United States District Court, N.D. Illinois, Eastern Division
AMENDED MEMORANDUM OPINION AND ORDER
J. Tharp, Jr., United States District Judge
dispute, over a sum of about $100, 000, has traveled a long
and winding road. What began in Belgium has made stops in the
Democratic Republic of Congo, New York federal and state
courts, the Second Circuit, and now the Northern District of
Illinois. Before the Court is a motion by Defendant KBC Bank
N.V. (“KBC”) to dismiss this action on numerous
grounds, including lack of subject matter and personal
jurisdiction, collateral estoppel, forum non
conveniens, and failure to state a claim. In short, KBC
argues that the plaintiff, Midamines SPRL Ltd.
(“Midamines” or “Midamines Illinois”)
(in reality, its sole officer, Hassan Abbas, who also serves
as Midamines' counsel), should not be permitted to open
up yet another front in this protracted conflict. The Court
could not agree more. Among the host of reasons KBC offers
for why this case does not belong here, the Court needs only
one: lack of personal jurisdiction. Because Midamines has
failed to show that KBC has any significant ties to Illinois
or that its suit-related conduct is connected to this state
in a meaningful way, the complaint is dismissed without
prejudice under Rule 12(b)(2). Furthermore, the complaint
appears to be frivolous for reasons other than lack of
personal jurisdiction, and even though this Court does not
have jurisdiction over KBC and cannot resolve the case on the
merits, it does have the authority to assess sanctions for
the filing of a frivolous complaint. The Court therefore will
require Midamines and Abbas to show cause why Rule 11
sanctions should not be imposed for filing a frivolous
a Belgian bank and insurance company organized under Belgium
law with its principal offices in Brussels. (Grimmig Decl.
¶ 2, ECF No. 17-5.) KBC operates worldwide through its
branches and sister banks in Europe, and has one branch
office in the United States, which is located in New York.
(Id. ¶¶ 3-4.) In 2006, Midamines SPRL
(“Midamines Congo”), a diamond mining company
registered in the Democratic Republic of Congo, opened a bank
account with one of KBC's independently operated
subsidiaries (the “Antwerp Bank”).(Vanhuysse Decl.
¶¶ 2, 5-6, ECF No. 38-1.) In 2012, the Antwerp Bank
closed Midamines Congo's account due to a dispute within
the company over who had control over the account.
(Id. ¶ 11, 13-14.) After closing the account,
the Antwerp Bank issued two bank checks that represented the
balances of two subaccounts-a dollar denominated check in the
amount of $35, 110.72 (the “USD Check”) and a
Euro denominated check in the amount of €56, 414.73 (the
“Euro Check”) (together “the Bank
Checks”). (Id. ¶ 20.) Both checks were
made payable to Midamines Congo. (Id.; see
also Abbas Decl., Ex. E, ECF No. 44-5.)
August 8, 2012, the Antwerp Bank delivered the Bank Checks to
Abbas in his capacity as a proxy holder for the Midamines
Congo account. (Compl. ¶¶ 8-9, ECF No. 1; Vanhuysse
Decl. ¶¶ 15-20.) According to Abbas, the checks
served as payment for professional legal services he rendered
to Midamines Congo from 2009 to 2012. (Compl. ¶ 9.)
Shortly after the checks were issued, the Midamines Congo
account became the subject of two lawsuits: one in the
Democratic Republic of Congo and another in Belgium.
(Vanhuysse Decl. ¶¶ 22-30.) The Congolese
litigation concerned the validity of the documentation Abbas
(and others) used to obtain a proxy on the account and
resulted in an order rendering that documentation invalid.
(Id. ¶¶ 36-37.) In the Belgian litigation,
an Antwerp commercial court issued an injunction prohibiting
the Antwerp Bank from executing any payment instructions
relating to the account. (Id. ¶¶ 22-24.)
In accordance with the injunction, on August 24, 2012, the
Antwerp Bank stopped payment on the Bank Checks.
(Id. ¶ 24.) The bank also informed Abbas that
it could not honor the checks due to the injunction.
(Id. ¶ 25.)
month later, on September 26, 2012, Abbas incorporated
Midamines Illinois. (Abbas Decl., Ex. B, ECF No. 44-2.)
Shortly thereafter, on October 11, 2012, the USD Check was
deposited at a PNC bank in New York. (Compl. ¶ 10.) The
check had been endorsed payable to a Midamines Illinois
account, which had been opened in Illinois. (Abbas Decl.
¶ 9.) Later that day, KBC New York posted the
USD Check for payment and credited Midamines Illinois'
account for $35, 110.72, the value of the USD Check. (Compl.
¶ 10; Grimmig Decl. ¶ 10.) KBC then debited Antwerp
Bank's account for the same amount. (Grimmig Decl. ¶
October 19, 2012, the Antwerp Bank sent KBC an inquiry
regarding the $35, 110.72 debit and reminded the New York
branch that it had issued a stop payment order on the USD
Check. (Id. ¶ 11.) Later that day, KBC New York
notified its electronic payment vendor that the check was
subject to a stop order, which had the effect of stopping
payment on the check. (Id. ¶ 12.) KBC New York
then reversed the credit on October 23, 2013 and re-deposited
the $35, 110.72 into the Antwerp Bank's account.
