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VAN BOKKELEN & ROHR, S.A. v. GRUMMAN AERO. CORP.

February 28, 1977

VAN BOKKELEN & ROHR, S.A., Plaintiff and Counterdefendant, against GRUMMAN AEROSPACE CORP., now known as GRUMMAN AMERICAN AVIATION CORP., and GRUMMAN CORP., Defendants and Counterclaimants, against ENRIQUE ROHR, Additional Defendant to Counterclaim.


The opinion of the court was delivered by: PLATT

THOMAS C. PLATT / U.S.D.J.

MEMORANDUM AND ORDER [February 28, 1977]

 PLATT, D.J.

 Defendants have made two motions herein; the first for an order pursuant to Rules 36 and 37 of the Federal Rules of Civil Procedure providing (i) that Request to Admit No. 6 of Defendants' First Request for Admissions dated March 10, 1976 be deemed admitted, and that plaintiff pay the attorneys' fees and disbursements of this motion to defendants or, in the alternative, (ii) that they admit or deny Request to Admit No. 6 and that plaintiff pay the attorneys' fees and disbursements of this motion to defendants and the second for an order pursuant to Rule 56(b) of the Federal Rules of Civil Procedure granting summary judgment in favor of defendants and against plaintiff and dismissing plaintiff's complaint in its entirety, and awarding defendants their costs and reasonable attorneys' fees incurred in defending this action.

 In this decision we will consider defendants' motions in inverse order to which they were actually made.

 According to plaintiff's complaint, it entered into an agreement with the defendant Grumman Aerospace Corp. dated April 15, 1972, as a broker with exclusive distributorship rights in the South American countries of Argentina, Brazil, Chile, Paraguay, Bolivia, Uruguay and Ecuador, and the right (not exclusive) to sell a specific type of plane (Ag-Cat) within the limits of Peru, the Guianas and Central America. The Ag-Cat is a farm type of crop dusting plane. The contract was for a two year period but was extended for an additional two years by virtue of a telegram submitted in October of 1973.

 Pursuant to the contract, plaintiff undertook to negotiate the sale of 44 Ag-Cat planes to a corporation known as ANAPLA which was acting on behalf of ten Brazilian companies concerning the purchase of Ag-Cats with financing to be supplied from the Government of Brazil.

 Plaintiff alleges in its complaint that negotiations for the sales began in 1968 and it devoted considerable time to making "contacts" and suggestions with respect to the best method of consummating the agreement. In February of 1974, ANAPLA is alleged to have submitted an order for the purchase of Ag-Cat planes which had the Brazilian Government's approval for financing. In the middle of 1974 the Government of Brazil established a committee (COTAC) whose function was to oversee the importation of aircraft into Brazil. The plaintiff alleges further that its officers had several meetings with representatives of the Brazilian Government in an effort to persuade them to continue with further plans to enable ANAPLA to purchase and import such aircraft.

 According to the complaint, the defendants attempted to and did interfere with plaintiff's exclusive distributorship rights and its present and future economic advantage therefrom; that plaintiff's rights were therefore breached by the defendants and plaintiff suffered substantial damages as a result thereof.

 An examination of the depositions submitted on this motion reveals that the gravamen of plaintiff's complaint appears to be based upon the loss of the potential sale of the 44 Ag-Cats by the defendant Grumman through the plaintiff's distributorship to ANAPLA with the financial aid and import permission of the Brazilian Government because of the alleged interference of defendants' representatives.

 Suffice it to say at this juncture that there may be one or more issues of fact to be resolved at a trial of this matter.

 In addition, it should be noted that on this motion the defendant Grumman relied heavily upon a letter dated the 2d of September, 1975, addressed to The Chairman of Grumman Industrial LTDA by the Chairman of COTAC which sets forth four reasons why the COTAC Board on April 10, 1975, denied import permits to ANALPA for Ag-Cat planes.

 Defendant Grumman takes the position that this document, which is certified, is both self-authenticating under Rule 901(b)(7) and admissible as an exception to the hearsay rule under Rule 803(8) of the Federal Rules of Evidence.

 While such document may be sufficiently authenticated so as to meet the requirements of the first of such Rules, it is far from clear to this Court at this point that the same meets the requirements of the second of such Rules.

 There may well have been a duty on the part of the Chairman of the COTAC Board to record such "reasons" in minutes of the meeting of the Board on April 10, 1975, and a certified copy of such minutes might meet the requirements of Rule 803(8), but it is questionable whether a certified copy of a ...


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