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Europlasma, S.A. v. Solena Group

March 30, 2009

EUROPLASMA, S.A. PLAINTIFF,
v.
SOLENA GROUP, INC. DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

Plaintiff Europlasma S.A. ("Europlasma") brings this action to enforce the terms of a promissory note requiring Defendant Solena Group, Inc. ("Solena") to pay Europlasma the principal amount of €394,517, plus interest at an annual rate of 4%, in consideration for equipment that Solena purchased and received from Europlasma. Before the court is Solena's motion to dismiss or, in the alternative, to stay and compel arbitration [##6, 7] and Europlasma's motion for summary judgment [#9]. Upon consideration of the motions, the oppositions thereto, and the arguments of counsel at a hearing, the court concludes that Solena's motion to dismiss should be denied and Europlasma's summary judgment motion should be granted.

I. BACKGROUND

A. Promissory Note

On or about October 3, 2006, Solena ordered a plasma torch from Europlasma and paid the shipping costs and part of the purchase price. On September 14, 2007, the parties executed an unsecured promissory note ("Note") for the balance of €394,517 remaining on the torch purchase, plus interest at an annual rate of 4%. Compl. ¶¶ 6-7; Compl. Exh. 1 ("Note"). The Note provides that if Solena fails to meet its obligations under the Note, Europlasma is entitled to recover all costs, including reasonable attorney's fees, incurred in collecting or attempting to collect on the note, "whether or not a lawsuit is commenced." Note at 1. Solena did not make the required payment on the Note by its due date of January 10, 2008.

B. Master Teaming Agreement

On May 29, 2007, after the torch purchase and before the execution of the Note, the parties entered into the Master Teaming Agreement ("Agreement"). Mot. to Dismiss at 2 & Exh. 2 ("Master Teaming Agreement"). Among other things, the Agreement states that "Solena commits to treat Europlasma as its Preferred Provider of torch systems, and as such, Solena commits to purchase all of the plasma torch systems from Europlasma for Solena Projects utilizing Solena Technology from the date of this agreement." Agreement ¶ 1.2.1. In consideration for Europlasma serving as Solena's exclusive source, Europlasma agreed to provide Solena with discount pricing for the purchase of multiple torch systems. Id. ¶ 1.2.2. The parties agreed that the Agreement would have a term of three years "from the date first above written, which term may be renewed or extended by the parties." Id. ¶ 5.1.

The Agreement includes an alternative dispute resolution clause that reads:

6.2 If [sic] the event of a controversy, claim or dispute arising out of or relating to this Agreement, the representatives of the Parties shall meet and confer in good faith negotiations with the object of reaching mutual agreement and a settlement. If the Parties' representatives are unable to agree, such representatives shall promptly commence discussion with respect to resolving the dispute through non-binding alternative dispute resolution ("ADR") procedures fashioned by the representative themselves or with the assistance of persons or organizations experienced in ADR procedures such as the International Chamber of Commerce.

6.3 Any controversy, claim or dispute arising out of or relating to this Agreement, or the breach thereof, that the Parties can not [sic] amicably resolve under the procedures in Article 6.2., shall be settled by arbitration administered by the International Chamber of Commerce under its Commercial Arbitration Rules using an arbitrator that both Parties consent to in writing, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be London, England and the arbitrator shall determine the matters in dispute in accordance with Applicable Law. The parties agree that the award of the arbitrator shall be binding and shall be the sole and exclusive remedy among them regarding claims, counterclaims, issues or accountings presented to the arbitrator.

Id. ¶¶ 6.2, 6.3.

Finally, the Agreement contains an integration clause, specifying that "[t]his Agreement constitutes the entire agreement between the Parties, relating to the subject matter hereof, and supersedes any previous agreements or understandings between them, whether oral or written." Id. ¶ 10.1.

II. ANALYSIS

A. Because The Note Is Unambiguous, The Court Will Not Consider ...


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