79 F.R.D. 593 | S.D.N.Y. | 1978
MEMORANDUM DECISION
This is an interpleader action to determine the rights of the parties to the proceeds of 150 tons of Ethiopian coffee. Since this suit has been the subject of a prior opinion, Zervos v. S. S. Sam Houston, 427 F.Supp. 500 (S.D.N.Y.1976), those facts previously detailed will not be reiterated in this decision which resolves four motions presented by the parties.
Addis Ababa Bank (“Addis Bank”), National Bank of Ethiopia and Solomat, P.L.C. (“Solomat”) (collectively the “Ethiopian Parties”) move pursuant to Fed.R.Civ.P. 37(b)(2), (c) for an order striking plaintiff Zervos’ pleadings and entering a default judgment against him. Defendants Van Ekris & Stoett, Inc. (“Van Ekris”), and Marine Midland Bank (“Marine Midland”) seek summary judgment under Fed.R.Civ.P. 56 dismissing all claims asserted against them; Van Ekris also requests leave pursuant to Fed.R.Civ.P. 41(a)(2) to voluntarily discontinue all claims which either it or Marine Midland asserts in this action if its motion for summary judgment is granted. Defendant Waterman Steamship Corporation (“Waterman”) moves under Rule 56 for summary judgment against defendant Ad-dis Bank for Waterman’s legal expenses, freight, demurrage, and all other sums which may be adjudged against it during the pendency of this suit under two letters of indemnity issued by Addis Bank on September 16, 1975, (the “Addis Agreements”) and under two later letters of October 22, 1975 (the “CBI Agreements”). Waterman also requests the court to order Addis Bank to take over Waterman’s defense. The Ethiopian Parties cross move under Rule 56 for summary judgment dismissing Waterman’s claims under the Addis Agreements and the CBI Agreements.
The Ethiopian Parties’ Motion To Strike Zervos’ Pleadings and Enter Judgment By Default
Zervos claims the proceeds of the sale of the coffee based upon an assertion that he, having purchased the original two negotiable bills of lading numbers 1 and 2 for almost one million dollars from Solomon, is a holder in due course of those bills. Specifically, Zervos contends that he paid Solomon approximately $230,000 in cash along with four promissory notes aggregating almost $700,000, payable on December 3,1975 at the Banque Populaire Suisse in Geneva, as the purchase price for the bills of lading. Because Zervos asserts holder in due course status by virtue of these transactions. The Ethiopian Parties requested that he produce all records of his banking transactions for the period between July 1, 1975 to the date of his deposition. Zervos did not comply, and on February 25, 1977 the Ethiopian
“ORDERED, that Zervos be and he hereby is directed to produce and deliver to the offices of the attorneys for the Ethiopian Parties, at 345 Park Avenue, New York, New York 10022, within 20 days from the date of this order, all books, records, and other writings, including, without limitation, banking statements, debit notes, credit and deposit records, statements relating to transfers of funds from one account to another and cancelled checks, reflecting or relating to transactions during the period from July 1, 1975 to and including July 1, 1976 in each and every bank account in which Zervos has or had an interest, individual or corporate, or over which he has or had power of attorney or other form of control, whether in his own name, or a trade name, or a partnership name, or a corporate name, or in association with others.”
Subsequent to entry of the above order, Zervos forwarded to the Ethiopian Parties various documents
Under ordinary circumstances, a party’s good faith averment that the items sought simply do not exist, or are not in his possession, custody, or control, should resolve the issue of failure of production since one “cannot be required to produce the impossible . . .” LaChemise Lacoste v. Alligator Co., 60 F.R.D. 164, 172 (D.Del. 1973). In the present instance, although Zervos attests to having none of the requested documents in his “possession,” there has been absolutely no showing that the banking records are not within his “control.” In his opposing affidavit Zervos nowhere alleges that he has requested the Swiss banks to furnish him with the documents which he has been directed to produce. This is an action which the court will require him to undertake. “Production may be ordered when a party has the legal right to obtain papers, even though he has no copy, and regardless of whether a paper
The Summary Judgment Motions
I
“Summary judgment is a harsh remedy to be granted only where there are no material issues of fact to be tried.” FLII Moretti Cereali v. Continental Grain Co., 563 F.2d 563, 565 (2d Cir. 1977), citing Judge v. City of Buffalo, 524 F.2d 1321 (2d Cir. 1975); see also Applegate v. Top Associates, Inc., 425 F.2d 92, 96 (2d Cir. 1970). In deciding a motion for summary judgment, it is not the court’s function to try factual issues, but rather to determine whether issues of material fact exist to be tried. FLII Moretti Cereali v. Continental Grain Co., 563 F.2d at 566; United States v. Bosurgi, 530 F.2d 1105, 1110 (2d Cir. 1976); Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). In reaching such a determination, the court “must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought . . . with the burden on the moving party to demonstrate the absence of any material factual issue genuinely in dispute.” Heyman v. Commerce and Industry Insurance Co., 524 F.2d at 1320.
