United States District Court, C.D. California
TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Plaintiffs,
HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability; et al, Defendants. HELWAN CEMENT S.A.E., an Egyptian Joint Stock Company with Limited Liability, Counter-Claimant,
TAHAYA MISR INVESTMENT INC., f/k/a The Globe Corporation, a California corporation, Counter-Defendant.
Lorenzo E. Gasparetti, REED SMITH LLP, REED SMITH LLP,
Attorneys for Defendant and Counter-Claimant Helwan Cement
Alexander F. MacKinnon, Magistrate Judge
[PROPOSED] FINALJUDGMENT OF
DISMISSAL AND AWARD OF ATTORNEYS' FEES
Christina A. Snyder, United States District Judge
Court has ordered that the entire action of Plaintiff and
Counter-Defendant Tahaya Misr Investment Inc.
(“Tahaya”, formerly known as The Globe
Corporation) is voluntarily dismissed without prejudice and
Defendant and Counter-Claimant Helwan Cement Company S.A.E.
(“Helwan”, formerly known as Helwan Portland
Cement Company of ASEC Group) be awarded its reasonable
attorneys' fees in the total amount of $445, 835.69
pursuant to Federal Rules of Civil Procedure 41(a)(2). As a
result thereof, the Court has further ordered that
Helwan's entire counter-action is dismissed without
prejudice as well.
action and Helwan's counter-action were decided by the
Honorable Christina A. Snyder on Tahaya's motion for
voluntary dismissal, as reflected in the Court's November
14, 2016 and January 23, 2017 Orders (Dkts. Nos. 109 and 116,
respectively), both of which are incorporated herein by
reference in their entirety as Exhibits 1 and 2,
IT IS ORDERED, ADJUDGED AND DECREED that a final JUDGMENT OF
DISMISSAL WITHOUT PREJUDICE is hereby entered as to both
Tahaya's entire action and Helwan's entire
counter-action and awarding Helwan its reasonable
attorneys' fees in the total amount of $445, 835.69
pursuant to Federal Rules of Civil Procedure 41(a)(2).
IS SO ORDERED.
STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
MISR INVESTMENT INC.
CEMENT COMPANY S.A.E. ET AL.
MINUTES - GENERAL
CHAMBERS) - DEFENDANT'S MOTION FOR ORDER TO SHOW CAUSE RE
CONTEMPT AND SANCTIONS (Filed August 11, 2016, Dkt. 63)
CHAMBERS) PLAINTIFF'S MOTION TO STAY ANTI-SUIT INJUNCTION
PENDING APPEAL (Filed August 16, 2016, Dkt. 65)
CHAMBERS) PLAINTIFF'S MOTION TO VOLUNTARILY DISMISS
(Filed September 6, 2016, Dkt. 79)
CHAMBERS) MAIER SHOCH LLP'S MOTION TO WITHDRAW AS COUNSEL
FOR PLAINTIFF (Filed September 6, 2016, Dkt. 82)
CHAMBERS) DEFENDANT'S MOTION TO DISMISS (Filed September
19, 2016, Dkt. 87)
CHAMBERS) DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Filed
September 28, 2016, Dkt. 95)
INTRODUCTION AND BACKGROUND
Tahaya Misr Investment, Inc. ("Tahaya"), filed the
instant action on December 29, 2015 in Los Angeles County
Superior Court against defendants Helwan Cement S A.E.
("Helwan"), Suez Cement Company ("SCC"),
and Italcementi Group ("Italceinenti"). Dkt. 1.1.
On February 12, 2016, defendants removed this action to this
Court on the basis of diversity jurisdiction. Id. On May
23, 2016, the Court issued an order dismissing
defendants SCC and Italcementi from this action for lack of
personal jurisdiction. Dkt. 38.
operative complaint asserts claims against the remaining
defendant, Helwan, for breach of contract and breach of the
implied covenant of good faith and fair dealing. Dkt. 22.
Plaintiff alleges that, on or about March 6, 2002, plaintiff
entered into an “Exclusive Agency Agreement” (the
“Agreement”) with defendant Helwan. FAC ¶
17. The alleged Agreement provided, in relevant part: (1)
that plaintiff would serve as Helwan's sales agent for
cement sales outside of Egypt; (2) that Helwan would pay
plaintiff a commission of $2.00 (USD) for every ton of cement
sold outside of Egypt, regardless of whether plaintiff was
involved in the particular transaction; and (3) that Helwan
would pay plaintiff's commissions within ten days of
Helwan's receipt of payment from its customer, and that
any delay in a commission payment would be subject to a
charge of 1% compound interest per week. Id.
Plaintiff alleges that Helwan breached the Agreement by
failing and refusing to pay plaintiff commissions from cement
sold to non-Egyptian buyers. Id. ¶ 20.
Significantly, the alleged Agreement contains a forum
selection clause, which provides:
It is agreed that the laws of the state of California and the
United States of America govern this agreement. The Globe
Corporation and Helwan Portland Cement Co. (of ASEC Group)
agree that any legal dispute arising out of the agreement or
relating to the scope of this agreement may be brought only
in the Courts of the State of California or Federal U.S.
courts in California.
