Green Gulf Grp. Fze v. Nat'l Holding, LLC

Green Gulf Grp. FZE v. Nat’l Holding, LLC, 2014 NCBC 21.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF
JUSTICE
MECKLENBURG COUNTY SUPERIOR COURT DIVISION
13 CVS 11475

GREEN GULF GROUP FZE,

Plaintiff,

v.
ORDER AND OPINION
NATIONAL HOLDING, LLC,

Defendant.

Harkey Lambeth & Gunter, LLP by Philip D. Lambeth for Plaintiff.

Ellis & Winters, LLP by Joseph Hammond and Curtis J. Shipley for Defendant.

Murphy, Judge.

THIS MATTER is before the Court on Defendant National Holding, LLC’s
(“Defendant”) Motion to Dismiss pursuant to Rules 12(b)(2), 12(b)(3), 12(b)(5), and
12(b)(6) of the North Carolina Rules of Civil Procedure (the “Motion”). Having
considered the Motion, briefs, and arguments of counsel at the January 28, 2014
hearing, the Court GRANTS the Motion pursuant to Rule 12(b)(2).
I.
PROCEDURAL HISTORY
{1} Plaintiff Green Gulf Group FZE (“Plaintiff”) filed a verified Complaint in
the Mecklenburg County Superior Court, on June 28, 2013.
{2} Defendant filed this Motion on August 8, 2013, seeking dismissal of this
action for lack of personal jurisdiction, insufficient service of process, improper
venue, and failure to state a claim upon which relief can be granted. In the
alternative, Defendant sought a stay of this action under N.C.G.S. § 1-75.12 (2014).
{3} On August 12, 2013, this case was designated a mandatory complex
business case and subsequently assigned to this Court.
{4} Plaintiff filed its Response to the Motion on October 8, 2013 and Defendant
filed its Reply in Support of the Motion on October 21, 2013.
{5} The Court heard the Motion on January 28, 2014.1
II.
FINDINGS OF FACT
{6} Plaintiff is a corporation organized under the laws of the United Arab
Emirates (“U.A.E.”), where it maintains its registered office. (Compl. ¶ 1; Compl.
Ex. A, D). Although Plaintiff’s president and sole shareholder, Samer Y. Arris
(“Arris”), is a United States citizen and resident of Mecklenburg County, North
Carolina, Plaintiff is not registered to do business in North Carolina. (Compl. ¶ 1,
Joseph Hammond Aff. ¶ 3).
{7} Arris also lived in the U.A.E. from 2005 through 2012, the time period
relevant to the Complaint. (Samer Y. Arris Aff. ¶¶ 2, 5–9).
{8} Defendant is a privately-owned conglomerate, organized under the laws of
the U.A.E. (Compl. ¶ 2; Abdel Kareem Al Kadomi Aff. ¶ 9). Defendant also
maintains its registered office in the U.A.E. (Compl. Ex. A).
{9} Plaintiff initiated contact with Defendant in the U.A.E. regarding potential
business opportunities, which culminated in several contracts between and/or
involving the parties. (Al Kadomi Aff. ¶¶ 12, 20, 22–23). Specifically, the contracts
at issue are a Mutual Confidentiality Agreement executed on September 26, 2010, a
Mandate Letter executed on November 22, 2011, and a Confidentiality Agreement
executed on September 5, 2010 (Compl. ¶¶ 3, 12, 17), each of which was negotiated
and executed in the U.A.E. (Al Kadomi Aff. ¶¶ 20, 22–23) and contains a forum
selection clause consenting to the jurisdiction of the courts of the U.A.E. (Compl.
Ex. A, C–D).

