Tahaya Misr Investment Inc. v. Helwan Cement S.A.E. et al

NOTICE OF MOTION AND MOTION for Summary Judgment as to Plaintiffs entire action and Helwans Counter-Claim for Declaratory Judgment

C.D. Cal.September 28, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 1 – NOTICE OF MOTION AND MOTION OF DEFENDANT AND COUNTER-CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Lorenzo E. Gasparetti (SBN 135976) Email: lgasparetti@reedsmith.com REED SMITH LLP 355 South Grand Avenue Suite 2900 Los Angeles, CA 90071-1514 Telephone: +1 213 457 8000 Facsimile: +1 213 457 8080 Peter M. Ellis (Admitted Pro Hac Vice) Email: pellis@reedsmith.com REED SMITH LLP 10 South Wacker Drive Chicago, IL 60606-7507 Telephone: +1 312 207 1000 Facsimile: +1 312 207 6400 Attorneys for Defendant and Counter-Claimant Helwan Cement Company S.A.E. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Plaintiffs, v. HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability, et al, Defendants. Case No. 2:16-cv-1001 CAS (AFMx) Honorable Christina A. Snyder Magistrate Judge Alexander F. MacKinnon NOTICE OF MOTION AND MOTION OF DEFENDANT AND COUNTER-CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION [FED R. CIV. P. 56] Date: November 14, 2016 Time: 10:00 a.m. Place: Courtroom 5, 2nd Floor [Filed concurrently with Memorandum of Points and Authorities, Statement of Uncontroverted Facts and Conclusions of Law, Declaration of Lorenzo E. Gasparetti, Request for Judicial Notice and [Proposed] Order] HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability, Counter-Claimant, v. TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Counter-Defendant. Case 2:16-cv-01001-CAS-AFM Document 95 Filed 09/28/16 Page 1 of 3 Page ID #:1405 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 2 – NOTICE OF MOTION AND MOTION OF DEFENDANT AND COUNTER-CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Please take notice that at 10:00 a.m., on November 14, 2016, or as soon thereafter as the matter may be heard, in Courtroom 5, located at 312 Spring Street, Los Angeles, CA, 90012, before the Honorable Christina A. Snyder, Defendant and Counter-Claimant Helwan Cement Company S.A.E. (“Helwan”, formerly doing business as Helwan Portland Cement Company) will and hereby does move this Court for summary judgment or, alternatively, summary adjudication in favor of Helwan and against Plaintiff and Counter-Defendant Tahaya Misr Investment Inc. (“Plaintiff”, formerly doing business as The Globe Corporation or “Globe”) in this action on the basis that no genuine dispute as to any material fact exists and Helwan is entitled to judgment in its favor pursuant to Federal Rules of Civil Procedure (“FRCP”) 56. Specifically, Helwan is entitled to summary judgment as to Plaintiff’s entire action and Helwan’s Counter-Claim for Declaratory Judgment on the ground that there is no admissible evidence of the alleged March 6, 2002 Exclusive Export Agency Agreement (the “Agreement”) upon which this action is based. Helwan is also entitled to summary judgment as to Plaintiff’s entire action and/or Helwan’s Counter-Claim for Declaratory Judgment on the additional grounds that (1) Plaintiff’s claims are time-barred by the four-year statute of limitations under California Code of Civil Procedure section 337 and/or (2) Plaintiff waived any rights under the alleged Agreement and is barred from enforcing it as a result of Plaintiff’s corporate suspension from 2004 to 2015. Helwan is also entitled to summary adjudication as to Plaintiff’s action and Helwan’s Counter-Claim for Declaratory Judgment to the extent that the interest provision of the alleged Agreement constitutes an illegal penalty and is unenforceable, making any alleged damages based thereon non-recoverable. This Motion is based on this Notice of Motion and the accompanying Memorandum of Points and Authorities, Declaration of Lorenzo E. Gasparetti, Statement of Uncontroverted Facts and Conclusions of Law and Request for Judicial Case 2:16-cv-01001-CAS-AFM Document 95 Filed 09/28/16 Page 2 of 3 Page ID #:1406 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 3 – NOTICE OF MOTION AND MOTION OF DEFENDANT AND COUNTER-CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Notice, as well as any reply memorandum that Helwan may file, the files and pleadings in this action, and any other matter that the Court may consider in the briefing and oral argument on this matter. DATED: September 28, 2016 Reed Smith LLP By: /s/ Lorenzo E. Gasparetti Lorenzo E. Gasparetti Attorney for Defendant and Counter- Claimant Helwan Cement Company S.A.E. Case 2:16-cv-01001-CAS-AFM Document 95 Filed 09/28/16 Page 3 of 3 Page ID #:1407 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) [PROPOSED] ORDER GRANTING HELWAN’S MOTION FOR SUMMARY JUDGMENT R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Lorenzo E. Gasparetti (SBN 135976) Email: lgasparetti@reedsmith.com REED SMITH LLP 355 South Grand Avenue Suite 2900 Los Angeles, CA 90071-1514 Telephone: +1 213 457 8000 Facsimile: +1 213 457 8080 Peter M. Ellis (Admitted Pro Hac Vice) Email: pellis@reedsmith.com REED SMITH LLP 10 South Wacker Drive Chicago, IL 60606-7507 Telephone: +1 312 207 1000 Facsimile: +1 312 207 6400 Attorneys for Defendant and Counter-Claimant Helwan Cement Company S.A.E. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Plaintiffs, v. HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability; et al, Defendants. HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability, Counter-Claimant, v. TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Counter-Defendant. Case No. 2:16-cv-1001 CAS (AFMx) Honorable Christina A. Snyder Magistrate Judge Alexander F. MacKinnon [PROPOSED] ORDER GRANTING SUMMARY JUDGMENT Case 2:16-cv-01001-CAS-AFM Document 95-1 Filed 09/28/16 Page 1 of 3 Page ID #:1408 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 1 – [PROPOSED] ORDER GRANTING HELWAN’S MOTION FOR SUMMARY JUDGMENT R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e On November 14, 2016 at 10:00 a.m., pursuant to Federal Rule of Civil Procedure 56, the Motion of Defendant and Counter-Claimant Helwan Cement Company S.A.E. (“Helwan”) for Summary Judgment Or, Alternatively, Summary Adjudication (“Motion”) came on regularly for hearing in Courtroom H of the above- referenced court, the Honorable Christina A. Snyder presiding. Appearances of counsel were as noted in the record. The Court having read and considered the briefs and papers of the parties that were submitted to the Court in connection with the Motion, and being otherwise fully advised and good cause appearing thereof, this Court hereby GRANTS Helwan’s Motion as follows: There is no admissible evidence of the alleged March 6, 2002 Exclusive Export Agency Agreement (the “Agreement”) upon which this entire action is based. Pursuant to Federal Rule of Evidence 1003, not only is there a genuine issue regarding the authenticity of the alleged original Agreement, it would be unfair to admit a duplicate in lieu of the alleged original under the circumstances presented. Specifically, although Plaintiff claims the alleged original Agreement exists and it has been ordered to produce it, Plaintiff has failed to do so. Plaintiff has also been ordered to appear for deposition and testify regarding the authenticity and genuineness of the alleged Agreement, but has similarly failed to do so. Further, there is no evidence relating to the negotiation or execution of the alleged Agreement, nor any evidence mentioning the alleged Agreement. Under these circumstances, this action cannot be allowed to proceed on the basis of a claimed duplicate of the alleged original Agreement. Accordingly, Helwan is entitled to summary judgment as to Plaintiff’s entire action as well as Helwan’s Counter-Claim for Declaratory Judgment. In any event, Helwan is also entitled to summary judgment as to Plaintiff’s entire action because Plaintiff’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing are time-barred by the four-year statute of limitations under California Code of Civil Procedure section 337. Cal. Civ. Case 2:16-cv-01001-CAS-AFM Document 95-1 Filed 09/28/16 Page 2 of 3 Page ID #:1409 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 2 – [PROPOSED] ORDER GRANTING HELWAN’S MOTION FOR SUMMARY JUDGMENT R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Pro. Code § 337(1); see also Buschman v. Anesthesia Bus. Consultants LLC, 42 F.Supp.3d 1244, 1250 (N.D. Cal. 2014) (applying California Code of Civil Procedure section 337 to a breach of contract claim); Gabriel Techs. Corp. v. Qualcomm Inc., 857 F.Supp.2d 997, 1010 (S.D. Cal. 2012) (same). Plaintiff contends that its claims first accrued as early as 2003, but it waited almost 13 years thereafter to file suit in this action. Helwan is also entitled to summary judgment as to Plaitiff’s entire action and Helwan’s Counter-Claim for Declaratory Judgment because Plaintiff waived any rights under the alleged Agreement by virtue of its corporate suspension from 2004 to 2015. See Cal. Rev. & Tax Code § 23301 (the “corporate powers, rights and privileges” of any domestic corporate taxpayer may be suspended for failure to pay certain taxes and penalties); see also Gould v. Corinthian Colleges, Inc., 192 Cal. App. 4th 1176, 1179 (2011) (waiver is the “intentional relinquishment of a known right” and may be “implied through conduct manifesting an intention to waive). Helwan is also entitled to summary adjudication as to Plaintiff’s action and Helwan’s Counter-Claim for Declaratory Judgment to the extent that the interest provision of the alleged Agreement constitutes an illegal penalty and is unenforceable, making any damages claim based thereon non-recoverable. Ridgley v. Topa Thrift & Loan Ass’n., 17 Cal. 4th 970, 977 (1998) (a liquidated damages clause will generally be considered unreasonable, and therefore unenforceable under California Civil Code section 1671(b) “if it bears no reasonable relationship to the range of actual damages that the parties could have anticipated would flow from a breach.”). IT IS SO ORDERED. DATED: ______________ 2016 United States Magistrate Judge Hon. Christina A. Snyder Case 2:16-cv-01001-CAS-AFM Document 95-1 Filed 09/28/16 Page 3 of 3 Page ID #:1410 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Lorenzo E. Gasparetti (SBN 135976) Email: lgasparetti@reedsmith.com REED SMITH LLP 355 South Grand Avenue Suite 2900 Los Angeles, CA 90071-1514 Telephone: +1 213 457 8000 Facsimile: +1 213 457 8080 Peter M. Ellis (Admitted Pro Hac Vice) Email: pellis@reedsmith.com REED SMITH LLP 10 South Wacker Drive Chicago, IL 60606-7507 Telephone: +1 312 207 1000 Facsimile: +1 312 207 6400 Attorneys for Defendant and Counter-Claimant Helwan Cement Company S.A.E. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Plaintiffs, v. HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability, et al, Defendants. Case No. 2:16-cv-1001 CAS (AFMx) Honorable Christina A. Snyder Magistrate Judge Alexander F. MacKinnon MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION OF DEFENDANT AND COUNTER-CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION [FED. R. CIV. P. 56] Date: November 14, 2016 Time: 10:00 a.m. Place: Courtroom 5, 2nd Floor [Filed concurrently with Notice of Motion and Motion, Statement of Uncontroverted Facts And Conclusions Of Law, Declaration of Lorenzo E. Gasparetti, Request for Judicial Notice and [Proposed] Order] HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability, Counter-Claimant, v. TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Counter-Defendant. Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 1 of 23 Page ID #:1411 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 1 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e I. INTRODUCTION Based on nothing more than a claimed duplicate version of an alleged 2-page contract entered into nearly 14 years earlier, Plaintiff/Counter-Defendant Tahaya Misr Investment Inc. (“Plaintiff,” formerly doing business as The Globe Corporation or “Globe”) filed this breach of contract lawsuit seeking $3 billion. This Court was prescient in ordering that discovery be limited to threshold issues regarding the authenticity, genuineness, validity and enforceability of the alleged contract, recognizing that “this case may be a more compelling case to grant phased discovery because – given the size of the damages and given the allegations … there could be a lot of expense that’s unnecessary if, in fact, there’s not a valid contract” and, further, “defendants may want to take plaintiff’s deposition and also engage in discovery regarding the bona fide to the alleged contract, and that may require an expert.” (June 20, 2016, Scheduling Conference Tr., at 8:9-15 and 11:13-16, Dkt. No. 51). In fact, subsequent events in this litigation have demonstrated that Plaintiff’s case is no more than a house of cards. As an initial matter, discovery has revealed that Plaintiff does not have a single document relating to the negotiation or execution of the alleged contract, nor any documents subsequently referring to it. Even more telling, Plaintiff has steadfastly refused to appear for its properly noticed deposition (through its President, Mohamed Abouelsaad, who is the only person known to be employed by Plaintiff and claims to have executed the alleged contract) or produce the alleged original, wet ink signature version of the contract, which is within its control. Although there is now an order compelling Plaintiff to do both by September 30, 2016, given Plaintiff’s contemptuous conduct to date – in particular, its continuing violation of this Court’s anti-suit injunction orders (requiring the immediate dismissal of Plaintiff’s improper and identical action in Egypt) and recent defiant proclamation that it will not comply with Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 2 of 23 Page ID #:1412 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 2 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e the Court’s orders or even continue to prosecute its action before this Court – Plaintiff has already demonstrated that it will not comply with that discovery order either. Under these circumstances, there is no question that both exceptions to the admissibility of the claimed duplicate version of the alleged contract under Federal Rules of Evidence (“FRE”) 1003 are easily satisfied here. To wit: as this Court has already concluded, (1) there is a genuine question regarding the original Agreement’s authenticity and (2) it would otherwise be unfair to admit the duplicate. Specifically, Defendant/Counter-Claimant Helwan Cement Company S.A.E. (“Helwan,” formerly doing business as Helwan Portland Cement Company) has been reasonable and diligent in pursuing necessary discovery regarding the authenticity of the alleged contract. Plaintiff, on the other hand, even though it has every interest and incentive (including a discovery order) to be forthcoming, has gone to extraordinary lengths to obstruct and evade that discovery. There is only one conclusion that reasonably can be drawn from such tactics: the alleged contract is, in fact, a fraud. Accordingly, as the duplicate version of the alleged original contract should be excluded and there is no other admissible evidence of the alleged contract on which this entire action rests, Helwan is entitled to summary judgment in its favor on both Plaintiff’s entire action and Helwan’s Counter-Claim for Declaratory Judgment. Summary judgment or, alternatively, summary adjudication in favor of Helwan is also appropriate on the following additional grounds (all of which assume, for purposes of this Motion only, the existence of the alleged contract):  As Plaintiff contends that its contract claims accrued as early as 2003, Plaintiff’s action is clearly barred by the 4-year statute of limitations under California Code of Civil Procedure Section 337.  Plaintiff waived any rights under the alleged contract and is barred from enforcing it by virtue of Plaintiff’s corporate suspension from 2004 to 2015. Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 3 of 23 Page ID #:1413 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 3 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e  The interest provision of the alleged contract – one percent compounded weekly and accounting for the bulk of Plaintiff’s $3 billion damages claim – constitutes an illegal penalty and is unenforceable, making any claimed damages based thereon non-recoverable. Helwan respectfully requests that the Court rule on each of the grounds for summary judgment or, alternatively, summary adjudication asserted herein. II. UNDISPUTED FACTS AND RELEVANT CASE HISTORY The relevant background, including the undisputed facts supporting Helwan’s present Motion, is almost entirely contained in this Court’s record: A. Plaintiff’s Action And Dismissal Of Other Defendants  On December 29, 2015, Plaintiff, a California corporation, files its Complaint in the Los Angeles County Superior Court. Plaintiff claims breach of an alleged March 6, 2002 Exclusive Export Agreement (the “Agreement,” a claimed duplicate of which is attached to the Complaint) requiring commissions and interest thereon in connection with certain cement sales and seeks damages in excess of $3 billion, including alleged commissions of $17,368,114.14 that accrued as early as 2003. The Complaint further alleges that its principal place of business is Los Angeles and that the Agreement contains a California governing law and forum selection provision. See Statement of Uncontroverted Facts (“SUF”) Nos. 2, 3; Compl. at ¶¶ 1, 9, 12 – 14, Exh. A, Dkt. No. 1; Declaration of Ahmed Fouad El Juhany (“Juhany Decl.”), Exh. F, Dkt. No. 53.  Public records from the California Secretary of State reflect that Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 4 of 23 Page ID #:1414 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 4 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Plaintiff’s corporate status was officially suspended in 2004 and only revived to active status on December 16, 2015, i.e., less than two weeks before the filing of the Complaint in this action. SUF No. 4; see Request for Judicial Notice (“RJN”), Exh. 1.  On February 12, 2016, Helwan (an Egyptian joint stock company with its principal place of business in Egypt) removes Plaintiff’s action to this Court based on diversity jurisdiction. See Notice of Removal, Dkt No. 1.  On March 16, 2016, Helwan files its Answer and Affirmative Defenses to Plaintiff’s Complaint. Helwan’s Affirmative Defenses maintain that, among other things, the Agreement is not valid and should not be enforced, as well as that Plaintiff’s claims are time-barred and otherwise barred by the doctrine of waiver. Helwan also files a Counter- Claim for declaratory relief seeking a judgment that the Agreement is invalid and unenforceable (Count I) and that Plaintiff’s corporate suspension bars Plaintiff from recovery (Count II). See Helwan Answer and Counterclaim, Dkt. No. 16.  On April 8, 2016, Plaintiff files its First Amended Complaint (again attaching the same duplicate of the alleged Agreement), making all of the same allegations as set forth in its original Complaint, but adding allegations regarding Defendants Suez Cement Company S.A.E. and Italcementi S.p.A. (parent companies to Helwan) in an effort to establish personal jurisdiction over them in California on an alter ego basis. See First Amended Compl., ¶¶ 1, 17, 20 – 22, Exh. A, Dkt. No. 22. Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 5 of 23 Page ID #:1415 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 5 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e  On April 25, 2016, Helwan files its Answer to Plaintiff’s First Amended Complaint and Counter-Claim for Declaratory Judgment, which asserts the same affirmative defenses as previously. See Answer to First Amended Compl., Dkt. No. 30.  On May 24, 2016, following several rounds of dispositive motions, the Court grants Defendants Suez Cement Company S.A.E. and Italcementi S.p.A.’s Motion to Dismiss for Lack of Personal Jurisdiction. See May 23, 2016 Order on Mtn. to Dismiss, Dkt. No. 38. B. Discovery Disputes and Anti-Suit Injunction Orders  On May 27, 2016, Helwan initiates discovery, serving a comprehensive set of requests for production of documents regarding the authenticity and genuineness of the alleged Agreement, including a request for the production of the alleged original, wet ink signature version of the Agreement. Plaintiff responds to that discovery, claiming that the alleged original Agreement is lodged with the Egyptian court (where Plaintiff has been litigating an identical action (the “Egyptian Action”) in violation of the California forum selection provision of the alleged Agreement) and is not accessible (which is untrue), thus preventing Helwan’s expert from conducting a forensic examination regarding the authenticity and genuineness of the alleged Agreement. Plaintiff’s discovery responses also reveal that it has no documents relating to the negotiation and execution of the alleged Agreement, nor any documents subsequently mentioning the alleged Agreement. SUF No. 1; see Declaration of Lorenzo E. Gasparetti (“Gasparetti Decl.”) ¶¶ 2-4, Exhs. 1-3. Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 6 of 23 Page ID #:1416 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 6 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e  On June 20, 2016, the Court orders that further discovery be limited to the threshold issues of the authenticity, genuineness, validity and enforceability of the alleged Agreement. The Court also schedules expert disclosure (regarding forensic document examination) on September 14, 2016, a discovery cut-off date of October 3, 2016 and a hearing on motion(s) for summary judgment on November 14, 2016. SUF No. 1; see June 20, 2016, Minutes and Tr. of Scheduling Conference, Dkt. Nos. 48, 51; Joint Stipulation and Order on Phased Discovery and Mtn. for Summary Judgment Scheduling Deadlines, Dkt Nos. 58, 59.  On June 27, 2016, the Court issues an interim order on Helwan’s Motion for Anti-Suit Injunction requiring that Plaintiff not take any further steps to litigate its identical Egyptian Action until a final ruling is issued on Helwan’s anti-suit injunction motion. See June 27, 2016, Minutes of Mtn. for Antisuit Junction, Dkt. No. 49.  On or about July 16, 2016, Plaintiff violates the Court’s June 27, 2016 interim order, further prosecuting the Egyptian Action by requesting that the Egyptian court consolidate certain proceedings for hearing on August 29, 2016. See Declaration of Youssef Al Saman (“Saman Decl.”), Dkt. No. 63.  On July 28, 2016, the Court issues its final order granting Helwan’s Motion for Anti-Suit Injunction requiring that Plaintiff immediately take steps to dismiss the Egyptian Action. See July 27, 2016, Order on Mtn. for Anti-Suit Injunction, Dkt. No. 57. Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 7 of 23 Page ID #:1417 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 7 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e  On August 1, 2016, Helwan serves a Notice of Deposition of Plaintiff’s President, Mohamed Abouelsaad, the only person known to be employed by Plaintiff and who claims to have executed the alleged Agreement. Shortly thereafter, Plaintiff makes clear that Abouelesaad will not appear in person for his deposition in Los Angeles, as noticed. SUF No. 1; see Gasparetti Decl., ¶ 5, Exh. 4.  On August 8, 2016, Plaintiff files a Notice of Appeal of the Court’s July 28 anti-suit injunction order. Plaintiff does not seek emergency relief from the appellate court. See Not. of Appeal, Dkt. No. 60.  On August 11, 2016, Helwan files a Motion for Order to Show Cause Re Civil Contempt regarding Plaintiff’s failure to comply with the Court’s anti-suit injunction orders. See Mtn. to Show Cause re Civil Contempt, Dkt. Nos. 63, 64.  On August 16, 2016, Plaintiff files a Motion to Stay Enforcement Pending Appeal of the Court’s July 28 anti-suit injunction order. See Mtn. to Stay Pending Appeal Order for Prelim. Injunction, Dkt. No. 65.  On August 29, 2016, Helwan files a Motion to Compel Plaintiff to produce the alleged original, wet ink signature version of the Agreement (only Plaintiff, which lodged it with the Egyptian court, has the right to request its release) as well as to make Abouelsaad available for his deposition in Los Angeles, both of which Plaintiff has refused or otherwise failed to do. SUF No. 4; see Mtn. to Compel (in particular, Saman Decl., Att. No. 3), Dkt. Nos. 76, 83. Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 8 of 23 Page ID #:1418 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 8 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e  Also on August 29, 2016, Plaintiff appears in the Egyptian court to argue (unsuccessfully) certain appellate matters that it initiated there, in further violation of this Court’s anti-suit injunction orders. The Egyptian court has now set yet a further hearing (in chambers) on Globe’s appeal for October 10, 2016. See Saman Decl., Att. No. 3, Dkt. No. 87.  On September 1, 2016, this Court vacates the hearing on Helwan’s Motion for Order to Show Cause Re Civil Contempt and Plaintiff’s Motion to Stay, taking the matters under submission, where they remain as of the filing of this Motion. See Scheduling Notice Vacated, Dkt. No. 78. C. Plaintiff’s Efforts to Evade This Court’s Jurisdiction  On September 6, 2016, Plaintiff files Motions to Voluntarily Dismiss Complaint (without prejudice) pursuant to FRCP 41(a)(2)) as well as its Appeal of the Court’s final anti-suit injunction order. SUF No. 1;see Mtn. to Dismiss Plaintiff’s Compl., Dkt. Nos. 79-81. Plaintiff’s counsel also files a Motion to Withdraw. See Mtn. to Withdraw, Dkt. No. 82. Both Plaintiff’s Motion to Voluntarily Dismiss Complaint and the Motion to Withdraw are scheduled for hearing on October 17, 2016.  In connection with Plaintiff’s Motion to Voluntarily Dismiss Complaint, Abouelsaad submits a sworn declaration defiantly proclaiming that Plaintiff will not comply with this Court’s orders or even continue to prosecute its action before this Court, maintaining that: 2. … [Plaintiff] cannot comply with both the US and Egyptian processes/orders because they are contradictory. It has to Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 9 of 23 Page ID #:1419 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 9 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e decide with which to comply and whichever that is will be in breach of the orders et al of the other jurisdiction. It is the very essence of a ‘Catch 22’. I have decided that [Plaintiff] should act in accordance with the Egyptian process/orders because it is far more connected to Egypt than the US. In addition, I am an Egyptian citizen, living in Egypt, and, as such, consider it less worse to be in breach of the US process/orders than those of Egypt. 