ORDER GRANTING SUN WORLD’S MOTION FOR A PRELIMINARY INJUNCTION
On Mаy 4, 1992, the court heard Sun World’s motion for a preliminary injunction. Upon due consideration of the written and oral arguments of the parties, the court now enters its order granting the motion as set forth herein.
■I. Background
In 1986 and 1987 Sun World and Lizara-zu entered into two contracts through which Sun World became the exclusive marketing agent for grapes grown by Liza-razu. In contemplation of a new contract Sun World advanced sums of money and grapevines to Lizarazu. Although the new contract was never signed, Lizarazu failed to return the advance or the grapevines. Sun World subsequently filed this suit on May 30, 1991, seeking restitution.
On June 14, 1991, Sun World filed an application for a right to attach order and the issuance of a writ of attachment. In opposing this application Lizarazu filed an allegedly fоrged document. On July 8 and 9, 1991, he filed two separate cases against Sun World in Mexico. On July 30, 1991, this court determined that it had personal jurisdiction over Lizarazu and granted Sun World’s application for a right to attach order and issuance of a writ of attachment. The court also issued a show cause order why sanctions should not be imposed on Lizarazu for filing the allegedly forged document.
Lizarazu filed a counter-claim on August 26, 1991.
After the hearing on the show cause order the court withheld its decision regarding Lizarazu’s alleged fraud pending a 90 day period of discovery. During this period Sun World noticed Lizarazu’s deposition but he failed to appear. He also failed to respond to interrogatories propounded by Sun World. On April 13, 1992, Magistrate Beck heard Sun World’s motion seeking either sanctions for Lizаrazu’s failure to appear, or an order that Lizarazu appear
In this motion Sun World seeks an order enjoining Lizarazu from prosecuting the Mexican cases, arguing that those cases are duplicative, that defending them would be prejudicial to Sun World and prohibitively costly, would produce the danger of inconsistent judgments, and would give effect to Lizarazu’s obvious strategy of ignoring this court’s authority. Accordingly, Sun World now seeks (1) an order affirming that Lizarazu voluntarily submitted to this court’s jurisdiction; (2) an order affirming this court’s personal jurisdiction; (3) a preliminary injunction enjoining Liza-razu from maintaining or prosecuting his Mexican cases or any other claims he may have against Sun World until the instant litigation, including appeals, is concluded; and (4) the issuance of a letter rogatory to the Mexican court notifying it of the injunction and requesting its cooperation in staying the Mexican cases.
II. Standard
The Ninth Circuit does not apply a unitary test in determining whether or not a preliminary injunction should issue. Instead, the circuit requires that “a party show ‘either a combination of probable success on the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in its favor.’ "
Briggs v. Sullivan,
The Ninth Circuit has also determined that a federal district court with jurisdiction over a party has the pоwer to enjoin that party from proceeding with an action in the courts of a foreign country, although such power should be used sparingly.
Seattle Totems, etc. v. National Hockey League,
III. Should a Preliminary Injunction Issue?
Sun World contends that under either Ninth Circuit test it is entitled to an injunction, i.e., the balance of hardships tips strongly in its favor and it will be irreparably injured if the injunction is not granted. Sun World pоints to several factors favoring the issuance of a preliminary injunction including, (1) that it is Lizarazu’s strategy to proceed with the Mexican litigation and ignore the authority of this court; (2) that concurrently litigating this matter in this court and the Mexican court is duplicative; and (3) that allowing Lizarazu to proceed with the Mexican litigation will prejudice Sun World in that (a) by defending the Mexican suits Sun World will incur prohibitive costs; (b) the agreements at issue require the interpretation and application of California law of which the Mexican court lacks knowledge and familiarity; (c) it must provide complete discovery, in the Mexican
Lizarazu acknowledges that this court has power to enjoin him from prosecuting the Mexican cases. However, he cautions that such power implicate issues of international comity and should be used sparingly because “such an order effectively restricts the jurisdiction of the court of a foreign sovereign.” Quoting
China Trade and Development v. M.V. Choong Yong,
In
Seattle Totems, supra,
the most recent Ninth Circuit case which has deаlt with the issue of enjoining a party from litigating in a foreign court, the owners of the Seattle Totems brought an antitrust action against the National Hockey League and the owners of the Vancouver Canucks alleging antitrust violations and seeking declaratory judgment that certain agreements were unenforceable. The Canuck-owners subsequently brought suit against the Totem-owners in Canadian court for damages for breach of the same agreements. The district court granted the Totem-owners’ motion to enjoin the Canuck-owners from prosecuting its suit in Canadian court. After discussing several cases wherein federal district courts had enjoined a party from bringing an action in a foreign country, the Ninth Circuit determined that the district court did not abuse its discretion in issuing an injunction.
