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GREYSTONE PARTNERSHIPS GROUP v. KONINKLIJKE LUCHTV

March 18, 1993

GREYSTONE PARTNERSHIPS GROUP, INC., Plaintiff,
v.
KONINKLIJKE LUCHTVAAART MAATSCHAPPIJ N.V., a/k/a KLM ROYAL DUTCH AIRLINES, MARTINAIR HOLLAND N.V., and LAUDA-AIR LUFTFAHRT AKTIENGESELLSCHAFT, Defendants.



The opinion of the court was delivered by: CHARLES H. TENNEY

 TENNEY, District Judge:

 Plaintiff Greystone Partnerships Group, Inc. ("Greystone") brings this action against three airlines for breach of contract, tortious interference with contract, and intentionally tortious conduct resulting from an agreement between the defendants, the sole purpose of which was to evade and defeat plaintiff's possible contractual claims. Defendants Koninklijke Luchtvaaart Maatschappij N.V., a/k/a KLM Royal Dutch Airlines ("KLM") and Martinair Holland N.V. ("Martinair") have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(b). Greystone seeks limited discovery pursuant to Federal Rule of Civil Procedure 56(f). For the reasons set out below, the motions for summary judgment are granted in full. Plaintiff's requests for further limited discovery are denied.

 BACKGROUND

 Defendants KLM and Martinair are corporations organized under the laws of the Kingdom of The Netherlands. KLM has a minority interest of less than 30% in Martinair, but does not manage or have control over the corporation. In October 1989, KLM and Martinair entered into an agreement whereby KLM would lease a Boeing 767-300 Extended Range ("B767-300ER") aircraft from Martinair upon delivery of the aircraft from Boeing in late 1991 or 1992. Sometime after the formation of the lease agreement but before delivery of the plane to Martinair by Boeing, KLM reassessed its needs and concluded that it would not need the plane. Upon being informed of the change in circumstances, Martinair agreed to release KLM from its obligation under the lease if KLM agreed either to purchase the aircraft or to produce another lessee for the aircraft. Both companies began searches for a purchaser or lessee.

 In March, 1991, KLM offered to lease the plane for four years to defendant Lauda-Air Luftfahrt Aktiengesellschaft ("Lauda-Air"). This offer was reiterated on June 10, 1991. On September 17, 1991, Mr. P. Bouw of KLM received a letter from Greystone expressing an interest in leasing or buying an aircraft from KLM. KLM did not respond to the letter. Instead, KLM again contacted Lauda-Air on October 1, 1991, this time offering to sell the plane outright.

 Earlier in 1991 Greystone had already contacted Martinair about buying an airplane. In June, Dr. George N. Naskaris, president of Greystone, met with Martinair's Controller, Mr. R.A.C. Jansen. They discussed in general terms the plaintiff's possible services to Martinair in meeting its need for aircraft or in arranging for the sale or lease of Martinair current-generation planes. First Amended Complaint, P 10 ("Complaint"). No mention appears to have been made of the plane which is at issue in this litigation. About two months later, on August 6, Dr. Naskaris sent Martinair a letter by facsimile (hereinafter a "fax") stating "we would like to buy from you one of the B767-300ER's immediately. . . . We know you have such aircraft. [P] This is an outright purchase." Martinair Ex. B, attached to Affidavit of Meta C.P. Ullings, sworn to May 13, 1992 ("Ullings Aff.") (submitted in support of Martinair's motion for summary judgment).

 The following day, Meta C.P. Ullings, Deputy Vice President of Sales and Marketing for Martinair, first spoke by telephone with Greystone confirming the availability of such a plane for sale. She then sent a confirming fax. The letter included a paragraph which stated in relevant part, "we would therefore like to offer you this aircraft, without engagement, subject to prior commitments and agreement on contract terms, at a price of USD 80 million (eighty million U.S. Dollars)." The fax went on to state:

 The sale and payment conditions are:

 
. Irrevocable bankguarantee[sic] or letter of credit to amount of USD [U.S. dollars] 10 million upon signing of letter of intent.
 
. A further USD 10 million (on the same basis) upon signing of contract.
 
The above two amounts are non-refundable.
 
. Balance to be paid prior to delivery of aircraft.

 Martinair Ex. C, attached to Ullings Aff.; Greystone Ex. 1, attached to the Complaint. The fax also included a two page summary of technical specifications.

 There were some exchanges between Martinair and Greystone during the following weeks. On August 22, 1991, Dr. Naskaris sent Martinair a fax explaining that Greystone's interest was to acquire the Boeing plane from Martinair and lease it to another airline. *fn1" He claimed that Greystone had been in "continuous communication" with an interested airline that would either lease or buy the plane outright. If the interested party chose merely to lease the plane, the transaction would be simple.

 However, if they decide to acquire the aircraft, then the transaction becomes more complicated. In such an event, we may consider buying the aircraft from you and sell it to them. [sic] The drawback here is that it would inflate the price and make the transaction almost impossible. The other alternative is I could bring these people to you and earn an arrangement fee. This is much simpler.