Ex. A.2. Both parties have substantial ties to Egypt.
Notwithstanding the alleged Agreement's forum selection
clause, on or about April 28, 2011, plaintiff filed an action
in Egyptian court against Helwan (“the Egyptian
Action”). Dkt. 42, Request for Judicial Notice, Ex. A,
April 25, 2016, defendant filed an answer to the FAC,
asserting a counterclaim divided into three counts, namely, a
request for declaratory judgment regarding the validity of
the Agreement, a request for declaratory judgment regarding
plaintiff's corporate suspension, and a request for an
anti-suit injunction. Dkt. 23. Regarding the Agreement's
validity, the defendant alleges:
An actual and justiciable controversy exists between Helwan
and Counter-Defendant, because Helwan disputes the
authenticity, genuineness, validity and enforceability of the
purported Agreement upon which Counter-Defendant's entire
action is based.
Id. ¶ 15. Defendant's anti-suit injunction
counterclaim states, “[t]he purported Agreement, to the
extent, arguendo, such Agreement is found valid and
enforceable, contains a forum selection clause . . . .”
Id. ¶ 26.
26, 2016, defendant filed a motion seeking an anti-suit
injunction against plaintiff based on the forum selection
clause of the Agreement. Dkt. 39. On June 27, 2016, the Court
ordered plaintiff “not to proceed further in the case
before the Egyptian Courts, ” until the Court issued a
ruling regarding defendant's motion for an anti-suit
injunction (“the June Order”). Dkt. 49. On July
27, 2016, the Court granted defendant's motion for an
anti-suit injunction wherein the Court ordered plaintiff to
“Immediately take steps to dismiss the Egyptian Action,
” (“the Injunction”). Dkt. 57.
are several motions presently before the Court.
August 8, 2016, plaintiff filed an appeal of the Injunction
to the Ninth Circuit Court of Appeals. Dkt. 60. On August 16,
2016, plaintiff filed a motion to stay the Injunction pending
an appeal of the Court's order (“the Motion for a
Stay”). Dkt. 65. On August 22, 2016, defendant filed an
opposition to the Motion for a Stay. Dkt. 69. On August 29,
2016, plaintiff filed a reply. Dkt. 77. Plaintiff failed to
properly notice a hearing on the Motion for a Stay, Dkt. 74,
but the Court took the matter under submission, Dkt. 78.
August 11, 2016, defendant filed a motion for an order to
show cause why the Court should not order sanctions and find
plaintiff in civil contempt of both the June Order and the
Injunction (“the Contempt Motion”). Dkt. 63. On
August 22, 2016, plaintiff filed an opposition. Dkt. 70. On
August 29, 2016, defendant filed a reply. Dkt. 75. On
September 1, 2016, the Court took the Contempt Motion under
submission. Dkt. 78.
September 6, 2016, plaintiff filed a motion to voluntarily
dismiss the complaint. Dkt. 79. Plaintiff attached a
declaration from Mohamed Abouelsaad, Tahaya's president,
wherein Abouelsaad states that “contradictory”
orders from the Egyptian Action and this Court have forced
him “to decide one over the other. . . I feel that I
have no choice other than to comply fully with the orders [in
the Egyptian Action]. Hence, I regrettably cannot fully
comply with the U.S. or progress Tahaya's case in the
U.S. . . . As a result Tahaya respectfully has to withdraw
from the cases in the U.S. and continue to wait for a final
decision from the courts in Egypt.” Abouelsaad Decl.
¶¶ 42-43. On September 6, 2016, Maier Shoch LLP
filed a motion to withdraw as counsel for plaintiff because
Tahaya had informed Maier Shoch LLP that it “would no
longer be participating in the proceedings before this
Court.” Dkt. 82 at 4.
September 7, 2016, defendant filed a supplemental request for
judicial notice in support of the Contempt Motion, requesting
consideration of plaintiff's motion to voluntarily
dismiss this action and accompanying Abouelsaad declaration.
Dkt. 84. On September 19, 2016, defendant filed an opposition
to the motion for voluntarily dismissal, Dkt. 89, and an
opposition to Maier Shoch LLP's motion to withdraw, Dkt.
89. Plaintiff did not file a reply in support of the motion
to voluntarily dismiss. On October 3, 2016, Maier Schoch LLP
filed a reply in support of its motion to withdraw. Dkt. 97.
September 19, 2016, defendant filed a motion to dismiss the
complaint with prejudice based on plaintiff's failure to
prosecute this action and comply with court orders. Dkt. 87.
On October 3, 2016, defendant filed a reply regarding
non-opposition to defendant's motion to dismiss with
prejudice. Dkt. 97.
September 28, 2016, defendant filed a motion for summary
judgement. Dkt. 95. Defendant's motion for summary
judgment is premised, in part, upon its argument that the
alleged Agreement is fraudulent and cannot ...