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MARRA v. PAPANDREOU

July 28, 1999

ROSEMARIE MARRA, ET AL., PLAINTIFFS,
v.
VASO PAPANDREOU, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Urbina, District Judge.

  MEMORANDUM OPINION

Granting the Defendants' Motion to Dismiss the Complaint

I. INTRODUCTION

This matter comes before the court upon the motion of the defendants, former Greek Prime Minister Vaso Papandreou, the Ministry of Tourism of Greece and the Greek National Tourist Organization, to dismiss the complaint of the plaintiffs, Rosemarie Marra and Marrecon Enterprises, S.A. Defendants seek to dismiss the complaint on the grounds that the District of Columbia is a forum non conveniens and that the parties' contract selected Greece as the forum for disputes related to the contract. For the reasons which follow, the court holds that according to the plaintiffs' own translation of the contract, the forum-selection clause is both enforceable and applicable. Accordingly, the court will grant summary judgment to the defendants on the ground of the forum-selection clause. The Court does not reach the defendant's request to dismiss the complaint on the ground of forum non conveniens.

II. BACKGROUND

A. The Parties

The plaintiffs in this action are Marrecon Enterprises, S.A., a Liberian corporation with its principal place of business in New York ("Marrecon") and its sole shareholder, Rosemarie Marra, who is a citizen and resident of New York. See Compl. ¶¶ 4,5. The defendants are the Greek Minister of Tourism Vaso Papandreou, the Ministry of Tourism of Greece ("the Ministry") and the Greek National Tourist Organization ("GNTO") (collectively, "the Greek government"). The GNTO is owned and operated by the Greek government. See Compl. ¶ 8.

The Greek government revoked a casino license which had been granted to Marrecon and its partners. Marra alleges that the revocation breached the Greek government's contract with Marrecon and its partners and unlawfully expropriated their property.

  B. The Solicitation, Submission and Approval of Casino
     License Bids

On April 20, 1994, Greece promulgated Law No. 2206 ("Law 2206"), authorizing a bidding process for ten casino licenses. See Mot. to Dis. filed January 29, 1999 ("Mot. to Dis."), Ex. A. Also in April 1994. Greece sent tourism officials to meet with potential casino investors in Manhattan. See Compl. ¶ 14. The Greek government also advertised in United States periodicals to induce American investors to bid for the licenses. See Compl. ¶¶ 2, 16.

Pursuant to Law 2206, the Minister of Tourism issued "Resolution 920" on June 6, 1994. Resolution 920 announced a competition for casino licenses and required bidders to submit bids, written in Greek, to the Ministry in Athens. See Brusca Dec., Ex B ¶ 4. Bidders were required to deposit two million drachmas with the Bank of Greece. See id. ¶ 7.2.

On September 9, 1994, Marrecon and six corporate partners ("the consortium") jointly submitted a bid for a license to develop and operate a casino/hotel/marina complex in the Flisvos district of Attica.*fn1 On January 31, 1995, the Ministry awarded a license to the consortium. See id., Ex. G. Resolution 37 contained a forum-selection and choice-of-law clause.

In January 1995, the consortium paid a license fee of eleven billion drachmas ($44 million). See Compl. ¶¶ 3, 18. Under the terms of Law 2206 and the consortium's license, the Greek government was entitled to receive annual license-renewal fees, 30% of the casino's gross revenue, and a convention center constructed by the consortium. See Marra Dec.*fn2 ¶ 23. After thirty years, title to the casino, marina and hotel would pass to the government. See id. ¶ 19.

C. The Revocation of the Consortium's Casino License

In October 1995, the Prime Minister resigned and his successor appointed defendant Papandreou as Minister of Development. See Marra Dec. ¶ 40. On February 7, 1996, Marra alleges, Minister Papandreou publicly stated that she would honor all agreements entered into by her predecessor. See Compl. ¶ 20. In March 1996, the Greek State Council issued an opinion that the resolution awarding the casino licenses (Resolution 37) was revocable under Greek law. See Brusca Dec., Ex. H at 15-18, 20-23. Likewise, the Government License Committee issued an opinion stating that Resolution 37 was not legal. See id., Ex. I at 6. On May 21, 1996, the Minister retroactively revoked the consortium's license. See Compl. ¶ 21. The government proffered five reasons in support of the revocation, all turning on the interpretation of Greek law.

