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