Mercator Corp. v. Windhorst

159 F. Supp. 3d 463, 2016 U.S. Dist. LEXIS 16369, 2016 WL 519645
CourtDistrict Court, S.D. New York
DecidedFebruary 10, 2016
Docket15-cv-02970 (JGK)
StatusPublished
Cited by10 cases

This text of 159 F. Supp. 3d 463 (Mercator Corp. v. Windhorst) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mercator Corp. v. Windhorst, 159 F. Supp. 3d 463, 2016 U.S. Dist. LEXIS 16369, 2016 WL 519645 (S.D.N.Y. 2016).

Opinion

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiff, the Mercator Corporation (“Mercator”), sued Lars Windhorst and Sapinda Holding B.V. (“Sapinda Holding”) for breach of contract. The defendants now move to dismiss the Amended Complaint on the grounds that the plaintiff failed to sue the proper parties, that the claim is barred by the statute of frauds, and that the Court lacks personal jurisdiction over the defendants. For the reasons explained below, the Amended Complaint is dismissed without prejudice.

I.

The defendants move to dismiss the plaintiffs Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(2) (lack of personal jurisdiction) and 12(b)(6) (failure to state a claim upon which relief can be granted).

On a motion to dismiss for lack of personal jurisdiction, “ ‘the plaintiff bears the burden of showing that the court has jurisdiction over the defendant.’ ” Mende v. Milestone Tech., Inc., 269 F.Supp.2d 246, 251 (S.D.N.Y.2003) (quoting Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 240 (2d Cir.1999). When the Court does not hold an evidentiary hearing and “relies solely on the pleadings and supporting affidavits, the plaintiff need only make a prima facie showing of jurisdiction. In determining whether a plaintiff has met this burden, [the Court] will not draw argumentative inferences in the plaintiffs favor” but will “construe jurisdictional allegations liberally and take as true uncontroverted factual allegations.” Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994) (internal citations and footnotes omitted); see also Mende, 269 F.Supp.2d at 251.

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiffs favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). The Court should not dismiss the complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

While the Court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.” Id.; see also Springer v. U.S. Bank Nat’l Ass’n, No. 15-cv-1107 (JGK), 2015 WL 9462083, at *1 (S.D.N.Y. Dec. 23, 2015). When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiffs possession or that the plain[467]*467tiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); see also Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir.2006) (holding documents outside the record may become the basis for a dismissal if the document is “integral” to the complaint and there are no disputes regarding its authenticity or relevance); Springer, 2015 WL 9462083, at *1.

II.

The following facts alleged in the Amended Complaint are accepted as true for the purposes of the defendant’s motion to dismiss.

Mercator is a New York corporation and merchant bank headquartered in Manhattan and owned and operated by its founder and CEO, James H. Giffen, a New York resident. Amended Compl. ¶¶ 2, 9.

Lars Windhorst, is the co-founder and Chairman of the Board of Sapinda Holding, a Dutch Company. Amended Compl. ¶¶ 3, 10. Windhorst is a German citizen residing in London, and his office is located at the London office of one of Sapinda’s subsidiaries, Sapinda UK Limited (“Sapin-da UK”). Amended Compl. ¶ 11. The plaintiff filed an original complaint naming Sapinda UK Limited, a British company headquartered in London, as a defendant. Compl. ¶ 10. Sapinda UK Limited was dropped as a named defendant from the Amended Complaint.1

On or about January 31 and February 1, 2014, Windhorst and Giffen met aboard Windhorst’s yacht in waters off the Virgin Islands, after being introduced by a mutual acquaintance. Amended Compl. ¶¶ 4-5, 20. The defendants were exploring investment opportunities across Europe, Africa, the Middle East, and Asia, and Giffen came recommended as knowledgeable of and connected to opportunities in Kazakhstan. Amended Compl. ¶¶ 3^4,18.

The plaintiff alleges that during this meeting at sea, “the essential terms of a collaboration” were “negotiated and agreed upon” and Mr. Windhorst, on behalf of Sapinda, agreed to hire Mercator to “provide consulting and advisory services to Mr. Windhorst and Sapinda in connection with investment opportunities.” Amended Compl. ¶ 5.

After this meeting, Giffen sent an email to Windhorst suggesting they “open a Sa-pinda office in New York which could be a communication point for all of Sapinda Holding activities.” Amended Compl. ¶ 23. He added that he “look[ed] forward to your [Windhorst’s] summary of the agreements we reached today.” Pincus Decl. Ex. 3; see also Amended Compl. 23.

On February 2, 2014, Windhorst sent an email response “on behalf of Sapinda,” Amended Compl. ¶25, upon which the plaintiff bases its claims for breach of contract. The email states:

Dear Jim,
It was a privilege to meet you and I very much enjoyed the time together and our interesting discussion
I am happy to confirm our agreed arrangement with 700.000 USD fixed compensation for you, hiring you[r] current PA and establishing the N.Y. office
You also have a 300.000USD budget to hire additional people and of course this can be adjusted if needed.
We will discuss [a] potential bonus each year and for the first time early 2015 after we have worked for this year together.
[468]*468Our arrangement is supposed to be for the next 5 year[s]
I am very excited working with you and I look very much forward [to] seeing you in London soon to introduce you [to] my core team
We will discuss more details next week on the phone and start the process on everything
All the best

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Cite This Page — Counsel Stack

Bluebook (online)
159 F. Supp. 3d 463, 2016 U.S. Dist. LEXIS 16369, 2016 WL 519645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercator-corp-v-windhorst-nysd-2016.