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EL CID, LTD. v. NEW JERSEY ZINC CO.

November 30, 1982

EL CID, LTD., Plaintiff,
v.
THE NEW JERSEY ZINC COMPANY, GULF & WESTERN INDUSTRIES, INC., GULF & WESTERN INTERNATIONAL HOLDING COMPANY, GULF & WESTERN (CANADA) LIMITED, WATTS, GRIFFIS & MCQUAT, LIMITED, CAMINO GOLD MINES LIMITED, CONFOR MINING, INC., RICHARD W. HOGELAND and DAVID M. KOOGLER, Defendants



The opinion of the court was delivered by: KNAPP

MEMORANDUM & ORDER

 WHITMAN KNAPP, D.J.

 After extensive discovery, the so-called Gulf & Western defendants *fn1" have brought a motion for summary judgment against the antitrust claim of the second amended complaint. For reasons set forth below, it is conditionally granted. *fn2"

 THE ANTITRUST CLAIM

 This case involves eight gold mining concessions [the Bolgol Concessions] located in Bolivia's Tipuani Valley. These concessions are owned by defendant Camino Gold Mines Ltd. [Camino], which does not mine them for gold. It is plaintiff's contention that, had the defendants not prevented it by unfair means from obtaining the necessary funds from its American backers, it -- and not Camino -- would now be the owner of the Bolgol Concessions. Plaintiff, moreover, asserts that it -- unlike Camino -- would have mined the concessions for gold.

 The antitrust claim at issue is based on section 1 of the Sherman Act, 15 U.S.C. § 1, and section 73 of the Wilson Tariff Act which extends the antitrust laws to the importation of goods. 15 U.S.C. § 8. It alleges that defendants conspired wrongfully to deprive plaintiff of the Bolgol Concessions. This conspiracy is claimed to have affected, among others, the security markets and commerce in mining equipment and machinery. Complaint para. 22. In this connection the complaint states at para. 25:

 
The acts of the defendants have had and will have a substantial impact on trade and commerce among the several States and with foreign nations, in particular but without limitation, trade and commerce in mining equipment and machinery, in gold, and in the securities of such defendants as are publicly held and traded. The combination, conspiracy and concert of action alleged herein are between and among persons and corporations who, as agents or principals, are engaged or to become engaged in importing gold and other commodities into the United States; and such combination, conspiracy and concert of action are intended to operate in restraint of lawful trade and commerce. (Emphasis supplied).

 THE INSTANT MOTION

 It is axiomatic that a motion for summary judgment may not be granted unless, after resolving all ambiguities and drawing all reasonable inferences in favor of the party against whom summary judgment is sought, there remains no material fact genuinely in dispute. FLLI Moretti Cereali v. Continental Grain Co. (2d Cir. 1977) 563 F.2d 563, 565; 6 Moore's Federal Practice P 56.23. *fn3" Accordingly, for the purposes of this motion, we will accept as established that defendants did indeed use unfair means to deprive plaintiff of the Bolgol Concessions and that the alleged conspiracy among defendants was planned and set in motion in the United States. We will focus at the outset on the pivotal question whether -- on the assumption that unfair means were used -- their "intended effects" had a sufficient impact upon United States commerce to warrant application of the antitrust laws to this extraterritorial dispute. We answer the first question in the negative. Furthermore, we then go on to observe that, after several years of discovery, plaintiff has failed to submit such evidence as would allow a reasonable jury to find defendants' conduct in depriving plaintiff of the Bolgol Concessions to have had an anticompetitive effect.

 THE UNITED STATES CONNECTION

 FACTS

 As noted above, the subject of this lawsuit is a gold mining concession located in Bolivia's Tipuani Valley and now owned by defendant Camino -- a Canadian corporation.

 Plaintiff is a corporation organized in the Cayman Islands, British West Indies, with offices in San Jose, Costa Rica. It is not authorized to do business in any jurisdiction within the United States, and has no office or place of business here. It has, however, provided investment advice to investors in this country, and has had American citizens as stockholders. Plaintiff's Rule 3(g) Statement para. 2. *fn4" Moreover, plaintiff, its predecessors, and stockholders have generally conducted business in U.S. dollars, plaintiff's only checking account (presumably with a foreign bank) is and always has been denominated in U.S. dollars, and plaintiff's two main backers on the Bolgol venture -- S.J. Groves & Sons Co. and William J. Kilpatrick -- are both American. Plaintiff's Rule 3(g) Statement para. 57.

 The cast of defendants includes three that are Canadian: Camino (the vehicle for defendants' Bolivian mining ventures), Watts, Griffis & McQuat, Ltd., and Gulf & Western (Canada). The other defendants, however, are American. As stated above, for present purposes, it must be taken as established that the alleged conspiracy to deprive plaintiff of the Bolgol was planned and set in motion within the United States. Thus, plaintiff avers that defendant Gulf & Western expended some $2,275,000 in interstate and foreign commerce in this connection; that defendants sought financing of approximately $7,000,000 for the project from New York City banks and financiers, obtaining a conditional commitment in 1975; and that ...


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