Fly Brazil Group Inc v. The Gov't Of Gabon
| Decision Date | 29 January 2010 |
| Docket Number | No. 09-60239-CV-ZLOCH/ROSENBAUM.,09-60239-CV-ZLOCH/ROSENBAUM. |
| Parties | FLY BRAZIL GROUP, INC., a Florida corporation, Plaintiff,v.THE GOVERNMENT OF GABON, AFRICA, and Afrijet Business Services, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Stuart Arthur Goldstein, Miami, FL, for Plaintiff.
Joseph A. DeMaria, Maria N. Vernace, Tew Cardenas LLP, Miami, FL, for Defendants.
THIS MATTER is before the Court upon the Report And Recommendation (DE 49) filed herein by United States Magistrate Judge Robin S. Rosenbaum and upon Plaintiff Fly Brazil Group, Inc.'s Agreed Motion Approving The January 22, 2010 Report And Recommendation And Granting Plaintiff Sixty (60) Days To Effect Service Of Process On The Government Of Gabon, Africa (DE 51). The Court has conducted a de novo review of the entire record herein and is otherwise fully advised in the premises.
Accordingly, after due consideration, it is
ORDERED AND ADJUDGED as follows:
1. The Report And Recommendation (DE 49) filed herein by United States Magistrate Judge Robin S. Rosenbaum be and the same is hereby approved, adopted and ratified;
2. Defendant the Government of Gabon, Africa's Motion To Quash Plaintiff Fly Brazil Group, Inc.'s Third Service Attempt Of The Verified Amended Complaint For Insufficient Service Of Process (DE 28) be and the same is hereby GRANTED 3. Plaintiff Fly Brazil Group, Inc.'s Agreed Motion Approving The January 22, 2010 Report And Recommendation And Granting Plaintiff Sixty (60) Days To Effect Service Of Process On The Government Of Gabon, Africa (DE 51) be and the same is hereby GRANTED;
4. Plaintiff Fly Brazil Group, Inc. shall have until Wednesday, March 31, 2010, to effect proper service on the Government of Gabon, Africa; and
5. Plaintiff Fly Brazil Group, Inc. shall provide a copy of the service papers to counsel for the Government of Gabon immediately upon dispatch of those papers.
This matter comes before the Court upon Defendant the Government of Gabon, Africa's Motion to Quash Plaintiff Fly Brazil Group, Inc.'s Third Service Attempt of the Verified Amended Complaint for Insufficient Process and Insufficient Service of Process [D.E. 28], referred to me for report and recommendation by the Honorable William. J. Zloch [D.E. 46]. The Court has carefully reviewed Gabon's Motion, all filings in support thereof and in opposition thereto, and the record in this matter. After thorough consideration, I respectfully recommend that the Court grant Defendant Gabon's Motion.
We here mandate Mr. DILSON PRADO DA FONSECA of FLY BRAZIL GROUP INC. exclusively to source the mentioned aircraft on an acquisition, your job and consulting service the total VALUE of U.S. $6,000,000.00, basis under the following conditions:
According to Plaintiff Fly Brazil, this document represents an agreement whereby Fly Brazil was commissioned to perform interior and exterior consulting design, engineering, and modification services for a Boeing 777 aircraft to be acquired for Gabon. D.E. 2-1 at 5, 7. Fly Brazil asserts that in accordance with the December 6, 2006, document, Fly Brazil, in fact, performed “interior and exterior consulting, design, engineering, and modification services” on a particular aircraft (the “Aircraft”) in Broward County. Id. at 5, 8. Thereafter, Fly Brazil avers, it billed the Government of Gabon by invoice for $5,994,888.00 for the work that Fly Brazil performed. Id.; see also D.E. 1 at 18. Although, according to Fly Brazil, Gabon has never objected to the invoice, Fly Brazil complains that Gabon has not paid the invoice. D.E. 2-1 at 5, 8, 9.
Fly Brazil filed the original version of this lawsuit on June 11, 2008, in the Circuit Court for the 17th Judicial Circuit in and for Broward County, Florida. D.E. 1 at 1, 1. In the original Verified Complaint, Fly Brazil sued Gabon and Wells Fargo Bank Northwest (“Wells Fargo”). See D.E. 1 at 11. More specifically, Fly Brazil filed a breach-of-contract claim against Gabon and a lien foreclosure claim against Wells Fargo, asserting that Wells Fargo was the record owner of the Aircraft. Id. at 11-15. In a third count against both Gabon and Wells Fargo, Fly Brazil sought a writ of attachment for the Aircraft, which Fly Brazil averred was located at that time in the Commonwealth of Virginia. Id. at 15.
