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Kilbarr Corp. v. Business Systems Inc.

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


filed: April 15, 1993.

KILBARR CORPORATION, FORMERLY KNOWN AS REMINGTON RAND CORPORATION
v.
BUSINESS SYSTEMS INCORPORATED, B.V.; BSI OFFICE EQUIPMENT INC. BUSINESS SYSTEMS INCORPORATED, B.V., APPELLANT

On Appeal From the United States District Court For the District of New Jersey. (D.C. Civil Action No. 84-00261) {Counsel}{Q}Counsel{/Q}{/Counsel}

For Appellee: James C. McConnon (Argued), Joseph E. Chovanes, Frank J. Bonini, Jr., PAUL & PAUL, 2900 Two Thousand Market Street, Philadelphia, PA 19103. Lewis H. Van Dusen, Jr., Warren T. Pratt, DRINKER, BIDDLE & REATH, 1100 PNB Building, Broad and Chestnut Streets, Philadelphia PA 19107. David M. Satz, Jr., SAIBER, SCHLESINGER, SATZ & GOLDSTEIN, One Gateway Center, Newark, NJ 07102.

For Appellant: Richard G. Menaker (Argued), Paul M. Hellegers, MENAKER & HERRMANN 444 Madison Avenue, New York, New York 10022. David D. Caldwell, WOLFF & SAMSON, 5 Becker Farm Road, 200 Corporate Center, Roseland, New Jersey 07068.

Before: Sloviter, Chief Judge, Stapleton and Lay,*fn* Circuit Judges

Author: Stapleton

Opinion SUR MOTION FOR CLARIFICATION

STAPLETON, Circuit Judge:

Plaintiff-appellee Remington Rand Corporation, now known as the Kilbarr Corporation, seeks clarification of our opinion of March 9, 1993 "with respect to the procedure it is to follow on remand, specifically with respect to its right to continue to seek the declaration of the Dutch court in the submission of its claim for verification."

The import of our opinion is that Remington Rand did not satisfy its obligations under our prior mandate by seeking a declaration of the Dutch courts in a procedural manner not recognized by those courts. Our opinion instructs that Remington must seek judicial resolution of the relevant legal issue (i.e., whether the Dutch courts will accord the New Jersey judgment full force and effect) in a procedural manner acceptable to the Dutch courts. The only accepted procedure identified in the record before us is that described in the uncontested affidavit of W.J. Slagter, a Dutch attorney and professor of law, and our opinion commends that procedure to Remington. We set forth this process in some detail at page 10 of our opinion. If this process is followed and Remington is unsuccessful in securing assurance from the Dutch courts that its judgment will be given the same force and effect as would a Dutch judgment, Remington will have complied with our earlier mandate.

Our knowledge of Dutch procedure, of course, comes from the record in this case. If there are other accepted procedures for bringing the relevant issue before the Dutch courts, Remington can comply with our earlier mandate by pursuing any one of them to a Conclusion. However, since BSI,BV has taken the position before the district court that the process endorsed by Mr. Slagter is an appropriate one, it may be prudent for Remington to pursue that process and avoid further argument about the propriety of the procedure it has elected to follow.


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