1 Defendant filed a suggestion of subsequently decided authority on February 3, 2014. Plaintiff filed
a response to Defendant’s suggestion of subsequently decided authority on February 7, 2014 and
subsequently filed a supplemental affidavit of Samer Y. Arris on February 18, 2014 (the
“Supplemental Affidavit”). Defendant challenged the Supplemental Affidavit by filing a Response on
February 21, 2014. In its Response, Defendant labels the Supplemental Affidavit as untimely and
irrelevant under Business Court Rule 15.9. The Court agrees with Defendant’s objections and does
not consider the Supplemental Affidavit in reaching its conclusion.
{10} Furthermore, the contracts involved projects in the U.A.E. and Nevada,
but none involved or were directed at projects connected to North Carolina. (Compl.
¶¶ 4, 10–11, 19; Al Kadomi Aff. ¶¶ 12, 20, 22–23).
{11} Defendant’s subsidiary, Emirates International Investment Company,
LLC (“EIIC”), either currently holds or previously held a less than five percent (5%)
indirect interest in three companies that have offices in Charlotte, North Carolina:
Randall-Reilly, Berlin Packaging, and Fleet Pride. (Kevin M. Russell Aff. ¶¶ 6, 11).
None of the three companies are subsidiaries of, or otherwise affiliated with,
Defendant. (Russell Aff. ¶¶ 7, 8).
{12} In the Complaint, Plaintiff alleges Defendant breached the contracts and
owes Plaintiff fees and reimbursement of expenses for three business transactions
that Green Gulf solicited for Defendant. (Compl. ¶¶ 3–20). However, Plaintiff does
not allege Defendant ever solicited or conducted business in North Carolina with it
or any other person or entity.
III.
LEGAL STANDARD
{13} On a Motion challenging personal jurisdiction, “[P]laintiff bears the burden
of proving, by a preponderance of the evidence, grounds for exercising personal
jurisdiction over [D]efendant.” Bauer v. Douglas Aquatics, Inc., 207 N.C. App. 65,
68, 698 S.E.2d 757, 761 (2010) (citation omitted).
{14} The Court looks first to North Carolina’s long-arm statute, N.C.G.S. § 1-
75.4 (2014), to determine whether it may properly exercise personal jurisdiction
over the Defendant. Id. at 67, 698 S.E.2d at 760. In its brief opposing the Motion,
Plaintiff does not assert which portion of the long-arm statute grants the Court
power to exercise personal jurisdiction over Defendant.
{15} If the long-arm statute confers personal jurisdiction over the defendant,
the Court must then determine whether the exercise of personal jurisdiction
comports with due process. Id. The inquiry ends, however, if the long-arm statute
does not confer personal jurisdiction over the Defendant within this State. See id.;
see also Dillon v. Numismatic Funding Corp., 291 N.C. 674, 675, 231 S.E.2d 629,
630 (1977).
IV.
ANALYSIS
{16} Plaintiff asserts that the Court may exercise personal jurisdiction over
Defendant, but cites no statutory reference for the source of this power. A reading
of the long-arm statute in conjunction with the facts of this case leads the Court to
conclude that it does not have the power to hale Defendant before it.
{17} Plaintiff relies on two arguments in support of personal jurisdiction in this
Court: (1) that Defendant was aware Plaintiff’s principal, Arris, was a resident of
North Carolina, and (2) that Defendant maintained subsidiaries or affiliates that
maintain offices in North Carolina. Both arguments are unavailing.
{18} First, although Plaintiff alleges Defendant knew Arris was a resident of
North Carolina, Plaintiff neither contends nor offers proof that Defendant
communicated with Arris on behalf of Plaintiff while Arris was in North Carolina.
(Pl.’s Resp. Mot. 3). In fact, Plaintiff admits that Arris returned to North Carolina
only “[a]fter devoting nearly two years of his life to the [D]efendant’s business
interests” (Pl.’s Resp. Mot. 3), which leads the Court to conclude that Plaintiff’s
business dealings with Defendant ended when Arris returned to North Carolina.
{19} Second, while Plaintiff relies on EIIC’s indirect investments in Randall-
Reilly, Berlin Packaging, and Fleet Pride for the proposition that Defendant has
subjected itself to the jurisdiction of this Court (Pl.’s Resp. Mot. 3), EIIC’s
investment in those three companies does not amount to activity sufficiently
substantial to subject Defendant, EIIC’s parent, to personal jurisdiction in this
State. Neither EIIC nor Defendant owns or controls the three companies, and a
passive investment by Defendant’s subsidiary is not encompassed by the long-arm
statute.
{20} Moreover, Plaintiff does not contest that Defendant is a U.A.E. company
and has no projects in North Carolina, nor does Plaintiff allege a single injury
within the State. Accordingly, the Court concludes that the long-arm statute does
not confer upon the Court personal jurisdiction over Defendant.
{21} Because the Court lacks personal jurisdiction over Defendant, it is
unnecessary to address the parties’ arguments regarding service of process, venue
and failure to state a claim for which relief can be granted.
V.
CONCLUSION
{22} For the reasons stated herein, the Court GRANTS Defendant’s Motion to
Dismiss and hereby DISMISSES WITH PREJUDICE Plaintiff’s claims for
interference with contract, breach of mutual confidentiality agreement, and breach
of mandate letter.
SO ORDERED, this 28th day of May, 2014.