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MOHR v. ALLEN

January 28, 1976

Fred N. MOHR, Plaintiff,
v.
Marshall B. ALLEN, Defendant



The opinion of the court was delivered by: POLLACK

MEMORANDUM

 POLLACK, District Judge.

 Defendant moves to dismiss the complaint pursuant to Rules 12(b)(1), (3), (6), (7) Fed.R.Civ.P. on the grounds that (1) the Court lacks diversity jurisdiction on which the claims rest because the plaintiff, although he is a United States Citizen, is not a resident of any state, (2) this is an inappropriate and inconvenient forum under the doctrine of forum non conveniens, (3) plaintiff failed to join and the Court lacks jurisdiction over necessary Mexican parties who should be parties defendant to this litigation, (4) the Court lacks jurisdiction over the subject matter of the suit, namely, Mexican land, and (5) one of the joint ventures alleged in the complaint is impossible to perform and illegal.

 Defendant also moves for summary judgment pursuant to Rule 56 on the grounds that plaintiff has failed to state a claim upon which relief may be granted and that the evidence shows that recovery is barred.

 For the reasons shown hereafter under all the facts and circumstances, the motions to dismiss the complaint for lack of diversity jurisdiction or in the alternative under the doctrine of forum non conveniens are granted.

 In this diversity action, plaintiff seeks an accounting of three alleged oral joint ventures (one involving a Mexican hotel project and the others involving two boats) and the sale of alleged joint venture Mexican property by a receiver to be appointed by the Court. He also sues for damages in fraud and unjust enrichment with respect to the Mexican hotel joint venture and in fraud and conversion with respect to the other two alleged oral joint ventures.

 The complaint describes an involved series of Mexican transactions in Counts One through Three. The plaintiff describes therein an alleged oral joint venture to construct a resort hotel facility in Zihuatenjo, Mexico. Plaintiff asks that defendant be decreed a trustee of this foreign hotel facility, that the venture be dissolved, and that defendant be ordered to deliver books and records of Promotora de Guerrero, S.A. (the Mexican corporation formed to facilitate the construction of and to hold the land for the hotel) to a receiver to be appointed by the Court to sell the Mexican hotel and pay the funds into Court for distribution.

 Plaintiff contends that his work in supervising the construction and design of the Mexican hotel was intended as a contribution of capital to the alleged joint venture. Defendant denies that these services were made in pursuance of any joint venture with him. Defendant claims to have paid plaintiff $1,000 a month salary as an employee principally for his usefulness as an interpreter of the Spanish language.

 The Promotora corporation leased the land for the Mexican hotel from one Verboonem, a Mexican citizen who is now deceased. Under Mexican law, the shore land in question was communal, government-owned property (called "Ejido" land) and neither it nor the stock in the owner corporation could be held by a non-Mexican.

 Therefore, according to defendant, he was to provide funds to the Mexican corporation to build a hotel on the Mexican land and he would be repaid out of the eventual profits from the operation of the hotel.

 The lease of the "Ejido" land was premised on Verboonem's control over the land and ability to make the lease, a premise which defendant contends is faulty absent a specific presidential authorization to subdivide the land. Copies of a Mexican government decree expropriating the land have been submitted to the Court, but neither party claims that any subdivision was authorized. Accordingly, defendant contends that the attempt to lease was a nullity.

 However, plaintiff asserts that representatives of the Mexican government agreed that when and if the land was expropriated Promotora would obtain absolute title to it. He further asserts that defendant's Mexican attorney is holding the agreement.

 Whatever the status of the land, the planning and construction apparently proceeded until December 1970 when Cervera, the Mexican architect and builder of the project and Promotora's principal officer and shareholder, was discharged. It is charged that he improperly issued 2,350 shares of stock to himself and also failed to complete construction on time or to pay off debts to workers and suppliers.

 Upon his discharge, a trust agreement was worked out for the surrender of the Cervera stock through the Banco de Comercio. Defendant was to deposit $269,983 in the Bank and Cervera was to deliver his shares to the Bank and the books and documents of Promotora to the Mexican firm of Mancera Hnos y Cia, and to resign. Defendant then was to have the right to designate ...


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