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Gustavson & Associates, LLC v. Skyland Petroleum Pty Ltd

United States District Court, D. Colorado

March 30, 2018

GUSTAVSON & ASSOCIATES, LLC, Plaintiff,
v.
SKYLAND PETROLEUM PTY LTD f/k/a Skyland Petroleum Limited ACN 072 350 817, SKYLAND PETROLEUM HOLDINGS LTD, f/k/a Skyland Petroleum Group Limited, SKYLAND PETROLEUM GROUP LIMITED ARBN 613928671, SKYLAND SERVICES LLC, and DOMENIC VINCENT MARTINO, an individual, Defendants.

          ORDER

          R. BROOKE JACKSON, UNITED STATES DISTRICT JUDGE

         Two motions are pending. Plaintiff moves to strike the notice of removal filed by three of the five listed defendants. The defendants move to dismiss for lack of personal jurisdiction. Both motions are denied.

         BACKGROUND

         This background is taken from plaintiff's amended complaint and its exhibits. I will accept plaintiff's well-pleaded allegations of fact as true for present purposes except to the extent the actual documents attached as exhibits to the amended complaint correct or clarify the alleged facts.

         1. The plaintiff, Gustavson Associates, LLC, is an engineering and consulting company based in Boulder, Colorado.

         2. On April 13, 2016 “Skyland Petroleum Limited (previously known as MUI Corporation Limited) (‘SPL' or the ‘Company')”issued a press release announcing the completion of its acquisition of Skyland Petroleum Group Limited and its subsidiaries. ECF No. 10-13. The announcement indicated that the Company's board of directors henceforth would be Dr. David Robson, Chairman and Managing Director; Elizabeth Landles, Executive Director; and Mark Sarssam, Executive Director. It identified five Non-Executive Directors: Timothy Hargreaves, Piers Johnson, Domenic Martino, Raden Sukhyar, and Ghassan Zok. Id.

         3. An organization chart, undated but, based on its content, apparently taken from a Skyland document at or after the foregoing announcement, shows “MUI Corporation Limited (to be renamed ‘Skyland Petroleum Limited')” at the top of the chain; then Skyland Petroleum Group Limited (Cayman Islands) immediately under Skyland Petroleum Limited; and six entities, presumably subsidiaries of Skyland Petroleum Group Limited, under Skyland Petroleum Group Limited. One of those subsidiaries is Skyland Management Consultancies (Dubai, UAE), described in the chart as “Dubai staff.” Another is Skyland Services Limited (Tajikistan), described as “Tajik staff.” ECF No. 10-14.

         4. On June 28, 2016 Gustavson entered into a “Professional Services Agreement” with “Skyland Petroleum, ” an entity with a business address in Dubai, U.A.E, and a billing address of Skyland Petroleum, P.O. Box 388, St. Peter Port, Guernsey GY1 3FG British Isles. ECF No. 10-1. Under this contract Gustavson agreed to evaluate certain asserts being considered for acquisition. The estimated fee for the work was $26, 770 with a retainer of $10, 000. In its amended complaint Gustavson refers to these assets as the “Fund Energy assets.” ECF No. 6 at ¶11. Gustavson refers to this contract as the PSA 1 agreement or the PSA 1 contract.

         5. On July 11, 2016 Gustavson entered into a second Professional Services Agreement with Skyland Petroleum for evaluation of assets being considered for acquisition. ECF No. 10-2. Plaintiff alleges that “Skyland had suspended further interest in the Fund Energy assets and requested Gustavson to shift its efforts towards evaluating the Mirninsky licenses in the same general area.” ECF No. 6 at ¶13. Gustavson refers to this contract as the PSA 2 agreement or the PSA 2 contract. This contract has a stamp over the signature block which says “Skyland Petroleum Group, ” and underneath that in smaller letters the words “Skyland Management Consultants” and the Post Office Box address of the Dubai office on the first page of the contract.

         6. Gustavson provided a report to Skyland Petroleum entitled Estimate of Reserves and Resources for the Mirninsky License Area, Located in Siberia. ECF Nos. 10-3 and 10-4 at 1-43. This report had a report date of October 12, 2016 and an effective date of January 1, 2017. Gustavson also provided an Addendum to the report with a report date of October 27, 2016 and an effective date of January 1, 2017. ECF No. 10-4 at 44-76.

         7. On October 24, 2016 Skyland Petroleum Group Limited ARBN 613 928 671 (“SPGL”) issued a press release stating that “it has successfully completed its due diligence on the Mirninsky License and that it could provide “an independent audited SPE-PMRS estimate reserves and contingent resources figures for the Mirninsky License” completed by Gustavson. This press release was headed by the logo Skyland Petroleum and was captioned “Skyland Petroleum - Acquisition Update on East Siberian Oil and Gas Asset.” ECF No. 10-6. In a section entitled “Successful Continuation of Corporate Strategy, ” it quoted a comment from Dr. David Robson, Chairman and Managing Director, concerning the project. Id. at 3. In a section entitled “About Skyland, ” the press release stated, “Skyland Petroleum Group Limited is an oil and gas exploration and production company listed on the Australian Securities Exchange (‘ASX') and primarily focused on projects in Russia, Central Asia and the Caucasus.” Id.

         8. On November 2, 2016 SPGL issued another press release, this time providing “the prospective resource figures relating to the exploration potential within the Mirninsky License area located in the Sakha (Yakutia) Republic of the Russian Federation.” ECF No. 10-7.

         9. Gustavson alleges that the total charges for its services and work product pursuant to the PSA 1 and PSA 2 contracts totaled $174, 410.95. ECF No. 6 at ¶16. However, Gustavson negotiated with “Skyland management” and reached an agreement upon a compromised amount of $110, 000. Id. at ¶17.

         10. On November 4, 2016 Gustavson sent an invoice for $110, 000 to “Skyland Services Limited” at P.O. Box 144, St. Peter Port, Guernsey GY1 3HX. ECF No. 10-5. This invoice has never been paid.

         11. On December 24, 2016 Dr. Robsen, the Chairman and Managing Director of SPGL, died.

         12. On January 31, 2017 Edwin C. Moritz, President of Gustavson, sent a letter to Skyland Services Limited at P.O. Box 388, St. Peter Port, Guernsey GYI 3FG, requesting payment of the “overdue invoice” dated November 4, 2016. ECF No. 10-12.

         13. On February 6, 2017 Mr. Moritz sent an email to Liz Landles of SPGL, noting that Gustavson had received no response to the invoice and letter he had sent to the Guernsey office and asking for a response at her earliest convenience. ECF No. 10-11. Ms. Landles forwarded the email to Domenic Martino. On February 7, 2017 Mr. Moritz sent Mr. Martino a copy of the invoice Gustavson had sent to the Guernsey office. Id. Each of these emails indicated that the subject was “Gustavson work for Skyland.”

         14. On February 24, 2017 SPGL issued a press release announcing that on February 21, 2017 the majority of its board of directors agreed to remove Piers Johnson, Elizabeth Landles and Mark Sarssam as directors of the Company. ECF No. 10-15. The new board consisted of Domenic Martino, Timothy Hargreaves, Ghassan Zok, Raden Sukhyar and Marco Arosti. Domenic Martino was appointed as Interim CEO and Chairman of the Company.

         15. On March 6, 2017 Mr. Moritz again emailed Ms. Landles, attaching another copy of the invoice, noting that it was for work on the Mirninsky licenses that were being evaluated by “Skyland, ” that the results were published on “Skyland's website, ” and that the ...


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