See, Bethell v. Peace,
In reaching its determination the
Seattle Totems
court did not discuss the application of the threshold test that at least one district court has found necessary to address when faced with the question of possibly duplicative litigation, namely determining whether or not the parties and the issues are the same, and whether or not the first action is dispositive of the aсtion to be enjoined.
See, Cargill, supra,
Sun World asserts that the threshold requirements are met; Sun World and Liza-razu are parties to all lawsuits, and “the ultimate issues in the instant litigation and the Mexican Cases are virtually identical— the enforceability of the Marketing Agreements and the parties’ rights and obligations pursuant to the proposеd new contract. Disposition of the, instant action will resolve the issues raised in the Mexican cases.” Mtn. 13:24-14:1.
Lizarazu does not discuss the threshold test. Accordingly, the court finds that the threshold test has been met and the Mexican litigation is duplicative, as conceded by Lizarazu. Having made this determination the court now addresses the question of whether or not a preliminary injunction should issue.
Both parties agree that in addition to showing either irreparable harm and a likelihood of success on the merits or a sharply tipped balance of hardships, the test to be applied in determining the propriety of issuing an injunction on these facts is that set forth by the
Unterweser
court and acknowledged by the Ninth Circuit in
Having carefully considered the arguments of both parties the court finds that the balance of hardships tip sharply in favor of Sun World and that under the Unterweser test, Sun World is entitled to a preliminary injunction.
Lizarazu contends that game-playing has occurred and strategic ploys have been implemented in this action. He argues that the timing of this motion demonstrates gamesmanship on the part of Sun World, and that laches should bar the issuance of a preliminary injunction. 2 . The court agrees that ill-advised delay and ball-hiding strategies have been implemented in this action. However, the court is of the firm opinion that Lizarazu, not Sun World, is the party utilizing suсh methods.
Sun World has explained to the satisfaction of the court why this motion is not subject tó a bar on laches grounds. Sun World has diligently attempted to work within the Mexican legal system to resolve the question of whether or not Mexican jurisdiction over this matter exists. It was only after the occurrence of intervening events, such as Lizarazu’s failure to comply with the initial 90 day court-imposеd discovery period, which evidenced Lizara-zu’s intent to proceed with the Mexican cases with all due speed while delaying the action in this court, that Sun World saw irreparable harm on the horizon and felt it advisable to seek a preliminary injunction. Indeed, as Lizarazu points out, the power to enjoin a foreign national from prosecuting a case in his country of оrigin is one that should be exercised sparingly. Thus, had Sun World brought this action at an earlier time as Lizarazu argues it should have, it is likely that the posture of the case would not have supported the issuance of an injunction.
Lizarazu would have the court believe that Sun World only seeks this injunction because it is unsatisfied with the Mexican court’s initial ruling that it has jurisdiction. The court is satisfied, however, thаt this motion is not part of a grand scheme to get from this court the satisfaction which could
As previously noted, Lizarazu submitted a document to this court which Sun World asserts is fraudulent. Following the hearing on this court’s order to show cause why sanctions should not be imposed for filing a fraudulent document with the court, a 90 day discovery period was ordered. An evi-dentiary hearing was to follow directly thereafter. Lizarazu failed to respond to interrogatories and to appear for his deposition during the 90 day discovery period. He also attempted to release his counsel, without good cause, prior to the evidentiary hearing. Pursuant to Magistrate Beck’s order compelling his appearance, Lizarazu finally appeared for his deposition, but only to indiscriminately 3 invoke his 5th. Amendment right against self-incrimination.
