Aviation Technology & Turbine Service, Inc. v. Yusuf Bin Ahmed Kanoo Co., Ltd.

REPLY BRIEF to Opposition to Motion

D.N.J.June 26, 2017

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY AVIATION TECHNOLOGY & TURBINE SERVICE, INC., Plaintiff, v. YUSUF BIN AHMED KANOO CO., LTD, Defendant. Case No. 1:15-cv-07474-JHR-JS Oral Argument Requested Motion Date: July 3, 2017 DEFENDANT’S REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF MOTION TO DISMISS PLAINTIFF’S COMPLAINT DORSEY & WHITNEY LLP Dai Wai Chin Feman 51 West 52nd Street New York, New York 10019 Tel.: (212) 415-9200 Fax: (212) 953-7201 Katie Pfeifer (admitted pro hac vice) 50 South Sixth Street, Suite 1500 Minneapolis, MN 55402 Tel.: (612) 340-2600 Fax: (612) 340-2868 Attorneys for Defendant Case 1:15-cv-07474-JHR-JS Document 32 Filed 06/26/17 Page 1 of 15 PageID: 901 i TABLE OF CONTENTS RESPONSE TO PLAINTIFF’S STATEMENT OF FACTS ..........................................................1 ARGUMENT ...................................................................................................................................1 I. PLAINTIFF FAILS TO MEET ITS BURDEN TO ESTABLISH EFFECTIVE SERVICE ...........................................................................................1 II. THIS COURT LACKS SPECIFIC PERSONAL JURISDICTION OVER KANOO ...................................................................................................................5 III. SAUDI ARABIA IS A MORE APPROPRIATE FORUM FOR THE RESOLUTION OF THIS DISPUTE .......................................................................7 IV. PLAINTIFF FAILS TO STATE A CLAIM FOR RELIEF...................................10 CONCLUSION ..............................................................................................................................11 Case 1:15-cv-07474-JHR-JS Document 32 Filed 06/26/17 Page 2 of 15 PageID: 902 ii TABLE OF AUTHORITIES Page(s) Cases Alfadda v. Fenn, 966 F. Supp. 1317 (S.D.N.Y. 1997) ...........................................................................................9 Allaham v. Naddaf, 635 F. App’x 32 (3d Cir. 2015) .................................................................................................6 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................................................10 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................................10 Budget Rent A Car Sys., Inc. v. Missoula Acceptance Co., No. 08-2706, 2009 U.S. Dist. LEXIS 55393 (D.N.J. June 30, 2009) ........................................6 Burger King Corp. v. Rudewicz, 471 U.S. 462 (1985) ...................................................................................................................5 Gottlieb v. Sandia Am. Corp., 452 F.2d 510 (3d Cir. 1971).......................................................................................................3 Helicopteros Nacionales de Columbia, S.A., v. Hall, 466 U.S. 408 (1984) ...................................................................................................................5 Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) ...................................................................................................................7 ISPEC, Inc. v. Tex R.L. Indus., Inc., No. 12-4339, 2014 U.S. Dist. LEXIS 115787 (D.N.J. Aug. 20, 2014) .................................1, 2 Kisano Trade & Invest Ltd. v. Lemster, 737 F.3d 869 (3d Cir. 2013).......................................................................................................8 Knit With v. Knitting Fever, Inc., Nos. 08-4221, 08-4775, 2010 U.S. Dist. LEXIS 70412 (E.D. Pa. July 14, 2010) ..........................................................................................................................................2 Merco, Inc. v. S. Cal. Edison Co., No. 06-5182, 2007 U.S. Dist. LEXIS 29996 (D.N.J. Apr. 24, 2007) ........................................6 Monesgasque de Reassurances S.A.M. v. Nak Fatogaz of Ukraine, 311 F.3d 488 (2d Cir. 2002).......................................................................................................8 Case 1:15-cv-07474-JHR-JS Document 32 Filed 06/26/17 Page 3 of 15 PageID: 903 iii Nat’l Reprographics, Inc. v. Strom, 621 F. Supp. 2d 204 (D.N.J. 