Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

OSARIO v. HARZA ENGG. CO.

June 22, 1995

JUAN M. PINILLA OSARIO and PABLO GONZALEZ BERGEZ, Plaintiffs,
v.
HARZA ENGINEERING COMPANY, Defendant



The opinion of the court was delivered by: BRIAN BARNETT DUFF

 This case comes before this court on defendant's motion for a security bond and a motion to dismiss the Second Amended Complaint. For the reasons stated below, this court grants the motion to dismiss without prejudice and grants the plaintiffs leave to file an Amended Complaint in accordance with this opinion. We also deny without prejudice at this time the motion for a security bond.

 BACKGROUND

 The plaintiffs are Argentine lawyers who, on behalf of their client, tried and won a case in Argentina against the defendant, Harza Engineering Company ("Harza"). The Argentine court ordered the defendant to pay a portion of the legal costs to the lawyers, plaintiffs in this action. Second Amended Complaint PP 12-14. In 1991, the Argentine Court of Appeals initially assessed the legal fees at the equivalent of $ 60,000 in U.S. dollars. Id. P 14. The Argentine award also provides for the accrual of interest on the judgment. Id. P 18. Due to hyperinflation and a revaluation of the Argentine currency against the U.S. dollar in April 1991, plaintiffs' award in U.S. dollar terms and including interest, exceeded $ 76,000. Id. PP 19-20. As of April 30, 1993, the plaintiffs' award exceeded $ 159,478. Id. P 21.

 Plaintiffs have brought suit in this court requesting that we enforce the Argentine award of legal fees. In their Second Amended Complaint the plaintiffs allege diversity jurisdiction pursuant to 28 U.S.C. ยง 1332. Both plaintiffs are citizens of Argentina. Second Amended Complaint, P 3. The defendant is a corporation, incorporated under the laws of Delaware with its principal place of business in Illinois. Id. P 4. The plaintiffs claim an amount in controversy exceeding $ 159,478.40. Id. PP 30, 34. In the Second Amended Complaint, plaintiffs assert two causes of action: recognition and enforcement of a foreign judgment (Count I) and an action for debt (Count II).

 ANALYSIS

 I. SUBJECT MATTER JURISDICTION

 The Defendant filed a motion to dismiss in 1993, alleging that this court lacks subject matter jurisdiction. We granted the motion to dismiss and gave the plaintiffs leave to file an Amended Complaint. Since then, the plaintiffs have filed two Amended Complaints. The most recent was plaintiffs' Second Amended Complaint.

 The defendant subsequently filed a Motion to Dismiss Plaintiffs' Second Amended Complaint at Law and to Stand on Briefs Filed in Support of and in Response to Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction. The defendant moves to dismiss with prejudice pursuant to Fed.R.Civ.P. 12(b)(1) and 12(h)(3) for lack of subject matter jurisdiction. In the plaintiffs' response, they indicate their willingness to stand on the briefs they filed concerning the defendant's original motion to dismiss.

 When deciding a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), it is proper for the district court to look beyond the jurisdictional allegations in the Complaint and to view all evidence submitted. Roman v. United States Postal Service, 821 F.2d 382, 385 (7th Cir. 1987). This standard differs from the one district courts use when deciding a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6); in the latter case, when the district court looks beyond the pleadings, the court is to treat the motion as one for summary judgment under Fed.R.Civ.P. 56(c). Id. In deciding the instant motion to dismiss for lack of subject matter jurisdiction, we will consider all relevant documents.

 This case presents several problems. The first concerns the documents that the plaintiffs have filed. In the Second Amended Complaint, the plaintiffs indicate that they have attached as Exhibit A a copy of an Argentine court order certifying that the defendant is liable to plaintiffs for an amount exceeding $ 159,000. Second Amended Complaint, PP 25, 30. The plaintiffs, however, failed to attach Exhibit A to the Second Amended Complaint. We note for the record that the plaintiffs also omitted attaching Exhibit A to their First Amended Complaint. The plaintiffs attached an Exhibit A to the original Complaint. *fn1"

 At the June 13, 1995 status hearing, the court discussed with the parties the numerous problems that we have found with the new Exhibit A. The new Exhibit A is addressed to any judge of competent jurisdiction in Chicago from Angel O. Sala, Judge of Commerce in Buenos Aires, Argentina. That document asks for judicial assistance to ensure that Harza Engineering Company, a resident of Chicago, pays the sum of $ 183,222.06 plus $ 50,000 of interest to the lawyers Pablo Gonzalez Bergez and Juan Manuel Pinilla Osario; the debt is pursuant a judgment in CUYUM S.A.T. v. WARTSKI, Peter et al., a case before the Commerce Court of Argentina. A review of the new Exhibit A indicates that the tendered document is a letter rogatory.

 A. LETTERS ROGATORY

 Letters rogatory constitute requests by a court of one country to a court of another country asking the answering court to locate a person within the jurisdiction and obtain answers to written questions. U.S. v. Bastanipour, 697 F.2d 170, 178, n. 3 (7th Cir. 1982), cert. denied, 460 U.S. 1091, 76 L. Ed. 2d 358, 103 S. Ct. 1790 (1983). Letters rogatory, which are also ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.