41. … after the ruling on 15 July 2016 by the Federal courts of California, [Plaintiff] (having taken legal advice from Mr. Ahmed Fouad and other Law Firms) has no reasonable option other than to withdraw from all cases in the US. 42. … As I am a citizen, resident and live in Egypt, I feel that I have no choice other than to comply fully with the orders of that jurisdiction. Hence, I regrettably cannot fully [sic] comply with the US or progress [Plaintiff’s] case in the US. SUF No. 1; see Declaration of Mohammed Abouelsaad, Dkt. No. 80.  Notably, neither Plaintiff nor Abouelsaad make any mention of the fact that Plaintiff is a California corporation and has repeatedly alleged in its pleadings that its principal place of business is Los Angeles (not Egypt, as claimed in Abouelsaad’s declaration), much less that Plaintiff itself initiated this action in Los Angeles, California pursuant to the California forum selection provision of the alleged Agreement. D. Discovery Order and Current Procedural Status  On September 7, 2016, at Plaintiff’s request, the Ninth Circuit Court of Appeals dismisses Plaintiff’s appeal of this Court’s July 28 anti- suit injunction order. See Order on Not. of Appeal, Dkt. No. 85. Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 10 of 23 Page ID #:1420 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 10 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Accordingly, Plaintiff’s pending Motion to Stay Enforcement Pending Appeal is moot.  On September 14, 2016, Helwan serves its expert disclosure, identifying its forensic document expert. Plaintiff fails to make any expert disclosure. Given Plaintiff’s failure to produce the alleged original Agreement, no forensic examination of the document has taken place to date. SUF No. 1; see Gasparetti Decl., ¶ 6, Exh. 5.  On September 19, 2016, Helwan files its (1) Motion for Involuntary Dismissal of Plaintiff’s First Amended Complaint pursuant to FRCP 41(b), (2) Opposition to Plaintiff’s Motion to Voluntarily Dismiss Complaint pursuant to FRCP 41(a)(2) and (3) Opposition to the Motion of Plaintiff’s Counsel to Withdraw. See Mtn. for Involuntary Dismissal, Dkt. No. 87; Opp. to Mtn. to Dismiss, Dkt. No. 88; Opp. to Mtn. of Plaintiff’s Counsel to Withdraw; Dkt. No. 89.  On September 20, 2016, the Court grants Helwan’s Motion to Compel in its entirety, ordering Abouelsaad to appear for deposition in Los Angeles and Plaintiff to produce the alleged original Agreement by September 30, 2016. However, Plaintiff subsequently failed to notify Helwan when Abouelsaad will appear for his deposition, as ordered, and on September 23, 2016, its counsel indicated that Plaintiff has not responded to notice of the Court’s discovery order. SUF No. 1; see September 20, 2016, Order on Mtn. to Compel, Dkt. Nos. 90, 91; September 26, 2016, Tr. of Mtn. to Compel, Dkt. No. 93; Gasparetti Decl., ¶ 8, Exh. 7. Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 11 of 23 Page ID #:1421 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 11 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e  On September 28, 2016, Helwan files the instant Motion for Summary Judgment Or, Alternatively, Summary Adjudication. III. LEGAL ANALYSIS A. Legal Standard For Granting Summary Judgment A court shall grant summary judgment if the movant shows that (1) there is no genuine dispute as to any material fact; and (2) the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The non-moving party cannot avoid summary judgment by resting on mere allegations or allusions to facts, but instead must offer specific material evidence. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). On a motion for summary judgment, it is sufficient to specify that the record lacks substantial evidence to support a necessary element of the non-movant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the moving party meets that burden, the non-moving party’s burden of designating specific facts demonstrating the existence of genuine issues for trial “is not a light one.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). The non-movant must show more than the “mere existence of a scintilla of evidence.” Id., citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). And the non-movant must “do more than show there is some ‘metaphysical doubt’ as to the material facts at issue.” Oracle, 627 F.3d at 387, quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-moving party “must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party's favor.” Oracle, 627 F.3d at 387, citing Anderson, 477 U.S. at 252. Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 12 of 23 Page ID #:1422 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 12 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e B. There Is No Admissible Evidence Of The Alleged Agreement On Which This Entire Action Is Based 1. The “Best Evidence Rule” and Legal Standards Regarding The Inadmissibility Of Duplicates FRE 1002 provides that: An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise. “The best evidence rule embodied in FRE 1001—1008 represented a codification of longstanding common law doctrine. Dating back to 1700, the rule requires not, as its common name implies, the best evidence in every case but rather the production of an original document instead of a copy. Many commentators refer to the rule not as the best evidence rule but as the original document rule.” See Seiler v. Lucasfilm, Ltd., 808 F. 2d 1316, 1318 (9th Cir. 1986). Originally, the so-called “Best Evidence Rule” was understood to guard against incomplete or fraudulent proof. Thus, “[b]y requiring the possessor of the original to produce it, the rule prevented the introduction of altered copies and the withholding of originals. . . . The modern justification for the rule has expanded from prevention of fraud to a recognition that writings occupy a central position in the law.” Id. at 1319. Notwithstanding the traditional rule favoring the use of original writings, FRE 1003 provides that: A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate. Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 13 of 23 Page ID #:1423 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 13 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e (Emphasis added).1 With regard to the first exception to the use of duplicates under FRE 1003 (“a genuine question is raised about the original’s authenticity”), it should be noted that the objection is typically not that the duplicate is an unfaithful reproduction. Rather, the objection is that the duplicate cannot be a reproduction of the writing the proponent seeks to prove because, for example, no such writing ever existed. Since production of the original, if there was one, would facilitate the resolution of this issue, the court, by excluding the duplicate, can force the proponent to offer the original. 4 M. Graham, Handbook of Federal Evidence, § 1003.1 (6th ed., 2006). With regard to the second exception to the use of duplicates under FRE 1003 (“the circumstances make it unfair to admit the duplicate”), the behavior of the proponent of a duplicate is highly relevant to the fairness calculation. For example, losing or destroying the only original in bad faith, or altering or forging what is being offered and other similarly sharp practices are behaviors that are indicative of unfairness. In these scenarios, doubts or suspicions naturally arise, and these provide reason enough to exclude a purported duplicate. Similarly, conduct by the proponent is also unfair and will justify excluding a duplicate where the proponent refuses to produce an original during discovery that is within its control or otherwise available to it. Such conduct can easily support a decision that a purported duplicate should be excluded. See C. Mueller, L. Kirkpatrick, Federal Evidence, Sec. 10:24 (4th ed.)2 1 Similarly, California Evidence Code section 1521 (the so-called “Secondary Evidence Rule”) provides that: “(a) The content of a writing may be proved by otherwise admissible secondary evidence. The court shall exclude secondary evidence of the content of writing if the court determines either of the following: (1) A genuine dispute exists concerning material terms of the writing and justice requires the exclusion. (2) Admission of the secondary evidence would be unfair.” 2 Similarly, in determining whether it would be unfair to admit a duplicate under California Evidence Code section 1521, the court may consider a broad range of factors, (1) whether the original was suppressed in discovery, (2) whether discovery conducted in a reasonably diligent manner failed to result in production of the Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 14 of 23 Page ID #:1424 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 14 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Of course, a purported duplicate may also be excluded if the proponent fails to authenticate it or fails to show that the original itself would be admissible, since the authentication requirement applies to duplicates as well. See Fed. R. Evid. 104(a) and 901. Accordingly, the party offering a duplicate must lay a foundation covering both the duplicate and the underlying original, including proof that the duplicate accurately depicts the original. Failing to accomplish this basic task requires exclusion of the duplicate. C. Mueller, at Sec. 10:24. In sum, district courts may exclude duplicates whenever the proponent fails to persuade the court by a preponderance of the evidence (including the credibility of the witnesses called on the issues) that non-production of the original writing is excused. The burden of persuasion is placed on the proponent because, as discussed herein, the Best Evidence Rule embodies a public policy favoring the use of original writings to prove their contents. See Fed. R. Evid. 1004 (Adv. Comm.’s note); see also Miguel A. M. Méndez, Authentication and the Best Secondary Evidence Rules, 41 U.S.F. L. Rev. 1, 18 (2006). 2. Not Only Is There A Genuine Issue Regarding The Authenticity Of The Alleged Original Agreement, It Would Be Unfair To Admit A Duplicate In Lieu Of The Alleged Original Under The Circumstances Presented Here, Plaintiff has failed to satisfy its burden to demonstrate why non- production of the alleged original Agreement is excused and a claimed duplicate version is sufficient in this litigation. As an initial matter, Plaintiff has not laid any foundation whatsoever for the claimed duplicate of the alleged Agreement, much less of the alleged original. Plaintiff has no documents relating to the negotiation or execution of the alleged Agreement, nor any documents subsequently even mentioning the alleged Agreement. original, (3) whether the original is unavailable and, if so, why, and (4) whether the writing is central to the case or collateral. See Cal. Evid. Code § 1521. Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 15 of 23 Page ID #:1425 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 15 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Further, Plaintiff has refused to appear for its properly noticed deposition (through its President, Mohamed Abouelsaad, who is the only known person to be employed by Plaintiff and claims to have executed the alleged Agreement) and provide sworn testimony regarding the history of the alleged Agreement. Accordingly, Plaintiff has failed even to satisfy the threshold authentication requirement for considering the admissibility of the claimed duplicate version of the alleged Agreement. Moreover, even if Plaintiff could lay the proper foundation that the proffered evidence is indeed a duplicate, this Court has already concluded that concerns regarding the authenticity, genuineness, validity and enforceability of the original Agreement are serious enough to warrant limiting discovery to those threshold issues. In particular, the Court recognized that “defendants may want to take plaintiff’s deposition and also engage in discovery regarding the bona fide to the alleged contract, and that may also require an expert.” SUF No. 1; see June 20, 2016, Tr. of Scheduling Conference at 8:9-15 and 11:13-16, Dkt. No. 51; Order on Phased Discovery, Dkt. No. 59. Notwithstanding, Plaintiff has refused both to appear for its properly noticed deposition and produce the alleged original Agreement for a forensic examination, despite an order compelling it to do so. There is little reason to believe that Plaintiff will comply with this order, however, as Plaintiff has blatantly violated this Court’s anti-suit injunction orders (which is the subject of pending contempt proceedings) and has defiantly proclaimed that it will not comply with the Court’s orders or even continue to prosecute its action before this Court. Plaintiff’s contemptuous conduct aside, its refusal to engage in the two items of discovery that are the most important to determining the authenticity and genuineness of the alleged Agreement—something that Plaintiff has every interest and incentive in seeing established—only underscores the dangers of fraud here, thus establishing the first ground for exclusion of the Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 16 of 23 Page ID #:1426 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 16 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e