 Martinair Ex. D, attached to Ullings Aff.; Greystone Ex. 2, attached to the Complaint. The fax closed with a one sentence paragraph: "Should these people decide to buy the aircraft, could you pay us a two percent arrangement fee?" Id.

 The next day, August 23, 1991, Ms. Ullings responded by fax to the Greystone fax. The two material paragraphs of Ullings transmission stated:

 
At this moment the Boeing 767-300ER is still available for purchase. We do stress however that our offer as per our fax of August 7, 1991 is without engagement, subject prior [sic] commitments and agreement on contract terms.
 
In case your party will purchase the aircraft direct from Martinair Holland for the mentioned price of US $ 80 million, we are prepared to pay Greystone Partnership Group, Inc. a fee of two percent.

 Martinair Ex. E, attached to Ullings Aff.; Greystone Ex. 3, attached to Complaint. Dr. Naskaris responded that day with a fax containing a brief cover letter stating, "enclosed please find our agreement for this proposed transaction. Please sign and return via fax. The originals are in the mail." Martinair Ex. F, attached to Ullings Aff. Martinair did not sign the two page agreement. *fn2" Indeed, Ms. Ullings made a telephone call to Tom Sentell at Greystone -- Dr. Naskaris's associate -- two days later, alerting him to the fact that Martinair would not accept the formal contract. Ullings Aff., P 10.

 Nevertheless, on August 27, 1991, Dr. Naskaris, by Mr. Sentell, sent yet another fax. In relevant part, this transmission stated:

 
[Dr. Naskaris] acknowledges your letter offering to pay, as a fee, two percent of the aircraft. However, it is standard procedure for us to enter formal agreements for any and all transactions we participate in. We are ready to proceed on this matter but we need a signed agreement.

 We are looking forward to receiving a signed copy. Martinair Ex. G, attached to Ullings Aff. Martinair never signed the agreement.

 Martinair and Greystone did not communicate again until October 7, 1991, when Dr. Naskaris called Ms. Ullings, asking whether the Boeing 767 was still for sale. Ullings Aff., P 14. Ms. Ullings informed Dr. Naskaris that the aircraft would be sold by Martinair to KLM and that she would supply Greystone with the name of the person at KLM handling the matter. Two days later she sent a confirmation fax with the requested information. *fn3" There was no further relevant communication between Greystone and Martinair before the initiation of this lawsuit. Martinair took delivery of the plane on October 18, 1991, which was thereafter sold and delivered to KLM for an undisclosed price.

 On October 14, Dr. Naskaris sent a fax to KLM asking about the status of the plane that was supposed to have been taken over by Martinair. Greystone declared an interest in buying the plane but also asked if KLM was interested in a "sale/leaseback" agreement or only an outright sale. This inquiry was answered on October 15, 1991, by R.A. van den Berg, the Controller of Finance and Holdings for KLM. He sent Dr. Naskaris a fax informing Greystone about the B767-300ER. Mr. van den Berg expressed that "in principle we are interested in just an outright sale, however in case you have a client to lease the aircraft too [sic], matters can be discussed." KLM Ex. G, attached to KLM's Motion for Summary Judgment ("KLM's S.J.M."); Greystone Ex. 4, attached to the Complaint.

 On the same day, Dr. Naskaris sent a fax to Mr. van den Berg discussing the possibility of a leaseback purchase and stating that it had a prospective lessee who might be interested in an outright purchase. The transmission concluded with the following proposals:

 
If this prospective lessee buys the aircraft from you or leases it directly from you, we would like to earn an arrangement fee of two and one half percent. Are you prepared to pay such a fee?
 
We are ready to proceed as soon as we can sign an agreement with you. Enclosed please find a copy of such an agreement.

 KLM Ex. H, attached to KLM's S.J.M. KLM did not sign this agreement. Over the course of the following week, on three occasions -- once on October 18 and twice on October 22 -- Dr. Naskaris sent new agreements to KLM, each with new terms and each with a cover letter urging Mr. van den Berg to sign the agreements. KLM Ex. I, attached to KLM's S.J.M. KLM did not sign any of the agreements.

 On October 23, 1991, Dr. Naskaris and Mr. van den Berg spoke by telephone. The exact nature of the conversation is disputed, but it is clear that Dr. Naskaris revealed that the party interested in the plane was Lauda-Air. Mr. van den Berg stated that there had been previous discussions between KLM, and Laud-air. Greystone contends that Mr. van den Berg stated that Lauda-Air had walked away from the previous negotiations and that KLM would pay Greystone a 3% commission or arrangement fee if it could revive negotiations and bring about a sale or lease of the plane. KLM, on the other had, insists that it advised Dr. Naskaris that KLM had discussed the sale with Lauda-Air and it would not pay any brokerage commission if KLM was successful in its own negotiations with Lauda-Air.

 Whatever did happen during the conversation, communications between the two parties continued on October 30. On that date, Dr. Naskaris once again faxed KLM, this time with news of having spoken with Otmar Lenz, the CEO of Lauda-Air. According to the fax, Lauda-Air wanted to enter an agreement as soon as possible to take possession of the aircraft on April 1, 1992, and they might have been able to take possession of the plane as early as January. The fax concludes with an acknowledgment of a ...


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