Perez v. Alcoa Fujikura, Ltd.

• Decision Date: 13 June 1997
• Docket Number: Civil Action No. DR-95-CA-32.
• Citation: 969 F.Supp. 991
• Parties: Luis PEREZ and Margarita Perez, Individually and d/b/a Servicios Especializados De Comedores Industriales, Plaintiffs, v. ALCOA FUJIKURA, LTD., d/b/a Alcoa Conductor Accessories, Inc., Arneses Y Accessorios De Mexico, and H. Wacaser, Defendants.
• Court: U.S. District Court — Western District of Texas

969 F.Supp. 991

Luis PEREZ and Margarita Perez, Individually and d/b/a Servicios Especializados De Comedores Industriales, Plaintiffs, v. ALCOA FUJIKURA, LTD., d/b/a Alcoa Conductor Accessories, Inc., Arneses Y Accessorios De Mexico, and H. Wacaser, Defendants.

Civil Action No. DR-95-CA-32.

United States District Court, W.D. Texas, Del Rio Division.

June 13, 1997.

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Kevin B. Miller, Law Offices of Kevin B. Miller, San Antonio, TX, for Luis Perez, Margarita Perez.

William J. Stroman, Del Rio, TX, for Alcola Fujikura, Ltd., Arneses Y. Accesorioes de Mexico.

ORDER

BIERY, District Judge.

Before the Court are rather unusual questions which, because of the evolution of the global economy, may arise more frequently in the future. In particular, the Court has for consideration the defendants' motion to dismiss and/or for summary Judgment, and motion for the application of Mexican law. After reviewing the record and the relevant law and finding a close call to be made, the Court concludes the defendants' motion for the application of Mexican law should be denied, and their motion to dismiss and/or for summary judgment under Texas law should be granted except as to count I of the defendants' counterclaims, which will be denied without prejudice to refile as a separate cause of action

Background and Procedural History

Plaintiffs' Evidentiary Objections

The Court will first consider the plaintiffs' evidentiary objections to exhibits F, G, H, K, U, and W of the defendants' statement of material facts.¹ FED. R. CIV. P. 56(e) requires that supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Rule 56(e) further requires the party to attach sworn or certified copies of all documents referred to in the affidavit. As a general rule, "[i]n order for a document to be considered in support of or in opposition to a motion for summary judgment, it must be authenticated by and attached to an affidavit that meets the requirements of Rule 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." Burnett v. Stagner Hotel Courts, Inc., 821 F.Supp. 678, 683 (N.D.Ga.1993), aff'd, 42 F.3d 645 (11th Cir.1994); see also Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550-51 (9th Cir.1989) (To be considered in a motion for summary judgment, "documents must be authenticated by and attached to an affidavit that meets the requirements of [Rule] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence."); 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2722, at 58-60 (1983). However, uncertified or otherwise inadmissible documents may be considered by the court in ruling on a motion for summary judgment if the documents are not challenged. See, e.g., Jones v. Owens-Corning Fiberglas Corp. & Amchem Prods., Inc., 69 F.3d 712, 718 (4th Cir.1995); Casas Office Mach., Inc. v. Mita Copystar America, Inc., 42 F.3d 668, 682 (1st Cir.1994).

Exhibit F is the declaration of Ruben Rubio, who was the accounting manager for Alcoa's Texas and Mexico operations from June 1993 to January 1994. Plaintiffs argue that Rubio's declaration does not contain an averment of personal knowledge because it states the "foregoing is true and correct to best of my knowledge, information and belief." Although a statement indicating an affidavit is based upon "information and belief" is usually insufficient, Price v. Rochford, 947 F.2d 829, 832-33 (7th Cir.1991), at the beginning of his declaration Rubio clearly states that "[e]xcept as otherwise indicated below, I make this Declaration based on personal knowledge." This is a sufficient indicia of personal knowledge to overcome the plaintiffs' objection.