(Id. ¶ 13.)
following month, the Euro Check was deposited at a Citibank
in New York for payment to a second Midamines Illinois
account. (Abbas Decl. ¶ 13, see also Ex. E.) On
November 14, 2012, the U.S. Bank National Association
presented the Euro Check to KBC in Brussels for payment.
(Berkers Decl. ¶ 4, ECF No. 38-5.) KBC, however, refused
to honor the check based on the stop payment order that had
been issued by the Antwerp Bank. (Id. ¶ 6.)
after KBC refused to honor the Euro Check, Abbas, on behalf
of himself, Midamines Illinois, and Midamines Congo, filed
suit against KBC and the Antwerp Bank in the Southern
District of New York (the “New York Federal
Action”). That suit alleged that KBC and the Antwerp
Bank wrongfully dishonored the Bank Checks and sought damages
for fraud, conspiracy to commit fraud, money laundering,
RICO, and unjust enrichment. See Midamines SPRL Ltd. v.
KBC Bank NV, No. 12 C 8089 (RJS), 2014 WL 1116875, at *1
(S.D.N.Y. Mar. 18, 2014). KBC and the Antwerp Bank moved to
dismiss the complaint on several grounds, including forum
non conveniens. Id. at *2. The defendants
argued that any disputes arising out of the Midamines Congo
account are subject to a forum selection clause that requires
litigation in Belgium. Id. In March 2014, the New
York district court agreed and dismissed the suit.
Id. at *7. In so holding, the court found that the forum
selection clause was mandatory, extended to Abbas and
Midamines Illinois, and applied to any claim “arising
out of [KBC and the Antwerp Bank's] refusal to honor the
Bank Checks. Id. at *3-6.
and Midamines Illinois appealed the district court's
decision. In early 2015, the Second Circuit upheld the
district court's ruling in a summary order. Midamines
SPRL Ltd. v. KBC Bank NV, 601 F. App'x 43 (2d Cir.
2015). The court found no error in the district court's
opinion and agreed that the suit was properly dismissed as to
all parties on the basis of forum non conveniens.
Id. at 44-45.
following the Second Circuit's decision, Abbas and
Midamines Illinois filed suit in New York state court seeking
damages relating to both Bank Checks (the “New York
State Action”). In February 2016, the New York state
court dismissed the action, in part, because all of the
claims were, or could have been, raised by the plaintiffs in
the New York Federal Action and that the claims were governed
by a forum selection clause that required the litigation to
be brought in Belgium. Transcript, Midamines SPRL Ltd. v.
KBC Bank N.V., Index No. 100383/2015 (N.Y. Sup. Ct. Feb.
5, 2016). In other words, the court concluded that the
plaintiffs were barred by collateral estoppel from
re-litigating Abbas and Midamines Illinois' claims
concerning the Bank Checks in New York.
March 2016, Abbas again filed suit in New York federal court,
this time against KBC's counsel, asserting a claim for
tortious interference with business relations (the
“Abbas Litigation.”) The New York district court
dismissed the suit soon thereafter. Opinion and Order,
Hassan A. Abbas, Esq. v. Orrick, Herrington, &
Sutcliffe LLP, No. 15 C 1545 (RJS) (S.D.N.Y Mar. 16,
2016). In granting KBC's motion to dismiss, the court
found that “the Complaint does not come close to
satisfying the standard for a tortious interference claim[;]
. . . [r]ather, it seems designed, like many of [Abbas']
previous motions in the [New York Federal Action], to prolong
litigation and continue to harass” KBC's counsel.
Id. at 13. In June 2016, following written
submissions and a hearing, the court issued an order
enjoining Abbas from “making any filings in this Court
in this case or in any action involving the allegations set
forth in the related [New York Federal] Action without first
obtaining leave of the Court.” Order at 7, Hassan
A. Abbas, Esq. v. Orrick, Herrington, & Sutcliffe
LLP, No. 15 C 1545 (RJS) (S.D.N.Y Mar. 16, 2016).
the issuance of this injunction, Abbas sought leave in the
New York Federal Action to file a declaratory suit against
KBC. The district court denied the request, stating that the
“contemplated declaratory judgment action is clearly an
attempt to relitigate the same issues raised in the Complaint
in this action” and “Abbas makes no attempt to
explain why this action would not also be dismissed under the
forum non conveniens doctrine.” Order at 1-2,
Midamines SPRL Ltd. v. KBC Bank NV, No. 12 C 8089
(RJS) (S.D.N.Y. June 27, 2016). After the district court
denied Abbas' motion for reconsideration, he filed a
second request for leave to file an amended complaint, this
time on behalf of Midamines Illinois and Midamines Congo. The
court denied this request as well, stating that Abbas
“cannot so cavalierly circumvent the Court's filing
injunction” by bring the same suit “in the names
of other entities that evidently serve as alter egos for
Abbas himself.” Order at 2, Midamines SPRL Ltd. v.
KBC Bank NV, No. 12 C 8089 (RJS) (S.D.N.Y. Sept. 12,
subsequently appealed the district court's filing
injunction; however, the Second Circuit recently upheld the
ruling in another summary order. Summary Order, Midamines
SPRL Ltd. v. KBC Bank N.V., No. 16-1048-CV (2d Cir. Dec.
6, 2017). The appellate court noted in its decision that
Abbas' declaratory action claim, which “seeks a
judgment that he is entitled to bank funds allegedly held by
KBC, ” was both an evasion of the district court's