D'Amico Dry D.A.C. v. Primera Mar. (Hellas) Ltd.

J. Credibility of Paul Coronis 148. Much of the testimony from Paul Coronis was not credible and his testimony cannot be relied upon. But the defendants rely on the testimony of Paul Coronis in their attempt to defeat the allegations of alter ego liability. Primera Ex. RR at 1. According to Primera's Law 89 documents, the sole Officer and Director of Primera from December 5, 1991 to November 21, 2008 was Nicholas Coronis. Furthermore, the sole shareholder of Primera was listed as Nicholas Coronis. Ex. 92 129, 241-43; Tr. at 166-67. 154. Paul Coronis testified that the office equipment used by both Primera and Primebulk belonged to the office and the landlord. Tr. at 222. The building was owned by Paul Coronis, Chianna Coronis, and Jonathan Coronis; therefore, any equipment belonging to the landlords would have also belonged to the Coronis family. Tr. at 161. However, Primebulk's lease does not list any furniture or equipment to be provided by the landlord or the building. Tr. at 224. 155. Throughout the trial, Paul Coronis testified that he was acting on behalf of the Board of Directors for varying companies. See, e.g., Tr. at 183-84, 200-01, 213-15, 249. The Boards included a combination of Coronis family members and their attorneys. See, e.g., Tr. at 174, 198, 249; Exs. 23, 69, 73, 77, 87; Ex. 92 at 219.

K. The Defendants' Production of Documents was Deficient 156. In the course of this litigation Primera has produced only a handful of corporate documents, no banking records, and was unable to produce any witness in response to d'Amico Dry's 30(b)(6) Notice of Deposition. Tr. at 170-71. 157. The Primera corporate records were kept in a cupboard in Primera's office at 6 Roupel Street. Tr. at 161, 169-70. 158. Paul Coronis admitted that he failed to produce documents in this proceeding because he deemed them irrelevant. Tr. at 232-33. 159. Paul Coronis testified that the alter ego defendants had Board of Directors meetings once a month or when a significant decision took place. Tr. at 339. The minutes from these meetings have not been produced in this litigation. 160. The. meeting minutes produced in this litigation are inadequate to establish respect of corporate formalities in light of the fact that they are identical or near identical copies. See, e.g., (1) Primebulk: Ex. 37; Tr. at 293-95; Sonic et al. Ex. C at 351-55; (2) Bulknav: Sonic et al. Ex. E at 747-53; (3) Seasatin: Sonic et al. Ex. N at 1140-43; (4) Annamar: Sonic et al. Ex. R at 2858-62; (5) Seasafe: Sonic et al. Ex. Q at 2340-44. (6) Chemnav Shipmanagement: Sonic et al. Ex. S at 3516-21.

L. The Proceedings and Personal Jurisdiction 161. On September 9, 2009, d'Amico Dry commenced this action against Primera in this Court. 162. On December 23, 2010, d'Amico Dry amended its complaint to add the alter ego cause of action and the alter ego defendants. Dkt. No. 64. 167. In the time between the decision in Daimler and the defendants' April 16, 2018 letter, the appearing defendants:

Answered d'Amico Dry's amended complaint without mentioning Daimler, Dkt. Nos. 176, 178-79;

Filed two motions to dismiss the amended complaint on grounds other than lack of personal jurisdiction, Dkt. Nos. 153-58, 163-65, 186-87, 196-97;

Raised numerous pretrial discovery issues with the Court, Dkt. Nos. 173, 218, 221, 227, 231, 236;

Participated in a Court-supervised settlement conference, Dkt No. 216 and ECF entry on November 30, 2015;

Participated in several conferences with the Court, see, e.g., Dkt. Nos. 136-37, 151-52, 183-84, 246, 265;

Signed onto a joint pretrial order, Dkt. No. 250;

Submitted pretrial findings of fact and conclusions of law, Dkt. Nos. 251, 254, 256;

Participated in a four-day bench trial (May 9-12, 2016); and

Submitted posttrial findings of fact and conclusions of law, Dkt. Nos. 299, 302-05, 307.

