*Judge Sidney H. Stein of the United States District Court for the Southern District of New York, sitting by designation. 11-5150-cv Leng v. Pinnacle Performance Ltd.
**UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 

**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C** **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX 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**  **.** At a stated term of the United States Court of Appeals 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 10 thday of April, two thousand and twelve. 4 5 PRESENT: BARRINGTON D. PARKER, JR., 6 RICHARD C. WESLEY, 7 Circuit Judges, 8 SIDNEY H. STEIN, * 9 District Judge

. 10 11 12 LAM YEEN LENG, ZHAO YUZHENG, NG SHOOK PHIN SUSAN, CHOH GEK 13 HONG JOHNSON, HO YU WAH PETER, NEO SAY HOE, ANG SOO CHENG, 14 LIM THIAN LOKE, BOEY CHERN YUE, YEO PENG CHYE, NI YAN AMY, 15 LI CHAN CHIH ERIC, SINGAPORE GOVERNMENT STAFF CREDIT 16 COOPERATIVE SOCIETY, LIMITED, LOH TUCK WOH PETER, CHUA HUI 17 LOO, PAN YUEN DAPHNE, CHO SIEW KONG DOUGLAS, GE DANDONG, 18 19 Plaintiffs-Appellees , 20 21 -v.- 11-5150-cv 22 23 PINNACLE PERFORMANCE LIMITED, MORGAN STANLEY ASIA 24 (SINGAPORE) PTE, MORGAN STANLEY & CO. INTERNATIONAL, PLC, 25 MORGAN STANLEY CAPITAL SERVICES INCORPORATED, MORGAN STANLEY 26 & CO. INCORPORATED, 27 28 Defendants-Appellants. 29 302 FOR APPELLANTS: BRUCE D. ANGIOLILLO (Jonathan K. 1 Youngwood, on the brief ), Simpson 2 Thatcher & Bartlett LLP, New York, NY. 3 4 FOR APPELLEES: ANDREW M. MCNEELA (Daniel Hume, Ira M. 5 Press, on the brief ), Kirby McInerney 6 LLP, New York, NY. 7 8 Appeal from the United States District Court for the 9 Southern District of New York (Sand, J .). 10 11 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 12

