Van Den Biggelaar v. Wagner

• Decision Date: 25 September 1997
• Docket Number: No. 3:96 CV 00401 AS.,3:96 CV 00401 AS.
• Parties: Johanna Wilhelmina Maria VAN DEN BIGGELAAR, Plaintiff, v. James Allen WAGNER, Defendant.
• Court: U.S. District Court — Northern District of Indiana

978 F.Supp. 848

Johanna Wilhelmina Maria VAN DEN BIGGELAAR, Plaintiff, v. James Allen WAGNER, Defendant.

No. 3:96 CV 00401 AS.

United States District Court, N.D. Indiana, South Bend Division.

September 25, 1997.

COPYRIGHT MATERIAL OMITTED

Edward A. Sullivan, III, Baker and Daniels, South Bend, IN, Carl R. Pebworth, John Joseph Tanner, Kerry L. Jones, Baker and Daniels, Indianapolis, IN, for plaintiff.

Terry C. Shewmaker, Cosentino, Walker, Shewmaker and Christofeno, Elkhart, IN, for defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This cause is before the court on Defendant's Motion for Summary Judgment and Plaintiff's cross-motion for Summary Judgment. Both parties have fully briefed the issues and provided all relevant information. In addition, the court heard oral argument on July 25, 1997. This court now rules as follows.

JURISDICTION

Jurisdiction of this court is based upon 28 U.S.C. § 1332(a)(2), diversity jurisdiction. Plaintiff, Johanna Van Den Biggelaar (Biggelaar), is a citizen of the Netherlands residing in Velddriel, Municipality of Maasdriel, the Netherlands. Defendant, James Wagner (Wagner) is a citizen of Indiana residing in Elkhart County, Indiana. The amount in controversy exceeds the required statutory amount.¹

PROCEDURAL HISTORY

The present cause of action arises out of a contract dispute between the parties. Plaintiff Biggelaar owns and breeds horses in the Netherlands. Defendant Wagner owns and breeds horses in the United States. Beginning in June, 1989, Biggelaar began boarding a number of horses in the Netherlands that were owned by Wagner. She provided a variety of services for Wagner relating to the management and sale of these horses. Wagner and Biggelaar had an agreement regarding the payment of expenses for boarding these horses and for the division of proceeds if a horse was sold. Each party maintained a record of their respective accounts. In addition to the above agreement, on July 10, 1989, Biggelaar entered into a separate lease agreement with Wagner for a particular stallion named "Gil". The lease payment was independent of the aforementioned transactions. Biggelaar paid and Wagner received the full amount for the lease of Gil. The lease agreement contained a mandatory choice of forum clause naming the Elkhart Circuit Court in the State of Indiana as the sole forum in the event of a dispute.

In late 1991 and early 1992, a dispute arose between Wagner and Biggelaar over the amount of money each owed to the other. The money issues concerned the boarding and sale of nine horses. The fees for the lease of Gil were not in dispute, however, other issues involving the lease apparently were. Wagner asserts that Biggelaar initiated all prior proceedings on October 29, 1991, when she requested the Dutch courts issue a writ of attachment against Gil. The writ was issued, but later canceled by the Dutch court. As a result of Biggelaar's writ, Wagner claims that he had no choice but to come to the Netherlands and defend himself against the attachment. However, the record indicates that the writ was canceled prior to the commencement of any further proceedings in the Dutch courts.

Wagner later filed an action for breach of contract against Biggelaar in the Elkhart Circuit Court pursuant to the forum selection clause contained in the lease contract. Biggelaar did not appear in this action. On January 16, 1992 a default judgment was issued against Biggelaar. The Indiana court found that Biggelaar had breached the lease agreement. It therefore ordered the stallion immediately returned to Wagner. In addition, the court reserved ruling on money damages and fees until the horse was returned.² According to the record, on February 13, 1992, Wagner obtained permission to levy a seizure on the stallion, Gil. This was served on Biggelaar on February 17, 1992. In defense, Biggelaar also levied a seizure on Gil claiming that she was entitled to possession until the term of the lease expired on July 10, 1992. This Seizure was served on Wagner on February 24, 1992. As a result of these actions, Wagner filed a lawsuit in the Dutch courts on February 27, 1992. The initial action was filed and heard in the District Court of `S-Hertogenbosch of the Netherlands. In this action, Wagner asserted that Biggelaar had breached the lease agreement, overcharged for boarding fees, used monies inappropriately, and did not provide an accurate accounting regarding the sale of Wagner's horses in Biggelaar's charge. Wagner ultimately alleged that Biggelaar owed him $38,879.91. Biggelaar counterclaimed in the Dutch court. The court heard the evidence and issued a nine page ruling on December 3, 1993. The court found that it had not been established that Biggelaar acted in violation of the lease, that the writ of seizure was not in violation of the lease, but that Biggelaar owed Wagner $23,798.91. The court also ordered Biggelaar to pay an additional NLG 525.15 (Dutch guilders) for the expenses incurred by Wagner as regarded the seizure before judgment levied by Wagner against Biggelaar. The court then ordered that each party pay its own costs for this proceeding. In a separate ruling on Biggelaar's counterclaim the court rejected all that was claimed and ordered Biggelaar to pay costs to Wagner up to the amount of NLG 910.0 (Dutch guilders).

