614 F.2d 1247 (9th Cir. 1980), 77-3312, Thos. P. Gonzalez Corp. v. Consejo Nacional De Produccion De Costa Rica

Docket Nº:77-3312.
Citation:614 F.2d 1247
Party Name:THOS. P. GONZALEZ CORPORATION, Plaintiff-Appellant, v. CONSEJO NACIONAL DE PRODUCCION DE COSTA RICA, and Sergio Quiros Maroto, Defendants-Appellees.
Case Date:March 10, 1980
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1247

614 F.2d 1247 (9th Cir. 1980)

THOS. P. GONZALEZ CORPORATION, Plaintiff-Appellant,

v.

CONSEJO NACIONAL DE PRODUCCION DE COSTA RICA, and Sergio

Quiros Maroto, Defendants-Appellees.

No. 77-3312.

United States Court of Appeals, Ninth Circuit

March 10, 1980

Page 1248

J. A. Uribe, Kadison, Pfaelzer, Woodard, Quinn & Rossi, Los Angeles, Cal., for plaintiff-appellant.

Page 1249

Robert A. Fletcher, Fletcher, Raugh & Mahoney, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court For the Central District of California.

Before TRASK and SNEED, Circuit Judges, and EAST, [*] District Judge.

EAST, District Judge:

Thos. P. Gonzalez Corp. (Gonzalez), a California corporation, appeals the District Court's judgment entered September 26, 1977, dismissing the action and setting aside the default judgment entered against the Consejo Nacional de Produccion de Costa Rica (the Consejo) and Sergio Quiros Maroto (Quiros), executive president of the Consejo, on February 26, 1976. We note jurisdiction and affirm.

ISSUES ON APPEAL

Gonzalez presents the following issues on appeal:

1. Did the Consejo and Quiros have sufficient contacts with California to justify a District Court in California exercising personal jurisdiction over them?

2. Did service of the summons and complaint to the Costa Rican Consul General in Los Angeles with the request that he forward them to the Ministry of Foreign Affairs in Costa Rica constitute effective service of process?

3. Did the Court abuse its discretion in granting relief from default for mistake, inadvertence, surprise, and excusable neglect?

FACTS

Gonzalez is an international grain trader with its principal place of business in California.

The Consejo is an autonomous institution of the Republic of Costa Rica charged with, inter alia, regulating the Costa Rican food supply by purchasing grain when needed from foreign sources and by selling surplus grain. Article 1 of the Consejo's organic law provides that the Consejo shall have its own legal capacity and shall be vested with functional and administrative autonomy as provided for in Article 188 of Costa Rica's Political Constitution. Its funds are appropriated by the Costa Rican government and any net profit from its operations belongs to the government.

During the period from May 1971 to December 1974, the Consejo transacted 15 purchases of grain from Gonzalez and two sales to Gonzalez. Each transaction originated in a bid by a representative of Gonzalez in Costa Rica in response to an invitation to bid circulated by the Consejo in Costa Rica. Each was entered into by an agent of Gonzalez residing in Costa Rica, although, on one occasion not involving the contract at issue in this case, three representatives of the Consejo visited Los Angeles to sign the formal contracts for two transactions. There was frequent communication by mail and telex between the Consejo and Gonzalez's Los Angeles office concerning the contracts. All the contracts specified delivery in Costa Rica. In none of the transactions, including the one in dispute, was California either the source or destination of the grain. The Consejo made payment by having its bank in Costa Rica issue letters of credit which Crocker National Bank in California confirmed, although the contracts specified only that payment be by letter of credit in United States or Costa Rican currency.

During this period, the Consejo had neither an office, a place of business, property nor an agent in California. It did not advertise in California nor actively solicit business there. It has never attempted to qualify for the transaction of business within California.

The contract involved in this case was entered into in Costa Rica by an exchange of letters between the Consejo and Gonzalez's representative in Costa Rica. Gonzalez agreed to sell the Consejo 10,000 metric tons of yellow corn, C.I.F. Costa Rica, with

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delivery in June and July, 1975. The Consejo cancelled the contract before delivery was made, first citing delays in shipments by Gonzalez as the reason and later referring to Gonzalez's noncompliance with its obligation to post a completion guarantee. Gonzalez filed its complaint for breach of contract on September 25, 1975. Jurisdiction in the District Court was based on diversity of citizenship under 28 U.S.C. § 1332(a)(2).

On October 16, 1975, a U.S. Marshall, on instructions of counsel for Gonzalez and without court order, served process on the Consul General of Costa Rica in Los Angeles requesting that he "notify the Ministry of Foreign Affairs in San Jose, Costa Rica through normal diplomatic channels." The Consejo did receive notice of the suit on November 6, 1975. A copy of the summons and complaint was also delivered personally to Lic. Nelson Alvarado Forseca (Alvarado), legal advisor to the Consejo, who was in California to discuss performance under a different contract. Alvarado arranged for local counsel to represent the Consejo in the matter.

On November 20, 1975, counsel for Gonzalez wrote to the Costa Rican Consul General indicating that a default would be taken unless an answer was filed within two days. The same message was sent to Alvarado in Costa Rica. No response was made, and on January 15, 1976, a default entry was made. On February 26, judgment by default was entered.

On March 27, 1976, the Consejo received a letter from its California attorney stating that he had not been able to cash the fee check sent to him, that he would not continue with the case until he received a bearer's check or money order, and that unless immediate action was taken, judgment would be entered against the Consejo. The Consejo then consulted another attorney in the United States who discovered that a default judgment had already been entered. The Consejo then retained its present counsel who filed a motion to set aside the judgment and dismiss the action for lack of personal jurisdiction on January 11, 1977, and a motion for relief from default judgment for mistake, inadvertence, surprise, and excusable neglect on January 12, 1977. The jurisdictional motion was set for argument a month earlier than the other motion, because the latter would be moot if the former were granted. If the Court denied the jurisdictional motion, however, counsel wanted an opportunity to have the default set aside and to argue the case on the merits. By order of the Court, the hearings on the two motions were moved to the same day, and on March 10, the Court's order simultaneously granting both motions was entered.

DISCUSSION

  1. Personal Jurisdiction. 1

    A party's amenability to suit in a federal court based on diversity is determined by reference to the law of the state in which the federal court sits. Republic International Corp. v. Amco Engineers, Inc., 516 F.2d 161 (9th Cir. 1975). California's long-arm statute provides: "A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." California Code of Civil Procedure § 410.10. In Threlkeld v. Tucker, 496 F.2d 1101, 1103 (9th Cir.), cert. denied, 419 U.S. 1023, 95 S.Ct. 499, 42 L.Ed.2d 297 (1974), this Court described the reach of this statute:

    "The jurisdiction of the California courts is therefore coextensive with the outer limits of due process under the state and federal constitutions, as those limits have been defined by the United States Supreme Court." (Footnote omitted.)

    The seminal case for the current law on personal jurisdiction is International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), in which the Supreme Court held that:

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    "(D)ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' "

    This restriction on the states is not merely a protection against inconvenient litigation; it is "a consequence of territorial limitations on the power of the respective States." Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283 (1958).

    "However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the 'minimal contacts' with that State that are a prerequisite to its exercise of power...

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