The plaintiffs also claim paragraphs 8, 9 and 20 of Rubio's declaration should be stricken because there has been no predicate established for his expertise in taxation. Paragraph 8 states that food subsidies being provided by Arneses to its employees were not taxable as wages under the Mexican Social Security system; paragraph 9 states that on or about July 21, 1993, the Mexican laws were changed so as to make these subsidies taxable to Arneses' employees for purposes of Mexican Social Security. Paragraph 20 discusses an offer by Luis Perez that Arneses pay a food subsidy of 45,000 pesos per week to SEDCI in exchange for SEDCI lowing its prices to Arneses' employees, "and that this subsidy be falsely reported to the Mexican taxing authorities as deductible `cleaning and maintenance' expenses." Rubio's position as an accounting manager for Alcoa's Texas and Mexico operations would have put him in a position to have direct personal knowledge of these statements; indeed, his assertions are made from personal knowledge, according to the first paragraph of his declaration. Furthermore, the statements in paragraph 20 are corroborated by other unobjected-to documents in the summary judgment record, e.g., a November 1993 memorandum from Luis Perez to Defendant Wacaser which proposes the 45,000 peso subsidy and that it be billed as "services performed such as cleaning and maintenance of cafeterias and cleaning of outside patios." The plaintiffs' objections are overruled.

Exhibit G contains a photocopy of a July 1993 petition presented to Arneses by 116 of its workers. According to the English translation, the workers complained that SEDCI's food caused "stomach pains," that it was "not cooked properly," and that the quality had "gotten wors[e]" since SEDCI was awarded the contract. The plaintiffs' object to this document based on authentication and hearsay. Because neither the English translation nor the document itself are authenticated, the plaintiffs' objection is sustained, and the document will not be considered by the Court.

Exhibit H contains a report from Arneses' safety and hygiene inspectors which describes various problems with SEDCI's cooking facilities. The Spanish language original is not formally authenticated, but two circumstantial factors persuade the Court of its authenticity. First, all of the documents in question are dated and bear Arneses' company logo, pre-printed address and telephone number, all of which show authenticity. See In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 293 (3d Cir.1983) (firm logo helps establish authenticity of memoranda); Federal Trade Comm'n v. Hughes, 710 F.Supp. 1520, 1522-23 (N.D.Tex.1989) (documents provided during discovery, on defendant's letterhead, held authentic under 901(b)(4)); New Orleans Saints v. Griesedieck, 612 F.Supp. 59, 62 (E.D.La.1985) (use of letterhead form demonstrates that form was made in course of regularly conducted business activity, thus authenticating it), aff'd, 790 F.2d 1249 (5th Cir.1986); see also FED. R. EVID. 901(b)(4) (characteristics and contents of document, taken in conjunction with circumstances, will authenticate it). Furthermore, the English translation is authenticated by an affidavit from the translator, which states that he has reviewed the original Spanish language document and that the "translation is, in every respect, a true and correct translation of said document." These are sufficient indicia or reliability and authenticity to overcome the plaintiffs' objections, which are therefore overruled.

The plaintiffs also object to Exhibit K on the grounds it is unauthenticated hearsay. The English translation of this document identifies it as "[a]nomalies from complaints from personnel in plant # 2 about food service," which are arranged chronologically. Like Exhibit H, the Spanish language original is not authenticated. Although this exhibit also contains an affidavit from the translator which attests he has reviewed the original Spanish language document and that the "translation is, in every respect, a true and correct translation of said document," there are no other circumstantial factors which persuade the Court of its authenticity, i.e., the document is dated but bears no signature, company logo or letterhead. The plaintiffs' objections to this document are therefore sustained, and the document will not be considered by the Court.

Exhibits U and W contain Spanish language newspaper reports of charges which were allegedly filed against Luis Perez by Mexican authorities for writing bad checks (Exhibit U), and strikes by SEDCI's workers for nonpayment of salaries and other grievances (Exhibit W). Plaintiffs again object that these exhibits are unauthenticated hearsay. Newspaper articles, however, are self-authenticating under FED. R. EVID. 902(6). Price v. Rochford, 947 F.2d 829, 833 (7th Cir.1991); Orloff v. Cleland, 708 F.2d 372, 378 n. 6 (9th Cir.1983). As for the hearsay objections, the articles may be considered to the extent they are being offered not to prove the truth of the matters asserted, but only that they were reported. The plaintiffs' objections are overruled.²

The Cast of Characters

Plaintiff Servicios Especializados de Comedores Industriales (SEDCI) operated a restaurant and catering business in the city of Acuna, Coahuila, Mexico. In June of 1993, SEDCI entered into a food service agreement with Defendant Arneses y Accessorios de Mexico, S.A. de C.V. (Arneses) to provide catering services for its factories, or Maquiladoras,³ in Acuna. These factories assemble wiring harnesses for the U.S. automotive and truck industry. Defendant Alcoa Fujikura, Ltd., Arneses' parent corporation, is an American corporation licensed to do business in Texas, with an office in Del Rio, Texas.

SEDCI's organization is not clear from the summary judgment record. Luis Perez's affidavit and deposition testimony...