United States District Court, W.D. Louisiana, Lafayette-Opelousas Division
REBECCA F. DOHERTY, District Judge.
Pending before this Court are the following motions: (1) Motion for Partial Summary Judgment filed by plaintiff Manuel Ramos ("Mr. Ramos") [Doc. 22]; and (2) Motion to Strike Portions of Swiftships' Memorandum in Opposition to Ramos' Motion for Partial Summary Judgment [Doc. 32] filed by Mr. Ramos. In his motion for partial summary judgment, Mr. Ramos seeks summary judgment on: (1) "Swiftships' affirmative defense of fraud in the inducement, because Swiftships cannot complain of any fraud committed by its own agent[;]" and (2) Mr. Ramos's claim that Swiftships has breached [its] settlement agreement with him[.]" Swiftships Shipbuilders, LLC ("Swiftships") has filed an opposition brief to the motion for partial summary judgment [Doc. 27], and plaintiff has filed a Motion for Leave to File a Reply Brief [Doc. 31], which is herein GRANTED. The Court will discuss the Motion to Strike in a separate section at the end of this Ruling. For the following reasons, the Motion for Partial Summary Judgment is DENIED because of the existence of genuine issues of material fact, and the Motion to Strike is DENIED.
I. Factual and Procedural History
The following facts are undisputed as best this Court can determine from the filings of the parties:
1. Swiftships Shipbuilders, LLC is the shipbuilding arm and subsidiary of Swift Group, LLC, a Louisiana-based company with annual revenue of approximately $50, 000, 000.00.
2. Calvin Leleux is Swiftships' chairman. Beginning in the late 1970s, Swiftships began to do substantial business in Venezuela and was represented there by members of the von Fedak family. In 2000, Swiftships' representative and senior member of the von Fedak family died. Thereafter, that representative's son, Jorge von Fedak, began to represent Swiftships in Latin America.
3. In 2004, Mr. von Fedak, pursuant to a power of attorney from Swiftships, retained plaintiff Manuel Ramos, a Venezuelan attorney, to represent Swiftships in a lawsuit Swiftships filed against a company named DIANCA.
4. Pursuant to Venezuelan law, Mr. Ramos's legal fees were to be fixed by statute. According to the parties, in contractual disputes such as the lawsuit Swiftships filed against DIANCA, attorneys' fees are set based on the size of the claim. Consequently, the attorney for a party in a contractual dispute need not negotiate the fee with the client, because the fee is determined by statute.
5. Mr. Ramos represented Swiftships in the DIANCA matter for more than five years, making at least 16 court appearances; filing 20 to 30 voluminous pleadings, in three different tribunals; negotiating with a wide variety of individuals; and vigorously representing his client. Several months after concluding his representation of Swiftships, and after repeated requests for payment, Mr. Ramos filed a claim against Swiftships in Venezuela for his attorney's fees.
6. On January 5, 2013, Mr. Leleux sent a letter to Mr. Ramos and Mr. von Fedak expressly authorizing Mr. von Fedak to negotiate with Mr. Ramos on Swiftships' behalf, in an effort to resolve Mr. Ramos's claim for attorney's fees. The letter states as follows:
This letter is to authorize Jorge Von Fedak only as Swiftships Shipbuilders' representative to negotiate in good faith on behalf of Swiftships in order to resolve legal matters regarding the above-referenced legal proceedings. This instrument authorizes negotiations only and is in no way a binding resolution unless agreed to in writing by Swiftships Shipbuilders, LLC.
Mr. von Fedak and Mr. Ramos met in Venezuela to begin negotiations, and Mr. Ramos argues the matter ultimately was settled for $500, 000.00. Mr. Leleux signed the Settlement Agreement on January 9, 2013, and Mr. Ramos signed the Agreement on January 11, 2013. The Settlement Agreement contains the following "Guarantor Provision:"
By his signature above, Jorge Von Fedak Lotz hereby agrees to be bound by the provisions of this Agreement and shall be a guarantor responsible for the entire amount stated above, and in the event of a default by Swiftships.