On June 18, 2008, Fly Brazil unsuccessfully attempted to make service of the original Verified Complaint upon Defendant Gabon. Id. at 1. In response to that service attempt, counsel for Gabon sent Fly Brazil a letter challenging jurisdiction and service of process as insufficient under the Foreign Sovereign Immunities Act of 1976 as amended, 28 U.S.C. §§ 1330, 1391(f), 1441(d), and 1602-1611.
On November 14, 2008, Fly Brazil filed its Motion to File Amended Verified Complaint and Memorandum of Law in the state case, which the state court granted on November 26, 2008, deeming the Verified Amended Complaint to have been filed as of November 14, 2008. See D.E. 1 at 2, 7-8. Like the original Verified Complaint, the Verified Amended Complaint named Gabon and Wells Fargo as Defendants, but it also named Afrijet Business Service (“Afrijet”) as a third Defendant. See id. at 7. The Verified Amended Complaint alleged one count each of breach of contract against Gabon and Afrijet, as well as a count against both Gabon and Afrijet seeking a writ of attachment of the Aircraft, again contended by Fly Brazil to be located at that time in the Commonwealth of Virginia. See D.E. 2-1. As Fly Brazil alleged no counts against Wells Fargo, Fly Brazil ultimately filed a Notice of Voluntary Dismissal as to Defendant Wells Fargo Bank Northwest, leaving Defendants Gabon and Afrijet as the only Defendants. See D.E. 1 at 27.
The state court issued a summons to Gabon on January 1, 2009. D.E. 1 at 2. On January 9, 2009, Fly Brazil again unsuccessfully attempted to serve Gabon. Id.; see also D.E. 6 at 1, D.E. 8. According to Gabon, that service package was defective under the FSIA because it failed to include a Notice of Suit, it was dispatched by Fly Brazil instead of by the Clerk of Court, it was served on the Presidential Office for the Republic of Gabon instead of the Ministry of Foreign Affairs, it did not include a complete French translation of the Verified Amended Complaint, and it contained the Verified Complaint instead of the Verified Amended Complaint. D.E. 28 at 4-5.
Defendant Gabon then removed the case to this Court on February 13, 2009. See D.E. 1. After Gabon moved to quash service of the Verified Amended Complaint see D.E. 2, Fly Brazil conceded that it had not effected proper service. See D.E. 6. Consequently, Gabon and Fly Brazil agreed that Fly Brazil would consent to the quashing of service and Fly Brazil would have another ninety days in which to make service on Gabon. See D.E. 7. In accordance with the parties' expressed desires, on April 8, 2009, the Court granted Gabon's Motion to Quash Service [D.E. 2] and provided Fly Brazil until July 3, 2009, by which to effect proper service of the Verified amended Complaint on Gabon. See D.E. 8. In so doing, the Court warned, “Failure of Plaintiff to comply with the terms and conditions of this Order shall result in the dismissal of Defendant ... Gabon ..., without prejudice, and without further notice of hearing.” Id. at 2.
In an attempt to comply with the Court's Order requiring service by July 3, 2009, on June 16, 2009, Fly Brazil sent its service package for Gabon by Federal Express. See D.E. 11 at 4. Although Federal Express indicated that it would make delivery of the package to Gabon by June 19, 2009, as of June 26, 2009, due to mis-routing on the part of Federal Express, Federal Express still had not been able to complete delivery. See id. at 4-5. As the delivery error resulted from Federal Express's mistake, the Court extended the deadline for effecting service to July 17, 2009. See D.E. 12. As it turns out, Federal Express did, in fact, complete delivery of the package to Gabon on June 26, 2009. See D.E. 16 at 5. Fly Brazil likewise caused delivery of the service package to Afrijet on June 26, 2009. See D.E. 13.
Apparently as a result of a change in government, Gabon has been unable to locate the service package since its delivery. See D.E. 28 at 6-7 & 7 n. 7. Fly Brazil has similarly been unsuccessful in attempting to locate a complete and exact copy of all documents included in the package sent to Gabon. D.E. 32 at 2. Nevertheless, the parties appear to agree, more or less, regarding the contents of the package. See D.E. 28 at 7; D.E. 32 at 2; D.E. 34 at 2. These include the following:
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