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S.A.R.L. ORLIAC v. WINEBOW

August 31, 1984

s.a.r.l. ORLIAC, Plaintiff, against WINEBOW, INC., Defendant and Third-Party Plaintiff, against HENRI BERTHE, COGNAC & BRANDIES FROM FRANCE, INC., and LA MAISON DU VIGNERON, Third-Party Defendants.


The opinion of the court was delivered by: CANNELLA

MEMORANDUM AND ORDER

CANNELLA, Senior District Judge.:

 Plaintiff's motion for summary judgment is granted in part and denied in part. Fed. R. Civ. P. 56(a).

 Defendant's motion for summary judgment is denied without prejudice with leave to resubmit. Fed. R. Civ. P. 56(a).

 Third-party defendants' motions to dismiss and for partial summary judgment are denied without prejudice with leave to resubmit. Fed. R. Civ. P. 12(b)(2), (3), (4), (6); 56(b).

 FACTS

 The parties to this action are entangled in a web of litigation stretching from state and federal courts to a French tribunal. Each party is aligned as a plaintiff and defendant somewhere in the list of lawsuits.Although the disputes involve a large number of international wine and alcohol transactions, the instant action is limited to one shipment of wine.

 Plaintiff s.a.r.l. Orliac ["Orliac"] is a French exporter of wines and brandies with its principal place of business in La Magistere, Tarn et Garonne, France. Defendant Winebow, Inc. ["Winebow"] is a New Jersey importer of alcohol and wine with offices in New Jersey and New York. Third-party denfendant La Maison du Vigneron ["Vigneron") is a French agricultural cooperative that produces wine and alcohol with its principal place of business in Lons le Saulnier, Jura, France. Third-party defendant Henri Berthe is a Connecticut domiciliary who acts as sales and collection agent for Orliac and Vigneron. Third-party defendant Cognac & Brandies from France, Inc. ["Cognac & Brandies"] is a Connecticut corporation run and apparently wholly owned by Berthe. Cognac & Brandies also acted as a collection agent on behalf of Orliac and Vigneron.

 Vigneron, Orliac and Cognac & Brandies contracted on November 15, 1982 for Vigneron to ship its products through Orliac to American importers with all payments to be collected by Cognac & Brandies. On April 20, 1983, Orliac shipped 800 cases of Vigneron's Brut Royal wine, vintage 1981, to Winebow. orliac invoice 320 requested payment of 192,000 French francs, approximately $21,734, by July 4, 1983. On April 25, 1983, Orliac shipped an identical order of wine to Winebow and requested the same purchase price through invoice 327, to be remitted by July 30, 1983. There is no dispute that both orders of wine were sold, shipped and delivered to Winebow which incurred a debt to Orliac of 394,000 francs, approximately $43,469.

 Although it is unclear who toppled the first domino, Orliac at some point stopped paying Berthe's commissions and remitting Vigneron's share from the foreign sales. Berthe stopped sending Orliac payments from American importers and instead deposited the monies as a means of recovering his commissions. Vigneron sued Orliac for unpaid proceeds approximating one million francs in the Court of Commerce in Montauban, Tarn et Garonne. The French court ordered the seizure of Orliac's bank account at La Societe General, Bordeaux and issued a "saisie-aret" or "stop payment" on August 12, 1983 authorizing Vigneron to start proceedings in the United States to attach outstanding payments owed to Orliac by American importers.

 Cognac & Brandies sued Orliac, again in the Montauban court, for unpaid commissions, and Orliac counterclaimed for the amounts that Cognac & Brandies had retained to pay past commissions due. Each party to that action alleges damages approximating 1,500,000 francs. The French court ordered the seizure of Berthe's bank account in the amount of 200,000 francs at Credit Agricole, France. An accountant's report prepared under order of the Montauban tribunal concludes that Berthe owes Orliac approximately 135,000 francs. Orliac also alleges additional claims against Berthe for 3,727,000 francs which are not covered in the accountant's report. Orliac then brought the instant action against Winebow to recover outstanding debts resulting from the April shipments.

 This Court granted summary judgment in favor of plaintiff for invoice 327. See Memorandum and Order, 83 civ. 7286 (S.D.N.Y. May 2, 1984) [hereinafter "May Memorandum"]. Winebow admitted liability on the invoice and had deposited the funds pursuant to the "saisie-arret" in a segregated bank account. The Court found that the "saisie-arret", a procedural mechanism authorizing the attachment of assets, did not affect payment for invoice 327. Moreover, the French court does not have jurisdiction over Winebow, and Vigneron failed to proceed in United States courts. The Court noted that although the French court may require Orliac to remit payment to Vigneron for invoice 327, that issue is not before this Court.

 Winebow failed to release the segregated funds to Orliac and the Court held them in contempt.Because of problems involving the substitution of counsel for Winebow, the Court did not impose sanctions but ordered Winebow to pay Orliac pursuant to the May Memorandum within two ...


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