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Changzhou Amec Eastern Tools and Equipment Cp., Ltd v. Eastern Tools & Equipment

July 30, 2012

CHANGZHOU AMEC EASTERN TOOLS AND EQUIPMENT CP., LTD., PLAINTIFF,
v.
EASTERN TOOLS & EQUIPMENT, INC., A CALIFORNIA CORPORATION, AND GOUXIANG FAN, AN INDIVIDUAL, DEFENDANTS.



The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

O

JS-6

ORDER DENYING MOTION TO CONFIRM [Motion filed on April 23, 2012]

Before the Court is a Motion to Confirm Foreign Arbitration Award ("Plaintiff's Motion") filed by Plaintiff Xuchu Dai ("Plaintiff"), and a Motion for Order Denying Petition to Confirm Foreign Arbitral Award ("Defendants' Motion") filed by Defendants Eastern Tools & Equipment, Inc. and Guoxiang Fan (collectively, "Defendants"). After considering the papers in support of, and in opposition to, the Motions, the Court DENIES Plaintiff's Motion and GRANTS Defendants' Motion.

I. BACKGROUND

A. Procedural Background

On March 2, 2011, Changzhou AMEC Eastern Tools & Equipment Co., Inc.*fn1 ("Joint Venture") filed a Complaint against Defendant Eastern Tools & Equipment, Inc. ("Eastern Tools") and Defendant Guoxiang Fan ("Mr. Fan") seeking to confirm and enforce a foreign arbitration award pursuant to the New York Convention, 9 U.S.C. §§ 201, et seq. (Doc. No. 1.) Defendants filed an Answer on April 4, 2011, in which they counterclaimed for declaratory relief, arguing the contract at the heart of the foreign arbitration award was signed under duress. (Doc. No. 10.)

Plaintiff filed its First Amended Complaint ("FAC") on April 28, 2011, alleging identical claims to enforce the foreign arbitration award under the New York Convention and under the Federal Arbitration Act ("FAA"), but naming Plaintiff as the bankruptcy administrator for the Joint Venture. (Doc. No. 17.)

Defendants filed an Answer to the FAC ("Answer to FAC") on May 16, 2011, in which they reiterated their previous counterclaims that the foreign arbitration award should not be confirmed and enforced because the arbitration agreement was procured by duress, fraud, undue means, and collusion. (Doc. No. 18.)

On April 23, 2012, Plaintiff filed its Motion to Confirm, (Doc. No. 57), and submitted the following in support:

1. Declaration of Enoch H. Liang ("Liang Declaration"), (Doc. No. 57-1); and

2 Declaration of James Feinerman ("Feinerman Declaration"), (Doc. No. 57-2).

On April 23, 2012, Defendants also filed their Motion to Deny Confirmation. (Doc. No. 58.) In support of their motion, Defendants attached:

1. Declaration of Guoxiang Fan ("Fan Declaration"), (Doc. No. 58-1);

2. Declaration of Jerome A. Cohen ("Jerome Cohen Declaration"), (Doc. No. 58-2);

3. Declaration of Myron Cohen (Myron Cohen Declaration"), (Doc. No. 58-3); and

4. Declaration of Rodney Bell ("First Bell Declaration"), (Doc. No. 58-4).

On May 7, 2012, Defendants filed their Opposition to Plaintiff's Motion ("Defendants' Opposition"). (Doc. No. 59.) In support of their opposition, Defendants submitted:

1. Declaration of Guoxiang Fan ("Second Fan Declaration"), (Doc. No. 59-1);

2. Declaration of Penny Kole ("Kole Declaration"), (Doc. No. 59-2);

3. Declaration of Rodney W. Bell ("Second Bell Declaration"), (Doc. No. 59-3); and

4. Objections to Plaintiff's Evidence ("Defendants' Objections"), (Doc. No. 59-4).

Also on May 7, 2012, Plaintiff filed an Opposition to the Motion to Deny ("Plaintiff's Opposition"). (Doc. No. 60.) In support of this Opposition, Plaintiff attached:

1. Declaration of Enoch H. Liang ("Second Liang Declaration"), (Doc. No. 60-1);

2. Evidentiary Objections to Jerome Cohen Declaration, (Doc. No. 60-2);

3. Evidentiary Objections to Myron Cohen Declaration, (Doc. No. 60-3); and

4 Evidentiary Objections to Fan Declaration ("Plaintiff's Objections to Fan Declaration"), (Doc. No. 60-4).

On May 14, 2012, Defendants filed their Reply in support of their Motion ("Defendants' Reply"). (Doc. No. 61.) In support of their Reply, Defendants submitted:

1. Declaration of Rodney Bell ("Third Bell Declaration"), (Doc. No. 61-1); and

2. Response to Plaintiff's Evidentiary Objections to: Fan Declaration; Jerome Cohen Declaration, and Myron Cohen Declaration ("Defendants' Response to Plaintiff's Objections"), (Doc. No. 61-2).

Also on May 14, 2012, Plaintiff filed a Reply in support of its Motion ("Plaintiff's Reply"). (Doc. No. 62.) In support of its Reply, Plaintiff attached:

1. Reply to Defendants' Evidentiary Objections, (Doc. No. 62-1); and

2. Declaration of Enoch H. Liang ("Third Liang Declaration"), (Doc. No. 62-2).

On May 31, 2012, the Court ordered the parties to resubmit their evidence in the format specified by the Court's Local Rules governing motions for summary judgment and this Court's standing order. (Doc. No. 65.) In accordance with this order, Plaintiff filed a Statement of Undisputed Facts in support of the Motion to Confirm ("Plaintiff's SUF") on June 18, 2012. (Doc. No. 66.) Defendants filed a Statement of Undisputed Facts in support of the Motion to Deny ("Defendants' SUF") on June 18, 2012, as well. (Doc. No. 67.)

On June 25, 2012, Defendants filed a Statement of Genuine Issues in support of Defendants' Opposition ("Defendants' SGI"). (Doc. No. 68.) Defendants attached to their SGI their Objections ("Defendants' Objections") to Plaintiff's SUF. (Doc. No. 68-1.) Also on June 25, 2012, Plaintiff filed a Statement of Genuine Issues in support of Plaintiff's Motion to Confirm ("Plaintiff's SGI"). (Doc. No. 69.)

On July 2, 2012, Plaintiff filed a Reply Statement of Undisputed Facts in support of the Motion to Confirm ("Plaintiff's Reply SUF"). (Doc. No. 71.) In support, Plaintiff submitted a Reply to Defendants' Objections. (Doc. No. 71-1.) The same day, Defendants filed a Reply Statement of Undisputed Facts in support of the Motion to Deny ("Defendants' Reply SUF"). (Doc. No. 72.)

B. Preliminary Evidentiary Issues

The Court addresses only those objections relating to evidence the Court found necessary to consider in ruling on the Motions.

1. Declaration of Guoxiang Fan

Plaintiff objects to certain statements in Mr. Fan's Declaration on the basis that these statements are hearsay.*fn2 Specifically, Plaintiff objects to:

1) Paragraph 15: "the police supervisor told me that the investigation had been finished. He told me that I would not be released until I signed an agreement."

2) Paragraph 18: "I was told by the police supervisor that I would have to wire the money to an account before I would be released."

3) Paragraph 24: "I was told by the police supervisor that I would have to wire $300,000 to a certain account before I would be released."

4) Paragraph 25: "I was not released from police custody until the police confirmed that the $300,000 had been received in the account."

5) Paragraph 26: Mr. Fan's description of telephone conversations with the Changzhou Public ...


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