Lizarazu’s behavior clearly demonstrates his strategic ploy to delay the proceedings in this case while the Mexican cases approach final judgment with all due speed: His actions are vexatious, prejudicial to Sun World, and seriously impede thе efficient administration of justice in this court. He has demonstrated his disrespect for this court’s jurisdiction and its policies. These grounds, alone, are reason enough to support the issuance of a preliminary injunction; such behavior cannot be tolerated or rewarded with success. There are, however, other considerations which provide further support for a preliminary injunction.
Lizarazu argues that public policy weighs against the issuance of a preliminary injunction. He foresees that an injunction in this case would encourage foreign nationals subject to personal jurisdiction in the U.S. to sue American businesspeople doing business abroad upon the first sign of dispute or risk being enjoined by a U.S. court.
The court is utterly unpersuaded by this argument. Lizarazu speaks of public policy, but he disregards, again, the policies of this court. For example, the policy underlying FRCP 13 is to prevent a multiplicity of actions and to. achieve a resolution via a single-lawsuit.
Seattle Totems,
Lizarazu also argues that the consideration of principles of international comity should lead this court to deny Sun World’s motion. He asserts that this is particularly true where, as herе, the foreign court has an interest in the case.
This court recognizes the serious implications which necessarily accompany an order preliminarily enjoining a foreign national from prosecuting a case in his or her country of origin. As discussed, however, it is evident that the balance of hardships tiрs sharply in favor of Sun World and that under the Unterweser test the issuance of a preliminary injunction in this case is proper. The court is greatly concerned with, and disappointed' by, the fact that the aforementioned reasons supporting the issuance of a preliminary injunction exist. The court is particularly distressed by Liza-razu’s attempts to discount this court’s jurisdiction and undermine its policies by implementing various strategies to delay the progression of this matter to final judgment. Such behavior will not be rewarded. Accordingly, Sun World’s motion for a preliminary injunction is granted.
IV. Letter Rogatory
Sun World anticipates that Lizarazu will not obey an injunction. Accordingly, it requests that this court address a letter roga-tory to the Mexican court notifying it of the injunction and asking for its cooperation in staying the Mеxican cases. In light of the court’s decision to grant the preliminary injunction, Sun World’s request is granted.
ACCORDINGLY, IT IS ORDERED that Sun World’s motion for a preliminary injunction is granted; defendant Lizarazu is HEREBY PRELIMINARILY ENJOINED from continuing the prosecution of his presently pending Mexican cases against Sun World until the matter pending before this court has been brought to final judgment.
IT IS FURTHER ORDERED that Sun World shall immediately post a security bond with the court in the amount of $10,-000 pursuant to Rule 65(c). IT IS FURTHER ORDERED that Sun World shall fully prepare a letter rogatory for this court’s signature.
Notes
. The court notes that in the parallel case of Sun World v. Sergio Tapia Abascal, et al. (CV-F-91-331-REC), it applied a combination of the Un-terweser test and the test utilized by the district court in Seattle Totems. As explained in the order granting Sun World's motion for a preliminary injunction in that case, these tests overlap to some degree in that both require consideration of policy and possible prejudice to the parties. To the extent that the tests are dissimilar, they are nonetheless complementary in that both are concerned with protecting the interests of the parties and of the court. The parties here both invoke the Unterweser test. Accordingly, because the two tests require consideration of similar and complementary issues, the court’s express application of the Unterweser test does not exclude consideration of the issues raisеd by the district court in Seattle Totems.
. In a collateral argument, Lizarazu complains that it is because of Sun World that he has had to bear the costs of litigating in two forums. He asserts that it would be unfair at this date to negate the expenses he has incurred in the Mexican litigation. This argument is nonsense. Li-zarazu brought the burden of double costs upon himself and Sun World by instituting the Mexican litigations on the heels of the filing of this action.
Lizarazu also contends that the first filing rule, which normally supports the issuance of a preliminary injunction as against a subsequently filed case in another federal forum, weighs against a preliminary injunction here because only five weeks elapsed between the filing of the U.S. and Mexican action. The court fails to see ■the reasoning behind, or applicability of, this argument. In any event, Lizarazu cites no authority for the proposition that the five week period would alter application of the first filing rule. As a matter of fact, the first filing rule has been applied even when the subsequently filed suit was begun one day after the first suit.
Martin v. Graybar Electric Co.,
. The court does not use the word indiscriminately without reason. For example, Lizarazu failed to verify his signature on documents submitted by him to the court and opposing counsel only days before.