Free Legal Forms New York Federal Court

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

*****************************************

)

SMITH INTERNATIONAL, )

Plaintiff, ) CASE NUMBER: _______________

-against- )

UNIVERSITY OF LIBERIA, DR. BEN )

JONES, DR. LUCY ASH, DR. WILL DOE )

& REPUBLIC OF LIBERIA-MINISTRY )

OF EDUCATION, )

Defendants. ) NOTICE OF SUIT

*****************************************

1. Title of legal proceeding; full name of court; case or docket number: ALL LISTED ABOVE.

2. Name of foreign state (or political subdivision) concerned: LIBERIA.

3. Identity of the other Parties: SEE ABOVE.

JUDICIAL DOCUMENTS

4. Nature of documents served: SUMMONS & COMPLAINT

5. Nature and purpose of the proceeding; why the foreign state (or political subdivision) has been named; relief requested: UNIVERSITY OF LIBERIA BREACHED CONTRACT AND FAILED TO PAY ACCOUNT STATED; UNIVERSITY OF LIBERIA IS OWNED BY THE GOVERNMENT OF LIBERIA.

6. Date of default judgment (if any): NONE.

7. A response to a "Summons" and "Complaint" is required to be submitted to the court, not later than 60 days after these documents are received. The response may present preliminary defenses (including defenses relating to state immunity or the jurisdiction of the court). The failure to submit a timely response with the court can result in a Default Judgment and a request for execution to satisfy the judgment.

8. Questions relating to state immunities and to the jurisdiction of United States courts over foreign states are governed by the Foreign Sovereign Immunities Act of 1976, which appears in sections 1330, 1391(f),1441(d), and 1602 through 1611, of Title 28, United States Code (Pub.L. 94-583); 90 Stat. 2891.

_________________________________

LAW OFFICES OF SUSAN CHANA LASK,

Attorneys for Plaintiff

853 Broadway, Suite 1516

New York, New York 10003 (212) 358-5762

---------------------------------------------------------------------------------------------------------------------------------------------

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

*********************************************************

SMITH INTERNATIONAL, )

Plaintiff, ) CASE NUMBER: _______________

-against- )

UNIVERSITY OF LIBERIA, DR. BEN )

JONES, DR. LUCY ASH, DR. WILL DOE )

& REPUBLIC OF LIBERIA-MINISTRY )

OF EDUCATION, )

Defendants. ) SUMMONS IN A CIVIL ACTION

*****************************************

To the above named Defendants:

YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court and serve upon the Plaintiffs' Attorney

Susan Chana Lask, Esq. Attorney for Plaintiffs 853 Broadway, Suite 1516 New York, NY 10003 (212) 358-5762

an answer to the complaint which is herewith served upon you, within sixty (60) days after the service of this summons, exclusive of the day of service. If you fail to do so, judgment will be taken against you by default for the relief demanded in the complaint.

_______________________________ ___________________________

DATE CLERK

______________________________________________

BY DEPUTY CLERK

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------

UNITED STATES DISTRICT COURT

DISTRICT OF NEW YORK

------------------------------------------------------------------

SMITH INTERNATIONAL, )

Plaintiff, ) CASE NUMBER: _______________

-against- )

UNIVERSITY OF LIBERIA, DR. BEN )

JONES, DR. LUCY ASH, DR. WILL DOE )

& REPUBLIC OF LIBERIA-MINISTRY ) COMPLAINT

OF EDUCATION, )

Defendants.

---------------------------------------------------------------------

Plaintiff, by its attorney, Susan Chana Lask, Esq., for the complaint, alleges as follows:

JURISDICTION AND VENUE

1. This Court has subject matter jurisdiction pursuant to the Foreign Sovereign Immunities Act,28 U.S.C. §1603 as Defendants conducted commercial activities within the United States with Plaintiff and also conducted acts outside the United States having a direct effect within the United States, to wit: negotiating contracts with Plaintiff, ordering products from Plaintiff and confirming promises to pay for said orders via telephone from Maryland and Pennsylvania to Plaintiff's place of business in Larchmont, New York. The activities were such that normally could be engaged in by a private party in the relevant marketplace; thus constituting a "commercial activity". Defendants are not absolutely immune from liability. Venue is proper in this District pursuant to 28 U.S.C. § 1391(f)(1) as a substantial part of the events herein consisted of negotiations, calls and contacts back and forth between the parties to and from Plaintiff's office and orders originated from that location.

