The opinion of the court was delivered by: William C. Conner, District Judge:
Defendant Republic of the Sudan moves this Court to dismiss
the complaint for failure to state a claim or for summary
judgment. It asserts that (1) plaintiff's claim is barred by
the Foreign Sovereign Immunities Act; (2) plaintiff's claim is
barred by the Act of State doctrine; and (3) plaintiff's
alleged five-year exclusive agency contract was extinguished
by the execution of subsequent contracts with third
parties.*fn1
Plaintiff's cause of action against the Sudan arises from an
alleged breach of a five-year exclusive agency contract to
provide shipping agency services for United States
governmental relief programs, specifically, the United States
P.L. 480 program.*fn2 The October 14, 1983 agreement,
effective from October 1, 1984 through September 30, 1989,
provided for payment of two-thirds of the commissions to
plaintiff. The alleged breach occurred on January 3, and
January 4, 1985 when the Sudan advised Trans-Orient that,
pursuant to an agreement between the Sudan and the United
States, the Sudanese private company Cereals Investment and
Development Co. Ltd. ("CIDCO") had been appointed to assume
Trans-Orient's role in dealing with future shipments of wheat
and wheat-flour cargoes under the P.L. 480 program. On January
10, 1985, Trans-Orient entered into a one-year sub-agency
agreement with CIDCO concerning shipment of the identical
wheat and wheat-flour cargoes under the program. Although
Trans-Orient performed no services under this agreement, it
accepted one-third of the commissions. After the one-year
CIDCO contract expired, Trans-Orient refused to renew and
instead, brought this action against the Sudan for alleged
breach of the five-year agency contract which provided for
payment to Trans-Orient of two-thirds of the commissions
payable to CIDCO.
The Standard for Summary Judgment
On a motion for summary judgment the burden is on the moving
party to demonstrate that "there is no genuine issue as to any
material fact." Fed.R.Civ.P. 56(c); Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 11 (2nd Cir. 1986), cert. denied,
480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987); see Celotex Corp.
v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). Summary judgment must be denied if the movant does not
sustain this burden, even if the non-moving party has not
offered any opposition. Adickes v. S.H. Kress & Co.,
398 U.S. 144, 161, 90 S.Ct. 1598, 1610, 26 L.Ed.2d 142 (1970). The party
opposing summary judgment may not rest on mere allegations or
denials, but must set forth specific facts showing that there
is a genuine issue for trial. Fed.R.Civ.P. 56(e). The task of
the trial court in deciding a motion for summary judgment is
not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried, resolving ambiguities
and drawing reasonable inferences against the moving party.
Knight, 804 F.2d at 11. The inquiry under a motion for summary
judgment is thus the same as that under a motion for a directed
verdict: "whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202
(1986). Although summary judgment is ordinarily inappropriate
where an individual's intent is implicated, the Court believes
it proper in this case.
Subject Matter Jurisdiction
The Sudan argues for the second time that this Court lacks
subject matter jurisdiction. By opinion and order dated July
29, 1987, this Court found jurisdiction because plaintiff's
claim fell within the commercial activities exception of the
Foreign Sovereign Immunities Act, 28 U.S.C. § 1603, 1605(a)(2).
Trans-Orient v. Star Trading & Marine, Inc., Slip Op. at 9,
1987 WL 15129 (S.D.N.Y. July 29, 1987). The Court disagrees
with defendant's unsupported assertion that plaintiff's "case
as now amended is much different than it was when it was first
filed," and reiterates its ruling that the Sudan's act of
hiring plaintiff as an agent in the United States for the
implementation of the P.L. 480 program constitutes a
"commercial activity." Because defendant's alleged breach
arises from that commercial activity, this Court has
jurisdiction over the Republic of the Sudan in this action.
The Sudan next asserts that Trans-Orient's January 10, 1985
agreements with CIDCO and Star Trading constituted a novation,
discharging the Sudan of its obligations under the five-year
exclusive agency contract with Trans-Orient. A novation is
simply the substitution of a new obligation for an old one,
with the intent of extinguishing the old one, often involving
the substitution of a third party for one of the original
parties to the contract. The elements of a novation are:
(1) a previously valid obligation;
(2) an agreement of all parties to:
(a) extinguishment of the old ...