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TRUGMAN-NASH, INC. v. NEW ZEALAND DAIRY BD.

February 24, 1997

TRUGMAN-NASH, INC. and TRIO CHEESE IMPORTS, INC., Plaintiffs, against NEW ZEALAND DAIRY BOARD, MILK PRODUCTS HOLDINGS (NORTH AMERICA) INC. and WESTERN DAIRY PRODUCTS, INC., Defendants. WESTERN DAIRY PRODUCTS, INC., Plaintiff, -against- TRUGMAN-NASH, INC. and TRIO CHEESE, INC., Defendants.


The opinion of the court was delivered by: HAIGHT

 HAIGHT, Senior District Judge

 In a Memorandum Opinion dated October 8, 1996 ("the October Opinion"), familiarity with which is presumed, the Court inter alia denied defendants' motion to dismiss the antitrust claims plaintiffs plead in an amended complaint.

 Defendants asserted two grounds for dismissal. First, they contended that the Court either lacked or should not exercise subject matter jurisdiction over plaintiffs' antitrust claims. Second, they contended that the claims failed to state a cause of action. The Court rejected these contentions.

 Defendants have filed a timely motion for reargument pursuant to Civil Rule 3(j) of this Court, addressed to all holdings in the October opinion adverse to them.

 Rule 3(j) requires a party moving for reargument to set forth "the matters or controlling decisions which counsel believes the court has overlooked."

 I construe "overlooked" to mean, in this context, disregarded or not given sufficient consideration by a court in its ratio decidendi. Thus construed, evaluation of whether an opinion overlooked factual matters or "controlling decisions" requires analysis of the reasoning by which the court arrived at the challenged conclusion. A claim of Rule 3(j) "overlooking" may not be negated by simply demonstrating that counsel's prior arguments, or even the text of the challenged opinion, indicate some degree of judicial awareness of the matter or caselaw in question. A judge may be aware of something and still overlook it in the reasoning that leads to his conclusion.

 After careful consideration of the briefs of counsel, I now conclude that defendants' motion for reargument in respect of the jurisdictional aspect of the case is well founded.

 On their original motion, defendants contended that this Court's subject matter jurisdiction over plaintiffs' antitrust claims was precluded by the doctrines of act of state, foreign sovereign compulsion, and international comity. I said that these arguments required consideration of "the manner in which the New Zealand Dairy Board Act of 1961, as amended, created and governs the conduct of the NZDB." October Opinion at slip op. 3. In respect of the applicability of those doctrines, I identified as the controlling question "whether New Zealand law compels defendants to conduct their affairs in the manner described in the amended complaint, which plaintiffs say violate American antitrust law." Id. at 3-4 (footnote omitted). I based that perception upon Hartford Fire Insurance Co. v. California, 509 U.S. 764, 125 L. Ed. 2d 612, 113 S. Ct. 2891 (1993).

 I remain of the view that Hartford articulates an important consideration in determining the extraterritorial effect of an American statute, although for the reasons stated supra I am no longer satisfied that, as the October Opinion implies, it is the only consideration. But the first issue that arises on this motion for reargument is whether I gave proper consideration to all the provisions of the Act, or, to state the matter more precisely, whether I overlooked an important provision.

 The October Opinion at slip op. 7-9 sets forth the provisions of Part II, § 17 of the Act. Part II deals with "Marketing of Export Produce." § 17 sets forth the powers of the Board "as to acquisition and marketing of export produce." § 17(1A) provides that any person wishing to export dairy produce from New Zealand "may apply to the Board for permission to do so . . . " While this provision is politely cast in permissive terms, I understand the statutory scheme to require that exporters apply to the Board for permission to export.

 § 17(1A) goes on to provide that the Board, "having had regard" to certain considerations, may grant or refuse a particular export application. Those considerations, set forth in § 17(1A)(a)-(c), are as follows:

 
(a) The extent to which the markets are in states that do not impose quantitative restrictions on the importation of dairy produce; and
 
(b) The extent to which the export of the produce to the markets might result in a direct or indirect reduction of the overall returns to ...

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