United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
DISMISS AND GRANTING MOTION TO REMAND
R. MARTINEZ UNITED STATES DISTRICT JUDGE
day, the Court considered:
• Defendant Inabata Europe Gmbh's [hereinafter
"Defendant Inabata"] "Notice of Removal"
(ECF No. 1), filed on July 8, 2019;
• Plaintiff GESPA Nicaragua, S.A/s [hereinafter
Plaintiff] "Motion to Remand to State Court" (ECF
No. 12) [hereinafter "Motion to Remand"], filed on
August 7, 2019;
• Defendant Inabata's "Response to Motion to
Remand" (ECF No. 20) [hereinafter "Remand
Response"], filed on August 14, 2019;
• Plaintiffs "Reply in Support of Remand" (ECF
No. 21) [hereinafter "Remand Reply"], filed on
August 21, 2019; • Defendant Inabata's "Motion
to Dismiss" (ECF No. 24), filed on September 4, 2019;
• Plaintiffs "Collective Response in Opposition to
Motions to Dismiss ECF 24, 26, and 27" (ECF No. 28)
[hereinafter "Motion to Dismiss Response"], filed
on September 18, 2019; and
• Defendant Inabata's "Reply in Support of Its
Motion to Dismiss" (ECF No. 31) [hereinafter
"Motion to Dismiss Reply"], filed on September 25,
2019, in the above captioned cause.
due consideration, the Court is of the opinion that Defendant
Inabata's Motion to Dismiss should be granted on the
basis of collateral estoppel, removing Defendant Inabata from
the cause. Without Defendant Inabata as a party, the Court
lacks subject matter jurisdiction. Accordingly, the Court is
of the opinion that Plaintiffs Motion to Remand should be
FACTUAL AND PROCEDURAL BACKGROUND
is a foreign firm with its principal place of business in
Managua, Nicaragua, which acted as the Engineering,
Procurement, and Construction contractor for a solar
generating facility near Puerto Sandino, Nicaragua
[hereinafter "the Project"]. Notice Removal Ex. A,
at 1-3. While coordinating the development of the Project,
Plaintiff contracted to purchase solar panels from Defendant
Inabata, a German corporation. Id. at 3, 6.
Plaintiff initiated the above-captioned cause alleging that
on or about October, 2016, through December, 2016, Defendant
Inabata conspired with the other named Defendants to
fraudulently provide Plaintiff with the wrong solar panels
for the Project. Id. at 2, 19. To further illuminate
the underlying facts of the above-captioned cause, the Court
reviews the contractual relationships and conduct of the
Contractual Agreements of the Parties
order to complete the Project, Plaintiff entered into a sales
agreement [hereinafter "the Sales Agreement"] with
Defendant Inabata to purchase 46, 000 "Recom Bla[c]k
Panther" solar panels and "related components
required for the solar facility." Id. at 6-7.
According to Plaintiff, the Sales Agreement "very
specifically designated that the solar panels be delivered as
Black Panther panels." Id. at 7.
Further, Defendant Inabata agreed to "provide short term
financing [for] the purchase of the panels and components on
the condition that Plaintiff would use [the] Recom Black
Panther solar panels of its affiliate, Defendant Recom."
Id. The parties included a forum selection clause in
the Sales Agreement, reading:
The Parties hereto [Plaintiff and Defendant Inabata] agree
that the law of Germany shall apply, and voluntarily submit
to jurisdiction and venue in the courts of Diisseldorf as the
exclusive place of jurisdiction (venue) for any and all
disputes which may arise out of this Agreement or in
Mot. Dismiss Ex. C, at 6.
addition to the Sales Agreement with Plaintiff, Defendant
Inabata entered into a separate "Commission and Set-off
Agreement" [hereinafter "the Commission
Agreement"] with Defendant Recom. Not. Removal Ex. A, at
63. Pursuant to the Commission Agreement, Defendant Recom
agreed to "intermediate" a transaction between
Defendant Inabata and Defendant Flextronics International
USA, Inc. [hereinafter "Defendant
Flex"] to purchase solar panels. Id. at
63. The Commission Agreement specifies that the panels would
be "27OWp Mono Full Black PV modules," but does not
clarify whether the panels would be Recom Black Panther
panels. Id. The Commission Agreement also provides
that it shall be "construed under the laws of Germany
and any dispute to arise from or in relation to the specific
agreement shall be settled by the Courts of
Düsseldorf." Id. at 64.
entered into a "construct and install" agreement
[hereinafter "the Install Agreement"] with
Defendant MKG GmbH Montagebau Karl Globel [hereinafter
"Defendant MKG"] to install the solar panels onsite in
Nicaragua. Not. Removal Ex. A, at 7. Pursuant to the Install
Agreement, Defendant Inabata would provide the majority of
the "components, equipment and material to install the
specified Black Panther panels" directly to
Defendant MKG, which would then install the panels.
Id. at 7. The Install Agreement provides that
"the court of jurisdiction for any dispute arising out
of or relating to this Letter Agreement, or the validity
thereof shall be the Kingdom of Netherlands." Def.
MKG's Mot. Dismiss Pi's. Am. Verified Compl. Under
Federal Rules of Civil Procedure 12(b)(1), (2), (3), and
12(b)(6), at 19, GESPA Nicaragua, S.A. v. Inabata Europe
GmbH, et al., No. EP-17- CV-306-PRM (W.D. Tex. July 27,
2018), ECF No. 86.