With the above in mind, I turn to the motion of Van Ekris and Marine Midland who seek dismissal of all claims asserted against them in this action. Although the underlying occurrences are undisputed, I find the evidence subject to conflicting interpretations concerning the manner in which the parties intended Marine Midland and Van Ekris to treat bill of lading 11 and consequently, Marine Midland’s letter of credit. For this reason the motion for summary judgment must be denied.
After Addis Bank gave Waterman the two letters of indemnity (the Addis Agreements), for issuance of bills of lading 11 and 14, Waterman’s Ethiopian agent Gellatly delivered both bills of lading to Solomat on September 17, 1975. On the same day Ad-dis Bank sent to Marine Midland bill of lading 11 endorsed by Solomat to Addis Bank and by Addis Bank to Marine Midland along with Solomat’s draft directing Marine Midland to pay Addis Bank for Solomat’s account the sum of $117,488.00, which represented the price of the coffee shipment to be delivered to Van Ekris. In its transmittal letter, Ethiopian Parties’ Exh.-CC, Ad-dis Bank stated that it was forwarding the documents on a “collection basis” due to loss of the original bill of lading, and instructed Marine Midland “[i]f unaccepted or unpaid advise us immediately by cable giving reason.” On September 18, 1975, Addis Bank advised Van Ekris that Solomat and Addis Bank “HAVE OBTAINED A REPLACEMENT FOR THE STOLEN B/L AND HAVE TODAY AIRMAILED SAME THROUGH MARINE MIDLAND BANK N.Y. STOP YOU MAY THEREFORE CLEAR THE GOODS AGAINST PAYMENT.” Ethiopian Parties’ Exh.-FF. On the same day, Waterman advised Van Ekris that the New York shipment had arrived and that it would be delivered only upon surrender of bill of lading 11 and Addis Bank’s indemnity.
On or about September 19, 1975 Van Ekris effected a clearance of the New York shipment through United States Customs. Subsequently Van Ekris telexed Addis Bank that it would cooperate provided Ad-dis instructed its correspondent bank in New York to issue full indemnification if the original bill of lading appeared. Addis Bank then advised Van Ekris by telex on September 29, 1975 that it would not issue
On October 21, Van Ekris telexed Solo-mat that it feared the buyers of the coffee would cancel their sales contracts unless delivery could be effected immediately. Ethiopian Parties’ Exh.-WW. The next day Solomat replied that Addis Bank had given Waterman a strong bank guarantee (namely, that of an American bank), and Van Ekris should therefore have no difficulty in obtaining delivery. Meanwhile, on October 22, Waterman obtained the CBI Agreement despite prior issuance of the Addis Agreements on September 16, 1975. See Zervos v. S. S. Sam Houston, 427 F.Supp. at 502-03. Thereafter on October 23 Waterman tendered delivery to Van Ekris who refused to accept it. On October 27, see Ethiopian Parties’ Exh.-YY, Van Ekris advised Solomat that it was cancel-ling its contracts due to Solomat’s inability to deliver.
Subsequently Marine Midland telexed Addis Bank on November 3 that it was still awaiting the buyer’s approval of discrepancies in the documentary remittance. See Ethiopian Parties’ Exh.-ZZ. Again on November 26 Marine Midland telexed Addis Bank seeking indemnity for any damage Marine Midland might incur in making payment under bill of lading number 11. See Ethiopian Parties’ Exh.-AAA. In the interim, Van Ekris telexed Solomat on November 17 offering to buy the coffee shipment at a reduced rate. See Ethiopian Parties’ Exh.-BBB.
