Triple A International, Inc. v. Democratic Republic of the Congo

852 F. Supp. 2d 839, 2012 U.S. Dist. LEXIS 16689, 2012 WL 441145
CourtDistrict Court, E.D. Michigan
DecidedFebruary 10, 2012
DocketCase No. 10-15137
StatusPublished

This text of 852 F. Supp. 2d 839 (Triple A International, Inc. v. Democratic Republic of the Congo) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Triple A International, Inc. v. Democratic Republic of the Congo, 852 F. Supp. 2d 839, 2012 U.S. Dist. LEXIS 16689, 2012 WL 441145 (E.D. Mich. 2012).

Opinion

OPINION AND ORDER REGARDING DEFENDANT’S MOTION TO DISMISS

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

In this ease, Plaintiff Triple A International, Inc., a Michigan corporation, seeks to collect on a debt allegedly owed to it by the Defendant Democratic Republic of the Congo (“DRC”), a nation located in central Africa. This debt arises from a contract entered into by Plaintiff and the DRC’s predecessor, Zaire, in late 1993, under which Plaintiff procured light equipment for Zaire’s military. According to Plaintiffs complaint, the DRC has repeatedly acknowledged its indebtedness to Plaintiff over the years, but has nonetheless failed to pay this debt, which allegedly amounts to over $14 million.

Through the present motion, the DRC seeks the dismissal of Plaintiffs complaint on four separate grounds. First, the DRC asserts that it is protected by sovereign immunity, and that the “commercial activity” exception to this immunity set forth in the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seg., is not triggered by the allegations of Plaintiffs complaint. Next, even if the FSIA confers jurisdiction over this suit, the DRC contends that the Court should refrain from exercising this jurisdiction under the doctrine of forum non conveniens. Third, the DRC argues that Plaintiff has forfeited its right to seek judicial redress arising from the parties’ dispute, by virtue of a provision in a 2009 memorandum of understanding that the DRC construes as a covenant not to sue. Finally, the DRC contends that Plaintiffs claims are barred by Michigan’s six-year statute of limitations for breach-of-contract suits.

The DRC’s motion has been fully briefed by the parties. Having reviewed the parties’ written submissions in support of and [841]*841opposition to this motion, as well as the accompanying exhibits and the remainder of the record, the Court finds that the pertinent facts, allegations, and legal issues are sufficiently presented in these materials, and that oral argument would not assist in the resolution of the DRC’s motion. Accordingly, the Court will decide this motion “on the briefs.” See Local Rule 7.1(f)(2), U.S. District Court, Eastern District of Michigan. This opinion and order sets forth the Court’s rulings on the DRC’s motion.

II. FACTUAL BACKGROUND

Plaintiff Triple A International, Inc. is “in the business of conducting and facilitating international business transactions throughout the world.” (Complaint at ¶ 6.) The company was formed in 1991, is incorporated under Michigan law, and maintains its principal place of business in Dearborn, Michigan. At various times, Plaintiff has maintained satellite offices in Sierra Leone and the DRC.1

In late 1993, the government of the African country then known as Zaire2 solicited Plaintiff to procure supplies for its military, including such items as uniforms, boots, and sleeping bags. According to Plaintiff s complaint, the company worked from its office in Michigan to identify a supplier for the goods sought by the DRC. Plaintiffs president, Ali Sulaiman, asserts in his affidavit that the DRC was aware that Plaintiff would carry out its obligations in the United States, and that the DRC “purposefully retained Triple A because it was a United States company with the appropriate expertise to broker an international transaction legitimately and expeditiously.” (Plaintiffs Response, Ex. 0, Sulaiman Decl. at ¶ 6.)

After consulting catalogs and communicating with potential suppliers from its office in Dearborn, Michigan, Plaintiff ultimately selected a South Korean manufacturer to provide the goods sought by the DRC. A representative of the Plaintiff corporation then traveled to the DRC and to South Korea to make the necessary arrangements, culminating in Plaintiffs submission of a January 5, 1994 proposal to the DRC. (See Complaint, Ex. A.)3 Following an inspection of a sample of the goods to be produced by the South Korean supplier, a senior DRC government official accepted Plaintiffs proposal and approved the purchase of military supplies at a cost of just over $14 million. (See Complaint, [842]*842Ex. B.) Plaintiffs proposal called for payment to be made into an account at the Bank of Zaire, (see Complaint, Ex. A), and the DRC’s acceptance, in turn, called for this payment to be made in the currency of Zaire, with delivery of the goods to be made at a location in the DRC’s capital city of Kinshasa, (see Complaint, Ex. B).

According to the complaint, Plaintiff fulfilled all of its obligations under the parties’ contract, and a DRC government official issued instructions in October of 1994 to pay Plaintiff for the goods it had procured on the DRC’s behalf. (See Complaint, Ex. C.) No payment was forthcoming, however. In early 1997, Plaintiff again secured a commitment from a DRC government official to pay the debt owed to the company, (see Complaint, Ex. D), but the DRC once again failed to make this payment.

From 1997 until 2003, the DRC was beset by war and its government was overthrown. After hostilities ceased in 2003, Plaintiff renewed its efforts to secure payment of the debt owed by the DRC, and in January of 2004, a DRC government official issued a certificate acknowledging the country’s indebtedness to Plaintiff. (See Complaint, Ex. E.) Similarly, a government official requested in September of 2007 that the DRC pay the debt owed to Plaintiff. (See Complaint, Ex. F.) Most recently, the parties entered into negotiations in the spring of 2009, resulting in the execution of a memorandum of understanding in which the DRC acknowledged its debt to Plaintiff and agreed to repay this debt through fourteen monthly payments of just over $1 million each. (See Complaint, Ex. J.)4 To date, however, no such payments have been made. This lawsuit followed, with Plaintiff seeking to recover the debt of over $14 million allegedly owed to it by the DRC.

III. ANALYSIS

A. The Standards Governing Defendant’s Motion

Through the present motion, the Defendant DRC seeks the dismissal of Plaintiffs complaint on a number of grounds. First and foremost, the DRC contends that this Court lacks subject matter jurisdiction in light of the sovereign immunity conferred upon foreign states under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et seq. In addressing this jurisdictional challenge brought under Fed.R.Civ.P. 12(b)(1), the Court “takes the allegations in the complaint as true,” inquiring whether these allegations establish a basis for the exercise of subject matter jurisdiction. Gentek Building Products, Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir.2007).5 Yet, “conelusory [843]

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852 F. Supp. 2d 839, 2012 U.S. Dist. LEXIS 16689, 2012 WL 441145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/triple-a-international-inc-v-democratic-republic-of-the-congo-mied-2012.