Nicor Intern. Corp. v. El Paso Corp., 02-21769-CIV.
| Decision Date | 24 November 2003 |
| Docket Number | No. 02-21769-CIV.,02-21769-CIV. |
| Parties | NICOR INTERNATIONAL CORPORATION and Consultores de la Cuenca Del Caribe a/k/a Carib Consult Plaintiffs v. EL PASO CORPORATION f/k/a Oceano Corporation or the Coastal Corporation (later the El Paso Energy Corporation) Defendants. |
| Court | U.S. District Court — Southern District of Florida |
David Ian Katzman, Schaden Katzman Lampert & McClune, Troy, MI, Richard F. Schaden, Schaden Katzman Lampert & McClune, Broomfield, CO, John D. McClune, Schaden Katzman Lampert & McClune, Troy, MI, for Nicor International Corporation, Consultores de la Cuenca Del Caribe, plaintiffs.
Pedro Julio Martinez-Fraga, Luis Miguel O'Naghten, Alan Theodore Dimond, Greenberg Traurig, Miami, FL, for El Paso Corporation fka Oceano Corporation aka The Coastal Corporation aka El Paso Energy Corporation, defendants.
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
This Cause is before the Court on the Defendants' Motion for Summary Judgment and supporting Memorandum of Law, filed September 4, 2002, as to the Second Amended Complaint (DE 11, 12), and Defendants' Motion for Summary Judgment and supporting Memorandum of Law, filed September 4, 2002, as to Count I of its Counterclaim (DE 13, 14). On September 4, 2002, the Defendants filed a Statement of Undisputed Facts (DE 16). On September 13, 2002, the Defendants filed an Amended Memorandum of Law (DE 25) in support of its Motion for Summary Judgment as to the Second Amended Complaint and an Amended Statement of Undisputed Facts (DE 26). On October 3, 2002, the Plaintiffs filed a "Combined" Memorandum in Opposition to Defendants' Motions for Summary Judgment ("Response") (DE 36) and Statement of Undisputed Facts (DE 37). On October 18, 2002, the Defendants filed a Reply ("Reply") to Plaintiffs' Response (DE 48). On the same date, the Defendants filed a Supplemental Statement of Undisputed Facts (DE 50). On January 3, 2003 and February 25, 2003, the Plaintiffs filed a First Supplement and a Second Supplement to their Statement of Undisputed Facts (DE 57, 72.) The matter is now ripe for review.
On July 18, 2003, the Plaintiffs, Nicor International Corporation ("Nicor") and Consultores de la Cuenca Del Caribe a/k/a/ Carib Consult ("Carib") filed a Second Amended Complaint ("Complaint") against the Defendants, the El Paso Corporation ("El Paso") or The Coastal Corporation ("Coastal") (collectively "El Paso/Coastal"). In the Complaint, Nicor and Carib assert the following claims against El Paso/Coastal: Domestication of Judgment (Count I); Breach of Contract (Count II); Tortious Interference with Contract and/or Prospective Advantageous Business Relations (Count III); Violation of Florida's Racketeer Influenced and Corrupt Organization (RICO) Act, Chapter 895, Florida Statutes (Count IV); Outrageous Conduct Causing Severe Emotional Distress (Count V); and Negligence (Count VI). Plaintiffs allege that subject matter jurisdiction is founded upon diversity of citizenship. (Complaint ¶ 4.)
On August 13, 2003, Coastal filed an Answer and Counterclaim ("Counterclaim") (DE 6) against Nicor and Caribe. In the Counterclaim, Coastal asserts the following claims: Confirmation of Arbitration Award (Count I); Declaratory Judgment (Count II); and Breach of Contract (Count III).
The relevant facts, as culled from the affidavits and documentary evidence, for purposes of the instant Motions, are as follows:
Professional Services Agreement
On January 22, 1993, Coastal and Nicor entered into a Professional Services Agreement ("PSA"). (Defendants' Exhibit 1, PSA at 1-3.) At all relevant times, Coastal was a diversified energy holding company which provides natural gas services. (PSA at 1.) Coastal was organized under the laws of Delaware, with its principal place of business in Texas. (PSA at 1.) At all relevant times, Nicor was a professional consulting company organized under the laws of the Republic of Panama, with its principal place of business in the Republic of Panama.1 (PSA at 1.)
