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NUBENCO ENTERPRISES v. INVERSIONES BARBERENA

March 25, 1997

NUBENCO ENTERPRISES, INC., Plaintiff,
v.
INVERSIONES BARBERENA, S.A., TECNOLOGIA MEDICA INTERNACIONAL, S.A. and ALONSO LACAYO B., Defendants.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 This is an action brought by plaintiff Nubenco Enterprises, Inc. ("Nubenco") against defendants Inversiones Barberena S.A. ("Inversiones"), Tecnologia Medica Internacional S.A. ("Tecnologia") and Alonso Lacayo B. ("Lacayo") (collectively, the "Defendants"). Jurisdiction is alleged pursuant to 28 U.S.C. § 1441(a) and 28 U.S.C. § 1332(a).

 Nubenco commenced this action by filing a five count complaint (the "1995 New Jersey Complaint") on 13 November 1995, in the Superior Court of New Jersey, Law Division, Bergen County (the "1995 New Jersey Action"). The 1995 New Jersey Action alleges, inter alia, breach of contract, tortious interference with contractual relations and defamation. Nubenco seeks compensatory and punitive damages, costs, interest and attorney's fees.

 On 4 January 1996, the Defendants removed the 1995 New Jersey Action to this court. The Defendants submitted, pursuant to Rule 12N, Appendix N of the General Rules Governing the District of New Jersey ("Local Rule 12N"), a motion to dismiss, which will be construed as a motion for summary judgment (the "Motion for Summary Judgment"). *fn1" For the reasons stated below, the Motion for Summary Judgment is granted.

 Facts

 A. The Parties

 1. Nubenco

 Nubenco is a corporation organized under the laws of New Jersey, engaged in the business of supplying and distributing health, medical and pharmaceutical supplies and materials throughout the United States, South America and other parts of the world. Benzaken Certification, P 1; see also, 1995 New Jersey Complaint, Count One, P 1. Nubenco is authorized to transact business in the Republic of Nicaragua, maintains an agent in Nicaragua and has Nicaraguan counsel with power of attorney. Barberena Certification, P 2. Andrew Benzaken ("Benzaken") was vice president of Nubenco at all relevant times. Benzaken Certification, P 1.

 2. Inversiones

 Inversiones is a corporation organized under the laws of Nicaragua, with its principal place of business in Nicaragua. Barberena Certification, P 2. At all relevant times Barberena was the president of Inversiones. Id., P 1.

 3. Tecnologia

 Tecnologia is a corporation organized under the laws of Nicaragua, with its principal place of business in Nicaragua. Id., P 2.

 4. Lacayo

 Lacayo is a citizen and resident of Nicaragua. Id. At all relevant times, Lacayo was president of Tecnologia and a vice president of Inversiones. Id.

 B. Preliminary Negotiations

 In early 1992, Nubenco entered into negotiations with Inversiones and Tecnologia regarding the proposed sale of Nubenco's medical products to the Nicaraguan Ministry of Health (the "Ministry of Health"). Benzaken Certification, P 2. Pursuant to such negotiations, Nubenco agreed to appoint Tecnologia as local agent for Nubenco, so that Tecnologia could respond to a request for bids issued by the Ministry of Health. Id., P 3. The parties verbally agreed on a brokerage commission (the "Verbal Brokerage Agreement"), which included, among other details, the amount of commission Barberena and Lacayo would receive on that bid. Id.

 C. April Agreement

 The April Agreement provides, in part:

 
In consideration of our mutual promises we have entered into the following contract whereby Nubenco ... does hereby promise to pay a brokerage fee or sales commission to [Inversiones] and [Tecnologia], whom (sic) will serve as an intermediary, brokers, representatives and agents, between Nubenco and all customers and client (sic) that Nubenco sell (sic) or could sell products to in Nicaragua; that said brokerage fee or commission is determined to be 10% of the value of the net order that could be awarded to Nubenco by the Ministry of Health in the Public Tender No. 01-92, which was prorogated (sic) by the Ministry to be open on April 8, 1992. Said commission and[/]or brokerage fee shall be determined, and paid without delay to [Inversiones] and [Tecnologia] in equal proportion upon payments received by [Nubenco] from the partial shipments and deliveries of materials in the place that [Inversiones] and [Tecnologia] indicates (sic).
 
[Inversiones] and [Tecnologia] does (sic) promise and agree to serve as intermediary and/or broker and/or representative and/or broker between Nubenco ... and [the Ministry of Health] in the referred bid.
 