2008) ..........................................................................................10 O’Conner v. Sandy Lane Hotel Co., 496 F.3d 312 (3d Cir. 2007).......................................................................................................5 Rhodes v. ITT Sheraton Corp., 1999 Mass. Super. LEXIS 2 (Mass. Super. Ct. Jan 15, 1999) ...................................................9 Rosato v. Walt Disney Co., No. 11-7320, 2012 U.S. Dist. LEXIS 137126 (D.N.J. Aug. 27, 2012) .....................................5 Santiago v. ID&T, No. 15-7154, 2016 U.S. Dist. LEXIS 176535 (D.N.J. Dec. 21, 2016) ......................................5 Trump Taj Mahal Assocs. v. Hotel Servs., Inc., 183 F.R.D. 173 (D.N.J. 1998) ....................................................................................................2 VRG Corp. v. GKN Realty Corp., 641 A.2d 519 (N.J. 1994).........................................................................................................10 Walburn v. Rovema Packaging Machs., L.P., No. 07-3692, 2008 U.S. Dist. LEXIS 25369 (D.N.J. Mar. 28, 2008)........................................5 Walden v. Fiore, 134 S. Ct. 1115 (2014) ...............................................................................................................6 Other Authorities Fed. R. Civ. P. 4(f) ...........................................................................................................................2 Fed. R. Civ. P. 4(f)(2)(A) .................................................................................................................3 Fed. R. Civ. P. 4(f)(3) ......................................................................................................................2 Fed. R. Civ. P. 4(h) ..........................................................................................................................3 Fed. R. Civ. P. 4(h)(2)..................................................................................................................1, 2 Fed. R. Civ. P. 12(b)(2)....................................................................................................................7 Fed. R. Civ. P. 12(b)(5)....................................................................................................................5 Fed. R. Civ. P. 12(b)(6)............................................................................................................10, 11 Kingdom of Saudi Arabia, Bureau of Experts at the Council of Ministers, Official Trans. Dep’t, Law of Civil Procedures Article 17(c) (Royal Decree No. M/1, dated 22/1/1435H (Jan. 23, 2014)) (trans. 1st ed. 2016) ............................................................4 Case 1:15-cv-07474-JHR-JS Document 32 Filed 06/26/17 Page 4 of 15 PageID: 904 1 Defendant Yusuf Bin Ahmed Kanoo Company, Ltd. (“Kanoo”) submits this reply memorandum in further support of its Motion to Dismiss Plaintiff’s Complaint (“Motion”) [Dkt. No. 29], and in response to Plaintiff Aviation Technology & Turbine Service, Inc.’s (“Plaintiff”) Memorandum of Law in Opposition to Defendant’s Motion to Dismiss [Dkt. No. 31]. RESPONSE TO PLAINTIFF’S STATEMENT OF FACTS For purposes of judicial economy, Kanoo will not refute each of Plaintiff’s factual allegations here, but instead directs the Court’s attention to the comprehensive statement of the facts set forth in Kanoo’s Memorandum of Law in Support of Motion to Dismiss Plaintiff’s Complaint [Dkt. No. 29-2],1 as well as the arguments set forth below. ARGUMENT I. PLAINTIFF FAILS TO MEET ITS BURDEN TO ESTABLISH EFFECTIVE SERVICE Plaintiff fails to meet its burden to prove valid service on Kanoo. See ISPEC, Inc. v. Tex R.L. Indus., Inc., No. 12-4339, 2014 U.S. Dist. LEXIS 115787, at *7 (D.N.J. Aug. 20, 2014) (“[T]he party asserting the validity of service bears the burden of proof on that issue.”) (quotation omitted)). Federal Rule of Civil Procedure 4(h)(2) provides that, for “a place not within any judicial district of the United States,” service may be made “in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i)” (emphasis 1 This includes the declarations submitted therewith: the June 28, 2016 Declaration of Wael Abdulrahman Alissa (“First Alissa Decl.”) [Dkt. No. 29-19]; the June 29, 2016 Declaration of Ashfaq Ahmed (“First Ahmed Decl.”) [Dkt. No. 29-14] and Exhibits A-D thereto; the June 29, 2016 Declaration of Parvez Alam (“Alam Decl.”) [Dkt. No. 29-3]; the June 30, 2016 Declaration of Andrew Walter Denny (“Denny Decl.”) [Dkt. No. 29-5] and Exhibits 1-8 thereto; the August 9, 2016 Declaration of Ashfaq Ahmed (“Second Ahmed Decl.”) [Dkt. No. 29-22]; the August 9, 2016 Declaration of Mustafa Danish (“Danish Decl.”) [Dkt. No. 29-4]; the August 10, 2016 Declaration of Wael Abdulrahman Alissa (“Second Alissa Decl.”) [Dkt. No. 29-23] and Exhibit A thereto; the August 10, 2016 Declaration of Abdul Jaleel (“Jaleel Decl.”) [Dkt. No. 29-20]; and the May 21, 2017 Declaration of Roomi Quereshi (“Quereshi Decl.”) [Dkt. No. 29-21] and Exhibit AA thereto. Case 1:15-cv-07474-JHR-JS Document 32 Filed 06/26/17 Page 5 of 15 PageID: 905 2 added). That is precisely the manner in which Plaintiff attempted service, by requesting and receiving an ex parte “Order to Appoint Special Process Service to Serve a Corporation in a Foreign Country.” [Dkt. No. 6] (“Order for SPS”). Yet, Plaintiff’s request for “special process service” was specifically prohibited by Rule 4(h)(2). By its very language, personal delivery alone is not appropriate when serving a foreign corporation. See Trump Taj Mahal Assocs. v. Hotel Servs., Inc., 183 F.R.D. 173, 179 (D.N.J. 1998) (concluding that personal service on an officer of a foreign corporation was ineffective under Rule 4(h)(2)). Plaintiff attempts to distinguish Trump Taj Mahal by arguing that service there “involved personal service upon a company’s corporate office in England, a Hague signatory.” Pl. Mem. at 6-7. But there is nothing in the case to indicate that Rule 4(h)(2) only applies where a country is a Hague signatory. In addition, other courts have concluded that the prohibition outlined in Rule 4(h)(2) also applies to non-Hague signatories. See, e.g., ISPEC, Inc., 2014 U.S. Dist. LEXIS 115787, at *4 (holding that personal service on Taiwanese, non-signatory corporation was ineffective under Rule 4(h)(2)). Plaintiff further argues that service of process was effective under Federal Rule of Civil Procedure 4(f)(3) because the Court granted the Order for SPS; Plaintiff cites Knit With v. Knitting Fever, Inc., Nos. 08-4221, 08-4775, 2010 U.S. Dist. LEXIS 70412, at *30-31 (E.D. Pa. July 14, 2010) as support for its position. But, there, the court simply stated that a court is allowed to fashion an appropriate form of service upon a plaintiff’s request. Id. The court did not hold that a court may allow for service in a manner expressly prohibited elsewhere in the Federal Rules. Even if Plaintiff could have served Kanoo by personal delivery, Plaintiff failed to serve Kanoo consistent with the Court’s Order for SPS in that it did not serve “an officer, a managing Case 1:15-cv-07474-JHR-JS Document 32 Filed 06/26/17 Page 6 of 15 PageID: 906 3 or general agent, or [] any other agent authorized by appointment or by law to receive service of process,” as required by the Order for SPS. [Dkt. No. 6]. Plaintiff purported to serve Mr. Abdul Jaleel, who was not, and never has been, authorized to accept service on behalf of Kanoo. Jaleel Decl. ¶ 3; Danish Decl. ¶ 2. As discussed in Kanoo’s initial memorandum, Mr. Jaleel was not an “officer” or “managing or general agent” of Kanoo. Rather, Mr. Jaleel was a secretary with Kanoo’s Travel Division. Service on such an employee, who has no authority to exercise discretion on behalf of the company, is not proper under Rule 4(h) or under Saudi Arabian law. See Gottlieb v. Sandia Am. Corp., 452 F.2d 510, 513 (3d Cir. 1971) (defining a “general agent” as one who has “broad executive responsibilities,” and exercises them on a continuing bases as opposed to sporadically); Second Alissa Decl. ¶ 9 (explaining that service of process on a person lacking the written authorization or holding a validly issued power of attorney is improper). Nor was service proper under Federal Rule of Civil Procedure 4(f)(2)(A) as Plaintiff did not serve Kanoo “by a method … prescribed by the foreign country’s law for service in that country.” The purported service here does not meet the requirements of Saudi Arabian law. This fact is thoroughly demonstrated by the detailed August 10, 2016 Declaration of Wael Abdulrahman Alissa, an attorney licensed by the Ministry of Justice in the Kingdom of Saudi Arabia. See Second Alissa Decl. ¶¶ 5-6, 8-9, 10-12. Consistent with Mr. Alissa’s declaration, service on a corporation must be made pursuant to the updated Article 17 of the Law of Procedure Before Shari’ah Courts (“Law of Procedure”). See id. ¶ 6 (to the company’s director(s), a person acting on their behalf, or a person representing the director(s)).2 Further, 2 See also Kingdom of Saudi Arabia, Bureau of Experts at the Council of Ministers, Official Trans. Dep’t, Law of Civil Procedures Article 17(c) (Royal Decree No. M/1, dated 22/1/1435H (Jan. 23, 2014)) (trans. 