09-5040-cv
Pricaspian v. Total


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 21st day of October, two thousand and ten.

Present:        AMALYA L. KEARSE,
                ROSEMARY S. POOLER,
                PETER W. HALL
                           Circuit Judges.

_____________________________________________________

PRICASPIAN DEVELOPMENT CORPORATION,

                                                     Plaintiff-Appellant,

                        -v-                                         09-5040-cv

TOTAL S.A.,

                                                     Defendant-Appellee.


Appearing for Appellant:      Daniel L. Abrams, Law Office of Daniel L. Abrams, PLLC, New
                              York, New York.

Appearing for Appellee:       Jennifer Lee Price and John P. Bowman, King & Spalding, LLP,
                              Houston, Texas.




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       Appeal from the United States District Court for the Southern District of New York
(Pauley, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Pricaspian Development Corp. appeals from the November 25, 2009 memorandum and
order of the United States District Court for the Southern District of New York (Pauley, J.)
granting defendant’s motion to dismiss made pursuant to Fed. R. Civ. P. 12(b)(6). The district
court ruled that the complaint is barred by principles of res judicata, a prior judgment having
dismissed similar claims on the ground that they are barred by the statute of limitations. We
assume the parties’ familiarity with the underlying facts, procedural history, and specification of
issues for review.

        Pricaspian is the successor-in-interest to certain rights allegedly held by Jack Grynberg in
the development of an oil field under the Caspian Sea in northwestern Kazakhstan. Both
Pricaspian and Grynberg have attempted - thus far in vain - to persuade a variety of federal
courts that they are entitled to a share of the profits related to the development of the oil field.
See Grynberg Prod. Corp. v. Eni S.p.A., No. 06 Civ. 6495, 2009 WL 2482181 (S.D.N.Y.
Aug.13, 2009); Grynberg v. BP P.L.C., 643 F.Supp.2d 1 (D. D.C.2009); Pricaspian Dev. Corp.
(Texas) v. Royal Dutch Shell, P.L.L.C. No. 08 Civ. 9726, 2009 WL 1564110 (S.D.N.Y. June 3,
2009), aff’d 2010 WL 2588193 (2d Cir. June 29, 2010); Grynberg v. BP, P.L.C., No. 08 Civ.
6494, 2008 WL 4450277 (S.D.N.Y. Oct.1, 2008); Grynberg v. Total Compagnie Francaise des
Petroles, No. 03 Civ. 1280 (WYD)(BNB), 2006 WL 1517731 (D. Colo. May 31, 2006), aff'd sub
nom. Grynberg v. Total S.A., 538 F.3d 1336 (10th Cir. 2008), cert. denied, --- U.S. ----, 129 S.Ct.
1585 (2009); Grynberg v. Shell Exploration B.V., 433 F.Supp.2d 1229 (D. Colo. 2006), aff'd sub
nom. Grynberg v. Total S.A., 538 F.3d 1336 (10th Cir. 2008), cert. denied, --- U.S. ----, 129
S.Ct. 1585 (2009); Grynberg v. BP Exploration, No. 04 Civ. 1622, 2004 WL 1962079 (S.D.N.Y.
Sept.2, 2004).

       Pricaspian is a Texas corporation with its principal place of business in Colorado.
Defendant Total S.A. is a French corporation that does business in New York through at least
two wholly owned affiliates. The complaint alleges that Grynberg, through the development of
close personal relationships with Russian officials, was permitted to analyze a “highly sensitive,
very valuable, confidential seismic data set” pertaining to the Caspian Sea. Grynberg was able
to deduce from the data that large hydrocarbon deposits existed below the Caspian Sea. The
complaint alleges that Total obtained valuable information regarding the hydrocarbon deposits
from Grynberg in exchange for promising Grynberg a share in the net profits flowing from any
agreement Total was able to reach with the government of Kazakhstan for the production of oil
and natural gas.

       On or about October 31, 2008, a consortium of Western oil companies, including Total
signed an agreement to develop the hydrocarbon resources in question (the “October
Agreement”). Total’s share of the consortium is 16.81 percent.

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        Pricaspian filed suit in the Southern District of New York on November 12, 2008. The
complaint sought a declaratory judgment for “expected unjust enrichment flowing from profits”
that are expected in approximately 2014, when commercial oil production is expected to reach a
profitable level.

         Pricaspian first argues that New York’s borrowing statute does not apply because its
claim for unjust enrichment does not accrue until Total actually turns a net profit sometime in
2014-2015, thus its claim cannot be time barred. Pricaspian’s argument fails because under New
York law, a cause of action for unjust enrichment accrues “upon the occurrence of the wrongful
act giving rise to a duty of restitution.” Golden Pacific Bancorp v. Fed. Deposit Ins. Corp., 273
F.3d 509, 520 (2d Cir. 2001) (internal citation marks omitted). Pricaspian is conflating the
damages for unjust enrichment with the wrongful act. Even assuming arguendo that Total has
yet to pay itself any money, the “wrongful act” giving rise to the claim for unjust enrichment
here was the misappropriation of Grynberg’s confidential information, not the payment of money
for the use of that information.

        Pricaspian next argues that the district court erred in applying Colorado’s accrual
provisions for an unjust enrichment claim in its analysis of New York’s borrowing statute,
N.Y. C.P.L.R. § 202. Again, this is incorrect. The New York Court of Appeals holds that “[i]n
borrowing the foreign statute, all the extensions and tolls applied in the foreign statute must be
imported with the foreign statutory period, so that the entire foreign statute of limitations applies,
and not merely its period.” Smith Barney, Harris Upham & Co. v. Luckie, 85 N.Y.2d 193, 207
(1995) (internal citation omitted), abrogated on other grounds by Mastrobuono v. Shearson
Lehman Hutton, 514 U.S. 52 (1995). Here, the parties do not dispute that Pricaspian is properly
considered resident in Colorado, and that Colorado is the place where it sustained its alleged
injury.

       The district court conducted a proper res judicata analysis and correctly determined that
because similar claims raised in the District of Colorado were dismissed as untimely, and that
dismissal was affirmed by the Tenth Circuit in Grynberg v. Total S.A., 538 F.3d 1336 (10th Cir.
2008), Pricaspian’s claims were also time-barred in New York due to the operation of the
borrowing statute.

       We have examined the remainder of Pricaspian’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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