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16-2689-cv 

F5 Capital v. RBS Securities Inc. 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER 

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY 

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 

OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

6th 4 day of June, two thousand seventeen. 

5 

6 PRESENT: DENNIS JACOBS, 

7 DEBRA ANN LIVINGSTON, 

8 RAYMOND J. LOHIER, JR., 

9 Circuit Judges. 

10 

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12 F5 CAPITAL, 

13 Plaintiff-Appellant, 

14 

15 -v.- 16-2689-cv 

16 

17 RBS SECURITIES INC., 

18 Defendant-Appellee, 

19 

20 DEPOSITORY TRUST COMPANY, 

21 Defendant. 

22 

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24 

25 FOR APPELLANT: MARK C. RIFKIN; Wolf Haldenstein 

26 Adler Freeman & Herz LLP, New York, 

27 NY. 
2

1 

2 David A. Slossberg; Hurwitz, 

3 Sagarin, Slossberg & Knuff, LLC, 

4 Milford, CT. 

5 

6 FOR APPELLEES: JEFFREY R. BABBIN, Ivana D. Greco, 

7 Robert S. Hoff; Wiggin and Dana 

8 LLP, New Haven and Stamford, CT. 

9 

10 Appeal from orders of the United States District Court for 

11 the District of Connecticut (Bryant, J.). 

12 

13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND 

14 DECREED that the judgment of the district court be AFFIRMED. 

15 

16 Plaintiff F5 Capital appeals from the judgment of the United 

17 States District Court for the District of Connecticut (Bryant, 

18 J.) dismissing the complaint on the ground of forum non 

19 conveniens, citing the forum selection clause in an earlier 

20 settlement agreement. We review de novo the district court’s 

21 dismissal under a forum selection clause “except where the 

22 decision is based on factual findings, which we review for clear 

23 error.” Martinez v. Bloomberg LP, 740 F.3d 211, 217 (2d Cir. 

24 2014). We assume the parties’ familiarity with the underlying 

25 facts, procedural history, and issues presented for review. 

26 Plaintiff F5 Capital is a Cayman Islands corporation owned 

27 by TMT Co. Ltd., a privately held Taiwanese shipping company. 

28 In 2007, TMT opened a “Forward Freight Agreement Clearing 

29 Account” with the Royal Bank of Scotland plc (“RBS”). In 

30 satisfaction of a margin call that RBS made against that account, 

31 TMT sent RBS a share certificate (which had been issued to F5) 

32 for 3,000,000 shares of a company called Star Bulk Carriers Corp. 

33 RBS held the certificate as collateral, and eventually 

34 transferred it to its indirect subsidiary, defendant RBS 

35 Securities Inc. (“RBS Securities”). 

36 In 2010, F5 and several related entities sued RBS in England. 

37 The 2012 settlement agreement provided, inter alia, for F5 and 

38 related entities to pay a certain sum to RBS and for RBS to return 

39 the 3,000,000 shares of Star Bulk. The agreement also included 

40 a forum selection clause: 
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1 13.2. The Parties agree that the courts of England have 

2 exclusive jurisdiction to hear and decide any action 

3 or proceedings, and/or to settle any disputes, which 

4 may arise out of or in any way relate to this Agreement 

5 or its formation and, for these purposes, each party 

6 irrevocably submits to the jurisdiction of the courts 

7 of England. 

8 App’x 26. After the agreement was signed, Star Bulk announced 

9 a 15:1 reverse split--converting the 3,000,000 shares into 

10 200,000 shares--and paid dividends, with which RBS (at F5’s 

11 direction) bought additional shares. 

12 In 2014, before the shares were returned, F5 sued RBS 

13 Securities (but not RBS itself) in the District of Connecticut, 

14 pleading claims premised upon RBS Securities’ possession of the 

15 shares and F5’s entitlement to them under the settlement 

16 agreement with RBS. The shares were returned after the 

17 complaint was filed, mooting some claims; F5 avers that it 

18 retains a valid claim for an accounting, relating to interest 

19 and dividend payments. 

20 1. To determine whether to enforce a forum selection 

21 clause, we consider: 

22 (1) whether the clause was reasonably communicated to 

23 the party resisting enforcement; (2) whether the 

24 clause is mandatory or permissive . . . ; and (3) whether 

25 the claims and parties involved in the suit are subject 

26 to the forum selection clause. If [so] . . . , it is 

27 presumptively enforceable. A party can overcome this 

28 presumption only by (4) making a sufficiently strong 

29 showing that enforcement would be unreasonable or 

30 unjust, or that the clause was invalid for such reasons 

31 as fraud or overreaching. 

32 Martinez, 740 F.3d at 217 (quotation marks and citations 

33 omitted). It is undisputed that the clause was reasonably 

34 communicated and is mandatory. 

35 F5 argues against enforcement principally because RBS 

36 Securities was not a party to the settlement agreement. However, 
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1 a non-signatory to a contract containing a forum 

2 selection clause may enforce the forum selection 

3 clause against a signatory when the non-signatory is 

4 “closely related” to another signatory. In such 

5 instances, the relationship between the non-signatory 

6 and that (latter) signatory must be sufficiently close 

7 that the non-signatory’s enforcement of the forum 

8 selection clause is “foreseeable” to the signatory 

9 against whom the non-signatory wishes to enforce the 

10 forum selection clause. 

11 Magi XXI, Inc. v. Stato della Citta del Vaticano, 714 F.3d 714, 

12 723 (2d Cir. 2013) (citation and footnote omitted). This rule 

13 “prevent[s] parties to contracts from using evasive, formalistic 

14 means lacking economic substance to escape contractual 

15 obligations.” Id. at 722 (quotation marks omitted). 

16 RBS Securities was not a signatory to the settlement 

17 agreement, but it is closely related to a signatory (its parent), 

18 and its enforcement of the forum selection clause was foreseeable 

19 because (among other reasons) the disputed conduct was performed 

20 at least in part on RBS’s behalf. Even if, as F5 alleges, RBS 

21 Securities’ identity was unforeseeable, F5’s claims arise from 

22 the performance (or non-performance) of RBS’s obligations under 

23 the settlement agreement; it was therefore foreseeable that some 

24 RBS instrumentality involved in the execution of the agreement 

25 might enforce the forum selection clause. 

26 2. For the foregoing reasons, the forum selection clause 

27 is presumptively enforceable. F5 has not overcome this 

28 presumption by making a sufficiently strong showing that 

29 enforcement would be unreasonable or unjust. F5 argues that 

30 enforcement would be unjust because English courts would not 

31 have personal jurisdiction over RBS Securities; but that 

32 argument was not timely raised in the district court (it was 

33 first raised in a motion for reconsideration) and it is made 

34 now in conclusory fashion. Even if it were properly raised 

35 below, and assuming arguendo that it is correct, F5 has made 

36 no argument that it is owed relief that cannot be achieved in 

37 litigation against RBS. F5 therefore has not shown that 

38 enforcement of the forum selection clause would be unreasonable 

39 or unjust. 
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1 Accordingly, and finding no merit in appellant’s other 

2 arguments, we hereby AFFIRM the judgment of the district court. 

3 FOR THE COURT: 

4 CATHERINE O’HAGAN WOLFE, CLERK