     11-347-cv
     Dominion Bulk Chartering Ltd. v. America Metals Trading LLP

                          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 FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 18th day of April, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                PIERRE N. LEVAL,
 9                ROBERT A. KATZMANN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       DOMINION BULK CHARTERING LTD.,
14                Plaintiff-Appellant,
15
16                    -v.-                                               11-347-cv
17
18       AMERICA METALS TRADING LLP,
19                Defendant-Appellee.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Peter Skoufalos (Patrick R.
23                                             O’Mea, on the brief), Brown
24                                             Gavalas & Fromm LLP, New York,
25                                             New York.
26
27       FOR APPELLEE:                         Garth S. Wolfson, Mahoney &
28                                             Keane, LLP, New York, New York.
29
30
 1        Appeal from a judgment of the United States District
 2   Court for the Southern District of New York (Marrero, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Plaintiff Dominion Bulk Chartering Ltd. appeals from
 9   the district court’s judgment and order vacating the ex
10   parte Process of Maritime Attachment and Garnishment that it
11   obtained over the funds of defendant America Metals Trading
12   LLP. We assume the parties’ familiarity with the underlying
13   facts, the procedural history, and the issues presented for
14   review.
15
16        We review for abuse of discretion the district court’s
17   decision to vacate the Process of Maritime Attachment and
18   Garnishment. Shipping Corp. of India Ltd. v. Jaldhi
19   Overseas Pte Ltd., 585 F.3d 58, 66 (2d Cir. 2009) (mini in
20   banc). We review the district court’s underlying findings
21   of fact for clear error. Aqua Stoli Shipping Ltd. v.
22   Gardner Smith Pty Ltd., 460 F.3d 434, 439 (2d Cir. 2006),
23   overruled on other grounds by Jaldhi Overseas, 585 F.3d at
24   61.
25
26        “Maritime attachments serve a dual purpose: first, to
27   obtain jurisdiction of the defendant in personam through its
28   property, and second, only as an adjunct to obtaining
29   jurisdiction, to secure any eventual judgment in plaintiff’s
30   favor.” Amber Int’l Navigation, Inc. v. Repinter Int’l
31   Shipping Co., S.A., No. 09 Civ. 3897, 2009 WL 1883251, at *2
32   (S.D.N.Y. June 30, 2009) (internal quotation marks and
33   alterations omitted and emphasis added). “Accordingly, a
34   Rule B attachment is available--pursuant to the express
35   terms of the Rule--only if the defendant ‘is not found
36   within the district.’” Id. “[T]o be found within the
37   jurisdiction so as to render an attachment inappropriate,
38   the [defendant] must not only be found for service of
39   process, but also be engaged in sufficient activity in the
40   district to subject it to jurisdiction even in the absence
41   of a resident agent expressly authorized to accept process.”
42   ProShipLine, Inc. v. Aspen Infrastructures, Ltd., 585 F.3d
43   105, 111-12 (internal quotation marks and footnote omitted);
44   see also STX Panocean (UK) Co. v. Glory Wealth Shipping Pte.
45   Ltd., 560 F.3d 127, 130-31 (2d Cir. 2009) (per curiam). We
46   have held that a defendant registered with New York’s
47   Department of State is “found” within the jurisdiction for

                                  2
 1   purposes of Rule B. STX Panocean, 560 F.3d at 133; see also
 2   Transfield ER Cape Ltd. v. Indus. Carriers, Inc., 571 F.3d
 3   221, 224 (2d Cir. 2009).
 4
 5        In vacating the order of attachment, the district court
 6   evaluated “the entire record,” including “the
 7   documents . . . presented,” and the testimony given at an
 8   evidentiary hearing. J.A. Vol. II at 408. The district
 9   court’s decision was not an abuse of discretion: America
10   Metals has a general agent, America Metals Trading (USA)
11   Inc., that is registered with New York’s Department of State
12   and is present and doing business in New York, J.A. Vol. I
13   at 24; America Metals itself does business in New York, J.A.
14   Vol. I at 23; at least some agreements between America
15   Metals and Dominion Bulk provide for arbitration in New
16   York, J.A. Vol. I at 33, 46; it was shown that the president
17   of America Metals USA attends meetings in New York on a
18   regular basis (and does so on behalf of America Metals),
19   J.A. Vol. II at 328, 337, and that America Metals USA
20   solicits business in New York on behalf of America Metals,
21   J.A. Vol. II at 353.
22
23        Contrary to Dominion Bulk’s objections, America Metals
24   USA, acting as America Metals’ registered general agent,
25   could accept service of process in New York on behalf of
26   America Metals. See Top Form Mills, Inc. v. Sociedad
27   Nationale Industria Applicazioni Viscosa, 428 F. Supp. 1237,
28   1250 (S.D.N.Y. 1977) (stating that “in the case of a foreign
29   corporation or partnership found to be doing business in New
30   York by virtue of the activities of its local agent, proper
31   service of process on that agent is considered valid service
32   on the foreign defendant”).
33
34        Finding no merit in Dominion Bulk’s remaining
35   arguments, we hereby AFFIRM the judgment of the district
36   court.
37
38
39                              FOR THE COURT:
40                              CATHERINE O’HAGAN WOLFE, CLERK
41
42
43




                                  3
