Dominican Energy Ltd., Inc. v. Dominican Republic

• Decision Date: 05 October 1995
• Docket Number: No. 94-1129-CIV-ORL-18.,94-1129-CIV-ORL-18.
• Citation: 903 F. Supp. 1507
• Parties: DOMINICAN ENERGY LIMITED, INC., a Florida corporation, Plaintiff, v. The DOMINICAN REPUBLIC, a foreign nation, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

903 F. Supp. 1507

DOMINICAN ENERGY LIMITED, INC., a Florida corporation, Plaintiff, v. The DOMINICAN REPUBLIC, a foreign nation, et al., Defendants.

No. 94-1129-CIV-ORL-18.

United States District Court, M.D. Florida, Orlando Division.

October 5, 1995.

Daniel N. Brodersen, Dempsey & Associates, P.A., Orlando, FL, Gary S. Salzman, Law Office of Gary S. Salzman, P.A., Joseph B. Denion, Swann, Hadley, Denion & Alvarez, P.A., Winter Park, FL, for Dominican Energy Limited, Inc., a Florida corporation.

Michael T. Moore, J. Raul Cosio, Holland & Knight, Miami, FL, for Dominican Republic, a foreign nation.

Joseph P. Klock, Jr., Joseph F. Dearing, Steel, Hector & Davis, Miami, FL, for Carmen Rosa Hernandez, in her official capacity and individually.

Christopher M. Rundle, Law Office of Christopher M. Rundle, P.A., Coral Gables, FL, for Marco A. Subero Sajium, in his official capacity and individually.

Miguel San Ben, Santo Domingo, Dom. Rep., pro se.

William T. Edy, Law Offices of William T. Edy, Cape Coral, FL, for Prudence Corporation, a foreign corporation.

Aaron R. Wolfe, Doran, Walters, Rost, Selter & Wolfe, Daytona Beach, FL, for Doran, Walters, Rost, Selter & Wolfe.

ORDER

G. KENDALL SHARP, District Judge.

In this case, Dominican Energy Limited, Inc. (DEL), a Florida corporation, sues the Dominican Republic, a foreign nation, Carmen Rosa Hernandez, in her official capacity and individually, Dr. Mario Read-Vittini, in his official capacity and individually, Marcos A. Subero Sajium, in his official capacity and individually, Miguel San Ben, in his official capacity and individually, Jose Bonilla, individually, and the Prudence Corporation, a foreign corporation. DEL claims that defendants' actions caused it to suffer significant financial losses, which it now seeks to recover, in addition to other relief. DEL's eight-count amended complaint asserts causes of action under federal and state law. The case is presently before the court on the Dominican Republic's motion to dismiss, to which DEL responded in opposition. (Docs. 30, 45.) After a thorough review of the case file and relevant law, the court finds that it lacks the subject matter jurisdiction necessary to adjudicate DEL's claims against the Dominican Republic.

I. Findings of Fact

DEL is a Florida corporation that exists solely to finance, construct, operate and manage electrical generation facilities in the Dominican Republic. DEL's predecessor in interest in this case is Bomar International, Ltd., Inc. (Bomar), which is a Florida corporation that apparently operates a business similar to that of DEL. At all times relevant to this lawsuit, Lewis R. Tolley (Tolley) was, and continues to be, the President and Chief Executive Officer of both DEL and Bomar. Tolley acted on behalf of DEL and Bomar in all transactions relevant to this lawsuit.

From August 1989 until December 1990, Bomar was interested in placing within the Dominican Republic facilities for the collection, handling, and incineration of refuse, with the potential for the facilities to generate electricity. On behalf of Bomar, Tolley travelled to the Dominican Republic where he met with the Mayor of Santo Domingo (Mayor) and members of Santo Domingo's City Council to present Bomar's proposal to place some of the facilities in Santo Domingo. During Tolley's last of four trips to Santo Domingo, the Mayor informed Tolley that Bomar would have to pay $10,000.00 to ensure that its proposal would be accepted.¹ The Mayor further indicated that Bomar would be required to pay $10,000.00 to the President of Santo Domingo's City Council and $10,000.00 to an unnamed person in the Palace of the Dominican Republic. Ultimately, Bomar's proposal was not accepted, in its view, because it refused to make the requested payments totalling $30,000.00.

Two years later, in February 1992, defendant Prudence Corporation (Prudence) solicited Bomar's assistance in placing within the Dominican Republic a cement plant with associated and supportive electrical power generation facilities. At Prudence's request, Tolley travelled to the Dominican Republic, where Prudence representatives introduced Tolley to Dr. Mario Read-Vittini (Vittini), who at that time was a private citizen of the Dominican Republic and a non-government, practicing attorney. To aid Bomar in efforts to place the desired facilities in the Dominican Republic, Vittini offered to act as Bomar's representative in the Dominican Republic. Vittini felt that his good reputation, close political contacts, and apparent familiarity with the Dominican Republic's government would benefit Bomar.

