Corp. Salvadorena de Calzado v. Injection Footwear

• Decision Date: 18 February 1982
• Docket Number: No. 77-2731-Civ-SMA.,77-2731-Civ-SMA.
• Citation: 533 F. Supp. 290
• Parties: CORPORACION SALVADORENA de CALZADO, S.A. (CORSAL, S.A.), a Salvadorean corporation, Plaintiff, v. INJECTION FOOTWEAR CORPORATION, a Florida corporation, Defendant.
• Court: U.S. District Court — Southern District of Florida

533 F. Supp. 290

CORPORACION SALVADORENA de CALZADO, S.A. (CORSAL, S.A.), a Salvadorean corporation, Plaintiff, v. INJECTION FOOTWEAR CORPORATION, a Florida corporation, Defendant.

No. 77-2731-Civ-SMA.

United States District Court, S. D. Florida, Miami Division.

February 18, 1982.

COPYRIGHT MATERIAL OMITTED

Robert J. Schaffer, Helliwell, Melrose & DeWolf, Miami, Fla., for plaintiff.

L. George Scheer, Miami Beach, Fla., Roger Barry Davis, Davis & Feig, Miami, Fla., for defendant.

ORDER DENYING PLAINTIFF'S MOTION FOR REJECTION OF SPECIAL MASTER'S REPORT, ADOPTING SAME, AND GRANTING SUMMARY JUDGMENT FOR DEFENDANT

ARONOVITZ, District Judge.

The Nature of the Action

THIS CAUSE came on to be heard before the Court on February 5, 1982, upon Plaintiff's Objections and Amended Objections to Report of the Special Master and Motion for Rejection of same. For reasons set forth below, this Court, having had the benefit of the oral argument of counsel, having studied the Plaintiff's Objections, Amended Objections, Motion and Memorandum and Defendant's Responses in Opposition thereto, and having reviewed the record in this cause, has determined and concluded that Plaintiff's Objections, Amended Objections and Motion should be DENIED in their entireties and that the Special Master's Report and Recommendations should be adopted in its entirety, pursuant to which summary judgment shall be entered herein in favor of Defendant.

In September, 1980, this Court entered an Order of Reference pursuant to Fed.R. Civ.P. 53, appointing Professor Daniel Murray of the University of Miami School of Law as Special Master in this cause and directing Professor Murray to file a Report to the Court addressing eight (8) enumerated issues presented (Order of Reference, docket # 125). At that time, Cross-motions for Summary Judgment were pending before the Court in this action brought by Plaintiff to domesticate a judgment against Defendant obtained in the Fifth Civil Court for the District of San Salvador of the sovereign state of El Salvador.

The dispute in El Salvador arose out of a contract between the parties whereby Defendant was to supply Plaintiff with raw materials for the manufacture of footwear. The contract provided that in the event of a dispute, the parties would proceed through an arbitration procedure in El Salvador. Plaintiff commenced arbitration proceedings in El Salvador and, despite Defendant's absence, obtained an arbitrator's award in favor of Plaintiff which was ultimately reduced to judgment in the Fifth Civil Court. It is this judgment which Plaintiff seeks to domesticate in this United States District Court for the Southern District of Florida.

Defendant contends that the proceedings which resulted in the judgment against it not only violated El Salvador law in every respect, from the commencement of the arbitration proceedings in its absence to the confirmation of the award without prior notice to Defendant by the Fifth Civil Court, but also that for this Court to domesticate the El Salvador judgment would violate Defendant's right to due process of law under both the United States and State of Florida constitutions.

The issues thus presented for resolution are extremely complex, involving issues of the law of El Salvador, the United States and the State of Florida, in addition to conflicts of law. More importantly, the issues raised are constitutional in dimension, involving both the United States Constitution and the Florida Constitution. The matter at hand is further complicated by the language barrier, in that many of the relevant documents are in Spanish, as well as the fact that in various pertinent respects, the law of El Salvador comes within the Bustamante Code, to which El Salvador is a signatory but the United States is not. An additional problem is that El Salvador does not, of course, follow the common law system of jurisprudence.

