Wednesday, February 1, 2017

Case of the Day: New Asia Enters. v. Fabrique, Ltd., 2017 U.S. Dist. LEXIS 11108 (S.D.N.Y. Jan. 26, 2017)


Plaintiff is a Hong Kong corporation which was dissolved under Hong Kong law while the suit was pending because it failed to file the annual return as required by Hong Kong law. Defendant moved for summary judgment, arguing that the dissolution deprives the plaintiff the capacity to maintain suit.

Plaintiff responded that it had begun the process for reinstatement of its corporate registry. However, the court noted the plaintiff failed to produce any evidence showing it is likely to be reinstated, and granted the summary judgment.


Here is the basic lesson: take care of your corporate formalities if you are going to sue under the corporation's name. 

But the more esoteric lesson might be more interesting. The court here used the summary judgment standard (i.e. "no reasonable jury") on the plaintiff's ability to carry on the suit. I am not sure if that's correct. Standing is a question of law, so the motion here should have been a motion to dismiss rather than a summary judgment, and there should have been no question of fact involved.

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