duplicate under FRE 1003, i.e., there is “a genuine question regarding the original’s authenticity”. Based on Plaintiff’s aforementioned behavior, the second ground for exclusion of the duplicate under FRE 1003—i.e., “the circumstances make it unfair to admit the duplicate”—is also easily satisfied here. Plaintiff’s allegations concerning an alleged Agreement entered into nearly 14 years before the filing of this lawsuit and the fact that there is no corroborating evidence of the alleged Agreement require Plaintiff either to produce the original for a forensic examination or show that it is unavailable through no fault of its own. Although Plaintiff itself claims that the alleged original Agreement exists and it has been found to be within Plaintiff’s control, Plaintiff has to date refused to produce it or appear for deposition and testify regarding its history, even in the face of orders compelling it to do so. Under these circumstances, it would be unfair to allow this case to proceed any further on the basis of an unauthenticated duplicate version of the alleged original Agreement. See Seiler, 808 F.2d at 1390- 1320 (excluding reconstructions of original designs and granting summary judgment thereon); Kodadek v. MTV Networks, Inc., 152 F.3d 1209 (1998) (same). The facts of this case implicate the very concerns that justify the Best Evidence Rule and the public policy favoring the use of original writings. Given its allegations and the surrounding circumstances regarding its claims, Plaintiff is required to produce the alleged original Agreement for a forensic examination and testify regarding its history. Even though ordered to do so, Plaintiff has brazenly refused. Accordingly, Helwan respectfully submits that the claimed duplicate version of the alleged original Agreement should be excluded pursuant to FRE 1003 and, in the absence of any admissible evidence of the alleged Agreement, summary judgment entered in favor of Helwan both on Plaintiff’s entire action and Helwan’s Counter- Claim for Declaratory Judgment. Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 17 of 23 Page ID #:1427 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 17 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e C. Plaintiff’s Claims Fail On Multiple Additional Grounds Assuming, arguendo, the existence and validity of the alleged Agreement, Plaintiff’s claims do not survive on several independent bases. First, as discussed below, Plaintiff’s action is barred by the four-year statute of limitation on contract claims. Similarly, given Plaintiff’s corporate suspension from 2004 to December 2015, Plaintiff has waived any rights under the alleged Agreement. Finally, among other defenses, the interest provision of the alleged Agreement is an unenforceable penalty. On these independent grounds, summary judgment or, alternatively, summary adjudication should be granted. 1. Plaintiff’s Claims Accrued in 2002 And Are Thus Barred By The Four-Year statute Of Limitations Under California Code of Civil Procedure Section 337 An action for breach of contract must be commenced within four years. Cal. Civ. Proc. Code § 337(1); see also Buschman v. Anesthesia Bus. Consultants LLC, 42 F.Supp.3d 1244, 1250 (N.D. Cal. 2014) (applying California Code of Civil Procedure section 337 to a breach of contract claim); Gabriel Techs. Corp. v. Qualcomm Inc., 857 F.Supp.2d 997, 1010 (S.D. Cal. 2012) (same). Additionally, an action for breach of the implied covenant of good faith and fair dealing is subject to a four-year limitations period if the action sounds in contract. Frazier v. Metropolitan Life Ins. Co., 19 Cal. App. 3d 90, 101 (1985). The statute of limitations begins to run when a cause of action accrues. Cal. Civ. Proc. Code § 312. A cause of action, in turn, accrues when the wrongful act is done or the wrongful result occurs and liability arises. Norgart v. Upjohn Co., 21 Cal. 4th 383, 397 (1999); see also Fox v. Ethicon End-Surgery, Inc., 35 Cal. 4th 797, 807 (2005) (a cause of action accrues when it is “complete with all of its elements”). Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 18 of 23 Page ID #:1428 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 18 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Plaintiff’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing are premised on the existence of the alleged Agreement, entered into on or about March 6, 2002, and that Helwan breached that Agreement by alleged failing to pay commissions owed. See Compl., Dkt. No 1; First Amended Compl, Dkt. No. 22. Accordingly, each of Plaintiff’s causes of action is subject to the four-year statute of limitations set forth in Section 337(1). Plaintiff’s allegation of $17,386,114.14 in commissions owed, in turn, is premised on cement export sales dating back to 2003, indicating that is when Plaintiff contends Helwan first breached the alleged Agreement and Plaintiff’s claims thereunder accrued. SUF No. 3. As a result, Plaintiff had 4 years, i.e., until 2007, to timely file this lawsuit. Having instead delayed in filing this lawsuit until 2015, it is at least 8 years too late and thus time-barred pursuant to Section 337(1). SUF No. 2. Accordingly, Helwan is entitled to summary judgment as to Plaintiff’s entire action. 2. Plaintiff Waived Any Rights Under The Alleged Agreement By Virtue Of Plaintiff’s Corporation Suspension from 2004 to 2015 Under California Revenue and Tax Code Section 23301, the “corporate powers, rights and privileges” of any domestic corporate taxpayer may be suspended for failure to pay certain taxes and penalties. Effectively, this means that a suspended corporation is required to close its business and stop all business related activity. See City of San Diego v. San Diegans for Open Gov’t, D068939, WL 5231822, at *5 (Cal. Ct. App. Sept. 22, 2016), citing Ctr. for Self-Improvement & Cmty. Dev. v. Lennar Corp., 173 Cal. App. 4th 1543, 1551 (2009); see also Timberline, Inc. v. Jaisinghani, 54 Cal. App. 4th 1361, 1365 (1997). The purpose of Section 23301 is to “prohibit the delinquent corporation from enjoying the ordinary privileges of a going concern” in order to incentivize it to pay its taxes. Ctr. for Self-Improvement, 173 Cal. App. 4th at Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 19 of 23 Page ID #:1429 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 19 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e 1552, citing Peacock Hill Ass’n. v. Peacock Lagoon Constr. Co., 8 Cal. 3d 369, 371 (1972). Waiver, in turn, is an “intentional relinquishment of a known right.” Gould v. Corinthian Colleges, Inc., 192 Cal. App. 4th 1176, 1179 (2011). It may also be “implied through conduct manifesting an intention to waive.” Id. Here, Plaintiff’s corporate status was suspended from 2004 to 2015. See SUF No. 4. There can be no question that Plaintiff knew its status was suspended, as it conveniently acted to “revive” its status on December 16, 2015, i.e., just 13 days before it filed suit on December 29, 2015 (undoubtedly recognizing that it would have no legal standing to sue without doing so). SUF No. 4; RJN, Exh. 1. It is virtually impossible to imagine conduct on the part of Plaintiff that is more indicative of a waiver of alleged contractual rights – or at least an implied waiver of such rights – than abandoning its corporate status and any right to do business under the alleged Agreement (or at all) for 11 years. Had a waiver not been intended, then surely Plaintiff would or should have properly maintained its corporate status during all of those years. Accordingly, Helwan is entitled to summary judgment as to Plaintiff’s entire action as well as Helwan’s Counter-Claim for Declaratory Judgment based on Plaintiff’s waiver of any rights under the alleged Agreement. 3. The Interest Provision Of the Alleged Agreement Is An Illegal Penalty and Thus Unenforceable, Making Any Claimed Damages Based Thereon Non-Recoverable Liquidated damages is a term “‘used to indicate an amount of compensation to be paid in the event of a breach of contract, the sum of which is fixed and certain by agreement.’” McGuire v. More-Gas Investments, LLC, 220 Cal. App. 4th 512, 521 (2013) quoting Kelly v. McDonald, 98 Cal. App. 121, 125 (1929), disapproved on other grounds in McCarthy v. Tally, 46 Cal. 2d 577, 587 (1956). A liquidated Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 20 of 23 Page ID #:1430 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 20 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e damages provision in a contract “‘normally stipulates a pre-estimate of damages in order that the parties may know with reasonable certainty the extent of liability for a breach of their contract.’” McGuire, 220 Cal. App. 4th at 521 quoting ABI, Inc. v. City of Los Angeles, 153 Cal. App. 3d 669, 685 (1984). A liquidated damages clause for the breach of the contract is enforceable “unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made.” Cal. Civ. Code § 1671(b). The amount set as liquidated damages “‘must represent the result of a reasonable endeavor by the parties to estimate a fair average compensation for any loss that may be sustained.’” Ridgley v. Topa Thrift & Loan Ass’n., 17 Cal. 4th 970, 977 (1998) quoting Garrett v. Coast & S. Fed. Sav. & Loan Ass’n., 9 Cal. 3d 731, 739 (1973). A liquidated damages clause will generally be considered unreasonable, and therefore unenforceable under Section 1671(b), “if it bears no reasonable relationship to the range of actual damages that the parties could have anticipated would flow from a breach.” Ridgley, 17 Cal. 4th at 977. Absent such a relationship, a contractual provision that predetermines damages “must be construed as a penalty.” Garrett, 9 Cal. 3d at 739. Such penalty is “ineffective, and the wronged party can collect only the actual damages sustained.” Perdue v. Crocker Nat’l Bank, 38 Cal. 3d 913, 931 (1985). Here, the alleged Agreement states that delay in the payment of certain commissions owed “will be subject for 1% compound interest per week until payment is delivered.” See SUF No. 5 (emphasis added). Plaintiff claims that Helwan breached the alleged Agreement by failing to pay it commissions on at least 8,684,057.07 tons of cement sales back to 2003, resulting in unpaid commissions to Plaintiff of at least $17,368,114.14. See First Amended Compl., ¶ 20, Dkt. No. 22. Plaintiff thereupon claims that by failing to pay Plaintiff such commissions within 10 Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 21 of 23 Page ID #:1431 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 21 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e days of Helwan’s receipt of payment from its customers, interest accrued at the rate of 1% interest per week, resulting in total damages in excess of $3 billion. Id. at ¶¶ 21- 22. That interest provision clearly amounts to an illegal penalty and is unenforceable. First, as discussed herein, there is no evidence relating to the negotiation or execution of the alleged Agreement, much less any evidence that the parties even discussed or considered the nature and import of the subject interest provision. Second, the interest provision does not amount to a “fair average compensation” for the loss that Plaintiff allegedly sustained. Ridgley, 17 Cal. 4th at 977. Plaintiff claims it is owed commissions in the amount of at least $17,368,114.14, but with interest at a rate of 1% per week (apparently for years), Plaintiff’s damages claim balloons to over $3 billion. There is nothing in the record to even remotely suggest this is “fair average compensation” and, on its face, it clearly is not fair. Third, the interest provision bears no “reasonable relationship” to the damages that Plaintiff might have been expected to suffer in the event of a breach of the alleged Agreement. Ridgley, 17 Cal. 4th at 977. Indeed, at over 172 times the amount of the commissions allegedly owed, Plaintiff’s $3 billion damages claim based on the accrual of interest at 1% per week is clearly an illegal penalty and, as such, unenforceable. Accordingly, Helwan is entitled to summary adjudication as to Plaintiff’s action and Helwan’s Counter-Claim for Declaratory Judgment to the extent that the interest provision of the alleged Agreement constitutes an illegal penalty and is unenforceable, making any alleged damages based thereon non-recoverable. /// /// /// /// /// Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 22 of 23 Page ID #:1432 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 22 – MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e IV. CONCLUSION For the foregoing reasons, Helwan respectfully requests that the Court grant its Motion for Summary Judgment or, Alternatively, Summary Adjudication as set forth herein. DATED: September 28, 2016 REED SMITH LLP By: /s/ Lorenzo E. Gasparetti Lorenzo E. Gasparetti Attorney for Defendant and Counter- claimant Helwan Cement Company S.A.E. Case 2:16-cv-01001-CAS-AFM Document 95-2 Filed 09/28/16 Page 23 of 23 Page ID #:1433 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) DECLARATION OF LORENZO E. GASPARETTI ISO MOTION OF DEFENDANT AND COUNTERCLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Lorenzo E. Gasparetti (SBN 135976) Email: lgasparetti@reedsmith.com REED SMITH LLP 355 South Grand Avenue Suite 2900 Los Angeles, CA 90071-1514 Telephone: +1 213 457 8000 Facsimile: +1 213 457 8080 Peter M. Ellis (Admitted Pro Hac Vice) Email: pellis@reedsmith.com REED SMITH LLP 10 South Wacker Drive Chicago, IL 60606-7507 Telephone: +1 312 207 1000 Facsimile: +1 312 207 6400 Attorneys for Defendant and Counter-Claimant Helwan Cement Company S.A.E. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Plaintiffs, v. HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability; et al, Defendants. HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability, Counter-Claimant, v. TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Counter-Defendant. Case No. 2:16-cv-1001 CAS (AFMx) Honorable Christina A. Snyder Magistrate Judge Alexander F. MacKinnon DECLARATION OF LORENZO E. GASPARETTI IN SUPPORT OF MOTION OF DEFENDANT AND COUNTER-CLAIMANT HELWAN CEMENT COMPANY S.A.E FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION Date: November 14, 2016 Time: 10:00 a.m. Place: Courtroom 5, 2nd Floor [Filed concurrently with Notice of Motion and Motion, Memorandum of Points and Authorities, Statement of Uncontroverted Facts and Conclusions of Law, Request for Judicial Notice, and [Proposed] Order]] Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 1 of 75 Page ID #:1434 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 1 – DECLARATION OF LORENZO E. GASPARETTI ISO MOTION OF DEFENDANT AND COUNTERCLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e DECLARATION OF LORENZO E. GASPARETTI I, Lorenzo E. Gasparetti, hereby declare as follows: 1. I am an attorney duly licensed to practice law in the State of California and a partner at the law firm of Reed Smith LLP, counsel for Defendant and Counter- Claimant Helwan Cement Company S.A.E. (“Helwan”) in this action. I make this declaration in support of Helwan’s Motion for Summary Judgment or, Alternatively, Summary Adjudication. I have personal knowledge of the following matters and, if called as a witness, could and would competently testify to them. 2. On May 27, 2016, Helwan served its Request for Production, requesting the original, signed version of the alleged March 6, 2002 Exclusive Export Agency Agreement (the “Agreement”) with original or wet signatures and seal of the signatories. Attached hereto as Exhibit 1 is a true and correct copy of Helwan’s Request for Production. 3. On June 29, 2016, Plaintiff and Counter-Defendant Tahaya Misr Investment Inc. (“Plaintiff”, formerly doing business as The Globe Corporation or ‘Globe”) responded to Helwan’s Request for Production. Plaintiff failed to produce the original, signed version of the alleged Agreement with original or wet signatures and seal of the signatories. Attached hereto as Exhibit 2 is a true and correct copy of Plaintiff’s Response to Helwan’s Request for Production. 4. On August 29, 2016, Plaintiff submitted its Supplemental Response to Helwan’s Request for Production. Again, Plaintiff failed to produce the original, signed version of the alleged Agreement with original or wet signatures and seal of the signatories. Plaintiff also indicated that it had no documents relating to the negotiation and execution of the alleged Agreement, nor any documents mentioning it. Attached hereto as Exhibit 3 is a true and correct copy of Plaintiff’s Supplemental Response to Helwan’s Request for Production. Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 2 of 75 Page ID #:1435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 2 – DECLARATION OF LORENZO E. GASPARETTI ISO MOTION OF DEFENDANT AND COUNTERCLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT [FED. R. CIV. P. 56] R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e 5. Attached hereto as Exhibit 4 is a true and correct copy of Helwan’s Notice of Deposition of Mohammed Abouelsaad, Plaintiff’s President. 6. On September 14, 2016, Helwan served its Disclosure of Expert Witness, identifying its forensic document expert. Plaintiff failed to make any expert disclosure. Given Plaintiff’s failure to produce the original, wet ink signature version of the alleged Agreement, no forensic examination of the document has taken place to date. Attached hereto as Exhibit 5 is a true and correct copy of Helwan’s Disclosure of Expert Witness. 7. Attached hereto as Exhibit 6 is a true and correct copy of the September 23, 2016 letter from Plaintiff’s counsel. 8. Attached to the concurrently filed Request for Judicial Notice are true and correct copies of filings with or by the California Secretary State regarding Plaintiff’s corporate status. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 28th day of September 2016 at Los Angeles, California. /s/Lorenzo E. Gasparetti Lorenzo E. Gasparetti Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 3 of 75 Page ID #:1436 Exhibit 1 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 4 of 75 Page ID #:1437 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) HELWAN REQUEST FOR PRODUCTION, SET ONE TO GLOBE R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Lorenzo E. Gasparetti (SBN 135976) Email: lgasparetti@reedsmith.com REED SMITH LLP 355 South Grand Avenue, Suite 2800 Los Angeles, CA 90071-1514 Telephone: +1 213 457 8000 Facsimile: +1 213 457 8080 Peter M. Ellis (Admitted Pro Hac Vice) Email: pellis@reedsmith.com REED SMITH LLP 10 South Wacker Drive Chicago, IL 60606-7507 Telephone: +1 312 207 1000 Facsimile: +1 312 207 6400 Attorneys for Defendant and Counterclaimant Helwan Cement Company S.A.E. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Plaintiffs, v. HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability; et al, Defendants. HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability, Counter-Claimant, v. TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Counter-Defendant. Case No. 2:16-cv-1001 CAS (AFMx) Honorable Christina A. Snyder Magistrate Judge Alexander F. MacKinnon REQUEST FOR PRODUCTION, SET ONE Compl. Filed: December 29, 2015 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 5 of 75 Page ID #:1438 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 1 – HELWAN REQUEST FOR PRODUCTION, SET ONE TO GLOBE R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e PROPOUNDING PARTY: Defendant/Counter-Claimant Helwan Cement Company, S.A.E. RESPONDING PARTY: Plaintiff/Counter-Defendant Tahaya Misr Investment Inc. f/k/a The Globe Corporation SET NO.: One Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Defendant and Counter-Defendant Helwan Cement Company S.A.E. (“Defendant”), hereby propounds the following Requests for Production of Documents, Set One, on Plaintiff Tahaya Misr Investment Inc. f/k/a The Globe Corporation (“Plaintiff”). Plaintiff is requested to respond in writing and under oath, and to produce the documents and other tangible things identified herein for inspection and copying at the offices of Reed Smith LLP, 355 South Grand Avenue, Suite 2800, Los Angeles, CA 90071, within thirty (30) days after service of this demand. DEFINITIONS Unless the context indicates otherwise, the following words and phrases are defined and used herein as follows: 1. “YOU” and “YOUR” mean Plaintiff Tahaya Misr Investment Inc. f/k/a The Globe Corporation and its past or present agents, representatives, attorneys or any other PERSONS acting or purporting to act on its behalf, including Mohamed Abouelsaad. 2. “EXCLUSIVE EXPORT AGENCY AGREEMENT” shall refer to the alleged Exclusive Export Agency Agreement dated March 6, 2002 that is the subject of this litigation, a copy of which is attached to YOUR First Amended Complaint. Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 6 of 75 Page ID #:1439 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 2 – HELWAN REQUEST FOR PRODUCTION, SET ONE TO GLOBE R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e 3. “MOHAMED ABDULLAH” shall refer to the person identified in the EXCLUSIVE EXPORT AGENCY AGREEMENT as “Commercial Manager of Helwan Portland Cement Co. (of ASEC Group)”. 4. “REFERRING OR RELATING TO” shall mean all DOCUMENTS and tangible things which in any way explicitly or implicitly refer to, or could be reasonably construed to refer to, the subject matter of the request, including, but not limited to, all DOCUMENTS and tangible things which reflect, record, memorialize, discuss, consider, review, show, mention, analyze, indicate, contain, identify, incorporate, deal with, report on the subject matter of the request, speak of in any way, or pertain to in any way. 5. “COMMUNICATIONS” means correspondence, conversations and all other forms of information exchange, whether written, verbal, by telephone, electronic mail (e-mail), facsimile, instant/text messaging or other mode of transmission. 6. “DOCUMENT” or “DOCUMENTS” means all matter discoverable under Federal Rules of Civil Procedure 26 and 34, including, without limitation, any handwritten, printed, transcribed, impressed, reported, recorded or graphic matter, or other physical or tangible embodiment of communication, however produced or reproduced, now or at any time in YOUR possession, custody or control, including but not limited to all agreements, contracts, correspondence, letters, telegrams, messages, telephone records and notations, including text/instant messaging, electronic mail (e-mails), summaries, statistical statements, bills, invoices, ledgers, journals, log books, informal books of records and account, reports, memoranda, notes, minutes, notebooks, drafts, photographs, books, articles, memoranda or other memorialization of conversations or communications, transcriptions, audio or visual recordings, pleadings, and other writings, including drafts of the foregoing upon which notations in writing have been made which do not appear on the originals, computer-readable media and electronically-stored information. Without limitation of the term “control” as used in the preceding sentence, a DOCUMENT is deemed to Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 7 of 75 Page ID #:1440 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 3 – HELWAN REQUEST FOR PRODUCTION, SET ONE TO GLOBE R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e be in YOUR control if YOU are able to and/or have the right to secure the document or a copy thereof from a person or public or private entity having actual physical possession thereof, and includes originals, non-identical copies and drafts of all written, recorded, graphic or photographic matter, however produced or reproduced, pertaining in any manner to the subject matter indicated and includes any other pertinent information set forth in written language (English or otherwise) or the electronic visual or symbolic representation thereof. INSTRUCTIONS 1. Pursuant to Rule 26(e) of the Federal Rules of Civil Procedure, these document requests shall be deemed to be continuing in nature so that if YOU subsequently discover or obtain possession, custody or control of any DOCUMENT previously requested or required to be produced, YOU shall promptly make such DOCUMENT available. 2. YOU must produce all DOCUMENTS responsive to these requests that are in YOUR actual or constructive possession, custody or control, including all DOCUMENTS within the actual or constructive possession, custody or control of any representative, agent, employee, attorney, accountant, investigator or any PERSON acting for YOU or on YOUR behalf. 3. All DOCUMENTS are to be produced in the files in which such DOCUMENTS have been maintained and in the order within each file in which such DOCUMENTS have been maintained. 4. If YOU withhold any DOCUMENT(S) from production on the basis of a claim of attorney-client or any other privilege, or on the basis of the attorney work- product doctrine, set forth with specificity the privilege or work product claim and furnish a list identifying each DOCUMENT for which the privilege or work product doctrine is claimed, together with: Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 8 of 75 Page ID #:1441 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 4 – HELWAN REQUEST FOR PRODUCTION, SET ONE TO GLOBE R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e a. a brief description of the nature and subject matter, including the title and type of the DOCUMENT; b. the date of preparation; c. the name and title of the author(s); d. the name and title of the addresses(s); e. the name and title of all persons to whom the DOCUMENT was sent, including blind carbon copies; f. the number of pages; g. the document request(s) to which the withheld information or DOCUMENT is otherwise responsive; and h. the complete basis upon which you contend you are entitled to withhold the information or DOCUMENT from production. 5. If YOU know of the existence, past or present, of any DOCUMENT described herein, but are unable to produce such DOCUMENT because it is not presently in YOUR possession, custody or control, YOU shall so state in the response and shall identify (by title if any, nature of DOCUMENT and subject matter) such DOCUMENT and shall identify (by name, address and telephone number) the PERSON in whose possession, custody or control the DOCUMENT was last known to reside. 6. If any DOCUMENT requested herein has been lost, discarded or destroyed, the DOCUMENT so lost, discarded or destroyed shall be identified as completely as possible in YOUR response to the particular request, including, without limitation, the following information: date, content, author(s) and recipient(s) of the DOCUMENT(S); date of disposal; manner of disposal and PERSON disposing of the DOCUMENT(S). YOU shall further identify in YOUR response to the request the name, address and telephone number of the PERSON in whose possession, custody or control the DOCUMENT was last known to reside. Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 9 of 75 Page ID #:1442 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 5 – HELWAN REQUEST FOR PRODUCTION, SET ONE TO GLOBE R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e REQUESTS FOR PRODUCTION REQUEST FOR PRODUCTION NO. 1 The original, signed version of the EXCLUSIVE EXPORT AGENCY AGREEMENT with original or wet signatures and seal of the signatories thereto, a copy of which is attached to YOUR First Amended Complaint. REQUEST FOR PRODUCTION NO. 2 All originals or duplicate copies of fully executed versions of the EXCLUSIVE EXPORT AGENCY AGREEMENT. REQUEST FOR PRODUCTION NO. 3 Any and all versions of the EXCLUSIVE EXPORT AGENCY AGREEMENT with original or wet signatures and seals of the signatories thereto as counterparts, or otherwise. REQUEST FOR PRODUCTION NO. 4 Any and all electronic versions of the EXCLUSIVE EXPORT AGENCY AGREEMENT in native format, which contains the author, created date, last modified and edited date(s). REQUEST FOR PRODUCTION NO. 5 Any and all copies of the EXCLUSIVE EXPORT AGENCY AGREEMENT in electronic or hard-copy form. REQUEST FOR PRODUCTION NO. 6 Any and all DOCUMENTS RELATING TO the negotiation of the EXCLUSIVE EXPORT AGENCY AGREEMENT. REQUEST FOR PRODUCTION NO. 7 Any and all DOCUMENTS RELATING TO the execution of the EXCLUSIVE EXPORT AGENCY AGREEMENT. Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 10 of 75 Page ID #:1443 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 6 – HELWAN REQUEST FOR PRODUCTION, SET ONE TO GLOBE R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e REQUEST FOR PRODUCTION NO. 8 Any and all DOCUMENTS RELATING TO the authenticity of the EXCLUSIVE EXPORT AGENCY AGREEMENT. REQUEST FOR PRODUCTION NO. 9 Any and all DOCUMENTS RELATING TO the genuineness of the EXCLUSIVE EXPORT AGENCY AGREEMENT. REQUEST FOR PRODUCTION NO. 10 Any and all DOCUMENTS RELATING TO the validity of the EXCLUSIVE EXPORT AGENCY AGREEMENT. REQUEST FOR PRODUCTION NO. 11 Any and all DOCUMENTS RELATING TO the enforceability of the EXCLUSIVE EXPORT AGENCY AGREEMENT. REQUEST FOR PRODUCTION NO. 12 Any and all DOCUMENTS reflecting COMMUNICATIONS RELATING TO the negotiation of the EXCLUSIVE EXPORT AGENCY AGREEMENT. REQUEST FOR PRODUCTION NO. 13 Any and all DOCUMENTS reflecting COMMUNICATIONS RELATING TO the execution of the EXCLUSIVE EXPORT AGENCY AGREEMENT. REQUEST FOR PRODUCTION NO. 14 Any and all DOCUMENTS reflecting YOUR COMMUNICATIONS with MOHAMED ABDULLAH regarding the EXCLUSIVE EXPORT AGENCY AGREEMENT. REQUEST FOR PRODUCTION NO. 15 Any and all DOCUMENTS RELATING TO YOUR relationship(s) with MOHAMED ABDULLAH, whether business, financial, familial, social or personal relationship(s). Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 11 of 75 Page ID #:1444 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 7 – HELWAN REQUEST FOR PRODUCTION, SET ONE TO GLOBE R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e REQUEST FOR PRODUCTION NO. 16 Any and all DOCUMENTS reflecting YOUR COMMUNICATIONS with anyone (other than MOHAMED ABDULLAH) employed by Helwan Portland Cement Co. (now doing business as Helwan Cement Company S.A.E.) regarding the EXCLUSIVE EXPORT AGENCY AGREEMENT. REQUEST FOR PRODUCTION NO. 17 Any and all DOCUMENTS RELATING TO the approval or ratification of the EXCLUSIVE EXPORT AGENCY AGREEMENT by Helwan Portland Cement Co. (now doing business as Helwan Cement Company S.A.E.). REQUEST FOR PRODUCTION NO. 18 Any and all DOCUMENTS reflecting COMMUNICATIONS with anyone (other than MOHAMED ABDULLAH) employed by Helwan Portland Cement Co. (now doing business as Helwan Cement Company S.A.E.) regarding the approval or ratification of the EXCLUSIVE EXPORT AGENCY AGREEMENT. REQUEST FOR PRODUCTION NO. 19 Any and all DOCUMENTS reflecting any reference to the EXCLUSIVE EXPORT AGENCY AGREEMENT prior to 2006. REQUEST FOR PRODUCTION NO. 20 Any and all DOCUMENTS RELATING TO YOUR incorporation in the State of California. REQUEST FOR PRODUCTION NO. 21 Any and all DOCUMENTS RELATING TO YOUR suspension in the State of California between 2002 and the present. REQUEST FOR PRODUCTION NO. 22 Any and all DOCUMENTS RELATING TO YOUR reinstatement in the State of California between 2002 and the present. Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 12 of 75 Page ID #:1445 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 8 – HELWAN REQUEST FOR PRODUCTION, SET ONE TO GLOBE R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e REQUEST FOR PRODUCTION NO. 23 Any and all DOCUMENTS RELATING TO YOUR incorporation in any place other than the State of California between 2002 and the present. REQUEST FOR PRODUCTION NO. 24 Any and all DOCUMENTS RELATING TO YOUR suspension in any place other than the State of California between 2002 and the present. REQUEST FOR PRODUCTION NO. 25 Any and all DOCUMENTS RELATING TO YOUR reinstatement in any place other than the State of California between 2002 and the present. REQUEST FOR PRODUCTION NO. 26 Any and all DOCUMENTS RELATING TO any licenses, certificates, registrations or powers of attorney that YOU have held since March 6, 2002. REQUEST FOR PRODUCTION NO. 27 Any and all DOCUMENTS RELATING TO the suspension or expiration of any licenses, certificates, registrations or powers of attorney that YOU have held since March 6, 2002. REQUEST FOR PRODUCTION NO. 28 Any and all DOCUMENTS RELATING TO the reinstatement of any licenses, certificates, registrations or powers of attorney that YOU have held since March 6, 2002. / / / / / / / / / / / / Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 13 of 75 Page ID #:1446 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 9 – HELWAN REQUEST FOR PRODUCTION, SET ONE TO GLOBE R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e REQUEST FOR PRODUCTION NO. 29 Any and all DOCUMENTS RELATING to YOUR name change from The Globe Corporation to Tahaya Misr Investment Inc. Dated: May 27, 2016 Respectfully submitted, REED SMITH LLP By: /s/ Monica M. Ortiz Lorenzo E. Gasparetti Monica M. Ortiz Attorneys for Defendant and Counterclaimant Helwan Cement Company S.A.E. Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 14 of 75 Page ID #:1447 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 15 of 75 Page ID #:1448 Exhibit 2 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 16 of 75 Page ID #:1449 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 17 of 75 Page ID #:1450 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 18 of 75 Page ID #:1451 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 19 of 75 Page ID #:1452 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 20 of 75 Page ID #:1453 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 21 of 75 Page ID #:1454 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 22 of 75 Page ID #:1455 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 23 of 75 Page ID #:1456 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 24 of 75 Page ID #:1457 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 25 of 75 Page ID #:1458 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 26 of 75 Page ID #:1459 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 27 of 75 Page ID #:1460 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 28 of 75 Page ID #:1461 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 29 of 75 Page ID #:1462 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 30 of 75 Page ID #:1463 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 31 of 75 Page ID #:1464 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 32 of 75 Page ID #:1465 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 33 of 75 Page ID #:1466 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 34 of 75 Page ID #:1467 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 35 of 75 Page ID #:1468 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 36 of 75 Page ID #:1469 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 37 of 75 Page ID #:1470 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 38 of 75 Page ID #:1471 Exhibit 3 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 39 of 75 Page ID #:1472 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 40 of 75 Page ID #:1473 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 41 of 75 Page ID #:1474 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 42 of 75 Page ID #:1475 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 43 of 75 Page ID #:1476 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 44 of 75 Page ID #:1477 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 45 of 75 Page ID #:1478 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 46 of 75 Page ID #:1479 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 47 of 75 Page ID #:1480 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 48 of 75 Page ID #:1481 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 49 of 75 Page ID #:1482 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 50 of 75 Page ID #:1483 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 51 of 75 Page ID #:1484 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 52 of 75 Page ID #:1485 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 53 of 75 Page ID #:1486 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 54 of 75 Page ID #:1487 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 55 of 75 Page ID #:1488 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 56 of 75 Page ID #:1489 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 57 of 75 Page ID #:1490 Exhibit 4 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 58 of 75 Page ID #:1491 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 59 of 75 Page ID #:1492 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 60 of 75 Page ID #:1493 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 61 of 75 Page ID #:1494 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 62 of 75 Page ID #:1495 Exhibit 5 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 63 of 75 Page ID #:1496 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) DISCLOSURE OF EXPERT WITNESS BY DEFENDANT AND COUNTER-CLAIMANT HELWAN CEMENT COMPANY S.A.E. R E E D S M IT H L L P A l im it ed l ia b il it y p ar tn er sh ip f o rm ed i n t h e S ta te o f D el aw ar e Lorenzo E. Gasparetti (SBN 135976) Email: lgasparetti@reedsmith.com REED SMITH LLP 355 South Grand Avenue Suite 2900 Los Angeles, CA 90071-1514 Telephone: +1 213 457 8000 Facsimile: +1 213 457 8080 Peter M. Ellis (Admitted Pro Hac Vice) Email: pellis@reedsmith.com REED SMITH LLP 10 South Wacker Drive Chicago, IL 60606-7507 Telephone: +1 312 207 1000 Facsimile: +1 312 207 6400 Attorneys for Defendant and Counter-Claimant Helwan Cement Company S.A.E. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Plaintiffs, v. HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability; et al, Defendants. HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability, Counter-Claimant, v. TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Counter-Defendant. Case No. 2:16-cv-1001 CAS (AFMx) Honorable Christina A. Snyder DISCLOSURE OF EXPERT WITNESS BY DEFENDANT AND COUNTER-CLAIMANT HELWAN CEMENT COMPANY S.A.E. Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 64 of 75 Page ID #:1497 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 1 – DISCLOSURE OF EXPERT WITNESS BY DEFENDANT AND COUNTER-CLAIMANT HELWAN CEMENT COMPANY S.A.E. R E E D S M IT H L L P A l im it ed l ia b il it y p ar tn er sh ip f o rm ed i n t h e S ta te o f D el aw ar e Pursuant to the Court’s Order and Joint Stipulation of Plaintiff/Counter- Defendant Tahaya Misr Investment Inc. (“Plaintiff”, formerly doing business as The Globe Corporation or “Globe”) and Defendant/Counter-Claimant Helwan Cement Company S.A.E. (“Helwan”) of August 4, 2016, Helwan hereby discloses the following expert it expects to call as a witness at the trial of this action: David L. Oleksow, Forensic Document Examiner – 9340 Fuerte Drive, Ste. 204, La Mesa, California 91941. Mr. Oleksow’s Curriculum Vitae is attached hereto as Exhibit A. Mr. Oleksow is expected to render opinions and testify regarding the authenticity and genuineness of the alleged March 6, 2002 Exclusive Export Agency Agreement (the “Agreement”) as well as the identity of the writer of the alleged signature of Mohamed Abdullah on the alleged Agreement and whether the alleged signature of Mohamed Abdullah on the alleged original, wet ink version of the Agreement can be identified as an original or a copy. Mr. Oleksow has reviewed documents produced in the course of this litigation and will be prepared to state and testify as to his final opinions once Plaintiff has completed its production (in particular, of the alleged original, wet ink version of the Agreement, which has previously been requested in discovery and is the subject of a pending motion to compel) and any follow-on depositions have been taken (in particular, of Plaintiff’s President, Mohamed Abouelsaad, which was previously noticed and is also the subject of a pending motion to compel) and those documents and deposition testimony have been reviewed by him, as necessary. In addition, Mr. Oleksow may be asked to comment on the opinions expressed by other witnesses, including but not limited to Plaintiff’s experts, if any, as well as any evidence upon /// /// /// Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 65 of 75 Page ID #:1498 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 2 – DISCLOSURE OF EXPERT WITNESS BY DEFENDANT AND COUNTER-CLAIMANT HELWAN CEMENT COMPANY S.A.E. R E E D S M IT H L L P A l im it ed l ia b il it y p ar tn er sh ip f o rm ed i n t h e S ta te o f D el aw ar e which they rely, to the extent they relate to Mr. Oleksow’s area of expertise. Dated: September 14, 2016 Respectfully submitted, REED SMITH LLP By: Lorenzo E. Gasparetti Monica M. Ortiz Attorneys for Defendant and Counter- Claimant Helwan Cement Company S.A.E. Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 66 of 75 Page ID #:1499 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 67 of 75 Page ID #:1500 CURRICULUM VITAE: DAVID L. OLEKSOW 1 of 5 David L. Oleksow Forensic Document Examiner Member: Diplomate, Southwestern Association American Board of 9340 Fuerte Drive, Ste. 204 of Forensic Document Examiners La Mesa, California 91941 Forensic Document Examiners TELEPHONE (619) 595-7099 American Academy of Forensic Sciences Member FAX (619) 741-4580 Email: dave@dlofde.sdcoxmail.com Website: www.qdspeciailist.com CURRICULUM VITAE DAVID L. OLEKSOW FORENSIC DOCUMENT EXAMINER PROFESSIONAL CERTIFICATION: Diplomate, American Board of Forensic Document Examiners, 1998, Certification of Qualifications in Forensic Document Examination- Certificate # 296. Lifetime Teaching Credential, California Community Colleges PROFESSIONAL MEMBERSHIPS AND ATTENDANCE: International Association for Identification (1975-1999) Southwestern Association of Forensic Document Examiners - Charter Member (Former Member Board of Directors, past President) (1981-present) Full member of the American Academy of Forensic Sciences, Questioned Documents Section. (1998-present) Member of ASTM E30 Committee, Subcommittee Member. Attendance and participation at meetings of The American Society of Questioned Document Examiners and other forensic organizations APPRENTICESHIP TRAINING IN QUESTIONED DOCUMENTS: Completion of a two year, full time apprentice training program in the field of Questioned Documents and handwriting examination under the supervision and guidance of Mr. Ralph Schoonover at the San Diego Police Department beginning in March 1975. This training covered all aspects of questioned documents examination including: Handwriting and Handprinting Comparisons, the determination of the true authorship of questioned writings, forgeries, typewriter and checkwriter comparisons, copying machines and other mechanical impressions, erasures and other forms of alterations, obliterated writings and their decipherment, paper and ink analysis, as well as other numerous documents problems. Completion of a one-semester course in the examination of questioned documents taught by D. Norman Gray at Grossmont College. Mr. Gray was a former FBI Document Examiner, private examiner, and college instructor. Completion of a course in Fraud Investigation, including fraudulent schemes involving documents - Miramar College, Robert Newsom, L.L.B., Instructor. Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 68 of 75 Page ID #:1501 CURRICULUM VITAE: DAVID L. OLEKSOW 2 of 5 SPECIALIZED TRAINING COURSES IN QUESTIONED DOCUMENTS: January 1997: Difficult and Complex Handwriting Examinations Seminar, ABFDE Sponsored Course, Burlingame, CA (20 hours) May 1987: Medi-Legal Institute, San Diego, CA "How to Read and Effectively Use Medical Records and Reports" (16 hours) June 1986: FBI Academy, Quantico, Virginia, "Identification and Classification of Typewriters", Federal Laboratory Instructors (40 hours) August 1985 & FBI Academy, Quantico, Virginia and Albany, N.Y.; "First & Second International June 1999: Symposiums on Questioned Documents"; National and International Instructors/Experts (72 hours) Forensic Sciences Foundation, Inc., Sponsor; "Identification and Classification of Office Copiers"; Mr. James Kelly, Georgia Bureau of Investigation (12 hours) March 1983: FBI Academy, Quantico, Virginia, "Fundamentals of Questioned Documents" Accredited by the University of Virginia, Federal Laboratory Instructors (80 hours) December 1979: FBI Academy, Quantico, Virginia, "Forensic Crime Laboratory Photography" William L. Wempe, FBI Instructor (120 hours) August 1979: San Jose State University, San Jose, CA, "Questioned Documents Investigation" Administration of Justice Bureau, Dr. Richard Chang & D.O.J. Instructors (40 hours) Other specialized training courses, workshops, and symposiums with the State of California Department of Justice, Southwestern Association of Forensic Document Examiners, American Society of Questioned Document Examiners, American Academy of Forensic Sciences and American Board of Forensic Document Examiners. INSTRUMENTAL TRAINING: I.R./U.V., Videospectral Comparator, Electrostatic Detection Apparatus (ESDA), Stereoscopic Microscope/Photomicroscopy, Photocopier and Printer Machine Analysis, Electronic Signature Examination, "Printfinder" Pulsed Laser System, Alternate Light Source Systems, measurement devices, analytical instruments, photographic apparatus, Photoshop and graphic computer analysis, and PowerPoint. Training through professional organizations, manufacturers, governmental law enforcement agencies and in-service training. FORMAL EDUCATION: San Diego Police Academy, San Diego Police Training Division (1972-1973) Police Patrolman San Diego Community College District (1979) San Diego, CA Associate in Arts: Criminal Justice Investigations Grossmont Community College (1985) El Cajon, CA Associate in Science: Evidence Technology National University (1997), San Diego, CA Bachelor of Science: Criminal Justice San Diego State University, San Diego, CA (1970-1972+) Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 69 of 75 Page ID #:1502 CURRICULUM VITAE: DAVID L. OLEKSOW 3 of 5 EXPERIENCE (CRIMINAL): January 2006- Present: Private Criminal Practice, Sole Proprietor January 2002-Dec. 2005: Forensic Science Laboratories, LLC, Examiner of Questioned Documents, CEO, COO. July 1993– Dec. 2001: Forensic Science Laboratories LLC, Examiner of Questioned Documents, VP, COO, CFO March 1990 - June 1993: Lead Document Examiner, San Diego Police Department Crime Laboratory, Questioned Document Section. April 1988 - March 1990: San Diego Sheriff's Department Crime Laboratory, Questioned Document Section. March 1975 - April 1988: San Diego Police Department Crime Laboratory, Questioned Document Section. EXPERIENCE (CIVIL): January 2002- Present: Private Civil Practice, Sole Proprietor 1986 - 2001: Forensic Science Laboratories LLC, Examiner of Questioned Documents, VP, COO 1980 - 1986: Private Civil Practice, San Diego, CA Since 1975 I have examined more than 14,000 document cases in criminal investigations and prosecution and civil litigation. These cases were submitted by the San Diego Police Department, City Attorney's Office, District Attorney's Office, U.S. Attorney's Offices in San Diego, Georgia and Arizona, the State Attorney General's Office, Federal Bureau of Investigation, U.S. Customs, Drug Enforcement Administration, ATF, various judges and other State, Local, Military, Federal Agencies and Federal Defenders, as well as numerous banks, attorneys, and law firms. I have appeared, qualified as an expert, and presented documents testimony in Superior and Municipal Court of San Diego as well as before various County Grand Juries. I have also presented testimony on my findings at the Federal Court level in San Diego, Los Angeles, San Francisco and Georgia, and in court martial proceedings, affidavits, special hearings and depositions. My expert opinions have, on numerous occasions, been accepted in stipulation in lieu of verbal testimony. I have given testimony on numerous occasions in depositions regarding civil litigations. As Senior Document Examiner for the San Diego Police Department, I was responsible for case assignments, liaison with other agencies, staff reports and training of subordinates. Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 70 of 75 Page ID #:1503 CURRICULUM VITAE: DAVID L. OLEKSOW 4 of 5 SPECIAL ASSIGNMENTS: 1996-1997 Committee Member, Scientific Working Group on Document Examination. (SWGDOC)- Sponsored by the FBI and National Institute of Justice, Washington, D.C. 1998-2000 Grant Review Panel For The National Institute of Justice re: Validation Studies on Handwriting Identification and Procedures, Washington, D.C. 2005 -2007 Committee Member, Scientific Working Group on Document Examination (SWGDOC), Preparation and review of standards for ASTM, sponsored by the FBI, Washington, D.C. 2005 -2010 Director of the American Board of Forensic Document Examiners, Inc., Member of Executive Committee (2005 & 2006), Board Secretary (2007& 2008) & Board President(2009 & 2010). TEACHING ASSIGNMENTS: 1981 - 1982 Miramar College, San Diego, CA "Police Officers Standard and Training" Program 1983 - 1987 Grossmont College, El Cajon, CA "Questioned Documents" Semester Course 1985 - 1986 National University, San Diego, CA Masters course in Forensic Sciences Degree Program May, 1997 Instructor, “Advanced Study Course in the Examination of Medical Records”, Miami, FL (taught to journeyman level Document Examiners) March, 1998 Instructor, “Advanced Study Course in the Examination of Medical Records”, San Diego, CA. (taught to journeyman level Document Examiners) August 2008 Instructor, “ABFDE Business Records Workshop”, Asheville, NC. Numerous lectures to law students, attorneys, physicians, nurses and law enforcement officials. I have participated in training Mr. Thomas Van Valkenburgh and Mr. Kenneth Allen, both of New Mexico Crime Laboratories, Sandra Ramsey with the Office of the Arizona State Attorney General, Hugh Curfman and Randy E. Gibson of the San Diego Police Department Crime Laboratory and Amy L. Matranga in their apprenticeship training programs. AWARDS: Oct. 1996: J.L “John” Hale, Jr. Achievement Award. In Recognition of Distinguished Scientific Advancement in The Field of Questioned Documents. Southwestern Association of Forensic Document Examiners. COMMENDATIONS: San Diego District Attorney's Office, San Diego Police Department, U.S. Attorney's Office, F.B.I., U.S. Secret Service, U.S. Customs, California Attorney Generals Office, D.E.A., etc. Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 71 of 75 Page ID #:1504 CURRICULUM VITAE: DAVID L. OLEKSOW 5 of 5 TECHNICAL PAPERS, RESEARCH & PRESENTATIONS: 2003 “The Effects of Gel Pens on Handwriting Details”, Annual Meeting of The American Society of Questioned Document Examiners, Baltimore, MD. 2000 "Protocol for Business Records Examination", Annual Meeting of American Academy of Forensic Sciences, Reno, Nevada. 1999 "Protocol for Business Records Examinations, "Joint Meeting of International Association of Forensic Sciences & American Society of Questioned Document Examiners. 1998 “Examination of Medical Records”, ABFDE Advanced Study Course, Instructor, San Diego, CA. 1997 “Examination of Medical Records”, Advanced Study Course, Instructor, Miami, Florida. 1996 “Suggested Methodology and Procedures in Medical Records Examinations”, Publication of the American Board of Forensic Document Examiners. 1994 "Class Characteristics of Mexican Writers Residing in the United States of America," Presented American Society of Questioned Document Examiners and SWAFDE. 1994 "Decipherment of Indented Impressions with Dry Erase Markers," Presented American Society of Questioned Document Examiners and SWAFDE. 1994 "Low Tack Tape Decipherment of Overmarked Writings," Presented American Society of Questioned Document Examiners. 1992/1994 “Decipherment of Opaqued Writing with Acetate - Assisted Photocopying," Journal of Forensic Sciences, Volume 37 Number 6 November 1992. Presented to American Society of Questioned Document Examiners and SWAFDE. (1994) 1991 Panelist, "Professional Ethics," American Academy of Forensic Sciences. 1987 "Business Records Examination (Alterations of Handwritten Documents)," Technical Paper, Southwestern Association of Forensic Documents Examiners. 1987 "Association Through Random Damage of Paper Evidence," Technical Paper, Southwestern Association of Forensic Documents Examiners. 1985 "Altered Business Records," Workshop for SWAFDE membership. In conjunction with local SWAFDE examiners. 1982 "Cross Examination of Pseudo Experts," San Diego Police Department Video Presentation, for the Southwestern Association of Forensic Documents Examiners. In conjunction with local SWAFDE examiners. 1979 "Xerox 6500 Color Copier," Technical Paper and Presentation, California Association of Documents Examiners, Long Beach, CA This list is not inclusive of all paper, research and presentations conducted during the course of my career. Revised 11/2013 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 72 of 75 Page ID #:1505 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE US_ACTIVE-128508618.1 R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e PROOF OF SERVICE TAHAYA MISR INVESTMENT INC. v. HELWAN CEMENT S.A.E. USDC Central District of CA Case No. 2:16-cv-1001 CAS (AFMx) I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is REED SMITH LLP, 355 South Grand Avenue, Suite 2900, Los Angeles, California 90071-1514. On September 14, 2016, I served the following document(s) by the method indicated below: DISCLOSURE OF EXPERT WITNESS BY DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E.  by transmitting via facsimile on this date from fax number +1 213 457 8080 the document(s) listed above to the fax number(s) set forth below. The transmission was completed before 5:00 PM and was reported complete and without error. The transmission report, which is attached to this proof of service, was properly issued by the transmitting fax machine. Service by fax was made by agreement of the parties, confirmed in writing. The transmitting fax machine complies with Cal. R. Ct. 2.306.  