Pycsa Panama, S.A. v. Tensar Earth Technologies

Decision Date16 April 2008
Docket NumberNo. 06-20624-CIV.,06-20624-CIV.
Citation625 F.Supp.2d 1198
PartiesPYCSA PANAMA, S.A., Plaintiff, v. TENSAR EARTH TECHNOLOGIES, INC., Defendant.
CourtU.S. District Court — Southern District of Florida

Alexander Angueira, Alexander Angueira, P.L.L.C., South Miami, FL, for Plaintiff.

Albert Eugene Blair, Daniels Kashtan Downs Robertson & Magathan, Coral Gables, FL, Gregory Mark Palmer, Marty Fulgueira Elfenbein, Michael Roland Holt, Whitney Victoria Harrell, Rumberger Kirk & Caldwell, Miami, FL, for Defendant.


ALAN S. GOLD, District Judge.

THIS CAUSE is before the Court on Defendant's Motion for Summary Judgment [DE 260], filed October 10, 2007. The parties have filed a Response [DE 293], a Reply [DE 307], and individual statements of undisputed facts [DE 276, 287, 308, & 309]. In addition, since this case involves issues which may be governed by Panamanian law, the parties have submitted affidavits of their respective Panamanian Law Experts. On January 8, 2008, I held an evidentiary hearing pursuant to Federal Rule of Civil Procedure 44.1 to resolve disputed issues raised by the competing affidavits. Following oral argument on the subject motion, which was held on January 18, 2008, the parties filed supplemental briefs [DE 338, 364], affidavits [DE 344] and other supporting documents [DE 343, 345, 346]. Having reviewed the record, the parties' arguments and the relevant case law, I conclude that Defendant's Motion for Summary Judgement should be granted as to all counts of Plaintiff's complaint.

I. Factual Background
A. Undisputed Facts

The following material facts are undisputed and supported by evidence in the record:1

1. Plaintiff Pycsa Panama, S.A. ("Pycsa") is a Panamanian entity headquartered in Panama City, Panama. (Defendant's Statement of Undisputed Facts, DE 276 at p. 1; Jan. 18, 2008 Hr'g Tr.).2

2. Pycsa has two corporate sisters: Constructora Vial ("Vial") and Autovias BS ("Autovias"). (Id.).

3. The three corporate sisters exist under the laws of Panama, and share an office in Downtown Panama City. (Id.). The companies exist solely to build and operate the Panama tollway project: Pycsa acts as the concessionaire, Vial acts as the general contractor, and Autovias operates the completed portions of the tollway. (Defendant's Statement of Undisputed Facts, DE 276 at p. 3, & n. 7).

4. Pycsa International, a Cayman-incorporated company, acts as a holding company for the three corporate sisters. (Id. at n. 1). Grupo Pycsa, a Mexican corporation, is the corporate parent. (Id. at p. 1).

5. Defendant Tensar Earth Technologies, Inc.3 ("Tensar") is a corporation existing under the laws of the State of Georgia, with its principal place of business in Atlanta, Georgia. (Compl. at ¶ 3; Answer at ¶ 2; DE 267 at p. 8, & n. 14). Tensar has been registered to conduct business in Florida since 1997, and its products have been used on projects throughout the State of Florida. (Id.).

6. Tensar holds the worldwide patents for the Mesa mechanically structured earth retention systems or retaining walls ("Mesa Wall System" or "Mesa Walls") and the Tensar Geogrid.4 (DE 276 at p. 8).

7. Tensar sells its products and retaining wall system through an international network of distributors and licensees. Id.

8. Fundaciones, S.A. ("Funsa") is a Panamanian construction company devoted to the design and construction of foundations, geotechnical work, various kinds of pillars, walls, erosion control, bridge construction, and deep well digging. (DE 276 at p. 7).

9. Funsa has been in business since 1972, and does 99% of its work is in Panama. (Id. at p. 7, & n. 11). It has also done work in Costa Rica and the Dominican Republic. (Id.).

B. The Mesa Wall System

10. The Mesa Wall System, designed by Tensar, has several components: blocks, geogrids, connectors, and soil. (Compl. at ¶ Defendant's Motion for Summary Judgement, DE 277 at p. 8).5 Tensar manufactures, in Georgia, the "geogrids" utilized in the construction of the Mesa Wall System. (DE 276 at p. 8).

11. The "block" is the structure used to build the Mesa Wall System. (Jan. 18, 2008 Hr'g Tr.). The top layer of the block is called the "cap." (Id.).

12. The blocks used in the bridge abutments at issue in this case were manufactured by a non-party Panamanian company, Multiblock, S.A. ("Multiblock"), in Panama, and purchased by Vial and Pycsa directly from Multiblock, in Panama. (DE 330; Jan. 18, 2008 Hr'g Tr.).