**AND DECREED**that the judgment of the district court be 13

**AFFIRMED**as to Defendants-Appellants Morgan Stanley Asia 14 (Singapore) PTE, Morgan Stanley & Co. International, PLC, 15 Morgan Stanley Capital Services Incorporated, and Morgan 16 Stanley & Co. Incorporated. As to Defendant-Appellant 17 Pinnacle Performance Limited (“Pinnacle”), we **REMAND** for the 18 district court to make personal jurisdiction findings. The 19 injunction will remain in place as to Pinnacle while the 20 district court makes these findings. 21 Appellants, including Pinnacle, appeal from an order of 22 the United States District Court for the Southern District 23 of New York (Sand, J. ) issuing a preliminary injunction. 24 The injunction prohibits Appellants from pursuing their own 25 anti-suit injunction from the High Court of the Republic of 26 Singapore (“Singapore Motion”) that would require Appellees 27 to litigate their claims exclusively in Singapore. 283 Appellants also seek interlocutory review of the district 1 court’s order denying their motion to dismiss Appellees’ 2 complaint. Appellants ask this Court to consider their 3 argument made below that Appellees’ suit must be dismissed, 4 either on the basis of forum non conveniens or on the basis 5 of a Singapore forum selection clause contained in the 6 Pricing Statements for the credit-linked notes at issue in 7 this litigation. We assume the parties’ familiarity with 8 the underlying facts, the procedural history, and the issues 9 presented for review. 10 This Court reviews the issuance of an anti-suit 11 injunction for abuse of discretion, namely, the incorrect 12 application of legal standards or reliance on clearly 13 erroneous findings of fact. Karaha Bodas Co., L.L.C. v. 14 Perusahaan Pertambangan Minyak Dan Gas Bumi Negara , 500 F.3d 15 111, 118-19 (2d Cir. 2007). This Circuit has suggested that 16 before issuing an anti-suit injunction, a court must (1) 17 “address[] the propriety of imposing an anti-suit 18 injunction” under the test established inChina Trade & Dev. 19 Corp. v. M.V. Choong Yong , 837 F.2d 33, 35 (2d Cir. 1987) 20 (the “ China Trade” test), and then (2) “make findings on 21 whether it is appropriate to enter a preliminary 221These factors include whether the enjoined action would “(1) frustrate . . . a policy in the enjoining forum; (2) . . . be vexatious; (3) . . . threaten . . . the issuing court’s . . . jurisdiction; (4) . . . prejudice other equitable considerations; or (5) . . . result in delay, inconvenience, expense, inconsistency, or a race to judgment.” Karaha Bodas Co. , 500 F.3d at 119 (internal quotation marks and alterations omitted). 4 injunction.” In re Millenium Seacarriers, Inc. , 458 F.3d 1 92, 98 (2d Cir. 2006) (per curiam) (emphasis removed). 2 The district court properly determined that Appellees 3 satisfied both of these tests. First, the district court 4 properly found that Appellees had satisfied the two 5 threshold elements of the China Tradetest: (1) the parties 6 to both proceedings are the same, and (2) “resolution of the 7 case before the enjoining court [will] be dispositive of the 8 action to be enjoined.” China Trade , 837 F.2d at 35. 9 Appellees have also met their burden under the additional 10 China Trade factors. See Karaha Bodas Co. , 500 F.3d at 11 119. 1Most importantly here, the district court found that 12 the enjoined Singapore Motion would threaten the district 13 court’s jurisdiction. See China Trade , 837 F.2d at 36 14 (“[I]f a foreign court is not merely proceeding in parallel 15 but is attempting to carve out exclusive jurisdiction over 16 the action, an injunction may . . . be necessary to protect 17 the enjoining court’s jurisdiction.”). Appellants’ 185 Singapore Motion seeks a determination that Singapore is the 1 proper forum for Appellees’ suit. Faced with this clear 2 threat to its jurisdiction over the case, the district court 3 properly exercised its discretion in finding that this 4 factor weighed heavily against Appellants. 5 The district court also properly determined that 6 Appellees satisfied the traditional test for the issuance of 7 a preliminary injunction. Under that test, Appellees must 8 show (1) irreparable harm, (2) sufficiently serious 9 questions going to the merits, and (3) a balance of 10 hardships tipping decidedly towards them. See Citigroup 11 Global Mkts., Inc. v. VCG Special Opportunities Master Fund 12 Ltd. , 598 F.3d 30, 35 (2d Cir. 2010). We agree with the 13 district court that Appellees have demonstrated irreparable 14 harm through the “actual and imminent possibility that 15 [they] will be enjoined from prosecuting their suit in this, 16 or in any other non-Singaporean, forum,” and that there are 17 sufficiently serious questions going to the merits. Dandong 18 v. Pinnacle Performance Ltd. , No. 10 Civ. 8086, 2011 WL 19 6156743, at *7 (S.D.N.Y. Dec. 12, 2011) (internal quotation 20 marks omitted). Finally, the district court properly found 21 that the balance of hardships “tips decidedly in favor of 226 [Appellees]” due to the timing of Appellants’ Singapore 1 Motion, the danger that Appellees will be enjoined from 2 proceeding in their chosen forum, and the potential expense, 3 delay, and inconvenience involved in requiring Appellees to 4 litigate in Singapore and possibly abandoning their case in 5 New York. Id. 6 However, the district court erred in enjoining Pinnacle 7 without first making any findings as to its jurisdiction 8 over that party. Where a challenge to personal jurisdiction 9 is interposed on an application for a preliminary 10 injunction, the district court must determine that the party 11 moving for the injunction has established “at least a 12 reasonable probability of ultimate success on the question 13 of the court’s in personam jurisdiction” over the non-moving 14 party. Weitzman v. Stein , 897 F.2d 653, 659 (2d Cir. 1990); 15 Visual Scis., Inc. v. Integrated Commc’ns Inc. , 660 F.2d 56, 16 59 (2d Cir. 1981). 17 Here, Appellants initially moved to dismiss the 18 complaint on the grounds that Pinnacle was an indispensable 19 party under Fed. R. Civ. P. 19(b) and that the court did not 20 have personal jurisdiction over Pinnacle. In deciding that 21 motion, however, the district court focused solely on 227 whether Pinnacle was an indispensable party. Having 1 concluded that it was not, the court saw no need to resolve 2 the jurisdictional question. 3 Nor did the district court address whether it had 4 jurisdiction over Pinnacle during the preliminary injunction 5 hearing or in its subsequent memorandum and order granting 6 the preliminary injunction. Having determined that the 7 parties in the federal action were the “same” as the parties 8 involved in the Singapore Motion for the purposes of China 9 Trade , the district court seemed to think that Pinnacle’s 10 appearance and answer in this case permitted it to grant the 11 injunction. See Dandong , 2011 WL 6156743, at *4 (“Pinnacle, 12 having answered the complaint, is now a party to the suit in 13 New York. For this reason, the parties to both suits are 14 identical.”) (internal citation omitted)