Under the PSA, Nicor agreed to provide prospective consulting services2 to Coastal for possible energy-related projects in the Dominican Republic (PSA at 2.) The PSA contains the following arbitration provision ("Arbitration Provision"):
Any dispute arising in connection with this agreement shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by a single arbitrator appointed in accordance with said Rules. The arbitration proceedings shall take place in the City of Dallas, Texas, U.S.A. and be conducted in English.
(PSA ¶ 6.) The PSA also provides that "[t]he parties agree that this contract shall be governed by the laws of the State of Texas, U.S.A." (PSA ¶ 4.)
In a letter dated August 9, 1995, Nicor communicated to Coastal that Coastal was in breach of the PSA by pursing energy-related projects in the Dominican Republic through Compania Electrica de Puerto Plata ("CEEP"). (Plaintiffs' Exhibit 9, letter dated August 9, 1995.) At all relevant times, CEEP was a company in which Coastal had an ownership interest. (Plaintiffs' Exhibit 14, Request for Arbitration at 2.)
On August 18, 1995, Nicor purportedly assigned its rights under the PSA to Carib, which was a fifty-percent share owner of Nicor. (Plaintiffs' Exhibit 7, Affidavit of Rafael Martinez ¶ 14.)
On September 29, 1995, Carib, the assignee of the PSA, filed suit in the Dominican Republic against Coastal and Coastal's subsidiaries The Coastal Power Company and CEEP. (Plaintiffs' Exhibit 2.)
On October 4, 1996, the Dominican court ruled that it did not have jurisdiction to hear and decide the lawsuit because the parties had agreed to arbitrate the dispute, pursuant to the arbitration provision in the PSA. (Plaintiffs' Exhibit 13.)
On November 27, 1997, the Dominican appellate court "repealed" the lower court's judgment, based, in part, on its finding that Coastal bad "renounced" arbitration. (Plaintiffs' Exhibit 3.)
On May 28, 1998, the Supreme Court of the Dominican Republic dismissed Coastal's appeal. (Defendant's Exhibit 2 at 8.)
On October 4, 1999, Coastal submitted a Request for Arbitration before the International Court of Arbitration ("ICA") of the International Chamber of Commerce ("ICC"), naming as respondents Nicor and Carib. (Defendants' Exhibit 5.)
On December 14, 2000, the Arbitrator entered an Award on Jurisdiction, finding that Coastal had not waived its right to arbitrate and that it had jurisdiction to hear the parties' dispute ("Award on Jurisdiction"). (Defendants' Exhibit 2.)
On August 13, 2001, the Arbitrator issued a Final Award finding in favor of Coastal. The Arbitrator found that Coastal had not breached the PSA and that Coastal was entitled to fees and costs ("Final Arbitration Award"). (Defendants' Exhibit 4.)
On September 6, 2001, the Dominican Court of Appeals issued its "sentence" in favor of Nicor wherein the Court declared that Coastal breached the PSA and is liable for damages arising out of the breach. (Plaintiffs' Exhibit 16, Affidavit of Juan Ferrand at ¶ 5.)
Pursuant to the terms of the sentence and the Dominican Code, Nicor/Carib submitted their "statement of damages" ("Statement of Damages"). To date, Coastal has not responded to the Statement of Damages. As a result, Coastal may have waived their right to object to the damages presented by Nicor/Carib, which damages stand in the amount of $57,294,026. (Plaintiffs' Exhibit 16, Affidavit of Juan Ferrand at ¶ 6-7.)
On July 17, 2002, El Paso filed a "Request to Grant Exequatur to a Foreign Arbitration Award," in the Dominican Republic court. (Exhibit 1 to Plaintiffs' First Supplement.)
On November 12, 2002, the Dominican courts denied Coastal's petition. (Exhibit 2 to Plaintiffs' First Supplement.)
Summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56©. The moving party bears the initial responsibility of showing the Court, by reference to the record, that there are no genuine issues of material fact that should be decided at rial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the non-moving party bears the burden of proof on an issue, the moving party may discharge its burden by showing that the materials on file demonstrate that the party bearing the burden of proof at trial will not be able to meet its burden. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991).
When a moving party has discharged its burden, the nonmoving party must "go beyond the pleadings," and, by its own affidavits or by "depositions, answers to interrogatories, and admissions on file," designate specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A mere "scintilla" of evidence supporting the opposing party's position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990).
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