Mr. von Fedak signed the Settlement Agreement on January 11, 2013.
How the settlement was achieved - and whether it is binding - is contested by the parties and is the subject of the instant lawsuit, filed in this Court on October 14, 2013. It is the position of Swiftships that Mr. Ramos and Mr. von Fedak colluded to defraud Swiftships of the settlement amount, and because of that, presumably, Swiftships does not owe Mr. Ramos the amounts allegedly due under the Settlement Agreement. This allegation is largely based on Swiftships' somewhat vague assertions that Mr. von Fedak and Mr. Ramos have been very friendly for many years, which Swiftships appears to argue would provide a motive for Mr. von Fedak - its attorney and agent - to defraud Swiftships. Swiftships also appears to argue a lack of consent in the formation of the Settlement Agreement - alleged to be a contract under Louisiana law - thereby vitiating the contract in the following particulars: Swiftships argues Mr. von Fedak represented to Mr. Leleux that the Settlement Agreement between Swiftships and Mr. Ramos was contingent upon Swiftships being awarded a contract with a Venezuelan company - Petroleos de Venezuela ("PDVSA") - and that because the Swiftships-PDVSA contract was never completed, the Settlement Agreement between Swiftships and Mr. Ramos was never confected, and therefore, is not binding. Some background information is necessary here. According to the deposition testimony of Mr. von Fedak, in addition to being an attorney, Mr. von Fedak is also a member of a limited liability company called MDG, a company that was attempting to launch a ship design/shipbuilding business and was in negotiations with PDVSA to provide PDVSA with approximately 100 new vessels. Mr. von Fedak has testified that while Mr. Ramos's claim for attorney's fees was pending against Swiftships in Venezuela, MDG was in preliminary discussions with Swiftships to use Swiftships' shipyard in Jeanerette, Louisiana for the construction of vessels should MDG be a warded the PDVSA contract. It is the position of Mr. von Fedak that MDG's discussions with Swiftships - and the role Swiftships might play in the shipbuilding venture - must have been known to PDVSA, because at some point during negotiations with MDG, officials with PDVSA expressed concern to MDG's members about Swiftships' ongoing litigation with Mr. Ramos over the issue of the unpaid professional fees. According to Mr. von Fedak, Swiftships was advised by PDVSA that if Swiftships wanted to be included on the MDG-PDVSA "team" as a subcontractor, Swiftships would have to resolve its legal dispute with Mr. Ramos. According to Mr. von Fedak, he alleges the foregoing chain of events is what led to Mr. Leleux giving Mr. von Fedak a power of attorney to negotiate a settlement between Swiftships and Mr. Ramos.
Based on the foregoing, Swiftships now argues the Settlement Agreement between Swiftships and Mr. Ramos was contingent on "an award of a contract from PDVSA to Swiftships" (not MDG, a factual inconsistency this Court will discuss hereinafter) - despite the fact that the Settlement Agreement contains no such language - and that Mr. Ramos, through his negotiations with Mr. von Fedak, should have known of this "false representation." Thus, to recap, Swiftships argues Mr. von Fedak represented to Mr. Leleux that the Settlement Agreement between Swiftships and Mr. Ramos would be contingent upon Swiftships getting a contract with MDG, despite the fact that such contingency language does not appear in the Settlement Agreement that Mr. Leleux and Mr. Ramos signed. Furthermore, Swiftships argues that, because of the close, personal relationship between Mr. von Fedak and Mr. Ramos, Mr. Ramos must have known the Settlement Agreement was contingent on the foregoing "false representation, " which somehow proves Mr. Ramos was colluding with Mr. Von Fedak in perpetrating a fraud on Swiftships.
In response, Mr. von Fedak specifically disputes that he colluded with Mr. Ramos in any way, testifying at his deposition that: "Calvin and I agreed... never to mention PDVSA [to Mr. Ramos] because if we would mention PDVSA and a contract we were negotiating with, I was certain that ...