. But Pinnacle’s 15 presence in the lawsuit did not provide the answer to the 16 jurisdictional question, which is necessary to enjoin 17 Pinnacle because Pinnacle raised jurisdictional objections 18 both in its answer and in the motion to dismiss. 19 In the absence of any jurisdictional determination as 20 to Pinnacle, this Court must remand to the district court to 21 “make factual findings adequate enough to permit intelligent 222We express no view on the effect of a finding that the court lacks personal jurisdiction over Pinnacle on the court’s determination that the parties are the “same” or “sufficiently similar” for the purposes of satisfying China Trade ’s first threshold element. See Paramedics Electromedicina Comercial, Ltda v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 652 (2d Cir. 2004). 8 appellate review.” Visual Scis. , 660 F.2d at 59. The 1 injunction will remain in place while the district court 2 makes this finding. See Millenium Seacarriers , 458 F.3d at 3 98 (keeping anti-suit injunction in place while remanding 4 for court to make China Tradefindings). 2 5 Finally, we decline to address whether the district 6 court properly ruled on Appellants’ forum non conveniens or 7 forum selection clause arguments. This Court may exercise 8 pendent jurisdiction to review any issue that is 9 “inextricably intertwined with a question that is the proper 10 subject of an immediate appeal, or . . . where review of a 11 jurisdictionally insufficient issue is necessary to ensure 12 meaningful review of a jurisdictionally sufficient one.” 13 LaForest v. Former Clean Air Holding Co. , 376 F.3d 48, 51 14 (2d Cir. 2004) (internal quotation marks omitted). Two 15 rulings are “inextricably intertwined” when the “same 16 specific question” underlies both orders such that this 17 Court’s resolution of the question “will necessarily resolve 189 the appeals from both orders at once.” Myers v. Hertz 1 Corp. , 624 F.3d 537, 553 (2d Cir. 2010) (internal quotation 2 marks omitted). 3 While the issue of the district court’s anti-suit 4 injunction order is properly before this Court pursuant to 5 28 U.S.C. § 1292(a)(1), neither the issue of forum non 6 conveniens nor the applicability of the Singapore forum 7 selection clause involves the “same specific question” such 8 that the rulings are inextricably intertwined. Appellants’ 9 argument that these issues all center on “whether New York 10 is an appropriate forum” is unpersuasive. Appellants’ Reply 11 Br. 19. Determining whether to issue an anti-suit 12 injunction involves assessing the harm caused, and the 13 jurisdictional threat imposed, by concurrent or superceding 14 proceedings in another forum. In contrast, the forum non 15 conveniensinquiry asks whether there is an adequate 16 alternative forum that would better serve the litigation. 17 And the applicability of a forum selection clause depends on 18 contract interpretation, not on harm to litigants, the 19 court, or international comity. It is not enough that 20 Appellants have shown some similarity between these issues: 21 [T]he pendent jurisdiction standard is not satisfied 22 when we are confronted with two similar, but 2310independent, issues, and resolution of the non1 appealable order would require us to conduct an inquiry 2 that is distinct from and broader than the inquiry 3 required to resolve solely the issue over which we 4 properly have appellate jurisdiction. 5 6 Myers , 624 F.3d at 553-54 (internal quotation marks 7 omitted). 8 For the foregoing reasons, the judgment of the district 9 court is hereby **AFFIRMED**as to Defendants-Appellants Morgan 10 Stanley Asia (Singapore) PTE, Morgan Stanley & Co. 11 International, PLC, Morgan Stanley Capital Services 12 Incorporated, and Morgan Stanley & Co. Incorporated. As to 13 Defendant-Appellant Pinnacle, we **REMAND** for the district 14 court to make personal jurisdiction findings. The 15 injunction will remain in place as to Pinnacle while the 16 district court makes these findings. 17 The motion by The Securities Industry & Financial 18 Markets Association, et al . for leave to file an amicus 19 curiaebrief in support of Appellants is moot. 20
21 FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 23 24 25