A. Personal Jurisdiction over Primera and the Other Appearing Defendants 1. The Supreme Court's decision in Daimler established that, except in an "exceptional" case, a corporate defendant may be treated as "essentially at home," and subject to a state's general personal jurisdiction, only where it is incorporated or maintains its principal place of business. 571 U.S. at 138-39 & nn.18-19. 2. The Daimler decision addressed minimum contacts, holding that "continuous and systematic" contacts alone are insufficient to establish general personal jurisdiction and thus rejected the idea that a company could be brought into court merely for "doing business" in a state. Id.; see Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 135 (2d Cir. 2014). 3. In light of Daimler, courts have determined that a company's compliance with a state's registration statutes cannot constitute consent to general jurisdiction. See, e.g., Brown, 814 F.3d at 639-41 (applying Daimler and holding that registration to do business in Connecticut did not provide consent to general jurisdiction in Connecticut courts); Chatwal Hotels & Resorts LLC v. Dollywood Co., 90 F. Supp. 3d 97, 105 (S.D.N.Y. 2015) ("[T]he mere fact of [a defendant's] being registered to do business is insufficient to confer and participating in a four-day bench trial. There is a powerful inference that those defendants were simply attempting to preserve yet another litigation tactic. 9. Given this case's circumstances, it is plain that the appearing defendants have forfeited their personal jurisdiction defense and are therefore subject to this Court's jurisdiction. 10. Therefore, the English Judgment may be enforced against Primera. Whether the English Judgment may be enforced against the other appearing defendants depends on whether they are alter egos of Primera. That issue is discussed below. See Section III. C., infra.

B. Personal Jurisdiction over the Nonappearing Defendants 11. d'Amico Dry seeks default judgments against the nonappearing defendants, namely Paul Coronis, Nicholas its personal jurisdiction defense extended to a second corporate defendant and two individual defendants who allegedly used the first corporate defendant as a mere shell for their own conduct). 16. It would be particularly inappropriate to find that there was no personal jurisdiction over Paul Coronis and Nicholas Coronis based on the alleged insufficiency of the service of process on them. They both had actual knowledge of these proceedings. Moreover, Paul Coronis actually appeared in New York and testified at the trial on behalf of the appearing defendants, and also testified at a deposition as the Rule 30(b)(6) witness on behalf of the appearing alter ego defendants. 17. Because the Court has jurisdiction over the nonappearing defendants, and because those defendants did not appear in this action, d'Amico Dry's request for a default judgment against the nonappearing defendants - namely Paul Coronis, Nicholas Coronis, Primera Ocean Services S.A., and J.P.C. Investments S.A. - is granted. 18. Therefore, the nonappearing defendants are liable for the English Judgment against Primera.

C. Alter Ego Liability of the Appearing Alter Ego Defendants 19. The parties agree that federal maritime law applies in assessing whether the web of appearing alter ego defendants are alter egos of Primera. See NYKCool A.B. v. Ecuadorian Line, Inc., 562 F. App'x 45, 46 (2d Cir. 2014) (summary order); N. Tankers (Cyprus) Ltd. v. Backstrom, 967 F. Supp. 1391, 1398-99 (D. Conn. 1997); see also Alter Ego Defs.' Posttrial Mem. at 4; d'Amico Dry's Posttrial Mem. at 37. 20. To pierce the corporate veil under federal maritime law, a plaintiff must show that an alter ego was used to "perpetrate a fraud" or was "so dominated" and its corporate form so "disregarded" that the alter ego "primarily transacted [another entity's] business rather than [its] own corporate business." Kirno Hill Corp. v. Holt, 618 F.2d 982, 985 (2d Cir. 1980). d'Amico Dry contends that the corporate veil should be pierced because the appearing alter ego defendants were "so dominated" by Primera. 21. The alleged domination asserted as the basis for piercing the corporate veil must have occurred at or about the time of the complained-of transaction. See In Re Arbitration Between Holborn Oil Trading Ltd. & Interpol Bermuda Ltd., 774 F. Supp. 840, 845 (S.D.N.Y. 1991) (citing Passalacqua Builders, 933 F.2d at 138). "As clearly indicated in Passalacqua Builders, the inquiry for piercing the corporate veil examines the full spectrum of the relations between the parent corporation and its alleged alter ego." Holborn Oil, 774 F. Supp. at 845. 22. Factors relevant to determining whether one entity is the "alter ego" of another - or, in this case, whether the web of appearing Coronis family controlled alter ego defendants are alter egos of Primera - include the following:

