Sprague & Rhodes Commodity Corp. v. Instituto Mexicano Del Cafe
| Citation | 566 F.2d 861 |
| Decision Date | 07 December 1977 |
| Docket Number | D,No. 266,266 |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Parties | SPRAGUE & RHODES COMMODITY CORPORATION, Petitioner-Appellant, v. INSTITUTO MEXICANO DEL CAFE, Respondent-Appellee. ocket 76-7412. |
Leonard S. Baum, New York City (Phillips, Nizer, Benjamin, Krim & Ballon, New York City, George P. Birnbaum, New York City, of counsel), for petitioner-appellant.
Robert M. Blum, New York City (Silberfeld, Danziger & Bangser, New York City, Judy A. Bluestein, James G. Samson, New York City, of counsel), for respondent-appellee.
Before KAUFMAN, Chief Judge, and SMITH and MULLIGAN, Circuit Judges.
Sprague & Rhodes Commodity Corporation (S&R), an importer of green coffee in the United States, appeals from an order of the Hon. Lawrence W. Pierce, entered August 17, 1976 in the United States District Court for the Southern District of New York, dismissing appellant's petition to compel arbitration of a commercial dispute pursuant to section four of the Federal Arbitration Act, 9 U.S.C. § 4. The appellee is the Instituto Mexicano Del Cafe (Instituto), a governmental agency created by the Republic of Mexico to regulate the quantity and price of coffee exported from that country. Instituto also operates as a private commercial enterprise selling coffee for its own account directly to United States importers.
Instituto had brought an action in the Superior Court of Mexico, Federal District, alleging that S&R failed to pay it for coffee delivered under contract. On April 26, 1976 Chief Judge Edelstein of the United States District Court for the Southern District of New York, pursuant to 28 U.S.C. § 1696, ordered service on S&R of letters rogatory issued by the Mexican court, thus giving S&R notice of the Mexican action. Subsequently, S&R sought from the district court both an order to vacate the grant of letters rogatory and an order pursuant to 9 U.S.C. § 4 directing the parties to arbitration.
Judge Pierce held that S&R had failed to make a showing that any written agreement which contained an arbitration provision existed between the parties. He further took notice that the underlying dispute was then being litigated in the Mexican court.
After Judge Pierce had denied the petition for arbitration and had refused to vacate the grant of letters rogatory on August 17, 1976, the parties proceeded to attempt to negotiate a settlement of the dispute. S&R, which had noticed this appeal, permitted it to be dismissed in December, 1976, apparently believing that a settlement could be reached. Unfortunately, no compromise was effected and this appeal was reinstated without opposition in July, 1977. On September 22, 1977 the Mexican court rendered judgment in favor of Instituto for the full amount of its claim. Instituto then asserted on appeal here that the dispute was moot since the Mexican judgment was res judicata. S&R moved this court on October 17, 1977 for an order striking from Instituto's brief any reference to the Mexican judgment of September 22, 1977. Judge Meskill granted that motion. Subsequently, Instituto requested reconsideration of this order by this panel. On the argument of this appeal, the court granted the motion of Instituto in view of the relevance of the decree of a foreign court which purportedly had determined the merits of the very dispute which S&R sought to have arbitrated. Rule 201 of the Federal Rules of Evidence permits this court to take judicial notice of judgments of courts of record even though the fact is presented for the first time on appeal. See 21 C. Wright & K. Graham, Federal Practice and Procedure § 5110.
If the Mexican court had jurisdiction, its adjudication of the merits may affect any decision to...
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...one court will treat the jurisdictional findings of another court as res judicata. And while Sprague & Rhodes Commodity Corp. v. Instituto Mexicano Del Cafe, 566 F.2d 861 (2d Cir.1977), held that a defendant who entered a special appearance in a Mexican court had no right to mount a collate......
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