Conduct of the Parties
to the Commission Agreement, Defendant Flex shipped over 46,
000 solar panels from its warehouse in El Paso, Texas to
Nicaragua. First Am. Compl. 3, Aug. 21, 2019, ECF No. 22.
Plaintiff contends that Defendants conspired to fraudulently
provide Plaintiff with panels "from a
SunEdison bankruptcy," rather than Recom Black
Panther solar panels. Id. at 2.
alleges that as part of the conspiracy, Defendant Flex hired
a contractor in El Paso, Texas to remove SunEdison labels on
the solar panels themselves, or place counterfeit labels over
old SunEdison labels. Id. at 3. Plaintiff also
alleges that "Defendants Flex, Recom, and Inabata . . .
worked in concert to cover the 'Sun Edison' logo on
the shipping boxes" containing the panels. Id.
Plaintiff contends that to cover up the fraud in Nicaragua,
Defendant MKG "attempted to destroy all of the shipping
boxes before Plaintiff could discover that they had received
SunEdison panels with counterfeit labels." Id.
the panels arrived in Nicaragua, Plaintiff "became
suspicious of the true identity of the panels."
Id. at 11. Accordingly, Plaintiff made inquiries
about the panels, "including multiple emails, telephone
conferences and in-person conferences in Nicaragua and
Florida." Id. Plaintiff alleges that
Defendants, in response, stated that the "relabeled
SunEdison panels were actually the correct Black Panther
panels." Id. at 11-12. For example, Hamlet
Tunyan of Defendant Recom wrote in an e-mail that his firm
had sold Plaintiff "RECOM modules that were produced by
Flex and not SunEdison." Id. Ex. 7, at 1.
result of receiving a different type of solar panel for the
Project in Nicaragua, Plaintiff alleges that it suffered
economic harm, including impacts to the "financing,
insurability, marketability, regulatory authorization, and
ultimate viability of the Project." Id. at 26.
Plaintiff also alleges it lost the ability to complete phase
two and three of the Project. Id. According to
Plaintiff, its "contracting, permitting, financing,
insurance, and engineering were all premised on the use of a
specific solar panel known as a 'RECOM Black Panther,
'" which it did not receive from the Defendants.
Id. at 2.
dispute between the parties now comes before the Court for
the second time, as a result of Plaintiff obtaining a
voluntary dismissal in a prior action, refiling its claims in
state court, and Defendant Inabata removing those claims to
the Court. The Court reviews each of the actions associated
with this dispute in turn.
GESPA Nicaragua. S.A. v. Inabata Europe GmbH, et
al., No. EP-17-CV-306-PRM (W.D. Tex. July 27. 2018)
[hereinafter "GESPA I”]
first filed an action before the Court regarding Defendants*
alleged fraud on October 2, 2017. Mot. Dismiss Ex. D. In its
original complaint, Plaintiff alleged three causes of action-
fraudulent misrepresentation, conspiracy to commit fraud, and
unjust enrichment and breach of contract (pled in the
alternative)-against all Defendants, Id. at 7-12.
Additionally, Plaintiff alleged a claim only against
Defendant Inabata pursuant to 18 U.S.C. § 1962(c)-the
Racketeer Influenced and Corrupt Organizations [hereinafter
"RICO"] Act. Id. at 9. The original
complaint did not mention a forum selection clause.
January 24, 2018, Defendant Inabata filed its "Motion to
Dismiss Plaintiffs Complaint Under the Doctrine of Forum Non
Conveniens" Mot. Dismiss Ex. A, at 6-7. Defendant
Inabata alleged that the Court should dismiss the action
because the Sales Agreement between Defendant Inabata and
Plaintiff contained a valid forum selection clause,
designating Germany as the parties' exclusive forum for
dispute resolution. Id. at 7.
response, Plaintiff argued that Defendant Inabata
fraudulently induced the forum selection clause in favor of
Germany in the Sales Agreement, invalidating the clause.
Pl's Resp. Opp'n Def. Recom AG's Mot. Dismiss 12,
GESPA I, ECF No. 72. Specifically, Plaintiff alleged
that in agreeing to a forum selection clause in favor of
Germany, it had relied on Defendants' representations
that Plaintiff would receive Recom Black Panther panels
meeting German quality assurance standards pursuant to the
Sales Agreement. First Am. Verified Compl. Jury Demand 17,
GESPA I, ECF No. 78. Mr. Morten Nygart, the largest
shareholder and principle control person of Plaintiff, also
stated in a declaration that "Plaintiff would never have
agreed to any forum other that Texas, United States, if we
had known that the panels were being sent from Texas."
Decl. Morten Nygart, GESPAJ, ECF No. 57-1.
Court granted Defendant Inabata's Motion to Dismiss on
March 29, 2018. Mot. Dismiss Ex. A, at 27. Accordingly, the
Court entered a partial final judgment dismissing Defendant
Inabata pursuant to Rule 54(b). Mot. Dismiss 4. In conducting
a forum non conveniens analysis, the Court
determined that the forum selection clause in the Sales
Agreement was enforceable and mandatory, requiring Plaintiff
to assert its claims against Defendant Inabata in the
"courts of Düsseldorf," Germany, where there
was exclusive venue and jurisdiction. Mot. Dismiss Ex. A, at
the Plaintiffs fraudulent inducement arguments, the Court
found that Plaintiff failed "to demonstrate that the
forum selection clause itself was the product of fraud."
Id. at 14. In other words, the Court found any
possible fraudulent inducement that might have occurred, in
this case inducement related to Defendants'
misrepresentations, did not ...