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April 22, 2003


The opinion of the court was delivered by: David G. Trager, United States District Judge


This lawsuit is one of a number of lawsuits arising from a series of transactions involving the purchase and sale of Italian canned peeled tomatoes. Plaintiffs, Giaguaro S.p.A. ("Giaguaro") and Conserviera S.p.A. ("Conserviera"), commenced this action against defendant, Francoise Amiglio ("Francoise"), alleging, inter alia, that, as payment for imported tomatoes, Francoise issued checks to the order of a Canadian company, with instructions to endorse them in favor of the plaintiffs, which were drawn on the account of a non-existent corporation. Francoise seeks to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b) on the following grounds: (1) failure to plead fraud with particularity pursuant to Federal Rule of Civil Procedure 9(b); (2) forum non conveniens; (3) failure to join an indispensable party pursuant to Federal Rule of Civil Procedure 19; and (4) comity, collateral estoppel or res judicata. The background of this case is rather extensive and is set forth in some detail below.



Amko International Trading, Inc. ("Amko") is a New York corporation of which defendant's husband, Joseph Amiglio ("Amiglio"), is a shareholder. Amko is the importer and distributor of Italian food products, including canned peeled tomatoes. See Def.'s Mem. of Law in Supp. of her Motion to Dismiss the Compl. ("Def.'s Mem.") at 2. Giaguaro and Conserviera are both Italian exporters of canned peeled tomatoes. See Compl. ¶ 3.

Paesana Import-Export Inc. ("Paesana") is a Canadian company, which was formed to import the Italian tomatoes from Giaguaro and Conserviera. See Compl. ¶ 7. The European Community provides subsidies for transactions involving the export of goods from Italy to, among other places, Canada. See Italian Compl. ¶ 4. To this end, when the tomatoes arrived in Canada, Amiglio and another Paesana shareholder, Gerard Lavallee ("Lavallee"), cleared the shipment through customs and issued the necessary customs certificates to Conserviera. See Italian Compl. ¶ 4. However, once Paesana received the canned tomatoes, it would ship them via the Port of Montreal to Amko in the United States. See Canadian Decision ¶¶ 6, 18. Notably, had Giaguaro and Conserviera shipped the tomatoes directly from Italy to Amko, the transaction would not have qualified for the European Community subsidy.


At some point, the Italian government terminated the subsidies provided to Giaguaro and Conserviera for the exported tomatoes shipped to Paesana, alleging that the customs certificates provided to the government by those companies (and supplied by Amiglio and Lavallee) were false. See Italian Compl. ¶ 8. Accordingly, the Italian government requested a refund of all subsidies previously supplied to Giaguaro and Conserviera.

On March 20, 2000, Conserviera commenced a lawsuit against several defendants, including Paesana and Amiglio, in Florence, Italy. As intimated above, Amiglio and Lavallee are alleged to have issued false customs certificates to mislead people into thinking that the tomatoes had been delivered from Italy to Canada when, in fact, the ultimate destination of the tomatoes was the United States. See id. ¶ 8. In the Italian lawsuit, Conserviera seeks to recover only the amount of the subsidies improperly received by Conserviera and compensation for damage to Conserviera and its sole administrator's reputation. See id. ¶ 9.

Shortly thereafter, on May 15, 2000, Giaguaro, Conserviera and another plaintiff (the "Canadian Plaintiffs") commenced a lawsuit against Amko, Paesana, Amiglio, Lavallee, Francoise and Michael Piscitelli, Amiglio's son-in-law ("Piscitelli"), in Montreal, Canada. In essence, the Canadian Plaintiffs allege that they entered into numerous contracts with Paesana for the sale of canned peeled tomatoes for which Paesana has failed to pay. See Canadian Compl. ¶ 1. According to the Canadian Plaintiffs, these contracts are governed by Italian law, see id., but the purchase price of the tomatoes was to be paid in U.S. dollars. See id. ¶ 2. As partial payment for the tomatoes, the Canadian Plaintiffs allege that Amiglio had Francoise and Piscitelli "issue 33 cheques, payable to the order of `Paesana' which endorsed them in favour of plaintiffs, 17 of which were returned unpaid and subsequently paid by `Amiglio' while the remaining 16 cheques totalling US $1,428,572.00 . . . still remain unpaid." Id. ¶ 8. They also assert that Francoise and Piscitelli are personally liable for the amount of these sixteen unpaid checks because they were issued under the name of a non-existent company, "San Remo International Trading Inc." ("San Remo").*fn2 Id. Accordingly, the Canadian Plaintiffs seek to recover from Francoise and Piscitelli, "to the partial acquit of the other defendants," a total of U.S. $1,428,572.00. Id. at 5, "Condemning" paragraph 3.