In support of their respective Motions for Summary Judgment, the parties submitted several affidavits from "experts" familiar with El Salvador law, who stated their opinions as to whether El Salvador law was complied with in the instant case. Most of these affidavits are in the original Spanish with English translations. However, as set forth in the Order of Reference, the experts for the respective sides contradict each other in every material respect. This difficulty is compounded by the need to translate not only the affidavits of the parties, but the statutes upon which those affidavits are based. At the filing of the Cross-motions for Summary Judgment, as now, there were no material facts in dispute so as to preclude an award of summary judgment. The material facts were known to the parties and evident in the record essentially as set forth in the Special Master's Report and Recommendations (docket # 157), and reached independently by the Court. Thus, what was referred to the Special Master for determination were questions of law, not fact, which are susceptible of resolution on summary judgment. Under Fed.R.Civ.P. 44.1, the determination of foreign law is a question of law which can properly be resolved on summary judgment.

Based upon the foregoing, this Court concluded that the most satisfactory means of reaching an ultimate decision in this case was through the appointment of a special master pursuant to Fed.R.Civ.P. 53, who has expertise in Latin American law and is fluent in the Spanish language, as set forth in this Court's Order of Reference. See Heiberg v. Hasler, 1 F.R.D. 737 (E.D.N.Y. 1937). Although the Court recognizes that the appointment of a special master is the exception and not the rule, the Court determined that the exceptional circumstances here presented justify the reference. This Court has by prior Order denied Plaintiff's Motion to Vacate the reference of this matter to the Special Master and hereby reaffirms said reference and adheres to its prior rulings upon this subject in every respect.

The Order of Reference directed the Special Master to address the pending Cross-motions for Summary Judgment and to make a preliminary determination as to whether summary judgment for either party was appropriate on the state of the record then existing. The Order further specified:

Should the Special Master find that summary judgment is inappropriate on the state of the record and that further evidentiary hearings are required, he is empowered to conduct such evidentiary hearings herein.

The Special Master held two hearings in this cause to obtain testimony by experts in the law of El Salvador offered on behalf of both parties. Inasmuch as the Special Master made no preliminary pronouncement that summary judgment was inappropriate on the state of the record and that further evidentiary hearings were required, Plaintiff asserts a technical violation of the Order of Reference provision set forth above. However, this Court finds that even absent a formal finding, implicit in the Special Master's decision to hold evidentiary hearings on expert opinions as to the applicable law is the preliminary determination that the existing record was insufficient to support an award of summary judgment. Further, as noted herein, the Court had previously determined that the expert affidavits submitted by the parties on the law of El Salvador were conflicting and contradictory in every material respect. The Special Master agreed with the Court's views in this regard as set forth in his Report and Recommendations (docket # 157 at page 5), wherein the Special Master concludes that "the `opinions' have been of little, if any, use to the Master." Further, the express provisions of Fed.R.Civ.P. 44.1 provide a very broad scope of inquiry in the determination of foreign law. See Kalmick v. Bruno, 553 F.2d 549 (7th Cir. 1977).

Rule 44.1 provides in pertinent part:

The Court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence.

Inasmuch as the determination of foreign law pursuant to Rule 44.1 was the precise task referred to the Special Master, he is clearly empowered under the terms of the Order of Reference and the provisions of Rule 44.1 to hold the hearings objected to by Plaintiff. Further, the Special Master's Notices of Hearing clearly and carefully limited the testimony to be taken to issues of foreign law (docket # # 139, 140). The objections of Plaintiff as to the hearings held by the Special Master are without merit and must be overruled.

Plaintiff further alleges various technical violations by the Special Master of the timing provisions of Fed.R.Civ.P. 53. However, Plaintiff cites no authority for rejecting the Special Master's Report and Recommendations on this ground, nor does Plaintiff demonstrate any prejudice as a result of the alleged non-compliance, other than the inherent delay in ruling. Thereupon, Plaintiff's objections in this regard must likewise be overruled.

Plaintiff refers the Court to several Motions to Strike Affidavits directed to the expert affidavits submitted on behalf of both parties. These Motions, filed by both Plaintiff and Defendant, were pending when the matter was referred to the Special Master. Neither the Court nor the Special Master made any specific ruling or recommendations as to the disposition of these Motions, but both the Court and the Special Master found the affidavits themselves to be of no assistance in the resolution of the questions of law presented. Thereupon, the Motions to Strike Affidavits shall be denied as moot, inasmuch as striking affidavits or portions thereof can serve no useful purpose at this juncture.

Findings of Fact

This Court hereby adopts the Special Master's Statement of Facts as set forth in his Report and Recommendations (docket # 157 at pages 1-5), which may be summarized as follows:

Plaintiff and Defendant entered into a formal written contract in the City of...