United States District Court, S.D. Florida
AMENDED ORDER 
P. GAYLES UNITED STATES DISTRICT JUDGE.
THIS CAUSE comes before the Court on
Defendant Citigroup, Inc.'s, Motion to Dismiss the
Amended Complaint (the “Motion”) [ECF No. 80].
The Court held a hearing on the Motion on November 29, 2017.
The Court has carefully considered the Amended Complaint
(“Complaint”), the record, and the applicable law
and is otherwise fully advised. For the reasons that follow,
the Motion is granted.
action involves a purported fraudulent scheme carried out by
Citigroup, Inc. (“Citigroup” or
“Defendant”), and other alleged conspirators who
have not been sued in this action. The bulk of the fraudulent
acts in this purported scheme occurred in Mexico. The
majority of the key players in the fraudulent scheme are
based in, and engaged in business in, Mexico.
Citigroup is a U.S.-based banking and financial institution
incorporated in Delaware with its principal place of business
in New York, New York. Plaintiffsare a diverse group of
entities including shipping companies, investment funds, and
a bank, located all over the world including in the United
States, Mexico, the Caribbean, South America, Europe, and the
Middle East. Plaintiffs bring this action as vendors,
creditors, and bondholders of Oceanografía S.A. de
C.V. (“OSA”), a now bankrupt Mexican oil and gas
services company. Petróleos Mexicanos S.A. de C.V.
(“Pemex”) is Mexico's state-owned oil and gas
company and, at one time, one of the largest customers of
OSA's offshore drilling services. Banco Nacional de
México (“Citibanamex” or
“Banamex”) is Citigroup's wholly-owned
Mexican subsidiary. Plaintiffs bring this action to recover
the losses sustained from their investments and business
dealings with OSA.
The Alleged Cash Advance Scheme
to the Complaint, Citigroup, through its Mexican subsidiary
Citibanamex, established a credit facility for OSA and
provided it with hundreds of millions of dollars in cash
advances. OSA allegedly used the cash advances to fund its
ongoing projects with Pemex. Citigroup charged OSA
substantial interest on every cash advance. In addition,
Citigroup entered into an agreement whereby it was guaranteed
repayment of the cash advances directly from Pemex. Because
repayment was guaranteed by Pemex, i.e., the Mexican
government, Plaintiffs allege that Citigroup, through or in
conjunction with Citibanamex, repeatedly increased OSA's
cash advance limit in order to earn millions in risk-free
assert that because of the payment guarantee with Pemex,
Citigroup advanced amounts to OSA that Citigroup knew greatly
exceeded any amount OSA could earn under its service
contracts with Pemex. Plaintiffs allege that Citigroup's
continued cash injections into OSA resulted in OSA's
financials appearing more “rosy” to outside
investors, such as Plaintiffs. In addition, Plaintiffs allege
Citigroup made false representations regarding the financial
health of OSA in order to deceive Plaintiffs into believing
that OSA was a financially attractive company for investment.
Citigroup's misrepresentations allegedly lured Plaintiffs
into extending credit and making investments in OSA, which in
turn allowed OSA to continue to seek cash advances from
Citigroup, which in turn allowed Citigroup to collect its
Complaint, Plaintiffs assert the following claims against
Citigroup: Violation of RICO, 18 U.S.C. §1962(c);
Conspiracy to Violate RICO, 18 U.S.C. §1962(d); Common
Law Fraud; Aiding and Abetting Fraud; Conspiracy to Commit
Fraud; Common Law Fraud (only by Plaintiffs Rabobank and Blue
Marine); and Breach of Fiduciary Duty (only by Plaintiffs
Rabobank and Blue Marine).
has moved to dismiss this action on forum non
conveniens grounds, contending that Mexico is the more
appropriate forum. Alternatively, Citigroup seeks dismissal
of each count under Federal Rules of Civil Procedure 9(b) and
12(b)(6) for failure to state a claim.
FORUM NON CONVENIENS
the doctrine of forum non conveniens, a district
court has the inherent power to decline to exercise
jurisdiction even when venue is proper, ” Jiangsu
Hongyuan Pharm. Co. v. DI Glob. Logistics, Inc., 159
F.Supp.3d 1316, 1322 (S.D. Fla. 2016) (citation omitted),
appeal dismissed, No. 16-10781 (11th Cir. May 9,
2016), “on the ground that a court abroad is the more
appropriate and convenient forum for adjudicating the
controversy, ” Sinochem Int'l Co. v. Malay.
Int'l Shipping Corp., 549 U.S. 422, 425 (2007). To
obtain dismissal for forum non conveniens, the
moving party must demonstrate that (1) an adequate
alternative forum is available; (2) the relevant private
interest factors favor the alternative forum, weighing in the
balance a strong presumption against disturbing a
plaintiff's initial forum choice; (3) if the balance of
private interests is at or near equipoise, the relevant
public interest factors favor the alternative forum; and (4)
the plaintiff can reinstate its suit in the alternative forum
without undue inconvenience or prejudice. Aldana v. Del
Monte Fresh Produce N.A., Inc., 578 F.3d 1283, 1288
(11th Cir. 2009).
a court may consider matters outside the pleadings in ruling
on a motion to dismiss based on forum non
conveniens, if it rules on the motion without an
evidentiary hearing, it must draw all reasonable inferences
and resolve all factual conflicts in favor of the plaintiff.
See Jiangsu, 159 F.Supp.3d at 1322.
Adequacy and Availability of the Alternative Forum
first factor in the forum non conveniens analysis
involves two inquiries, each of which “warrant[s]
separate consideration.” Leon v. Millon Air,
Inc., 251 F.3d 1305, 1311 (11th Cir. 2001). The Court
must determine whether the alternative forum is
“adequate” and whether the alternative forum is
“available.” Aldana, 578 F.3d at 1290.