by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, California addressed as set forth below. I am readily familiar with the firm’s practice of collection and processing of correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in this Declaration.  by placing the document(s) listed above in a sealed envelope(s) and consigning it to an express mail service for guaranteed delivery on the next business day following the date of consignment to the address(es) set forth below. Eric R. Maier, Esq. Louis E. Shoch, Esq. MAIER SHOCH LLP 1001 Hermosa Avenue Suite 206 Hermosa Beach, California 90254 Attorney for Plaintiff Telephone: (310) 200-9065 Facsimile: (310) 634-0361 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on September 14, 2016, at Los Angeles, California. Mary Hong Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 73 of 75 Page ID #:1506 Exhibit 6 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 74 of 75 Page ID #:1507 Case 2:16-cv-01001-CAS-AFM Document 95-3 Filed 09/28/16 Page 75 of 75 Page ID #:1508 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 1 – STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF DEFENDANT AND COUNTER-CLAIMANT HELWAN CEMENT COMPANY S.A.E. MOTION FOR SUMMARY JUDGMENT R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Lorenzo E. Gasparetti (SBN 135976) Email: lgasparetti@reedsmith.com REED SMITH LLP 355 South Grand Avenue Suite 2900 Los Angeles, CA 90071-1514 Telephone: +1 213 457 8000 Facsimile: +1 213 457 8080 Peter M. Ellis (Admitted Pro Hac Vice) Email: pellis@reedsmith.com REED SMITH LLP 10 South Wacker Drive Chicago, IL 60606-7507 Telephone: +1 312 207 1000 Facsimile: +1 312 207 6400 Attorneys for Defendant and Counter-Claimant Helwan Cement Company S.A.E. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Plaintiffs, v. HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability, et al, Defendants. Case No. 2:16-cv-1001 CAS (AFMx) Honorable Christina A. Snyder Magistrate Judge Alexander F. MacKinnon STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION Date: November 14, 2016 Time: 10:00 a.m. Place: Courtroom 5, 2nd Floor [Filed concurrently with Notice of Motion and Motion, Memorandum of Points & Authorities, Declaration of Lorenzo E. Gasparetti, Request for Judicial Notice and [Proposed] Order] HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability, Counter-Claimant, v. TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Counter-Defendant. Case 2:16-cv-01001-CAS-AFM Document 95-4 Filed 09/28/16 Page 1 of 5 Page ID #:1509 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 2 – STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF DEFENDANT AND COUNTER-CLAIMANT HELWAN CEMENT COMPANY S.A.E. MOTION FOR SUMMARY JUDGMENT R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Pursuant to California Central District Court Local Rule 56-1, Defendant and Counter-Claimant Helwan Cement Company S.A.E. (“Helwan”) hereby submits the following Statement of Uncontroverted Facts and Conclusions of Law in support of its Motion for Summary Judgment or, Alternatively, Summary Adjudication (“Motion”). All of the following undisputed facts support Helwan’s entitlement to summary judgment or, alternatively, summary adjudication as to (1) all of Plaintiff and Counter- Defendant Tahaya Misr Investment Inc.’s (“Plaintiff”, formerly doing business as The Globe Corporation or “Globe”) claims for relief in the First Amended Complaint and (2) Helwan’s Counter-Claim for Declaratory Judgment. UNCONTROVERTED FACT SUPPORTING EVIDENCE 1. There is no admissible evidence of the alleged March 6, 2002 Exclusive Export Agency Agreement (the “Agreement”).  June 20, 2016, Tr. of Scheduling Conference, Dkt. Nos. 48, 51.  August 4, 2016, Joint Stipulation, Dkt. No. 58.  August 4, 2016, Order on Phased Discovery and Mtn. for Summary Judgment Scheduling Deadlines, Dkt No. 59.  August 29, 2016, Mtn. to Compel Attendance at Deposition and Production of Documents, Dkt No. 76; September 6, 2016, Supp. Mtn. to Compel Attendance at Deposition and Production of Documents, Dkt. No. 83.  September 6, 2016, Mtn. to Dismiss Case 2:16-cv-01001-CAS-AFM Document 95-4 Filed 09/28/16 Page 2 of 5 Page ID #:1510 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 3 – STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF DEFENDANT AND COUNTER-CLAIMANT HELWAN CEMENT COMPANY S.A.E. MOTION FOR SUMMARY JUDGMENT R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e UNCONTROVERTED FACT SUPPORTING EVIDENCE Plaintiff’s Compl., Dkt. Nos. 79-81.  September 20, 2016, Order on Mtn. to Compel, Dkt. Nos, 90, 91.  Helwan’s Request for Production of Documents, Set No. 1, and Plaintiff’s Response and Supplemental Response thereto (attached to Declaration of Lorenzo E. Gasparetti (“Gasparetti Decl.”), Exhs.1-3, ¶¶ 2-3).  Helwan’s Notice of Deposition of M. Abouelsaad (Gasparetti Decl., Exh. 4, ¶ 5).  Helwan’s Expert Disclosure (Gasparetti Decl., Exh. 5, ¶ 6)  September 23, 2016, Letter from Plaintiff’s Counsel (Gasparetti Decl., Exh. 6, ¶ 7). 2. Plaintiff filed its original Complaint in this action on December 29, 2015.  Compl., Exh. A, Dkt. No. 1. 3. Plaintiff’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing accrued as early as 2003.  South Cairo Experts Department Lawsuit Report, Juhany Decl., Exh. F, Dkt. No. 53. 4. From 2004 to 2015, Plaintiff ‘s  California Secretary of State Case 2:16-cv-01001-CAS-AFM Document 95-4 Filed 09/28/16 Page 3 of 5 Page ID #:1511 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 4 – STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF DEFENDANT AND COUNTER-CLAIMANT HELWAN CEMENT COMPANY S.A.E. MOTION FOR SUMMARY JUDGMENT R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e UNCONTROVERTED FACT SUPPORTING EVIDENCE corporate status was suspended by the California Secretary of State and the State of California Franchise Tax Board. Corporate documents, Request for Judicial Notice (“RJN”), Exh. 1. 5. The provision of the alleged Agreement imposing interest at a rate of 1% compounded weekly on unpaid commissions is an illegal penalty and unenforceable, making any claimed damages based thereon non-recoverable.  Compl., Exh. A, Dkt. No. 1.  First Amended Compl., Exh. A, Dkt. No. 22. In conclusion, and based on the above undisputed facts, Helwan’s Motion should be granted for the following reasons:  There is no admissible evidence of the alleged Agreement on which this entire case rests  Plaintiff’s claims accrued in 2002 and are thus time barred by the four- year statute of limitations under California Code of Civil Procedure section 337.  Plaintiff waived any rights under the alleged Agreement by virtue of its corporate suspension from 2004 to 2015.  The interest provision of the alleged Agreement is an illegal penalty and thus unenforceable, making any claimed damages based thereon non- recoverable. /// /// Case 2:16-cv-01001-CAS-AFM Document 95-4 Filed 09/28/16 Page 4 of 5 Page ID #:1512 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – 5 – STATEMENT OF UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW IN SUPPORT OF DEFENDANT AND COUNTER-CLAIMANT HELWAN CEMENT COMPANY S.A.E. MOTION FOR SUMMARY JUDGMENT R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Accordingly, Helwan’s Motion should be granted in its entirety, with judgment entered in favor of Helwan and against Plaintiff on (1) Plaintiff’s First Amended Complaint and (2) Helwan’s Counter-Claim for Declaratory Judgment. DATED: September 28, 2016 REED SMITH LLP By: /s/ Lorenzo E. Gasparetti Lorenzo E. Gasparetti Attorney for Defendant and Counter- Claimant Helwan Cement Company S.A.E. Case 2:16-cv-01001-CAS-AFM Document 95-4 Filed 09/28/16 Page 5 of 5 Page ID #:1513 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) REQUEST FOR JUDICIAL NOTICE ISO HELWAN’S MOTION FOR SUMMARY JUDGMENT R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Lorenzo E. Gasparetti (SBN 135976) Email: lgasparetti@reedsmith.com REED SMITH LLP 355 South Grand Avenue Suite 2900 Los Angeles, CA 90071-1514 Telephone: +1 213 457 8000 Facsimile: +1 213 457 8080 Peter M. Ellis (Admitted Pro Hac Vice) Email: pellis@reedsmith.com REED SMITH LLP 10 South Wacker Drive Chicago, IL 60606-7507 Telephone: +1 312 207 1000 Facsimile: +1 312 207 6400 Attorneys for Defendant and Counter-Claimant Helwan Cement Company S.A.E. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Plaintiffs, v. HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability; et al, Defendants. HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability, Counter-Claimant, v. TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Counter-Defendant. Case No. 2:16-cv-1001 CAS (AFMx) Honorable Christina A. Snyder Magistrate Judge Alexander F. MacKinnon REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION OF DEFENDANT AND COUNTER- CLAIMANT HELWAN CEMENT COMPANY S.A.E. FOR SUMMARY JUDGMENT OR, ALTERNATIVELY, SUMMARY ADJUDICATION Date: November 14, 2016 Time: 10:00 a.m. Place: Courtroom 5, 2d Floor Compl. Filed: December 29, 2015 [Filed concurrently with Notice of Motion and Motion, Statement of Uncontroverted Facts, Memorandum of Points and Authorities, Statement of Uncontroverted Facts and Conclusions of Law, Declaration of Lorenzo E. Gasparetti and [Proposed] Order] Case 2:16-cv-01001-CAS-AFM Document 95-5 Filed 09/28/16 Page 1 of 10 Page ID #:1514 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 1 – REQUEST FOR JUDICIAL NOTICE ISO HELWAN’S MOTION FOR SUMMARY JUDGMENT R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e Pursuant to Rules 201 and 902 of the Federal Rules of Evidence and Rule 44 of the Federal Rules of Civil Procedure, Defendant and Counter-Claimant Helwan Cement Company S.A.E. (“Helwan”) requests that this Court take judicial notice of the Lawsuit Report by South Cairo Experts Department (see Juhany Decl., Exh. F, Dkt. No. 53) and certain filings with or by the California Secretary of State regarding the corporate status of Plaintiff and Counter-Defendant Tahaya Misr Investment Inc. (“Plaintiff”, formerly doing business as The Globe Corporation or “Globe”) (see Exh. 1 hereto). A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so is self-authenticating and otherwise admissible or judicially noticeable. Fed. R. Evid. 201(b)(2) and 902(3); Fed. R. Civ. P. 44(a)(2). Accordingly, the Court can and should judicially notice the Lawsuit Report by South Cairo Experts Department, a true and correct certified translated copy with original Arabic version of which is within the Court’s record. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (taking judicial notice, as a matter of public record, “pleadings, memoranda, expert reports, etc., from [earlier] litigation[,]” which were thus “readily verifiable”); U.S. v. Squillacote, 221 F.3d 542, 561-63 (4th Cir. 2000) (foreign country department records properly authenticated by official who could attest to the document’s authenticity). In addition, the Court can and should judicially notice certain filings with or by the California Secretary of State regarding Plaintiff’s corporate status, true and correct copies of which are collectively attached hereto as Exhibit 1. Fed. R. Evid. 201(b)(2) and 901(b)(1), (b)(2) and (b)(4); Fed,. R. Civ. P. 44(a)(1); see also See L’Garde, Inc. v. Raytheon Space & Airborne Sys., 805 F.Supp.2d 932, 937-38 (C.D. Cal. 2011) (granting defendant’s request and taking judicial notice of “the results of a search records from the Secretary of State for the State of California corporate search website”); see also C.B. v. Sonora Sch. Dist., 691 F.Supp.2d 1123, 1138 (E.D. Cal. Case 2:16-cv-01001-CAS-AFM Document 95-5 Filed 09/28/16 Page 2 of 10 Page ID #:1515 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE No. 2:16-cv-1001 CAS (AFMx) – 2 – REQUEST FOR JUDICIAL NOTICE ISO HELWAN’S MOTION FOR SUMMARY JUDGMENT R EE D S M IT H L LP A li m ite d lia bi lit y pa rtn er sh ip fo rm ed in th e St at e of D el aw ar e 2009) (“[t]he court may take judicial notice of matters of public record, including duly recorded documents”). Dated: September 28, 2016 Respectfully submitted, REED SMITH LLP By: /s/ Lorenzo E. Gasparetti Lorenzo E. Gasparetti Attorney for Defendant and Counter- claimant Helwan Cement Company S.A.E. Case 2:16-cv-01001-CAS-AFM Document 95-5 Filed 09/28/16 Page 3 of 10 Page ID #:1516 Exhibit 1 Case 2:16-cv-01001-CAS-AFM Document 95-5 Filed 09/28/16 Page 4 of 10 Page ID #:1517 Case 2:16-cv-01001-CAS-AFM Document 95-5 Filed 09/28/16 Page 5 of 10 Page ID #:1518 Case 2:16-cv-01001-CAS-AFM Document 95-5 Filed 09/28/16 Page 6 of 10 Page ID #:1519 Case 2:16-cv-01001-CAS-AFM Document 95-5 Filed 09/28/16 Page 7 of 10 Page ID #:1520 Case 2:16-cv-01001-CAS-AFM Document 95-5 Filed 09/28/16 Page 8 of 10 Page ID #:1521 Case 2:16-cv-01001-CAS-AFM Document 95-5 Filed 09/28/16 Page 9 of 10 Page ID #:1522 Case 2:16-cv-01001-CAS-AFM Document 95-5 Filed 09/28/16 Page 10 of 10 Page ID #:1523