At all times relevant to this lawsuit, Marcos A. Subero Sajium (Subero) was a citizen of the Dominican Republic and the Administrator General of the Corporacion de Electricidad (CDE), the political subdivision of the Dominican Republic responsible for providing the country and its citizens with electricity. DEL claims that on or about March 31, 1992, at Subero's request, Vittini solicited from Bomar a general proposal regarding the placement of electrical generation facilities (facilities), as well as other projects that were available for placement in the Dominican Republic. In April 1992, Bomar responded by submitting the requested proposal to Vittini and Subero. The proposal contemplated a final contract which, if entered, would have required payments to be made to DEL in the United States.

On or about May 2, 1992, Tolley met with Prudence representatives and Vittini in Daytona Beach, Florida to discuss the status of Bomar's proposals. At the meeting, Prudence and Vittini asked that Bomar supplement its June 1992 general proposal with a complete, detailed and in-depth proposal regarding the placement of the facilities. Tolley later travelled to the Dominican Republic, at the request of Vittini, Prudence, and Subero, to present Bomar's more detailed proposal.

On June 20, 1992, in Jacksonville, Florida, Bomar, Prudence, and Vittini entered a Representation Agreement (Agreement). The Agreement provided that Vittini would serve as Bomar's exclusive representative in the Dominican Republic and that Vittini and Prudence would use their best efforts to assist Bomar in acquiring electrical power contracts in the Dominican Republic. Bomar later assigned its rights and obligations under the Agreement to DEL. The Dominican Republic was not a party to the Agreement.²

After the Agreement was executed, Vittini informed Tolley that Bomar should make a $300,000.00 donation to the controlling political party in the Dominican Republic to ensure that Bomar's proposals would be accepted and implemented there. Bomar declined to make the payment.

On or about September 29, 1992, Tolley, Vittini, and other Bomar representatives met in Jacksonville, Florida. During that meeting, Vittini informed Tolley that Subero required the payment of an unspecified sum of money to continue the advancement of Bomar's projects in the Dominican Republic. Bomar again refused to make any payment.

On October 26, 1992, Bomar representatives travelled to the Dominican Republic to meet with representatives of the CDE, various banking and financial institutions, and several government officials regarding Bomar's pending proposals. During this trip and a subsequent trip on December 6, 1992, Vittini again urged Bomar to make a $300,000.00 donation to the Dominican Republic's controlling political party to ensure that its proposals would be approved. Vittini also recommended that Bomar pay him additional advances for his daily operating expenses. Bomar rejected both of Vittini's recommendations. DEL claims that Vittini later failed to make himself available to fulfill his obligations under the Agreement because Bomar refused to make the requested payments.

On or about March 28, 1993, Vittini, Prudence and Tolley, now on behalf of DEL, met in Miami, Florida. At the meeting, Vittini indicated that he had not actively performed his obligations under the Agreement during the previous five months because he had been working for the political party in the Dominican Republic. Further, Vittini announced that he would no longer be able to perform his obligations under the Agreement, and introduced Raphael Llaneza (Llaneza) as his agent and replacement.

On June 4, 1993, defendant Carmen Rosa Hernandez (Hernandez), Administrative Secretary to the President of the Dominican Republic, allegedly instructed Subero and the CDE to conduct in-depth negotiations with DEL for the placement of Facilities and related projects in the Dominican Republic. The negotiations occurred in mid-June 1993; and on or about June 24, 1993, DEL submitted its first official offer to the CDE outlining the specific terms and costs per kilowatt hour for which DEL was willing to provided electricity to the Dominican Republic through the CDE.

DEL claims that during June 1993, Llaneza twice requested that DEL pay $150,000.00 to the controlling political party for the President of the Dominican Republic's re-election campaign. Llaneza indicated that the payment was necessary to ensure DEL's success in the Dominican Republic, and that the request had emanated from Hernandez. DEL refused to make the requested payments.

On Tolley's next trip to the Dominican Republic, he met with Hernandez and discussed her request for the $150,000.00 political contribution. Hernandez indicated that if the payment was not made, DEL would not be awarded the facilities contract. Hernandez also informed Tolley that the President of the Dominican Republic would be displeased if the payment was not made, and that other companies had already made similar payments in return for being awarded government contracts. Tolley indicated that the requested payments would not be made under any circumstances, and that if the requests for such payments continued DEL would report the conduct to the proper authorities. After Tolley rejected Hernandez's request for the political...