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ANTONIOS A. ALEVIZOPOULOS v. COMCAST INTERN. HOLD.

March 13, 2000

ANTONIOS A. ALEVIZOPOULOS AND ASSOCIATES, INC. AND PETER AMORUSO AND ASSOCIATES, INC., PLAINTIFFS,
V.
COMCAST INTERNATIONAL HOLDINGS, INC., COMCAST CORPORATION, GUILHERME DESOUZA VILLARES AND ELAINE MARIE CORTEZ GONIN, DEFENDANTS.



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

  OPINION AND ORDER

Plaintiffs are suing Comcast International Holdings, Inc. and Comcast Corporation (collectively "Comcast") alleging tortious interference with contract, tortious interference with business relations, and conspiracy to breach fiduciary duty. Comcast now moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on the ground that plaintiffs' tort claims against Comcast are time-barred by the applicable three-year statute of limitations. Alternatively, Comcast moves under Rule 12(b)(6) for dismissal of plaintiffs' tort claims for failure to state a claim. For the following reasons, Comcast's motions are denied except for its motion to dismiss plaintiffs' tortious interference with business relations claim which is granted.

I. Facts

With the exception of the discussion relating to public disclosures and corporate reorganizations, the following facts are taken from plaintiffs' Amended Complaint ("Cmplt") and are deemed true for purposes of these motions.

In 1991, plaintiffs met Guilherme DeSouza Villares ("Villares") and Elaine Marie Cortez Gonin ("Gonin") for the purpose of obtaining United States corporate funding for the creation of a paging and cellular telephone operation in Brazil. Cmplt ¶ 7. In early 1993, Villares and Gonin obtained paging licenses which covered approximately sixty percent of the Brazilian population.*fn1 Id. ¶ 8. In the Spring of 1993, plaintiffs, Villares and Gonin met with Albert Grimes, the president of Schelle Cellular Group ("Schelle"), a Maryland-based corporation, to promote a joint venture to bring paging and cellular services to Brazil. Id. ¶ 9. Grimes set up a meeting with Comcast in which plaintiffs, Villares and Gonin made a presentation to Comcast to induce it to become a member of the joint venture. Id. ¶ 10. After that meeting, the parties agreed to further investigate the joint venture by traveling to Brazil to meet the people with whom Villares and Gonin worked. Id. ¶ 11. As a result, a meeting was held in Brazil in April of 1993, at which the parties affirmed their interest in pursuing a joint venture. Id. ¶ 12.

At all times, plaintiffs, Villares and Gonin had the understanding that they would be partners in any resulting joint venture to bring paging and cellular services to Brazil. Id. ¶ 13. Plaintiffs and Villares reduced this understanding to a writing, the Consulting Equity Agreement, which stated that Villares and Gonin would receive thirty-five percent of any resulting joint venture, collectively, and plaintiffs would receive five percent each from Villares' and Gonin's share.*fn2 Id. ¶¶ 13-14. Comcast and Schelle were fully aware that plaintiffs, Villares and Gonin were to be equity participants in any resulting joint venture. Id. ¶ 15.

Some time following the April 1993 Brazilian meeting, Comcast indicated its desire to negotiate with only one party who would represent plaintiffs, Villares and Gonin. Id. ¶ 16. Plaintiffs designated Villares as this representative and everyone understood that plaintiffs had placed a special confidence and trust in Villares to negotiate on their behalf. Id. ¶ 17. Negotiations then ensued between Villares, Schelle and Comcast. Id. ¶ 18. In August of 1993, negotiations broke down and Schelle and Comcast agreed to terminate any further discussion. Id. ¶ 19. Villares informed plaintiffs that the negotiations with Comcast had failed but instructed them to seek out other interested U.S. corporations which they did. Id. ¶ 20. In late 1993, Villares told plaintiffs that he and Gonin were no longer interested in pursuing a joint venture. Id.

Then, in 1998, plaintiffs heard a rumor that Villares and Gonin had been working with Comcast to form a joint venture for cellular services in Brazil. Id. ¶ 22. To confirm this rumor, plaintiffs hired an investigator who discovered that Villares and Gonin had in fact continued negotiations with Comcast and formed a joint venture with Comcast in late 1993. Id. ¶¶ 23, 26. According to plaintiffs, Comcast, Villares and Gonin intentionally concealed their negotiations from them and intentionally misled plaintiffs into believing that there was no further interest in pursuing a joint venture when, in fact, the parties continued working toward that goal. Id ¶¶ 24-25.

On September 21, 1993, Comcast, Villares, and TGW Telecomunicacoes S/C Ltda. ("TGW"), a Brazilian company in which Villares held a majority interest, executed a memorandum of understanding setting forth their intention to form a joint venture in order to obtain and develop specialized mobile radio ("SMR" or cellular) licenses in Brazil. Pick Aff. ¶¶ 9-10. The arrangement was that TGW would procure SMR licenses and Comcast would construct and operate the SMR networks. Id. ¶ 10.

On March 22, 1994, Comcast first obtained an equity interest in a Brazilian SMR business when Comcast Brazil, Inc. and Mobile Enterprises, Inc. ("Mobile"), two wholly-owned subsidiaries of Comcast International Holding, Inc., acquired a forty-nine percent share in TGW and Tele-Link Telecomunicacoes S/C Ltda. ("Tele-Link"), another Brazilian corporation in which Villares held a majority interest. Id. ¶ 10. Comcast's acquisition of the forty-nine percent interest in TGW and Tele-Link required amendments to their Articles of Incorporation. Supplemental Affidavit of George C. Fischer, attorney for Comcast, sworn to November 11, 1999 ("Fischer Supp. Aff."), Exs. 1 and 2. These amendments were filed with a public registry in Brazil. Affidavit of George C. Fischer, sworn to October 13, 1999 ("Fischer Aff."), ¶¶ 21-22. The names Villares, Gonin, Mobile and Comcast Brazil appear in both sets of documents. Fischer Supp. Aff. Exs. 1 and 2. Under Brazilian law, certain types of corporate actions require notice to be published in the Official Gazette, the Brazilian newspaper of record, and a second newspaper. Fischer Aff. ¶¶ 15, 17. Accordingly, a number of documents providing a detailed history of the Comcast/TGW/Tele-Link relationship, including the names of the individuals and the entities involved, were published in various Brazilian newspapers during 1994 and 1995. Id., Exs. 9, 10, 12, 13, 29, 30, 32 & 33.

On November 27, 1995, Comcast bought out Villares' and Gonin's remaining interest in the SMR joint venture through several corporate reorganizations whereby Comcast gradually increased its ownership interest in TGW and Tele-Link. Fischer Aff. ¶¶ 30-34. Comcast ended its relationship with Villares and Gonin by entering into a Joint Venture Termination Agreement and a Share Purchase and Sale Agreement which called for the payment of $2.3 million. Pick Aff. ¶ 18. These agreements were filed with the Registry of Titles and Deeds of the City of San Paulo, thus making the termination of the joint venture a matter of public record in Brazil. Fischer Aff. ¶ 32. Since this termination, Comcast has not had any dealings with Villares or Gonin or any companies owned or controlled by them. Pick. Aff. ¶ 19.

II. Legal Standards

A. Summary Judgment

Summary judgment is appropriate "if 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Once the moving party has met its burden in showing the absence of a genuine issue of material fact, the nonmoving party must come forward with specific facts evidencing a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To defeat a motion for summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586, 106 S.Ct. 1348. All ambiguities and reasonable inferences, however, must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 ...


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