Opinion
02 Civ. 9369 (DFE).
July 21, 2003.
OPINION AND ORDER
1. Paramedics Electromedicina Comercial Ltda. ("Tecnimed") made a motion dated June 27, 2003 (Docket Item #49) for an order amending my Final Judgment of Injunction in two respects, in the alternative. First, Tecnimed asks me to permit it to continue to prosecute its action in the Brazilian courts against GE Medical Systems Information Technologies, Inc. ("GEMS-IT") and General Eletric do Brasil Ltda. ("GE Brasil"). In the alternative, Tecnimed asks me to permit the presiding judge in the Brazilian action to determine whether some of Tecnimed's claims (the ones against GE Brasil) are or are not subject to arbitration.
2. On July 14, 2003, GEMS-IT served opposing papers, and also a motion to hold Tecnimed in contempt (Docket Item #50).
3. On July 16 and 17, GEMS-IT and Tecnimed submitted memoranda of law addressed to the issue of my jurisdiction in view of Tecnimed's Notice of Appeal filed on June 27. On July 18, I heard oral argument and faxed drafts of this opinion to the attorneys. Also on July 18, GEMS-IT faxed proposed changes to me; Tecnimed faxed a reply to me on July 21.
4. My jurisdiction is clear and undisputed over GEMS-IT's motion concerning contempt, for the reasons set forth in its July 16 memorandum of law.
5. Tecnimed's June 27 motion cites Rule 59(e) of the Federal Rules of Civil Procedure, but the motion says that I "overlooked" certain prior arguments, suggesting that the motion is also based on our Court's Local Civil Rule 6.3. To the extent that it is based on Rule 59(e), GEMS-IT argues that it is barred as untimely. My Final Judgment was dated June 4 and entered on June 9. GEMS-IT says that any Rule 59(e) motion had to be filed by June 23, even though the Final Judgment itself said that Tecnimed "may also make any related application to this Court on or before June 24, 2003," and even though I adjourned that date on consent to June 27. I find that my actions amounted to "specific assurance by a judicial officer" within the meaning of Osterneck v. Ernst Whinney, 489 U.S. 169, 179, 109 S.Ct. 987, 993 (1989), and that I have jurisdiction over all aspects of Tecnimed's motion.
6. I deny both motions (Docket Items #49 and #50) except to the extent of my rulings set forth below. I adhere to my Order including Findings of Fact and Conclusions of Law (Docket Item #46), particularly at pages 16-17, where I explained why the result is not altered by Tecnimed's joinder of the second defendant (GE Brasil) in the Brazilian action.
7. On July 1, 2003, GEMS-IT drafted and faxed to Tecnimed a two-page Joint Petition to Dismiss the Brazilian action, to be signed by Tecnimed, GE Brasil, and GEMS-IT. (Exh. 6 to GEMS-IT's July 14 motion.) On July 8, Tecnimed declined to sign it; Mr. O'Donnell's letter said: "I am advised that the stipulation does not address the `honorarium' issue [court costs], and fails to provide assurance that Tecnimed's claims would not be barred by the applicable statute of limitations in the event Tecnimed attempted to re-file them with the Brazilian court." (Exh. 7 to id.)
8. I believe that Tecnimed's worry about court costs is exaggerated; in any event, they were a risk that Tecnimed took when it chose to file suit in Brazil. I believe that its worry about the statute of limitations is more legitimate. I will give Tecnimed some comfort concerning both worries.
9. I direct GEMS-IT and GE Brasil to redraft the Joint Petition to Dismiss (both in English and in Portuguese) in the manner set forth below:
Paragraph 3 shall read: Each party shall be responsible for its own lawyer's fees, as well as for any court fees it has already paid. In connection with the present lawsuit in the courts of Brazil, GE BRASIL and GEMS-IT stipulate (a) that they are aware of no further court fees of any kind that ought to be paid by TECNIMED (or any other party), and (b) that they will not request that any further court fees be ordered by the Brazilian courts. Nevertheless, the parties agree that TECNIMED shall be responsible for the payment of all court fees of any kind that may be ordered by the Brazilian courts in connection with the present lawsuit in the courts of Brazil.
Paragraph 6 shall read: The dismissal of this lawsuit does not bar the re-filing of a dismissed claim that the IACAC Arbitral Tribunal determines is not properly subject to arbitration. All statutes of limitation, concerning all of the previously pending claims in the present lawsuit in the Brazilian courts, shall be tolled for the period from June 17, 2003 until 10 business days after any order of the United States District Court for the Southern District of New York that may permit the re-filing of any such claim. If the IACAC Arbitral Tribunal determines that any claims are arbitrable, then the IACAC Arbitral Tribunal will decide whether any of those arbitrable claims are time barred.
10. I order Tecnimed to cause its authorized legal representative and its counsel of record in the Brazil Action to sign four originals of the redrafted Joint Petition to Dismiss (prepared in both English and Portuguese) and to deliver those originals to GEMS-IT's counsel of record in the Brazil Action within one (1) business day of Tecnimed's receipt of the redrafted Joint Petition to Dismiss. I direct GE Brasil and GEMS-IT to sign the redrafted Joint Petition to Dismiss and to file it as soon as possible with the appropriate Brazilian court or courts. I order Tecnimed to pay, or immediately to reimburse GEMS-IT for paying, the costs of filing the Joint Petition to Dismiss, including the cost of a certified translation into Portuguese.
11. I order Tecnimed to serve and file, by July 24, 2003, an affidavit detailing its compliance with this Opinion and Order. Unless I issue a written order finding that Tecnimed's compliance has been satisfactory, then Tecnimed must appear before me in the person of its President, Paulo Werlang, on July 31, 2003, at 2:00 p.m., in Courtroom 18A, 500 Pearl Street, New York, New York, to show cause why Tecnimed should not be subjected to further sanctions.
12. If Tecnimed fails to comply with this Opinion and Order in any respect, then, in addition to possible further sanctions, Tecnimed must pay GEMS-IT $1,000 for each calendar day in which Tecnimed fails to be in complete compliance.
13. I reserve jurisdiction to enforce the terms of this Opinion and Order, and of my prior Order including Findings of Fact and Conclusions of Law (Docket Item #46) and of my Final Judgment of Injunction (Docket Item #44).
14. Tecnimed's July 21 fax contends that Paragraph 10 of this Opinion and Order reflects an "attempt to make Tecnimed's Brazilian counsel somehow a de facto party to the action, or force him into a position requiring him to withdraw as counsel of record." I disagree. If Tecnimed's Brazilian counsel does not sign the Joint Petition to Dismiss, then I will have cause to believe that Tecnimed is not making good faith efforts to comply with my court orders.
15. Except to the extent stated above, I deny both Tecnimed's motion (Docket Item #49) and GEMS-IT's motion (Docket Item #50).