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MARLOWE v. ARGENTINE NAVAL COMMN.

March 14, 1985

RANDALL J. MARLOWE, Plaintiff,
v.
ARGENTINE NAVAL COMMISSION, Defendant



The opinion of the court was delivered by: RICHEY

 CHARLES R. RICHEY, UNITED STATES DISTRICT JUDGE.

 BACKGROUND

 Before the Court is defendant's Motion to Dismiss, opposition thereto, and supporting memoranda. For the reasons herein stated, the Court denies the Motion to Dismiss.

 The parties agree as to all facts material to the instant Motion. This suit is based on an alleged breach of a contract for the purchase of two aircraft by the Argentine Armada (Navy) from plaintiff's assignee, a Panamanian corporation known as Servistan S.A. The contract was negotiated by plaintiff, acting as the seller's representative, and representatives of the Armada and defendant Argentine Naval Commission ("ANC"). The negotiations took place in Buenos Aires, Argentina, and at the ANC headquarters in Washington, D.C. The contract was signed on behalf of the Armada by the then Acting Chief of the Argentine Naval Commission in Washington, D.C., and it identified the purchaser as "ARMADA ARGENTINA -- Argentine Naval Commission having its principal place of business at 630 Indiana Ave., N.W., Washington, D.C. 20004." The contract was signed on behalf of the seller by the plaintiff, Randall J. Marlowe, and the seller was identified as "SERVISTAN S.A. -- P.O. Box 4871 -- Panama 5 -- Republica de Panama, represented in this stand by R.J. MARLOWE & ASSOCIATES, having its place of business at Av. Rivadavia 5154 -- Capital Federal -- ARGENTINA."

 At the time the contract was executed, the seller did not have title to, or possession of, the aircraft. The seller was to obtain the aircraft from an Ecuadorian interest for delivery and sale to the buyer. The contract required that payment of the purchase price, expressed in United States currency, be assured by the buyer by an irrevocable letter of credit. Payment under the letter of credit was to be made in several installments, based upon a contractual schedule. The contract further contained detailed provisions for the inspection and technical approval of the aircraft, taxes, warranties, and conditions for excusable delays. Finally, Article 10 of the contract provided, under the heading "MISCELLANEOUS", as follows:

 
A. This agreement shall be governed by and construed in accordance with the laws of the District of Columbia, U.S.A.
 
B. All notices, requests, demands, or other communications to or upon the respective parties hereto shall be deemed to have given or made when deposited in the mail, postage prepaid, or in the case of telegraphic notice when delivered to the telegraph company or when actually sent by Telex, addressed to Seller, or Buyer, as the case may be, at their respective addresses set forth below:
 
In the case of the Buyer:
 
ARMADA ARGENTINA
 
ARGENTINA (sic) NAVAL COMMISSION
 
630 INDIANA AVE. - N.W.
 
WASHINGTON, D.C. - 20004
 
TEL.: 202-626-2100
 
In the case of the Seller:
 
SERVISTAN S.A.
 
P.O. BOX 4871
 
PANAMA 5 - PANAMA
 
TELEX: 2769 (DIMAR PG).

 Plaintiff filed the complaint in this case on June 19, 1984, alleging breach of contract and fraud. Service of the summons and complaint was made on ANC in Washington, D.C. Service was addressed to:

 
CHIEF, ARGENTINE NAVAL COMMISSION
 
630 INDIANA AVE., N.W.
 
WASHINGTON, D C 20001

 Although defendant received the service, it did not promptly respond to the complaint, and on September 28, 1984, the Court granted plaintiff's motion for default judgment. After plaintiff attached some of defendant's local assets, ANC, on December 3, 1984, moved for relief from the default judgment. By Order of January 30, 1985, the Court, noting the "liberal spirit" of Rule 60(b) as applied to cases involving default judgments, Spann v. Commissioners of the District of Columbia, 143 U.S. App. D.C. 300, 443 F.2d 715, 716 n. 1 (D.C. Cir. 1970), vacated the default judgment against ANC. ANC has now filed the instant Motion to Dismiss. In this Motion, ANC raises three grounds for dismissal: (1) that ANC lacks the capacity to be sued; (2) that service of process was insufficient under the Foreign ...


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