1st ed. 2016) [hereinafter “Law of Procedure”], available at http://www.alkarama.org/en/documents/law-procedure-sharia-courts-0 (last visited June Case 1:15-cv-07474-JHR-JS Document 32 Filed 06/26/17 Page 7 of 15 PageID: 907 4 Article 13 of the Law of Procedure requires the “signature [of the person receiving process] on the original.” Id. ¶ 5.3 There is no such signature on the purported proof of service, see August 1, 2016 Declaration of Jeffrey P. Resnick, Exhibit I [Dkt. No. 19-22], which renders service deficient in Saudi Arabia.4 In response to Mr. Alissa’s two declarations extensively detailing the Law of Procedure, as it is interpreted and applied in the Kingdom of Saudi Arabia, Plaintiff simply references, and self-servingly interprets, an outdated version of the law for the proposition that Saudi Arabia’s service laws do not require service on a company’s director. Pl. Mem. at 7. As the Second Alissa Declaration clearly demonstrates, the Law of Procedure has, naturally, been updated since 2000 (the version cited by Plaintiff). Plaintiff offers no evidence to rebut the legal authority cited in Mr. Alissa’s declarations, and therefore cannot meet its burden to prove effective service of process.5 26, 2017) (providing for service “with respect to companies, associations, and private establishments: to their managers or designees”). 3 See Law of Procedure Article 13(e) (requiring process to include “name and capacity of the person receiving the copy of the notification and his signature on the original, or a document showing his refusal and reason therefor”). 4 Similarly, Plaintiff’s argument that Mr. Jaleel’s title as “Office-in-Charge” authorized him to accept service as a person “acting for [defendant]” is without merit as Plaintiff relies on an incorrect statement of Saudi Arabian law and misunderstands Mr. Jaleel’s position. Pl. Mem. at 7. 5 Plaintiff’s ad hominem attacks on Mr. Andrew Walter Denny do nothing to satisfy Plaintiff’s burden to show effective service and are otherwise irrelevant. Pl. Mem. at 7, 8-9. Mr. Denny submitted a sworn affidavit attesting that he “had no knowledge that the [March 21, 2016] delivery of the complaint was purportedly formal service of process.” Denny Decl. ¶ 18. Mr. Denny was not served with process, despite prior correspondence with Plaintiff’s counsel and a direction that “all correspondence should be directed to [Mr. Denny].” Id. ¶ 17. That Mr. Denny previously rejected Plaintiff’s request for an executed waiver of service, and that the complaint allegedly served contained no letter requesting waiver, does not somehow indicate valid service. Plaintiff simply has produced no evidence that service was proper under United States or Saudi Arabian law, regardless of Mr. Denny’s personal knowledge. Case 1:15-cv-07474-JHR-JS Document 32 Filed 06/26/17 Page 8 of 15 PageID: 908 5 For these reasons, Kanoo respectfully requests that the Court dismiss Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(5). II. THIS COURT LACKS SPECIFIC PERSONAL JURISDICTION OVER KANOO Plaintiff’s Complaint must also be dismissed as Kanoo is not subject to the personal jurisdiction of this Court. Specifically, Kanoo has not purposefully directed business to New Jersey, there is an insufficient “nexus” between this jurisdiction and the facts giving rise to Plaintiff’s claims, and the exercise of jurisdiction here would offend notions of fair play and substantial justice. First, Kanoo has not purposefully directed its business to New Jersey as it has not “deliberate[ly] targeted” the forum state. Santiago v. ID&T, No. 15-7154, 2016 U.S. Dist. LEXIS 176535, at *7 (D.N.J. Dec. 21, 2016) (quoting O’Conner