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HERBSTEIN v. BRUETMAN

July 11, 1990

DIEGO J. HERBSTEIN, PLAINTIFF,
v.
MARTIN E. BRUETMAN, HIGH TECH MEDICAL PARKS DEVELOPMENT CORP., RONALD TASH, DOUGLAS KIELL, MAURICIO AGUDELO, AND ALTA TECNOLOGIA MEDICA, S.A., DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge.

OPINION

Defendants Dr. Martin Bruetman ("Bruetman"), Ronald Tash ("Tash"), Mauricio Agudelo ("Agudelo"), High Tech Medical Parks Development Corporation ("High Tech"), Douglas Kiell ("Kiell"), and Alta Tecnologia Medica S.A. ("Altec") (collectively, the "Bruetman defendants") have moved to dismiss plaintiff Dr. Diego Herbstein's ("Herbstein") case on the grounds of comity or forum non conveniens, or alternatively, to stay the case until similar proceedings in Argentina are resolved. For the reasons set forth below, the motions are denied.

Parties

Plaintiff Herbstein is a physician, originally from Argentina but currently a permanent United States resident domiciled in New York. Herbstein is an officer, director, and 50% shareholder in Imagenes Por Computacion ("IxC"). He is also listed as a director and 8% shareholder of Altec.

Defendant Bruetman is a physician, originally from Argentina but now a citizen of Illinois. Bruetman is the other 50%, shareholder in IxC, and he serves as IxC's President and Chairman of the Board. Bruetman also indirectly holds a controlling interest in, and serves as the Director for, Altec.

Defendant Tash is a citizen of Illinois and is a 12.25% shareholder in High Tech. Tash also serves as the Secretary and legal counsel for High Tech.

Defendant Agudelo is a citizen of Illinois, and serves as the controller for High Tech.

Defendant High Tech is an Illinois corporation with its principal place of business in Illinois. High Tech specializes in the scientific and technical advising of medical establishments. It also owns 49%, of Altec stock.

Defendant Kiell is a citizen of Connecticut, and at all relevant times, he owns 12.25% of High Tech stock. Until January 1989, he was the President and Chief Financial Officer of High Tech.

Defendant Altec is an Argentine corporation with functions similar to High Tech's.

Prior Proceedings

In 1989, Herbstein initiated a civil suit in Argentina against Bruetman and Amerigo Pescio ("Pescio") seeking: (1) to remove Bruetman as director of IxC; (2) to remove Pescio as executive manager of IxC; (3) to declare that Bruetman and Pescio wrongfully carried out their duties for IxC; (4) to petition the Argentine court to assign a provisional administrator for IxC; and (5) to petition the Argentine court to maintain the status quo on IxC's corporate relations with the Guemes Foundation (an Argentine non-profit corporation affiliated with the Guemes Hospital).*fn1

On August 22, 1989, the lower court in Argentina denied Herbstein's motions, reasoning inter alia, that IxC's by-laws should govern the internal affairs of the corporation. Then on September 28, 1989, the Argentine appeals court suspended IxC's board and granted Herbstein's request for a provisional administrator. However, the appeals court refused to accept Herbstein as a "victim" of the alleged wrongdoing, so that he was found not personally eligible to recover damages if wrongdoing was eventually discovered.*fn2 In view of these measures, the court found the petition to retain the status quo unnecessary.

At approximately the same time Herbstein instituted the above action, Bruetman brought a second Argentine suit, a civil/criminal suit on behalf of himself and IxC, requesting an investigation of several people, including Herbstein, to determine their responsibility in IxC's "accounting irregularities." Bruetman sought the status of victim, but the Argentine appeals court also refused his request. The Argentine appeals court held that Bruetman's individual suit was not proper, but that IxC had a legitimate interest in the investigation. Shortly thereafter, Bruetman filed a ...


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