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ZHEJIANG TONGXIANG IMPORT & EXPORT CORPORATION v. ASIA BANK

United States District Court, Southern District of New York


July 18, 2003

ZHEJIANG TONGXIANG IMPORT & EXPORT CORPORATION, PLAINTIFF,
v.
ASIA BANK, N.A., DEFENDANT.

The opinion of the court was delivered by: John Martin, District Judge

MEMORANDUM OPINION AND ORDER

Presently before the Court is an application of the Plaintiff seeking attorney's fees and expenses under Rule 37 of the Federal Rules of Civil Procedure on the ground that the Defendant unreasonably denied receipt of bills of lading and that the bills of lading were used to gain possession of the goods in question. The application is denied.

Rule 37 provides that a party which refuses to admit facts contained in a notice to admit may be required to pay attorney's fees to its adversary if the facts are ultimately established. However sanctions may not be granted if "the party failing to admit had reasonable ground to believe that the party might prevail on the matter." Fed.R.Civ.P. 37(c)(2).

While this Court ultimately granted summary judgment finding that the record established that Defendant did receive the bills of lading and that they were used to obtain possession of the goods, those findings do not compel the conclusion that the Defendant did not have "reasonable ground" to deny those facts.

When Asia Bank first heard of the claims against it in August 1996, it hired a firm to investigate the claims. They ultimately contacted an individual named Daniel Lu who stated that he, and not Asia Bank, received the bills of lading and the jogging suits. Since the bank had no record indicating it had received the bills of lading and the person whose name appeared on the UPS receipt, Ms. Lin, had no recollection of receiving them, the bank had no obligation to admit that they had been received. The fact that Lu was not available to provide an affidavit at the time the summary judgment motion was submitted and that Ms. Lin's lack of recollection was not sufficient to outweigh the documentary evidence that the bills of lading had been delivered to the bank, does not mean that the bank did not have a right to rely on these facts to contest receipt of the bills of lading.

For the foregoing reasons the application for attorney's fees is denied.

SO ORDERED.

20030718

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