With regard to the balance of money due, the Canadian Plaintiffs claim that Amiglio consistently promised them payment and that, if he had not so promised, the Canadian Plaintiffs would have stopped shipping the tomatoes or would have acted sooner to recover the debts. See id. ¶ 9. The Canadian Plaintiffs also assert that Amiglio controls Paesana and that it was really Amiglio, personally or through Amko, who was purchasing the tomatoes from the Canadian Plaintiffs. See id. ¶¶ 4-6. Accordingly, the Canadian Plaintiffs seek to recover from Paesana and Amiglio the remaining unpaid purchase price for tomatoes sold and delivered, totaling U.S. $3,267,091.00. See id. at 5, "Condemning" paragraph 1.

Lastly, like the Italian Complaint, the Canadian Complaint contains allegations about false customs certificates allegedly issued by Amiglio and Lavallee for the purpose of obtaining the European Community subsidy. See id. ¶¶ 10, 12, 13. In this regard, the Canadian Plaintiffs seek to recover from Paesana and Amko, and Lavallee and Amiglio, personally, the amount assessed by the Italian authorities, totaling U.S. $1,209,275.00. See id. at 5, "Condemning" paragraph 2.

Upon receiving the Canadian Complaint, Amko, Amiglio, Francoise and Piscitelli filed a motion for declinatory exception,*fn3 which was granted by the Superior Court, District of Montreal. See Canadian Decision ¶ 1. It appears that the motion was grounded on forum non conveniens and lis pendens. The Canadian lawsuit was dismissed against these defendants, and the Canadian Plaintiffs appealed.


On June 21, 2001, the Canadian Court of Appeal for the Province of Quebec, District of Montreal, found that Amiglio and Amko are subject to the jurisdiction of the Canadian courts but that Francoise and Piscitelli are not. After discussing the bases under which a Quebec authority has jurisdiction over foreign nationals (an analysis of which the court stated requires "an examination of the individual situation of each of the Defendants"), the court found that if Amiglio is really Paesana's "alter ego" and Paesana is "but a veil," then the actions allegedly committed in Quebec, and the injuries attributable to those actions, tie Amiglio to Quebec and allow for jurisdiction of the Canadian courts. Canadian Decision ¶¶ 12-18. In this regard, the court emphasized the allegations against Amiglio, such as "the fictitious orders placed by Paesana, the re-routing of goods towards the United States through the Port of Montreal, not having obtained and supplied valid Canadian Customs certificates, as well as sending false documents in their place." Id. ¶ 18. The court also found Amko "a main player involved in the commission of the faults attributed to Amiglio and the injurious acts that occurred in Quebec" and, thus, also subject to jurisdiction in Canada. Id.

However, the court that found Francoise and Piscitelli's situation "is in many ways different from that of" Amiglio and Amko. Id. ¶ 19. Indeed, the court noted that the only allegations against Francoise and Piscitelli concern "their involvement with the cheques that [they] are alleged to have written out in the name of San Remo Trading International Inc., a fictitious company." Id. Since the allegations against Francoise and Piscitelli were based solely on non-valid checks written abroad, the court found "no factor or linkage that would allow for the jurisdiction of the Quebec courts." Id. ¶ 21. Nonetheless, the Canadian Plaintiffs sought to invoke the court's jurisdiction through the "exceptional powers" granted by Section 3136 of the Civil Code of Quebec ("CCQ"). Id. ¶ 21.

Section 3136 provides as follows: "Even though a Quebec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Quebec, where proceedings cannot possibly be instituted outside Quebec or where the institution of such proceedings outside Quebec cannot reasonably be required." CCQ § 3136; accord Canadian Decision ¶ 32. The court declined to accept jurisdiction under § 3136 as to Francoise and Piscitelli, finding that "nothing indicates that it would be ...

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