedure Rules l2(b) (1) and (7) first complaint amended and 19{b) for to dismiss plaintiff Hovensa's failure to join an indispensable Dockets.Justia.com party, TVPI. The addition of TVPI, a Virgin Islands citizen, to the action would destroy complete diversity as Hovensa is also a citizen of the Virgin Islands. Defendants also move, pursuant to Federal Rule of Civil Procedure 12 (b) (6), to dismiss plaintiff's claims for breach of contract both against Specifically, for breach guaranty, Technip Italy Technip and cannot be sued defendants argue that Technip S. A. of contract on the basis of S.A. an unsigned draft and that Counts One and Three of plaintiff's amended complaint fail to state a claim against Technip Italy for breach of the construction agreement, signatory to that contract. the Court lacks as Technip Italy is not a Additionally, defendants claim that personal jurisdiction over Technip S.A., a French company. For the reasons described below, defendants' motion is granted in part and denied in part. BACKGROUND Hovensa is a United States Virgin Islands liability (Compl. company at n 1, that owns 6.) On and or operates about entered into two agreements of Technip, Technip Italy and TPVI, S. A, procurement, and Hydrotreater ("LSG") with March construction at the an oil 10, 2005, limited refinery. Hovensa two wholly-owned subsidiaries of a refinery. 2 ("USVI") for Low lId. the engineering, Sulfur at n Gasoline 7, 21.) Hovensa and Technip Italy, an Italian company, entered into a an engineering and procurement agreement ("E&P agreement") worth $77 million; Hovensa and TPVI, a Virgin Islands company, entered into a construction agreement worth $50 million. (Id. at ~~ 21, 25 . ) Plaintiff purposes. alleges that at 7.) (Id. ~ the contracts Plaintiff were claims split that for tax TVPI was created, "at the last minute" to sign the construction agreement on Technip Italy's behalf. (Id. at 17.) c][ Further, plaintiff alleges that the purpose of creating TVPI was to allow Technip Italy to avoid obtaining a USVI business license. Additionally, plaintiff alleges (Id.) that Technip S.A., parent company to both Technip Italy and TVPI, provided Hovensa with a Parent Guaranty. guaranty was (Id. allegedly at C][C][ 47-54.) incorporated Though into unsigned, the agreements this by various emails and was included as Appendix Q to the agreements. ( Id. ) In its complaint, contract claims. Technip Italy agreements alleges three breach of Count One alleges overpayments by Hovensa to pursuant (Id. plaintiff to both at '111 57-65.) the construction and E&P The substance of this claim is that Technip Italy made numerous errors including not securing a subcontract in a timely manner and not managing the project in an effective or efficient manner. 3 (Id. at n 31, 37-40.) manufactu~ed Additionally, plaintiff alleges that the piping was improperly, 43-45.) causing lengthy and expensive delays. The net result of these purported (Id. failures lJIlJI at was that Hovensa was "forced to pay substantially more than the agreedupon lump-sum price." Count Two (Id. at alleges a 40.) ~ breach of contract claim against Technip Italy based on the E&P agreement due to the procurement of defective alleges compressors. that in the (Id. at 'II'II 46, 67-71.) event the Court finds that Count Three no enforceable parent company guarantee exists between Technip S.A. and Technip Italy, Technip obtain such arising out a Italy breached guarantee. of the its (Id. two contractual ,]['II at contracts are 73-77.) also obligation The the to disputes subject of a lawsuit commenced in the New York Supreme Court by Technip Italy and TVPI against Hovensa. DISCUSSION We first indispensable construction address party the E&P agreement. Technip Italy. party to all to agreement address whether TVPI the to issue of claims the which it is whether that a TVPI stem signatory. is an from the We next is an indispensable party to claims under The counter-party to this agreement is Defendants argue that TVPI is an indispensable three of plaintiff's claims, since Count One and Three are explicitly under the construction agreement, which was 4
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