Biggelaar appealed the trial court's decision. Prior to the appeal Biggelaar was required by Dutch law to pay Wagner the amount levied in the trial court judgment. Biggelaar paid the full $23,798.91. The appeal was heard in the Court of Appeals of `SHertogenbosch of the Netherlands, Second Chamber. A decision was rendered on October 13, 1995. The Dutch Court of Appeals issued a six page order explaining its ruling. In this order the court noted that "neither party has stated that either the laws of The Netherlands or the laws of the State of Indiana were applicable," (Order at p. 3, ¶ 4.1), and that the trial court had obviously applied the laws of The Netherlands. Like the lower court, the Appellate court held that Wagner had failed to prove that Biggelaar did not perform her contractual obligations. Additionally, it found that Wagner incurred no damages. The court also held that the term "lien" in the lease agreement did not include a "seizure before judgment" and could not be used to deprive a party of statutory measures to secure rights. The court then went on to discuss the dispute regarding the invoices, records and payments between Biggelaar and Wagner. The court found it disturbing that Wagner did not dispute any of Biggelaar's invoices between 1989 and 1991 until August of 1992. The Appellate Court then quashed the Trial Court judgment. It also ordered Wagner to pay costs estimated at NLG 3,050 (Dutch guilders) and to pay $29,578.87 to Biggelaar.

Wagner did not further appeal the Dutch Appellate Judgment, although the option was available to him. That judgment is now final and time for appeal has passed. Biggelaar brings the present action in this court seeking to enforce the judgment of the Dutch Appellate Court claiming that the judgment is final and binding and entitled to recognition as a matter of comity. Wagner filed a Motion to Dismiss, which this court converted to a Motion for Summary Judgment and which is now the basis for this ruling.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there exists no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Russo v. Health, Welfare & Pension Fund, Local 705, 984 F.2d 762 (7th Cir.1993). A thorough discussion of Rule 56 can be found in a trilogy of cases decided in 1986 by the Supreme Court of the United States.³ See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Celotex addressed the initial burdens of the parties under Rule 56, and Anderson addressed the standards under which the record is to be analyzed within the structure of Rule 56.

The initial burden is on the moving party to demonstrate, with or without supporting affidavits, the absence of a genuine issue of material fact and that judgment as a matter of law should be granted in the moving party's favor. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. A question of material fact is a question which will be outcome determinative of an issue in the case. The Supreme Court has instructed that the facts which are material in a specific case shall be determined by the substantive law controlling the given case or issue. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Once the moving party has met the initial burden, the opposing party must "go beyond the pleadings and ... designate `specific facts showing that there is a genuine [material] issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Rule 56) (alteration added). The nonmoving party may not rest on its pleadings, Waldridge v. American Hoechst Corp., 24 F.3d 918, 920-21 (7th Cir.1994); Hughes v. Joliet Correctional Ctr., 931 F.2d 425, 428 (7th Cir.1991), nor may the party resisting summary judgment rely upon conclusory allegations in affidavits. Cusson-Cobb v. O'Lessker, 953 F.2d 1079, 1081 (7th Cir.1992).

During its summary judgment analysis, the court must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party. Smith v. Fruin, 28 F.3d 646, 650 (7th Cir.1994), cert. denied, 513 U.S. 1083, 115 S.Ct. 735, 130 L.Ed.2d 638, (1995); Brennan v. Daley, 929 F.2d 346, 348 (7th Cir.1991), reh'g denied 1993 WL 518446 (7th Cir.). Furthermore, it is required to analyze summary judgment motions under the standard of proof...