v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007)). Rather, Kanoo’s connection with the State of New Jersey is purely fortuitous, as the forum happens to be where Plaintiff has its principal place of business. As discussed extensively in Kanoo’s initial memorandum, this “unilateral” action of the Plaintiff (i.e., operating out of New Jersey) is not sufficient to establish jurisdiction over Kanoo. Def. Mem. at 13-14, citing Helicopteros Nacionales de Columbia, S.A., v. Hall, 466 U.S. 408, 416 (1984); Burger King Corp. v. Rudewicz, 471 U.S. 462, 475 (1985); Rosato v. Walt Disney Co., No. 11-7320, 2012 U.S. Dist. LEXIS 137126, at *20-21 n.6 (D.N.J. Aug. 27, 2012); Walburn v. Rovema Packaging Machs., L.P., No. 07-3692, 2008 U.S. Dist. LEXIS 25369, at *19-20 (D.N.J. Mar. 28, 2008). Notably, Plaintiff does not address this line of cases in its opposition memorandum. Second, Plaintiff’s claims cannot “arise out of or relate to” Kanoo’s purposefully-directed in-state activities when such activities do not exist. Even if they did, Kanoo’s actions related to the State of New Jersey itself do not constitute sufficient minimum contacts to confer personal Case 1:15-cv-07474-JHR-JS Document 32 Filed 06/26/17 Page 9 of 15 PageID: 909 6 jurisdiction. See Def. Mem. at 14-15, citing, e.g., Merco, Inc. v. S. Cal. Edison Co., No. 06- 5182, 2007 U.S. Dist. LEXIS 29996, at *12 (D.N.J. Apr. 24, 2007) (“[T]hat a non-resident purchaser caused activity in the forum state by placing an order with a resident does not establish sufficient minimum contacts to permit the exercise of personal jurisdiction over the non-resident purchaser.”). Plaintiff attempts to distinguish Merco and the other cases Kanoo cites for its minimum contacts argument, but fails to identify any additional contacts between Kanoo and the forum state itself other than those referenced in the cases. See Pl. Mem. at 11 (simply stating that “defendant … did more” than place calls, send orders, and send payments to New Jersey). Instead, Plaintiff argues that Kanoo “actively sought contract negotiations with a company headquartered in New Jersey,” and that “[t]he parties had a longstanding business relationship.” Id. at 10. A relationship with a party, however, cannot serve as the basis for jurisdiction. See Allaham v. Naddaf, 635 F. App’x 32, 41-42 (3d Cir. 2015) (“[A] defendant’s relationship with a plaintiff … is an insufficient basis for jurisdiction.”); Budget Rent A Car Sys., Inc. v. Missoula Acceptance Co., No. 08-2706, 2009 U.S. Dist. LEXIS 55393, at *19 (D.N.J. June 30, 2009) (“[T]he fact that a non-resident had a contractual relationship with a resident of a forum is not sufficient to confer … jurisdiction over that non-resident.”). Here, Kanoo’s only link to the State of New Jersey is its contractual relationship with Plaintiff, and “the plaintiff cannot be the only link between the defendant and the forum.” Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014). Finally, exercising personal jurisdiction over Kanoo would “offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Litigating this action in New Jersey would pose a burden on Kanoo outweighing any interest Plaintiff or the State of New Jersey has in resolving the matter in this forum. While the State Case 1:15-cv-07474-JHR-JS Document 32 Filed 06/26/17 Page 10 of 15 PageID: 910 7 does have an interest in providing relief for its resident, such relief also may be had in the courts of Saudi Arabia-where Plaintiff has an office. Plaintiff’s assertion that the facility it maintains in Saudi Arabia is merely a “staffing office” is immaterial. Pl. Mem. at 12. Plaintiff clearly does enough business in Saudi Arabia to staff an entire office of individuals to facilitate transactions, process sales, and handle communications. Id. Moreover, representatives from Plaintiff’s office in Saudi Arabia refer to the facility as the “KSA Address” of “ATTS-Inc.,” and refer to it in connection with Plaintiff’s Marlton, New Jersey office. See Quereshi Decl. Ex. AA at 2, 4. Whether the Saudi Arabian office is legally registered is immaterial for these purposes, as its existence nevertheless indicates Plaintiff would not be deeply inconvenienced by litigating in Saudi Arabia. Because (i) Kanoo did not purposefully direct its activities to the forum state, (ii) the claims