Nubenco ... [Inversiones] and [Tecnologia] promise and agree that they will not in anyway whatsoever circumvent, or attempt to circumvent each other, or any of the other parties involved in any of the transaction(s) in Nicaragua; that they will not disclose any names, addresses, telephone or fax or telex numbers of any contacts, suppliers, etc., revealed by any of the parties to third parties, and that they recognize such contacts to be exclusive and valuable contacts of the respective party, and they will not enter into any agreement(s), negotiation(s), or transaction(s) with such contacts revealed by the other party, and that in the event of circumvention, either directly or indirectly, the circumvented party or parties shall be entitled to a legal monetary penalty equal to the maximum profit or fee or commission it could realize from such a transaction(s). This payment will also, additionally, include all legal expenses involved in the recovery of these funds. This agreement shall be binding on the parties hereto, their principals, employees, representatives, agents, assigns, consultants (sic), heirs and successors.

 April Agreement (strike out text omitted). *fn2"

 D. Nubenco-Ministry of Health Contract

 Nubenco was awarded the contract with the Ministry of Health (the "First Nubenco-Ministry of Health Contract"). Benzaken Certification, P 6. *fn3" Inversiones and Tecnologia were paid their commissions, as provided pursuant to the April Agreement. Id.

 E. August Agreement

 In mid-1992, the Ministry of Health announced it would consider bids for another proposed contract. Id., P 7. Following this announcement, Nubenco again negotiated with Barberena and Lacayo regarding a commission arrangement with Inversiones and Tecnologia. Id. On or about 7 August 1992, Nubenco, Inversiones, and Tecnologia entered into a second agreement (the "August Agreement", attached as Exhibit B to the Benzaken Certification and Exhibit B to the Barberena Certification), which established the duties and responsibilities of each party. Id.

 The August Agreement states:

 
Nubenco, hereby appoint (sic) [Inversiones] and [Tecnologia] jointly as exclusive agent (sic) and representative (sic) for product(s) to be offered under the [Ministry of Health] direct purchase request of August 1992, for the territory of Nicaragua .... Nubenco will have no other representative for this direct purchase program for the product amended to this agreement.
 
I OBLIGATIONS OF [INVERSIONES/TECNOLOGIA]
 
Both [Inversiones] and [Tecnologia] jointly and severally bind themselves to:
 
1) present the offers made by Nubenco in the manner recommended by Nubenco and in accordance to the conditions sated (sic) in the request where possible[,]
 
2) to do their best to achieve the possible highest sale for this offer[,]
 
3) in case of claims or disputes [with the Ministry of Health] [Inversiones/Tecnologia] will attend in person or as required by [the Ministry of Health] to these matter (sic) immediately and give their full support to Nubenco to settle these claims or dispute[, and]
 
4) for product(s) offered by Nubenco and amended to this agreement an (sic) which form an integral part of this agreement [Inversiones and Tecnologia] agree to:
 
-represent no other company for this program of pharmaceuticals only[,]
 
-to sell for no other company for this program of pharmaceuticals only[, and]
 
-to purchase from no other company for this program of pharmaceuticals only.
 
II OBLIGATIONS OF NUBENCO
 
1) Nubenco will make every effort to reply to inquiries in the shortest possible time in accordance to condition stated in (sic) request.
 
2) Nubenco will supply the most competitive and accurate pricing and information possible and sample (sic) and documentation as needed without charge.
 
3) Nubenco will support the sales effort (sic) of [Inversiones and Tecnologia] in every possible way including joint visits to the customers when possible.
 
4) unless otherwise agreed, Nubenco will offer only products that it believes it can secure a Free Sales Certificate.
 
5) Nubenco will take into consideration the advise (sic) and/or recommendation (sic) offered by [Inversiones and Tecnologia] on this program.
 
6) Nubenco will execute a power of attorney/representation to [Lacayo and Tecnologia] to use for presenting (sic) offer. This document will be notarized and legalized by the Nicaraguan Consulate.
 
IV *fn4" COMMISSIONS
 
1. 15% FOB value of awards resulting from participation in referenced project or sale (sic) to be paid by Nubenco to [Inversiones and Tecnologia] in equal proportion . . ..
 
2. Nubenco will pay commission to [Inversiones and Tecnologia] promptly and without delay on receipt of payment from [the Ministry of Health] or its paying agent in the currency of payment at the account/location specified by [Inversiones and Tecnologia] in writing ...
 
V DURATION OF AGREEMENT
 
1) This agreement is valid for the duration of this project related to the direct purchase and for the product(s) which form an integral part of this agreement.
 
2) Both parties expressly confirm that no compensation whatsoever may be claimed by either party in case the agreement is terminated at any time [by] both parties unanimously. Any commission due on such termination will remain due to [Inversiones and Tecnologia].
 
3) Both parties expressly confirm that after effected termination of this agency agreement, both sides are free to appoint/accept other agent/agencies/sellers/suppliers without any prejudice whatsoever.
 
VII *fn5" GOVERNING LAWS
 
2. Any dispute arising from this agreement requiring the intervention of a court will be brought before a competent court of the State of New Jersey oer (sic) ...

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