United States District Court, D. Delaware
UNITED STATES OF AMERICA ex rel. MOORE & COMPANY, P.A., Plaintiff,
MAJESTIC BLUE FISHERIES, LLC, PACIFIC BREEZE FISHERIES, LLC, DONGWON INDUSTRIES COMPANY, LTD, JAYNE SONGMI KIM, JOYCE JUNGMI KIM, and JAEWOONG KIM, Defendants
William M. Kelleher, Esquire of Gordon, Fournaris & Mammarella, P.A., Wilmington, Delaware. Counsel for Plaintiff. Of Michael T. Moore, Esquire and Clay M. Naughton, Esquire of Moore & Company, P.A.
Steven J. Fineman, Esquire and Jason J. Rawnsley of Richards, Layton & Finger, P.A., Wilmington, Delaware. Counsel for Defendants Majestic Blue Fisheries, LLC, Pacific Breeze Fisheries, LLC, and Joyce Jungmi Kim. Of Robert S. Salcido, Esquire and Sarah R. Teachout, Esquire, of Akin Gump Strauss Hauer & Feld LLP.
Sue L. Robinson, District Judge.
On November 26, 2012, the law firm of Moore & Company, P.A. (" Moore" ) filed
this complaint under seal pursuant to the False Claims Act (" FCA" ), 31 U.S.C. § § 3729-3732, against Majestic Blue Fisheries, LLC (" Majestic Blue" ), Pacific Breeze Fisheries, LLC (" Pacific Breeze" ), Dongwon Industries Company, Ltd. (" Dongwon" ), Jayne Songmi Kim (" Jayne Kim" ), Joyce Jungmi Kim (" Joyce Kim" ), and Jaewoong Kim (collectively, " defendants" ). (D.I. 1) On May 21, 2013, the United States government declined to intervene in the case. (D.I. 6) On May 24, 2013, the case was unsealed. (D.I. 7) On November 14, 2013, Majestic Blue, Pacific Breeze, and Joyce Kim (collectively, " appearing defendants" ) moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (D.I. 17) Rather than respond to the appearing defendants' motion, on January 10, 2014, Moore filed its first amended complaint. (D.I. 23) In the first amended complaint (" amended complaint" ), Moore brings claims against defendants of violation of the FCA, reverse false claims for violation of the Vessel Documentation Act, conspiracy to violate the FCA, conspiracy to commit reverse false claims for violation of the Vessel Documentation Act, reverse false claims for violation of the Act to Prevent Pollution from Ships (" APPS" ), and conspiracy to commit reverse false claims for violation of APPS. ( Id. at ¶ ¶ 110-62)
Currently before the court is the appearing defendants' motion to dismiss Moore's amended complaint for lack of subject matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(6). (D.I. 25) This court has jurisdiction pursuant to 28 U.S.C. § 1331 and 31 U.S.C. § § 3729, 3730(b).
Moore is a professional association of attorneys with its principal office located at 355 Alhambra Circle, Suite 1100, Coral Gables, Florida. (D.I. 23 at ¶ 11)
Majestic Blue and Pacific Breeze (collectively, " the LLCs" ) are Delaware limited liability corporations with a principal place of business located at 1026 Cabras Highway, Suite 110, Piti, Guam. ( Id. at ¶ ¶ 12-13) The LLCs own, respectively, two fishing vessels, the Majestic Blue and the Pacific Breeze. ( Id.) Dongwon is a South Korean corporation with its principle place of business at 275 Yanglae-Dong, Seocho-gu, Seoul, South Korea. ( Id. at ¶ 14) Dongwon is in the business of buying, processing, and selling tuna and tuna products, and was the owner of the Majestic Blue and the Pacific Breeze vessels (collectively, " the vessels" ) (previously named the Eastern Kim and the Costa de Marfil) prior to 2008. ( Id. at ¶ ¶ 26-27)
Jayne Kim is a Korean-born, U.S. naturalized citizen who currently resides in Korea. ( Id. at ¶ 16) Joyce Kim is a Korean-born, U.S. naturalized citizen who currently resides in California. ( Id. at ¶ 17) Jayne Kim and Joyce Kim are sisters, and both are daughters of Jaewoong Kim. ( Id. at ¶ ¶ 16-17) Jayne Kim is the majority shareholder and president of Majestic Blue and the minority shareholder and treasurer of Pacific Breeze. ( Id. at ¶ 16) Joyce Kim is the majority shareholder and president of Pacific Breeze and the minority
shareholder and treasurer of Majestic Blue. ( Id. at ¶ 17)
Jaewoong Kim is a citizen of and resides in South Korea. ( Id. at ¶ 15) He is the father of Jayne Kim and Joyce Kim, and the brother of J.C. Kim, Dongwon's chairman. ( Id.) Jaewoong Kim is also a former executive of Dongwon. ( Id.)