In October 1996, the Greek government refunded the $41 million license fee paid by the consortium (without interest for the 21 months the Greek government held the funds).

D. Procedural History of this Action

Marra filed suit in this court in June 1996, alleging breach of contract and unlawful expropriation. See Compl. ¶¶ 23-26. Marra seeks $1.6 billion in damages, plus interest, costs and attorneys fees. The Greek government moved to dismiss the complaint on the grounds that the action is barred by (1) the Foreign Sovereign Immunities Act of 1976 ("FSIA"), 28 U.S.C. § 1330, 1602-1611; (2) the Act of State doctrine; (3) the doctrine of forum non conveniens; (4) lack of standing; and (5) lack of personal jurisdiction.

Subsequently Marra moved for permission to conduct discovery relating to the grounds asserted in the motion to dismiss. The requested discovery included depositions of high-ranking Greek officials. In September 1997 the court decided to determine FSIA jurisdiction before considering the government's other defenses. Accordingly, the court granted discovery on the FSIA issue (relating to the defendants' efforts to solicit casino investment funds in the United States). The court denied without prejudice the defendants' motion to dismiss.

In November 1997 the Greek government sought and received mandamus relief in the United States Court of Appeals for the District of Columbia Circuit. See In re Minister Papandreou, 139 F.3d 247 (D.C.Cir. 1998). In June 1998, the Court of Appeals instructed this court to explore potentially dispositive non-FSIA jurisdictional defenses before ordering discovery of Greek officials on the FSIA issue. See id. at 254. After remand, this court stayed all discovery pending resolution of dispositive motions. The defendants then filed the instant motion.

  E. Actions in Greek Courts Concerning the Consortium's
     Casino License

In July 1996 the consortium itself filed a petition in a Greek administrative court to nullify the revocation of its license. See id., Ex. O. In January 1997, the court denied the petition, see id. at p. 27, and the consortium appealed. See id., Ex. P. In addition, the consortium filed an action in Greek civil court seeking compensation. The civil court denied the requested relief and the consortium has appealed. Both appeals are still pending. See id. ¶¶ 1, 2.

III. ANALYSIS

The defendants contend that the complaint must be dismissed on the grounds that a contractual forum-selection clause requires Marra to litigate this matter in Greece. In support of that motion, the defendants submit exhibits which go far beyond the pleadings; likewise, plaintiffs' opposition relies upon affidavits and other exhibits. Accordingly, the court treats the motion as a motion for summary judgment. See Fed.R.Civ.P. 12(b); Fed.R.Civ.P. 56.

A. The Standard for Summary Judgment

Summary judgment is appropriate upon a finding that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law upon which a claim rests determines which facts are "material." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If a fact bears upon an essential element of the legal claim, then it is material; otherwise, it is not. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To prevail on a motion for summary judgment, the moving party bears the burden of establishing that there are no genuine issues of material fact and that the nonmoving party has failed to offer sufficient evidence to support a valid claim. See Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 325, 106 S.Ct. 2548. In ruling on the motion, the court must accept the evidence of the nonmoving party as true and must draw all justifiable inferences in favor of the nonmoving party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. It is not sufficient, however, for the nonmovant to establish a "mere . . . scintilla of evidence in support of [its] position . . .; there must be evidence on which the jury could reasonably find" for the nonmovant. Id. at 252, 106 S.Ct. 2505. If the evidence in favor of the nonmovant "is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S.Ct. 2505 (citations omitted).

B. Contractual Forum-Selection Clause

The defendants contend that the forum-selection clause in the license agreement requires the plaintiffs to litigate this matter in Greece. For the ...


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