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July 28, 1969

Maurice A. KRISEL, Plaintiff,
Rafael DURAN, Sam J. Van Hining, Economic Development Administration of Puerto Rico and Phillips Petroleum Company, Defendants

Edward Weinfeld, District Judge.

The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

The basic facts upon which plaintiff seeks to hold the defendant Phillips Petroleum Company [Phillips] liable are set forth in this Court's earlier opinion dismissing the action against the Economic Development Administration of Puerto Rico [EDA] on the jurisdictional ground that EDA was an instrumentality of the Commonwealth of Puerto Rico and that since the Commonwealth was the real party in interest, diversity jurisdiction was lacking. *fn1"

 Familiarity is assumed with the prior opinion, which noted that although plaintiff had no dealings with Phillips, his claims against it "are hinged to those asserted against EDA." The Court held that insofar as plaintiff sought recovery against EDA upon an express contract of nondisclosure or confidentiality of his program for the development of a petrochemical complex, he had failed by affidavit and deposition to show the existence of any triable issue. Plaintiff, however, contended that this could be established through his two friends, Jose Feliciano and Abraham Nieves, who had acted on his behalf in discussions with EDA officials in Puerto Rico. Feliciano and Nieves had already, by affidavit, negated plaintiff's various claims against EDA. Since plaintiff persisted that their denials were the result of pressures upon them, the Court afforded him the opportunity to take their depositions, and accordingly denied Phillips' motion for summary judgment without prejudice to renewal upon completion of their testimony. Their depositions, which have been completed, repel rather than support plaintiff's claim of an express contract. Indeed, plaintiff now disavows any reliance upon an express contract of nondisclosure or confidentiality. In any event, there is no factual support for the claim of an express agreement of nondisclosure.

 Plaintiff contends, however, that triable issues of fact exist upon either one of two claims: (a) a contract implied in fact, or (b) a contract implied in law, or a quasi contract. With respect to these claims he also urges it is not necessary to establish the proposed program was original, novel and specific, although he does make that contention. Upon this record plaintiff's claims, however viewed, cannot be sustained. The prolix and argumentative affidavits submitted by plaintiff and the extensive and at times discursive briefs cannot create issues of fact which do not exist, nor do they convert this suit into a complex litigation so as to foreclose the grant of summary judgment where it is indicated. *fn2"

 A. The claim of an implied in fact agreement. *fn3"

 Here plaintiff contends that the totality of circumstances under which his proposal was submitted to EDA permits an inference of an implied in fact agreement of nondisclosure with an implicit understanding that if the ideas embodied therein were used or disclosed he would be compensated.

 Plaintiff's interest in the development of a petrochemical complex in Puerto Rico was kindled by his representation of a client in the United States who was in need of a source of fuel oil. It appeared that such a supply could be derived as a by-product or surplus of petroleum feed stock required for an oil refinery and petrochemical complex. Up to this time, about May 1961, plaintiff, without experience in operating refineries, was unaware of the governmental restrictions of oil importation into Puerto Rico. *fn4" In the furtherance of his client's interest he made preliminary inquiry of EDA representatives in New York and Puerto Rico and soon learned that indispensable to any project was an increase in the oil import quota for Puerto Rico. Plaintiff thereafter submitted a proposal, or, as he terms it, a program to EDA in a letter of September 25, 1961, through Nieves to Durand, whom plaintiff had never met. In pertinent part it states:

"* * * [We] are conveying to you hereby our program for the development of an industrial complex in Puerto Rico predicated on your Government issuing to our enterprise a commitment that:
"1. The Commonwealth government will obtain a quota of foreign crude oil, preferably Venezuelan, for our use sufficient in barrelage per day to warrant our going ahead with our plans. * * *
* * *
"The project depends entirely on your obtaining the quota of oil required."

 On October 16 Durand rejected the proposal, stating that the "Commonwealth of Puerto Rico will not entertain a commitment to satisfy the first condition stated in your letter of September 25 * * *." The circumstances under which Phillips, two and a half years later, in 1964, applied to the Department of the Interior, with Commonwealth and EDA support, for a quota of 50,000 barrels per day for use in its projected petrochemical complex are set forth in the prior opinion.

 Plaintiff, from the inception of this suit, has contended that the plan outlined in the letter of September 25, and allegedly submitted in confidence to EDA, was a novel and original program for the development of a petrochemical plant in Puerto Rico and for obtaining therefor a substantial increased oil import quota, and so we consider this contention first. Plaintiff has summarized his program as containing five important elements. *fn5" Four of these admittedly were known to and were within the experience of EDA long prior to plaintiff's submission, to wit, the concepts of (1) a petrochemical complex with its economic and employment aspects for the benefit of Puerto Rico; (2) the importation of oil feed stock to sustain such a complex, principally from Venezuela because of its proximity and cheap price; (3) tax exemption by the Commonwealth of Puerto Rico to encourage private enterprise; and (4) investment participation in projects by the Puerto Rican public.

 Plaintiff's claim of originality centers about the fifth element, to wit, the use of the political power and prestige of the Commonwealth and its officials in support of the application for an increased quota of the daily barrelage necessary for the contemplated project. He described this element as "most important of all, a means of importing the necessary oil - a means of opening the quota door - by the use of the political prestige, power, and leverage of Puerto Rico and its economic needs." And in his deposition he characterized the condition in his letter of September 25 that the Commonwealth commit itself to obtaining a foreign quota of crude oil "as the foundation stone of the entire program," and added, "my whole object was to utilize the position of the Puerto Rican governor, Munoz-Marin, and the Puerto Rican government's economic program * * * its prestige * * *," to secure favorable action by federal officials. This element of plaintiff's program was neither original, unique nor concrete, whether considered singly or in combination with the four elements referred to above. The concept was usual and commonplace. Any amendment of Puerto Rico's existing quota allocation to obtain the crude oil essential for petrochemical processes was subject to determination by the United States Secretary of the Interior on appropriate application under regulations promulgated pursuant to Presidential proclamation. *fn6" Thus, an indispensable requirement of any petrochemical complex, whether proposed by plaintiff or by any other person, was an import license reflecting the quota increase. Without it there could be no project. What plaintiff sought was Commonwealth support for the increased oil quota essential for the proposed project. That plaintiff sought such support for a larger quota than the Commonwealth or EDA officials considered feasible or attainable, whatever their reasons, did not make his request for governmental assistance original or unique, nor did it constitute a valuable idea. His idea was no more than the enlistment of the prestige and power of the Commonwealth and its officials in aid of an entrepreneurial undertaking that purportedly would also advance the Commonwealth's economic and industrial program - the kind of governmental support that is sought day in and day out for projects that allegedly serve the community interest. One need but pick up the daily press to read that the governor of a state, the mayor of a city, or the head of a public authority has made representations to other public agencies, whether executive, legislative or administrative, in furtherance of a local project, whether publicly or privately financed or sponsored. To hold that a request for the use of the political power and the prestige of a state ...

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