in the Complaint do not “arise out of or relate to” Kanoo’s non-existent connections to the state, and (iii) this Court’s exercise of personal jurisdiction over Kanoo would be unfair and against the interests of justice, the Court should dismiss Plaintiff’s Complaint for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). III. SAUDI ARABIA IS A MORE APPROPRIATE FORUM FOR THE RESOLUTION OF THIS DISPUTE Even if the Court finds it has jurisdiction over Kanoo, the Court should nevertheless dismiss the action on forum non conveniens grounds. Courts have identified four general factors to guide the forum non conveniens analysis: (1) the amount of deference to be afforded to plaintiffs’ choice of forum; (2) the availability of an adequate alternative forum where defendants are amenable to process and plaintiffs’ claims are cognizable; (3) relevant “private interest” factors affecting the convenience of the litigants; and (4) relevant “public interest” factors affecting the convenience of the forum. Case 1:15-cv-07474-JHR-JS Document 32 Filed 06/26/17 Page 11 of 15 PageID: 911 8 Kisano Trade & Invest Ltd. v. Lemster, 737 F.3d 869, 873 (3d Cir. 2013). The balance of these factors demonstrates that Saudi Arabia is a more appropriate forum for this litigation. First, while Plaintiff has chosen to bring suit in its home forum, this factor “cannot be given dispositive weight.” Monesgasque de Reassurances S.A.M. v. Nak Fatogaz of Ukraine, 311 F.3d 488, 497 (2d Cir. 2002). Plaintiff’s choice of forum is entitled to little deference where “an alternative forum has jurisdiction to hear the case, and when trial in the plaintiff’s chosen forum would establish … oppressiveness and vexation to a defendant … out of all proportion to plaintiff’s convenience.” Kisano, 737 F.3d at 873 (quotations omitted). Here, as Kanoo demonstrated in its initial memorandum, any convenience to Plaintiff in litigating in New Jersey is heavily outweighed by the burden suffered by Kanoo in being forced to litigate in this forum. Second, Saudi Arabia is an adequate alternative forum where Kanoo is amenable to process and Plaintiff’s claims are cognizable. Saudi Arabia’s legal system has a defined set of civil procedures allowing parties to adjudicate disputes in local courts. First Alissa Decl. ¶ 4. Saudi Arabia also recognizes, gives deference to, and will uphold choice of law and forum clauses in contractual arrangements, particularly where Saudi Arabian law is chosen as the governing law. Id. The Commercial Court in Saudi Arabia is well versed in handling commercial disputes arising between entities, particularly contractual disputes and other complex litigation. Id. The facts of this case, and the law they implicate, are not complicated. Rather, Plaintiff attempts to assert a straightforward breach of contract claim, and, failing that, a claim for equitable relief. The Commercial Court is clearly equipped to adjudicate this dispute. The case cited by Plaintiff for the proposition that Saudi Arabian courts are inadequate, is, like the law Plaintiff cites for its service argument, outdated and unpersuasive. In Rhodes, a Massachusetts state court did not find that Saudi Arabia would be an inadequate alternative Case 1:15-cv-07474-JHR-JS Document 32 Filed 06/26/17 Page 12 of 15 PageID: 912 9 forum. See Rhodes v. ITT Sheraton Corp., 1999 Mass. Super. LEXIS 2, at *5 (Mass. Super. Ct. Jan 15, 1999) (“My finding regarding the private and public interests in this case renders a final determination as to the adequacy of a Saudi forum unnecessary.”). Instead, the court merely held that “plaintiff would face significant procedural disadvantages in Saudi Arabia,” citing publications from the 1980s to describe the deficiencies in Saudi Arabian civil procedure. Id. Plaintiff also fails to note that the Rhodes court listed a series of cases where Saudi Arabia was considered an adequate alternative forum for forum non conveniens purposes. Id. at *5 (collecting appellate and district-level federal decisions). As is clear from Mr. Alissa’s declarations-which stand undisputed by Plaintiff through actual evidence-Saudi Arabian law has evolved significantly over the last 18 years. The fact that Mr. Alissa does not specify the exact remedy available in Saudi Arabian courts does not render Saudi Arabia an