Summit, Ltd. v. Levy

660 F. Supp. 708, 1987 U.S. Dist. LEXIS 3634
CourtDistrict Court, S.D. New York
DecidedMay 7, 1987
DocketNo. 83 Civ. 7857 (RWS)
StatusPublished

This text of 660 F. Supp. 708 (Summit, Ltd. v. Levy) 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
Summit, Ltd. v. Levy, 660 F. Supp. 708, 1987 U.S. Dist. LEXIS 3634 (S.D.N.Y. 1987).

Opinion

OPINION

SWEET, District Judge.

Plaintiffs Summit, Ltd. (“Summit”) and Wong Kit Hong (“Wong”) have moved for an order dismissing defendant Harold Levy’s (“Levy”) counterclaim on the grounds of forum non conveniens and inability to join indispensable parties pursuant to Fed.R.Civ. 12(b)(7) and 19. For the reasons discussed below, the motion is denied.

Prior Proceedings

In October, 1983, plaintiffs commenced this action to recover $160,000, the amount of an alleged loan made by plaintiffs to Levy pursuant to an agreement dated January 2, 1977, plus interest and any increase in value of stock of the Flagstaff Corporation pledged as collateral for the loan. In his amended counterclaim, dated May 15, 1984, Levy alleged that plaintiffs had wrongfully seized shares of Compra, Ltd. (“Compra”) held as collateral for additional advances to Levy totalling $150,000. Levy has asserted that such seizure was carried out without notice to Levy of a contemplated foreclosure and in violation of a shareholders’ agreement according to Compra the right of first refusal. Levy seeks the return of 350 shares of Compra stock held by plaintiffs in exchange for all monies due plaintiffs less dividends declared on the Compra stock.

On August 17, 1984, this court, the Honorable Abraham D. Sofaer presiding, issued an order directing that the plaintiffs deposit with this court the 350 shares of Compra stock which Levy claims they wrongfully seized and that Levy pay plaintiffs $106,-000 on a loan unrelated to the Compra stock transaction. Judge Sofaer ordered that if Levy proved to be entitled to ownership of the stock, it would be delivered to him upon payment of any amount judicially determined to be owing plaintiffs. If plaintiffs were proved entitled to the stock, it would be returned to them.

On July 9, 1985, Summit commenced a lawsuit in Aruba, Netherlands Antilles, against Compra asking for a declaration that Summit is the possessor of 700 bearer shares of Compra. According to plaintiffs, the Netherlands Antilles action will decide the validity and existence of the shareholders’ agreement alleged in Levy’s counterclaim.

Facts

For purposes of this motion, plaintiffs’ version of the facts will be accepted as true. Wong is a citizen of the Netherlands, residing in Curacao, Netherlands Antilles. Summit is a corporation organized under [710]*710the laws of Cayman, British West Indies, having its principal office in Grand Cayman, British West Indies. Levy is now a resident of New York, but during the times relevant to the counterclaim was a resident of the Netherlands Antilles and New Jersey. Virtually all of the transactions at issue took place either in the Netherlands Antilles or otherwise beyond the jurisdiction of this court.

According to the plaintiffs, in 1975, while in the Netherlands Antilles, Levy sought to purchase 50 shares of Compra (then known as Jan Bodegam & Co.) stock which could be purchased for $150,000. Levy did not have the money to buy these shares and requested a short term loan from Summit which also wished to buy 50 Compra shares. Levy and Wong jointly formed Arncott, Ltd. (“Arncott”), a Grand Cayman, British West Indies corporation, to purchase and hold the Compra stock.

Arncott financed its purchase of 100 shares of Compra stock as follows: (i) Levy and his wife Diana (now deceased) borrowed $150,000 from Summit which he promised to repay in a short time; (ii) the Levys in turn loaned the $150,000 which they borrowed from Summit to Arncott in order to facilitate Arncott’s purchase of Compra stock; (iii) at the same time, Summit itself purchased 50 shares of Compra stock and deposited them with Arncott as its contribution to Arncott; (iv) with the $150,000 that it had borrowed from the Levys, Arncott in turn purchased 50 shares of Compra stock.

Despite Summit’s frequent requests for repayment, more than a year passed without any repayment by the Levys. At this time, the Levys requested an additional year within which to repay the $150,000 loan.

Plaintiffs agreed to the Levys’ request for an extension of the loan provided that the Levys agreed to memorialize the loan in writing, agreed to pay interest on the loan from the date it was originally made, and further agreed to provide plaintiffs with security for repayment of the loan in the form of a pledge of the Levys’ shares of Arncott as collateral. The Levys had already pledgéd the Compra shares, or their beneficial interest in them, to Summit and Wong at the time the loan was originally made to them.

The Levys consented to these terms and on January 2, 1977, executed a written agreement in Aruba, embodying each and all of these terms. The repayment of the loan was fully secured since Summit now owned or controlled virtually all of the stock of Arncott, which company in turn owned and held the Compra stock purchased with the proceeds of Summit’s loan to the Levys. When the loan became due pursuant to the written agreement in January, 1978, the Levys defaulted.

Over the course of the next several months following the default, plaintiffs made numerous demands for repayment of the loan. These demands were met by promises of repayment and pleas for further patience.

In the Spring of 1978, in Aruba, Levy told Wong that he was in deep financial trouble and that numerous creditors were about to foreclose on substantially all of the Levys’ assets. Since Levy did not have the money to repay the loan, he offered to transfer to plaintiffs the Compra stock which was purchased with the money plaintiffs had loaned him.

Plaintiffs accepted Levy’s offer. The transaction was accomplished as follows: (i) Arncott, with the consent of Wong, who controlled virtually all of the Arncott shares, sold to the Levys 50 of the 100 Compra shares which it owned in consideration of the cancellation of Arncott’s debt to the Levys; and (ii) the Levys, having thus acquired the 50 Compra shares from Arncott, sold them to Summit, in Aruba, in consideration of the cancellation of the Levys’ debt to Summit under the loan agreement.

Forum non conveniens

In determining whether to dismiss a case on grounds of forum non conveniens, a court must consider such “private factors” as the “relative ease of access to sources of proof,” the “availability of compulsory process for attendance of unwilling, and the [711]*711cost of obtaining attendance of willing witnesses,” enforceability of a judgment if one is obtained, and “all other practical problems that make trial of a case easy, expeditious and inexpensive.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). Although there is an “appropriateness” in trying a diversity case in a forum that is “at home with the ... law that must govern the case,” id. at 509, 67 S.Ct. at 843, applicability of foreign law is not in itself reason to dismiss a case on grounds of inconvenience. See Hoffman v. Goberman, 420 F.2d 423, 427 (3d Cir.1970); cf. Schertenleib v. Traum, 589 F.2d 1156, 1165 (2nd Cir.1978) (treating applicability of foreign law as only one of several factors to be considered).

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Related

Gulf Oil Corp. v. Gilbert
330 U.S. 501 (Supreme Court, 1947)
Louis Hoffman v. Allan N. Goberman
420 F.2d 423 (Third Circuit, 1970)
Francis Schertenleib v. Jerome S. Traum
589 F.2d 1156 (Second Circuit, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
660 F. Supp. 708, 1987 U.S. Dist. LEXIS 3634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/summit-ltd-v-levy-nysd-1987.