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

December 15, 1983

EL CID, LTD., Plaintiff, against THE NEW JERSEY ZINC COMPANY, GULF & WESTERN INDUSTRIES, INC., GULF & WESTERN INTERNATIONAL HOLDING COMPANY, GULF & WESTERN (CANADA) LIMITED, WATTS, GRIFFIS & MC OUAT, LIMITED, CAMINO GOLD MINES LIMITED, CONDOR 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.

 Plaintiff El Cid, Ltd. ("El Cid") has claimed in its amended complaint that the various defendants, acting in concert, *fn1" engaged in illegal activities in connection with the purchase of the rights to mine the Bolgol mining concessions ("the Bolgol") in Bolivia's gold-rich Tipuani Valley. Plaintiff alleged, first, that defendants' actions violated the Sherman and Wilson Tariff Acts (15 U.S.C. § 1, 15 U.S.C. § 8); second, that defendants interfered with its contractual, precontractual, and business relationships with respect to its own attempts to purchase the right to, and mine, the Bolgol; and third, that defendants engaged in a common-law conspiracy to deprive it of these rights.

 In our prior decision, published at 551 F. Supp. 626, we granted summary judgment to defendants on plaintiff's first cause of action. This decision, however, was provisional, and dismissal of the antitrust claim was stayed pending defendants' motions to dismiss the remaining claims. *fn2" These motions are now before us. *fn3"

 BACKGROUND

 Some of the facts relevant to this motion are set forth in our prior published opinion. Familiarity with them is presumed, and we shall not repeat them here. However, for the instant motion we set forth, in addition, the following facts and contentions.

 In March of 1974 plaintiff's predecessors contracted with one Helmut Gaensel and Gaensel Gold Mines & Co., Ltd. ("Gaensel"), a claimant to the Bolgol, to purchase Gaensel's rights if and when his claim to them, then contested in litigation in Bolivia by one of the defendants, should be vindicated. This contract was entered into in Florida. In May 1975 Gaensel's claim was vindicated in the Bolivian courts. In June 1975 Gaensel and plaintiff entered into a second, superseding agreement for the sale of the rights to the Bolgol. Neither the superseding agreement nor the first contract was subjected to the notarization and registration required by ARticle 171 of the Bolivian Mining Code to make it an escritura publica, or a public writing, legally enforceable under Bolivian law. In July 1975 Gaensel contracted to sell these same rights to defendants, which sale was conditioned on plaintiff's failure to satisfy certain of its payment obligations under the June 1975 agreement. Plaintiff did so fail, and the transaction between defendants and Gaensel was completed and the contract between them dully made an escritura publica.

 Plaintiff asserts that, in their efforts to gain the Bolgol concession, defendants met and conspired in New York to take any means possible to deprive plaintiff of its contract with Gaensel. In furtherance of this plan, according to plaintiff, the defendants attempted to exert improper influence over the Bolivian judge before whom the Gaensel litigation was pending; met with Gaensel while his contract with plaintiff was still pending; drove away plaintiff's intended source of financing for its projected mining ventures; engaged in baseless and harassing litigation in Bolivia; sought legislation in Bolivia, in the form of a Supreme Decree, to the effect that title to the Bolgol was theirs; and suborned Bolivian attorneys, who gave plaintiff faulty legal advice, thereby causing it to refrain from raising its contract with Gaensel to a judicially enforceable escritura publica.

 Defendants admit that they perused litigation and legislation in Bolivia. However, they deny the existence of any conspiracy to deprive plaintiff of its rights, and further deny that any illegal action whatsoever was taken at any stage of the proceedings.

 In the instant motion, defendants contend that the law applicable to plaintiff's tort claim is that of Bolivia, which, they assert, does not recognize the torts alleged by plaintiff and further does not provide for criminal or civil sanctions for any of the actions which plaintiff attributes to them. We find that defendants are correct in their first assumption, and hold that plaintiff's allegations must be governed by the substantive law of Bolivia.Both plaintiff and defendants have relied upon the testimony of experts in the law of that country: plaintiff upon Dr. Fernando Rojas Hernandez, a Bolivian attorney; defendants on Professor Henry DeVries of Columbia University. By the law of this case, as set forth in our unpublished Memorandum and Order of July 8, 1983, we have limited our consideration of that law to those statutes relied upon by Dr. Rojas in his affidavits on this motion. *fn4" We conclude that the facts alleged by plaintiff -- drawing all inferences in its favor -- would be sufficient to establish a valid cause of action under one such statute. We accordingly deny defendants' motion for summary judgment and set the case down for trial solely to determine the disputed material issues of fact raised by defendants' denials of plaintiff's allegations as to this single statute.

 Choice of Law

 In choice-of-law questions where federal jurisdiction is based on diversity or pendent jurisdiction, a federal court must be guided by the rules of the jurisdiction in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., Inc. (1941) 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 ; Hall v. E.I. DuPont deNemours & Co. (E.D.N.Y. 1972) 345 F. Supp. 353; Maltais v. United States (E.D.N.Y. 1977) 439 F. Supp. 540. The New York courts -- whose law thus governs -- apply to tort actions the law of the jurisdiction with the "most significant relationship" with the subject matter of the alleged tort. Nader v. General Motors Corp. (1970) 25 N.Y.2d 560, 307 N.Y.S.2d 647, 255 N.E.2d 765 ; Church of Scientology of California, Inc. v. Green (S.D.N.Y. 1973) 354 F. Supp. 800. We turn, therefore, to the relationships to the alleged torts of the various jurisdictions which figure in this action.

 We note at the outset that although the continent-and globe-spanning domiciles and activities of the parties in the action before us have touched many jurisdictions, only three -- Bolivia, New York and Costa Rica -- are asserted to have any significant connection to the events before us for choice of law purposes. According to plaintiff's allegations, their relationship to the alleged activities of the various defendants may be grouped as follows:

 New York

 conspiracy meetings held; birthplace and seat of control of the conspiracy

 negotiations between defendants and Gaensel

 citizenship of two defendants (Gulf & Western and Condor Mining, Inc.)

 source of financing for defendants' intended mining activities

 Bolivia

 conspiracy meetings helds

 improper and harassing litigation entered into

 undue influence on judge attempted

 legislatioon ...


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