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OVERSEAS PRIVATE INV. CORP. v. INDUSTRIA DE PESCA

March 22, 1996

OVERSEAS PRIVATE INVESTMENT CORPORATION, Plaintiff and Counter-Defendant,
v.
INDUSTRIA de PESCA, N.A., INC., et al., Defendants and Counter-Plaintiffs. GEMINI CAPITAL GROUP, INC., dba GEMINI TUNA FLEET MANAGEMENT GROUP, Counter-Plaintiff, v. OVERSEAS PRIVATE INVESTMENT CORPORATION, Counter-Defendant.


PAUL L. FRIEDMAN, United States District Judge


The opinion of the court was delivered by: FRIEDMAN

This matter is before the Court on the motion of plaintiff and counter-defendant Overseas Private Investment Corporation ("OPIC") to dismiss the counterclaims brought by the defendants and counter-plaintiffs Industria de Pesca, N.A., Inc., Robert A. Grant, John F. Gois, Joseph Gois and Diane Grant and by Gemini Capital Group, Inc., who was not an original party to this action. The Court has carefully considered the excellent briefs of the parties and heard oral argument.

 I. BACKGROUND

 The case arises out of the financing by OPIC of the acquisition and operation of a fleet of tuna vessels by the Yap Fishing Corporation ("YFC") in the Federated States of Micronesia. YFC has three corporate shareholders: defendant Industria de Pesca, N.A., Inc. ("IDP"), a California corporation; the Yap Economic Development Authority ("YEDA"); and National Fisheries Corporation ("NFC"), which is wholly owned by the Federated States of Micronesia. IDP, in turn, has three individual shareholders, all of whom also are defendants in this case: Robert Grant, John Gois and Joseph Gois. *fn1" IDP owns 25 percent of YFC, while the two Yapese sponsors, YEDA and NFC, own the remaining 75 percent. The structure and terms of the venture are contained in two agreements signed by all the parties: the Finance Agreement ("FA") and the Project Completion Agreement ("PCA"). YFC and Gemini also entered into Vessel Management Agreements ("VMA") governing the operation of the tuna vessels.

 In 1992, OPIC guaranteed a $ 9 million loan to YFC to provide financing for the tuna vessels. As a part of the financing arrangement, OPIC required Robert Grant, John Gois and Joseph Gois as individual sponsors to guarantee the OPIC loan and to offer their personal assets as collateral. Finance Agreement at 1-2; Project Completion Agreement P 2(d). The gravamen of OPIC's complaint against IDP, Robert Grant, John Gois and Joseph Gois is that when OPIC called upon defendants to advance the money to guarantee the loan as required under the PCA they breached their respective obligations. IDP was responsible for $ 1.7 million of YFC's obligations, while the individual sponsors had agreed to pay lesser amounts.

 Defendants have asserted five counterclaims against OPIC: release, breach of fiduciary duty, aiding and abetting a breach of fiduciary duty, breach of duty of good faith, and tortious interference with contract. The defendants do not seek money damages but rather recoupment or set-off against any judgment ultimately obtained by OPIC against them. Gemini, which is also owned by Robert Grant, John Gois and Joseph Gois, contracted as vessel manager to operate the tuna vessels for YFC. It joins only the tortious interference counterclaim and seeks money damages against OPIC.

 II. DISCUSSION

 A. Release

 Defendants/counter-plaintiffs assert as their first cause of action a claim for "release." While release may be pleaded as an affirmative defense, there is no independent cause of action for "release." Defendants now claim that they are really seeking a declaratory judgment on the issue to preserve their rights if plaintiff's claims should be dismissed. Nowhere in their counterclaim, however, do they expressly request a declaratory judgment, or even cite the Declaratory Judgment Act, 28 U.S.C. ยง 2201. Count One therefore will be dismissed for failure to state a claim.

 B. Breach of Fiduciary Duty

 OPIC moves to dismiss the second counterclaim alleging breach of fiduciary duty on the ground that no fiduciary relationship arises from a contract between a debtor and a creditor. It maintains that the PCA is a standard financing agreement between OPIC, as lender to YFC, and the defendants as the guarantors of OPIC's loan, and even defendants acknowledge that it would be rare for a lender to have a fiduciary relationship to a borrower or guarantor of a loan. OPIC maintains that the PCA is clear by its terms and nowhere imposes on OPIC any special duty of trust or any duty not to impair collateral. OPIC, it says, was entitled to negotiate with its borrower YFC without breaching any contractual rights or obligations or any implied fiduciary duty to others.

 Defendants/counter-plaintiffs, on the other hand, maintain that OPIC assumed a special relationship of trust and confidence with IDP and the individual sponsors because it retained in the PCA the right to approve changes in the business plan and approved the disposition of two vessels in violation of the plan. OPIC also retained the right and obligation to approve YFC's termination of Gemini and the right to compel defendants to infuse additional capital into the venture. Defendants argue that OPIC breached its fiduciary duty to IDP and the individual sponsors when it approved YFC's termination of its agreement with Gemini without cause and when it permitted two of the four vessels that served as collateral for the loan to be sold at less than fair market value, thus impairing the collateral.

 The Court is not persuaded that defendants/counter-plaintiffs have alleged the basis for finding a fiduciary relationship. The relationship between a debtor and a creditor in a loan transaction is "ordinarily a contractual relationship . . . and is not fiduciary in nature." Yousef v. Trust Bank Savings, FSB, 81 Md. App. 527, 568 A.2d 1134, 1138 (Md. App. 1990); see Paradise Hotel Corp. v. Bank of Nova Scotia, 842 F.2d 47, 53 (3d Cir. 1988); Reid v. Key Bank of Southern Maine, 821 F.2d 9, 16-18 (1st Cir. 1987). Defendants have identified no special circumstances here beyond the kind that would normally exist when OPIC or any other commercial lender finances a complicated multi-party transaction. Nor does anything in the PCA itself support the argument that OPIC assumed any special relationship of ...


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