(1) the absence of the formalities and paraphernalia that are part and parcel of the corporate existence, i.e., issuance of stock, election of directors, keeping of corporate records and the like, (2) inadequate capitalization, (3) whether funds are put in and taken out of the corporation for personal rather than corporate purposes, (4) overlap in ownership, officers, directors, and personnel, (5) common office space, address and telephone numbers of corporate entities, (6) the amount of business discretion displayed by the allegedly dominated corporation, (7) whether the related corporations deal with the dominated corporation at [arm's] length, (8) whether the corporations are treated as independent profit centers, (9) the payment or guarantee of debts of the dominated corporation by other corporations in the group, and (10) whether the corporation in question had property that was used by other of the corporations as if it were its own.

(1) Lack of corporate formalities, id. at ¶¶ 89, 156-160;

(2) Inadequate capitalization, id. at ¶¶ 29, 85, 88, 120, 144;

(3) Intermingling of funds, id. at ¶¶ 63-66, 69, 104;

(4) Overlap in ownership, officers, directors, and personnel, id. at ¶¶ 50-54, 61, 99, 113-114, 121-122;

(5) Common office space and addresses, id. at ¶¶ 7-16, 18-20, 76;

(6) Lack of business discretion, id. at ¶¶ 125-128;

(7) Lack of arm's length dealing, id. at ¶¶ 63-69, 82;

(8) Corporate entities not treated as individual profit centers, id. at ¶¶ 63-69, 104;

(9) Payment or guarantee of debts between the defendants, id. at ¶¶ 53-57, 82, 129-135; and

(10) Intermingling of property, id. at ¶¶ 76, 154.

D. Liability of Primebulk as a Successor-in-interest to Primera 28. In addition to holding Primebulk liable as an alter ego of Primera, d'Amico Dry seeks to hold Primebulk liable as the successor-in-interest to Primera. 30. Generally, successor-in-interest liability "attaches to a corporation as a mere continuance only when one corporation survives the transaction"; that is, where the predecessor corporation is extinguished. NYKCool, 2013 WL 1274561 at *13 (quotation marks omitted). But courts have made exceptions to this rule where "it appeared that the successor corporation was created to avoid liability to the plaintiff, or where the predecessor corporation continued only as a shell and conducted no business." Id. 31. In this case, Primera transferred its assets to Primebulk, a corporation created apparently to avoid liability to d'Amico Dry for the English Judgment. See Findings of Fact, supra, at ¶¶ 72-78, 83, 91. After the transfer, Primera continued to exist as a corporation, but only as a shell devoid of assets. See id. Therefore, Primera's continued existence does not preclude Primebulk's liability as a successor-in-interest to Primera under a mere continuance theory. 32. To determine whether Primebulk is a mere continuance of Primera, the Court assesses four factors:

(1) continuity of ownership; (2) cessation of ordinary business and dissolution of the acquired corporation as soon as possible; (3) assumption by the purchaser

of the liabilities ordinarily necessary for the uninterrupted continuation of the business of the acquired corporation; and (4) continuity of management, personnel, physical location, assets, and general business operation.

E. Interest and Attorney's Fees 35. As part of the English Judgment, postjudgment interest has accrued at a rate of 8 percent per annum, in accordance with English law, since June 19, 2009. 36. When determining the interest rate to be applied when enforcing a foreign judgment, courts generally apply the fees are to be assessed in accordance with Federal Rule of Civil Procedure 54(d).

The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit.

d'Amico Dry's request for a default judgment against Paul Coronis, Nicholas Coronis, Primera Ocean Services S.A., and J.P.C. Investments S.A. is granted.

The Clerk is directed to enter judgment for d'Amico Dry and against all of the defendants as follows:

- $1,794,334.93, representing the English Judgment, which awarded d'Amico Dry $1,766,278.54 (comprising the principal and compound interest at the contractual rate up until the English Judgment was entered) plus $28,056.39 in legal costs related to that action;

- the interest that has accrued on the $1,794,334.93 award at a rate of 8 percent per annum since June 19, 2009, until judgment is entered in this case; and

- attorney's fees and costs to be assessed in accordance with Federal Rule of Civil Procedure 54(d).

The Clerk is directed to close all pending motions in this case.

Dated: New York, New York

December 22
, 2018

/s/ _________

John G. Koeltl

United States District Judge