Upon a review of these facts, I find a genuine material issue as to the intent of the parties concerning the manner in which they desired to treat bill of lading 11: whether the Ethiopian Parties intended, through the September 18, 1975 and October 2,1975 telexes from Addis Bank to Van Ekris, that payment be made by Marine Midland under its letter of credit for Van Ekris only if physical delivery of the goods covered by the bill of lading could be obtained. This appears to be both Marine Midland and Van Ekris’ understanding, although the Ethiopian Parties argue, despite the Addis Bank telex of September 18 to “clear the goods against payment,” that no such payment arrangement was ever intended. To the contrary, the Ethiopian Parties now assert that the conduct of Marine Midland and Van Ekris was wrongful, and that payment under the letter of credit should have been made in the usual manner, /. e., prior to or contemporaneously with delivery to Van Ekris of the bill of
Waterman moves for summary judgment under the Addis Agreements and CBI Agreements; the Ethiopian Parties cross-move to dismiss Waterman’s claims under both agreements. Many of the facts surrounding these motions are extensively detailed in my earlier opinion, 427 F.Supp. at 501-06, and require no repetition here. Briefly, in that opinion I found that the CBI Agreements were issued without consideration and therefore that Waterman was not entitled to summary judgment based on its claim under those agreements. 427 F.Supp. at 504-06. In the present motion Waterman once again contends that there was sufficient consideration for the CBI Agreements. Since this position has already been argued by Waterman and rejected by the court it will not be reconsidered here. Waterman also presents a new contention, i. e., that even if the CBI Agreement were issued without consideration, they were modifications of the September 16, 1975 Addis Agreements, and, as such, required no consideration under N.Y.Gen. Oblig.Law § 5-1103
Apparently on September 21 and 23, 1975, Waterman received telexes from its agents stating that Addis Bank wanted Waterman to agree that the coffee would be delivered only to holders of bills of lading 11 and 14. Waterman Exh.-Il & 12. Waterman replied through its agents to Ad-dis Bank that it would require a letter of credit to be opened with a major United States bank to cover the guarantee given by Addis Bank and Solomat as shipper. Waterman Exh.-J. After learning that bills of lading 1 and 2 were being held in Switzerland by Nydigger Transport Corporation and United Overseas Bank of Geneva respectively, Waterman once again telexed its agent Gellatly to instruct Addis Bank and the shipper not to negotiate bills of lading 11 and 14 until true ownership was ascertained. In that telex it also indicated that Addis Bank and the shipper would be required to post a bond or open up a letter of credit with a major American bank. According to Frederick Sevekow, Jr., Waterman’s vice president and general counsel, Waterman stated that if this were
Frederick Sevekow, Jr., asserts in his sworn affidavit that when Van Ekris sent Waterman bill of lading 11, the coffee was not delivered because the CBI guarantee had not yet been received. Sevekow affid. at 15. The following day, after Zervos formally demanded delivery of the coffee, Waterman sent Addis Bank two telexes revealing Zervos’ demand, Waterman Exh.-Rl, and later discussing the amount of the guarantee demanded by Waterman. Waterman Exh.-R2. On October 4 Addis Bank telexed Waterman that arrangements were being made for issuance of the required guarantee, Waterman Exh.-S, and on October 8 Addis Bank telexed Waterman advising that an Addis Bank officer was being sent to New York to finalize the terms of the bank guarantee. Waterman Exh.-T.
On October 20, Zervos advised Waterman that he was in New York to take delivery of the coffee. Sevekow met with Zervos and his attorney and the following day telexed Addis Bank, stating in pertinent part that “UNLESS WE RECEIVE U. S. BANK GUARANTEE TODAY, ZERVOS MAY SUCCEED IN ATTACHING OR FORCING DELIVERY OF CARGO.” Waterman Exh.-V. Two days later the guarantees were presented to Sevekow, who accepted them for Waterman.
Despite the content of the above communications, the Ethiopian Parties contend that the CBI Agreements were never intended as modifications of the Addis Agreements. Among other items, they point to various cable texts that they sent to Van Ekris (some of which are quoted under the discussion of the motion of Van Ekris and Marine Midland) as evidence of their intent not to modify the Addis Agreements but instead to hold Waterman to its obligation under the Addis Agreements to deliver the coffee to Van Ekris, without further guarantees, on October 2, 1975. They therefore argue that the Addis Agreements on September 17, 1975 constituted the full agreement between the parties and that subsequent actions which culminated in the signing of the CBI Agreements were in no way meant to modify the Addis Agreements. They further contend that since no modification occurred, Waterman’s actions constituted a breach of the Addis Agreements which now precludes Waterman from any recovery that it seeks.
Because of this determination, I find it unnecessary to consider the host of other arguments advanced by the Ethiopian Parties and Waterman.
In accordance with the above, the Ethiopian Parties’ motion to strike Zervos’ pleadings and enter judgment by default is granted unless Zervos complies with the requirements of this decision within 60 days; the motion for summary judgment of Van Ekris and Marine Midland is denied, as are the summary judgment motions of Waterman and the Ethiopian Parties.
SO ORDERED.
. Pursuant to the disclosure order Zervos produced the following:
1. Four balance sheets from Banque Populate Suisse.
2. Two extracts of account from Banque Populate Suisse.
3. Ten statements of account from Caisse Hypothecaire du Canton de Geneve.
4. Eleven statements of account from Societe Bancaire Barclays (Suisse) S.A. Geneve.
5. One statement of account from Banque Hypothecaire du Canton Geneve.
6. A credit advice for Societe Bancaire Bar-clays (Suisse) S.A.
7. A credit advice for Union Bank of Switzerland.
8. A statement of account from Banco Pinto & Sotto Mayor of Portugal.
9. Four checks drawn at Swiss Volksbank.
10. Nine memoranda of various transactions from the Caisse Hypothecaire du Canton de Geneve.
11. Six copies from microfilm of checks drawn on the Caisse Hypothecaire du Canton de Geneve.
. N.Y.Gen.Oblig.Law § 5-1103 (McKinney 1978) provides:
Written agreement for modification or discharge
An agreement, promise or undertaking to change or modify, or to discharge in whole or in part, any contract, obligation, or lease, or any mortgage or other security interest in personal or real property, shall not be invalid because of the absence of consideration, provided that the agreement, promise or undertaking changing, modifying, or discharging such contract, obligation, lease, mortgage or security interest, shall be in writing and signed by the party against whom it is sought to enforce the change, modification or discharge, or by his agent.