13. To manufacture the blocks, Multiblock used a mold Funsa had previously purchased from Tensar. (Jan. 18, 2008 Hr'g Tr.). The mold had been designed by Tensar and Pronique, a Canadian Company. (Id.). Tensar bought the mold and used it in connection with unrelated projects in Florida. (Id.).

14. In 1996, Funsa bought the mold from Tensar. (Id.).

15. Funsa and Multiblock used this mold in Panama to manufacture the blocks that were used in connection with the Mesa Wall at issue.6 (Id.).

16. At the time the mold was designed by Tensar and Pronique, the current dual system of "standard" and "high performance" Tensar blocks and connectors had not been developed. (Id.). This mold, which the parties agree was used to manufacture the blocks used in the subject bridge abutments, was originally designed to create a block that does not fit the current description of either a "standard" or a "high performance" block—the parties have referred to these blocks as "hybrid blocks." (Jan. 18, 2008 Hr'g Tr.).

17. The "geogrids" are manufactured by Tensar in a manufacturing plant located in Georgia. (Jan. 18, 2008 Hr'g Tr.). I infer in Plaintiff's favor for purposes of summary judgment that Tensar designed the geogrids in Georgia.

18. The "connectors" are manufactured by third parties in various locations, including Canada. (Jan. 18, 2008 Hr'g Tr.). Post-manufacture, the connectors are sent to Tensar in Georgia. (Id.). Tensar sells the connectors, from Georgia, as its product. (Id.). It is unknown who designed the connectors, although for summary judgment purposes, I infer that Tensar designed the connectors in Georgia, including the more recent dual system of standard and high performance connectors.

19. The Mesa Wall System, as a whole, was designed by Tensar in Georgia. (License Agreement, DE 278 at Ex. T).

C. The Funsa-Tensar Agreements

20. Funsa first interacted with Tensar in the early 1980s when Funsa purchased Tensar geogrids for an unrelated sanitary landfill project. (DE 278 at n. 15).

21. On August 3, 1995, Funsa and Tensar entered into an exclusive Product Distribution Agreement giving Funsa the right to promote and sell Tensar's products in Panama. (Id. at p. 8).7

22 Under the terms of the Distribution Agreement, Tensar agreed to provide Funsa— at Tensar's sole discretion—with reasonable product management, sales administration, marketing materials, customer service and training support. (DE 276 at p. 8; DE 278 Ex. S at ¶ 6). The training would be provided at Tensar's home offices in Atlanta, Georgia. (Id.).

23. Relevant parts of the Distribution Agreement provide that: (1) nothing in the agreement shall make Funsa an agent, representative or partner of Tensar; (2) nothing in the agreement shall create any liability of Tensar to, or privity of Tensar with, any customers of Funsa or its partners; and, (3) the agreement is governed by the laws of the State of Georgia, and the parties agree to personal jurisdiction in Georgia. (Id. at Ex. S at ¶¶ 10.1, 10.2, & 10.3).

24. On August 18, 1995, Funsa and Tensar executed a separate licensing agreement. (License Agreement, DE 278 at Ex. T). The licensing agreement acknowledges that Tensar has developed a proprietary concrete modular block retaining wall system consisting of molded concrete block units, caps, anchored structural connection devices and Tensar geogrid. (Id.).

25. The licensing agreement, among other things, grants Funsa the right to use Tensar's: (1) proprietary product designs and specifications for manufacturing blocks; (2) installation methods, procedures and specifications; (3) marketing and sales techniques; and, (4) Tensar's Mesa trademark solely for the purposes of manufacturing "blocks" and marketing, selling and installing the components of the Mesa Wall System, all within Panama. (Id. at ¶ 1).

26. The licensing agreement also makes Funsa responsible for advertising, marketing, promoting and selling Tensar's products and the Mesa Wall System at Funsa's own expense. (Id. at ¶ 3.1). Under its terms, Funsa is responsible for arranging the manufacturing of the molds; Funsa may retain an agent to manufacture the blocks and caps. (Id.).

27. Tensar agreed to provide limited training and assistance to help Funsa develop and implement its marketing program. (Id.). At Tensar's sole discretion and Funsa's expense, Tensar would provide additional assistance, including engineering and technical advice on specific projects. (Id.).

28. According to the licensing agreement, Funsa is an independent contractor and neither party will be liable for the liabilities of the other party or its employees. (Id. at ¶ 8.6).

29. The licensing agreement includes a Forum Selection Clause which provides that the agreement, and disputes arising from it, are governed by the laws of the State of Georgia. (Id. at ¶ 8.2).

D. The Tollway Project (The Concession and Design)

30. In 1994, the Republic of Panama, through the Ministry of Public Works (the "MOP") bid the concession for an integrated toll road system, described as a "ring around Panama City." (DE 276 at p. 2).

31. On December 29, 1994, the MOP entered into a contract with Pycsa to "design, build, maintain, operate and exploit each of the component sections ..." of the tollway project. (Id.).

32. The tollway project has two components: the Panama-Colon Highway and the Northern Corridor. (Id.). The...

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