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WALPEX TRADING CO. v. YACIMIENTOS PETROLIFEROS FIS

June 22, 1995

WALPEX TRADING CO., Plaintiff,
v.
YACIMIENTOS PETROLIFEROS FISCALES BOLIVIANOS, Defendant.



The opinion of the court was delivered by: DEBORAH A. BATTS

 DEBORAH A. BATTS, U.S.D.J.:

 I. INTRODUCTION

 This case originated as a breach of contract action brought by Walpex Trading Company ("Walpex"), a New York corporation engaged in international exports, against Yacimientos Petroliferos Fiscales Bolivanos ("YPFB"), an instrumentality of the Bolivian government which purchases supplies for that country's national oil program, with jurisdiction founded on section 1605(a)(2) of the Foreign Sovereign Immunities Act, and 28 U.S.C. ยง 1330(a). By Opinion dated April 21, 1992, Judge Leisure granted summary judgment for YPFB on the breach of contract claim. The Court declined, however, to grant summary judgment on the bad faith/equitable estoppel theory of the case finding that "the evidence clearly raises disputed issues of material fact under Bolivian law *fn1" concerning whether YPFB acted in bad faith and caused injury to Walpex." Walpex Trading Co. v. Yacimientos Petroliferos Fiscales Bolivianos, 789 F. Supp. 1268, 1278 (S.D.N.Y. 1992) ("Walpex IV"). Judge Leisure also found *fn2" that before Walpex could support a recovery for pre-contractual bad faith, Walpex would have to "overcome hurdles of contributory negligence and assumption of the risk." Id.

 Having completed discovery on the issues of bad faith, contributory negligence, and assumption of the risk, YPFB again moves for summary judgment. For the reasons set forth below, summary judgment is granted.

 II. FACTUAL BACKGROUND

 The factual underpinnings of this action are essentially undisputed and have been described in Walpex IV and Walpex II. In February 1982, YPFB publicly invited bids *fn3" for the supply of tubing to be used by the Bolivian oil industry. Section 2.3.7 of the List of Specifications, referenced in the invitation, required the successful bidder to submit an irrevocable letter of credit for 10% of the purchase price as performance bond.

 Walpex received YPFB's invitation for bids and the requisite Specifications through its Bolivian agent, Compania de Representaciones Internacionales, S.R.L. ("COREIN"). On April 7, 1982, YPFB advised COREIN, in writing, that Walpex had been awarded the bid, and that COREIN should come to YPFB's offices in La Paz to sign the formal contract. See YPFB 3(g) Statement, at P7. On April 12, 1982, COREIN contacted YPFB to complete a purchase order as well as other formalities contemplated by the April 7, 1982, award. See Walpex 3(g) Statement, at P11. YPFB did not issue the purchase order. In fact, neither a purchase order nor a formal written contract was ever executed by YPFB.

 On May 10, 1982, Walpex established an irrevocable letter of credit with Chase Manhattan Bank, N.A., in the amount of $ 199,312.15, in YPFB's favor. See Piraino Dep. Exh. 5. It also obtained documents necessary for COREIN to execute the contract on its behalf. On May 18, 1982, without notifying YPFB or COREIN, Walpex entered into an irrevocable contract for the supply of the pipe with Vinson International ("Vinson"). See Piraino Dep. Exh. 6.

 YPFB prepared a purchase order, dated June 3, 1982, incorporating the terms proposed by Walpex. Subsequently, however, YPFB informed Walpex that Bolivia was experiencing economic problems and that it was having difficulty obtaining funding from the World Bank to pay for the pipe. See Piraino Dep. at 97-99, Navarro Dep. at 35. Thus, despite requests, the purchase order was not made available to COREIN for signature. See Walpex Memorandum at 8. On June 16, 1982, almost a full month after Walpex had executed the Vinson contract, COREIN advised Walpex not to undertake any commitment until it had received the confirmed purchase order. See Piraino Dep. Exh. 10.

 By letter dated June 30, 1982, YPFB stated to COREIN that it could not deliver its letter of credit because of financial restrictions imposed by the Central Bank of Bolivia. See Navarro Dep. Exh. 4. Following repeated requests by YPFB to Walpex for extensions of time for YPFB to perform, on January 11, 1983, YPFB's Director of Materials informed COREIN that YPFB's Procurement Department was suspending acquisition of the pipe because of lack of money. YPFB permanently cancelled acquisition of the pipe on July 28, 1983, stating that it was unable to obtain financing for the project from the World Bank. See Piraino Dep. Exh. 22.

 III. SUMMARY JUDGMENT

 Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Citizens Bank of Clear Water v. Hunt, 927 F.2d 707, 710 (2d Cir. 1991). The burden is on the moving party to demonstrate that no genuine issue of material fact exists. Gallo v. Prudential Residential Services, 22 F.3d 1219, 1223 (2d Cir. 1994). Consequently, when deciding a motion for summary judgment, a court must "resolve all ambiguities and inferences ... in the light most favorable to the party opposing the motion." Shockley v. Vermont State Colleges, 793 F.2d 478, 481 (2d Cir. 1986).

 Summary judgment may be appropriate if the moving party can show that little or no evidence may be found in support of the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Summary judgment may also be appropriate if no rational jury could find in favor of the nonmoving party because the evidence to support ...


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