B. The South Pacific Tuna Treaty
Under the South Pacific Tuna Treaty (" SPTT" ), the United States provides approximately $18 million in economic assistance annually to the Foreign Fisheries Association (" FFA" ), an international body designated as the " administrator" of the SPTT. ( Id. at ¶ ¶ 29, 31-32) This money is allocated to the Pacific island nations that are signatories to the treaty. ( Id. at ¶ 32) In return, the SPTT provides for a certain number of fishing licenses to be issued to U.S. fishing vessels, permitting them to fish for tuna in exclusive zones in the South Pacific, " some of the most tuna rich waters in the world." ( Id. at ¶ ¶ 29-30) South Korea is not a signatory to the SPTT. ( Id. at ¶ 30)
To qualify for a SPTT license, a fishing vessel needs a United States Coast Guard (USCG) Certificate of Documentation with a registry endorsement. ( Id. at ¶ 33) This certification is only available to vessels " under the ownership and control of U.S. citizens." ( Id.) The license applications are submitted to the National Marine Fisheries Service and are issued by the FFA. ( Id. at ¶ 31)
C. Alleged Facts Related to Claims Under the False Claims Act and Vessel Documentation Act
On March 25, 2008, Joyce Kim and Jayne Kim founded and registered Majestic Blue and Pacific Breeze. ( Id. at ¶ 36) Jayne Kim owns 51% of Majestic Blue and 49% of Pacific Breeze, while Joyce Kim owns 51% of Pacific Breeze and 49% of Majestic Blue. ( Id. at ¶ 43) There are no other purported owners or shareholders in the LLCs. ( Id.) Moore alleges that Joyce Kim and Jayne Kim each only invested $50 in the LLCs with no further investment. ( Id. at ¶ 37)
On April 23, 2008, Dongwon executed bills of sale that allegedly sold the vessels to Majestic Blue and Pacific Breeze, respectively, for $10 each. ( Id. at ¶ 41) In the original purchase and sale agreement executed by Dongwon, the LLCs agreed to pay $4.4 million for each vessel. The agreement did not hold Joyce Kim or Jayne Kim responsible for the debt and no mortgage was taken out on the vessels. ( Id. at ¶ 38) Moore alleges that this arrangement occurred because Dongwon never actually gave up ownership or control of the vessels; instead, Dongwon used Joyce Kim and Jayne Kim as " straw owners" of the LLCs because of their American citizenship. ( Id. at ¶ ¶ 28, 39)
After transferring ownership of the vessels to the LLCs, the LLCs applied for FFA fishing licenses to fish for tuna in the waters covered by the SPTT. ( Id. at ¶ ¶ 48-53) In April and May 2008, William Phil, a purported manager of the LLCs, sent emails to the National Oceanic and Atmospheric Administration (" NOAA" ) seeking SPTT licenses. ( Id. at ¶ 49) Moore alleges that William Phil was not a manager of the LLCs, but " is actually a pseudonym for three Korean nationals who are also employees of Dongwon who operated under the false name in order to sound more like an American citizen." ( Id. at ¶ 50) Moore further alleges that neither Joyce Kim nor the general manager of the LLCs, Jurgen Unterberg (" Unterberg" ), knew who William Phil was though both believed he was the manager of the LLCs, reinforcing Dongwon's control over the LLCs " to the exclusion" of
" U.S. citizens that purported[ly] owned and operated [the vessels] according to the LLCs' corporate documents and the [v]essels' documentation. ( Id. at ¶ ¶ 49, 57)
On May 15, 2008, Jayne Kim and Joyce Kim, on behalf of the LLCs, submitted initial applications for U.S. documentation for the fishing vessels. ( Id. at ¶ 51) The applications certified that within the LLCs, " non-citizens do not have authority within a management group, whether through veto power, combined voting, or otherwise, to exercise control over the LLC." ( Id. at ¶ 52) Moore alleges that this certification was a " misrepresentation" of the actual control of the LLCs, and that the LLCs were actually controlled by Dongwon, a foreign corporation. ( Id. at ¶ 53) On May 20, 2008, the National Vessel Documentation Center granted temporary U.S. documentation for the vessels. ( Id.)
On May 21, 2008, the LLCs signed agreements with Dongwon for crew manning; ship maintenance, supply, and insurance; and tuna supply. ( Id. at ¶ 54) Moore alleges that these agreements authorize Dongwon to exercise complete control over the vessels and the LLCs. ( Id. at ¶ ¶ 54, 67-71) Furthermore, Moore alleges that Dongwon exercised control over the vessels beyond these agreements by controlling the employment of American captains, who were necessary to maintain the facade of American control but did not exert any actual control. ( Id. at ¶ ¶ 72-87)
On July 1, 2008, the FFA issued certificates of registration for the vessels, allowing them to fish in SPTT waters under the U.S. flag. ( Id. at ¶ 60) Moore alleges that the grant of the FFA licenses was based on false statements in the application indicating American control of the LLCs and vessels, when in fact both were controlled by Dongwon. ( Id.) Moore alleges that this " fraud" continues through today, as the Pacific Breeze vessel continues to fish in the SPTT-protected waters under the U.S. flag. ( Id. at ¶ 91)
D. Alleged Facts Related to Claims under APPS
In December 2008, Captain John Jeskevicius (" Jeskevicius" ), captain of the Majestic Blue vessel, realized that the crew onboard the ship was illegally dumping trash over the side of the vessel. ( Id. at ¶ ¶ 92-95) Through December 2008, Jeskevicius reported the illegal activity to Unterberg multiple times via email. ( Id. at ¶ 95-98, 100) On December 27, 2008, Jeskevicius resigned as captain, allegedly because of the illegal garbage dumping. ( Id. at ¶ 99) In fall 2009, Captain Doug Pine (" Pine" ), the next captain of the Majestic Blue vessel, also observed illegal dumping. ( Id. at ¶ ¶ 102-05) Despite having knowledge of this illegal activity, defendants allegedly did nothing to change the Majestic Blue vessel's policies or otherwise stop the dumping from occurring. ( Id. at ¶ 106) Hill, the last captain of the Majestic Blue vessel before it sank, observed illegal dumping as well. ( Id. at ¶ ¶ 106-09) Moore alleges that " [Hill] and other crew members knew ...