inappropriate forum to hear this dispute. Third, private and public factors weigh in favor of this dispute being decided in Saudi Arabia. Private factors, such as access to sources of proof and convenience of the litigants, weigh in favor of litigating the case in Saudi Arabia.6 The purchase orders at issue involved shipments of gas turbine parts to Saudi Arabia and much of the relevant evidence and witnesses are located abroad. Plaintiff’s assertion that “more witnesses are from this District than Saudi Arabia” is wholly speculative. Pl. Mem. at 14. And that Plaintiff has an office in Saudi Arabia-regardless of whether it is “legally registered” or staffed through a third party-strongly suggests that litigation abroad would not be prohibitive for Plaintiff. Plaintiff, a sophisticated, 6 That a company related to Kanoo willingly submitted to the jurisdiction of a different federal court 20 years ago does not affect the convenience evaluation. See Pl. Mem. at 16 (citing Alfadda v. Fenn, 966 F. Supp. 1317 (S.D.N.Y. 1997). The facts and legal dispute in Alfadda-federal securities fraud under United States law-are wholly unrelated to the type of dispute here. Case 1:15-cv-07474-JHR-JS Document 32 Filed 06/26/17 Page 13 of 15 PageID: 913 10 multi-national corporation, clearly does a significant amount of business in the Middle East. Finally, Saudi Arabian law governs the contracts at issue here. See First Ahmed Decl., Ex. D. It is in both parties’ interest, as well as the public’s interest, to have this dispute decided by a court that is well-versed in the application of Saudi Arabian law. Because Saudi Arabia is an appropriate alternative forum, allowing for service of process and the litigation of the contract dispute at issue, and because both litigant convenience and public interest concerns strongly favor resolving the dispute in Saudi Arabia, the Court should dismiss Plaintiff’s Complaint on forum non conveniens grounds. IV. PLAINTIFF FAILS TO STATE A CLAIM FOR RELIEF If this Court reaches the merits of Plaintiff’s Complaint, the Court should dismiss the Complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). Plaintiff’s claims for breach of contract and unjust enrichment both fail for the same reason-Plaintiff does not sufficiently plead the existence of any amount “due or owing” under any contract, Nat’l Reprographics, Inc. v. Strom, 621 F. Supp. 2d 204, 222 (D.N.J. 2008), nor does it properly plead that Kanoo “received a benefit and that retention of the benefit without payment would be unjust.” VRG Corp. v. GKN Realty Corp., 641 A.2d 519, 526 (N.J. 1994). As such, Plaintiff does not plead “plausible” claims for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plaintiff argues that it sufficiently pleads all elements of a contract. In doing so, Plaintiff points to the exact provisions of the Complaint cited by Kanoo in its initial brief. Pl. Mem. at 21; Def. Mem. at 24. These allegations, however, cannot possibly state a claim for relief. Plaintiff utterly fails to allege any facts suggesting Plaintiff actually provided a 2009 offer quoting prices for the transition pieces and combustion baskets above and beyond the price previously quoted in Case 1:15-cv-07474-JHR-JS Document 32 Filed 06/26/17 Page 14 of 15 PageID: 914 11 2007, and later paid by Kanoo. Because it fails to allege any amount that is “due and owing,” Plaintiff also fails to allege any inequitable retention of benefits by Kanoo. Because Plaintiff’s factual allegations as to its breach of contract and unjust enrichment claims are insufficient under the Iqbal-Twombly plausibility standard, this Court should dismiss the entire Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). CONCLUSION For the reasons stated above, and in its May 22, 2017 initial memorandum of law, Kanoo respectfully requests that this Court dismiss Plaintiff’s Complaint in its entirety. June 26, 2017 Respectfully submitted, /s/ Dai Wai Chin Feman DORSEY & WHITNEY LLP Dai Wai Chin Feman 51 West 52nd Street New York, New York 10019 Tel.: (212) 415-9200 Fax: (212) 953-7201 Katie Pfeifer (admitted pro hac vice) 50 South Sixth Street, Suite 1500 Minneapolis, Minnesota 55402 Tel.: (612) 340-2600 Fax: (612) 340-2868 Attorneys for Defendant Case 1:15-cv-07474-JHR-JS Document 32 Filed 06/26/17 Page 15 of 15 PageID: 915