2. Plaintiff is now, and at all times material herein was, a corporation incorporated under the laws of the State of New York, authorized to do and doing business in the State of New York at 22 Street Avenue, Larchmont, New York and within the jurisdiction of the United States District Court for the Southern District of New York.

3. Defendants University of Liberia and Republic of Liberia-Ministry of Education are foreign entities, agents and instrumentalities owned by the Republic of Liberia and organized under the laws of the Republic of Liberia with an office and place of business at Monrovia, Liberia, West Africa.

4. Defendant University of Liberia ("University") is "a full-fledged state owned and operated university". (Exhibit "A"-9/27/02 letter of Defendant Republic of Liberia-Ministry of Education). Defendant University of Liberia at all times mentioned herein was and still is a government owned entity operated entirely by the Liberian Government, under its branch of government which is Defendant Republic of Liberia-Ministry of Education (Ministry of Education").

5. Defendant Ben Jones ("Jones"), as President of Defendant University, at all times mentioned herein was and still is a foreign entity, agent and instrumentality of the Republic of Liberia who personally ensured in writing on behalf of Defendant University that payment of a certain contract, detailed below, would be made to Plaintiff. At all times mentioned herein Defendant Jones was acting as an employee of and agent for Defendants University and Ministry of Education.

6. Defendant Lucy Ash ("Ash") as Vice President of Defendant University at all times mentioned herein was and still is a foreign entity, agent and instrumentality of the Republic of Liberia. She used the address of 425 Christopher Avenue, Unit 21, Garthergorg, Maryland 20879 to conduct business over the telephone with Plaintiff. At all times mentioned herein she was acting as an employee of and agent for Defendants University and Ministry of Education.

7. Defendant Will Smith ("Smith") is President of the Board of Defendant University and at all times mentioned herein was and still is a foreign entity, agents and instrumentality of the Republic of Liberia and has an address at 315 West Winona Street, Philadelphia, Pennsylvania, 19144 where he conducted business with Plaintiff from that address over the telephone with Plaintiff. At all times mentioned herein he was acting as an employee of and agent for Defendants University and Ministry of Education.

8. Defendants Ministry of Education and University were foreign entities engaged in business transactions with Plaintiff conducted in the United States and completed within the jurisdiction of this Court, all to Defendants financial gain and Plaintiff's financial loss.

FACTS

9. Plaintiff supplies promotional products for schools, colleges and universities worldwide, including class rings, diplomas and uniforms.

10. Plaintiff and Defendants had a commercial business relationship since 2000. The Defendant University would order products through it's Vice President, Defendant Ash.

11. During 2001-2002, Defendant Ash would enter the United States through a Visa issued by the U.S. Immigration Department and reside at 425 Christopher Avenue, Unit 21, Garthergorg, Maryland 20879. From that address Defendant Ash conducted business on behalf of Defendant's University and Ministry of Education by calling Plaintiff at its Larchmont, New York office from her phone in Maryland and placing orders for products. Plaintiff would return Defendant Ash's calls to her Maryland address confirming and acknowledging the orders.

12. Plaintiff organized the manufacture and shipping from its Larchmont office to ship to Defendants in Monrovia, Africa, wherein Defendant University would make payment.

13. Defendant University had in the past paid some $25,000.00 in bills for products ordered and delivered.

14. From 2000 through 2002, Plaintiff fulfilled orders of Defendant University. Sometime in 2001, Defendant Ash called Plaintiff from her Maryland residence and informed that she had $25,000.00 in cash immediately available to pay for $25,000.00 in merchandise. She negotiated a lower price from Plaintiff for products based on her readily available cash method of payment.

15. Based on Defendant Ash's representations, Plaintiff lowered its prices, placed the order and accepted Defendant Ash's representation that she would pay upon delivery.

16. Plaintiff accepted Defendant Ash's promise to pay upon delivery based on its prior goodwill with Defendants and their prior good credit with the company.

17. When the $25,000.00 order was delivered, Defendant Ash did not have the money to pay and never paid for the order.

18. Subsequently, Defendants made numerous representations and promises that the money was forthcoming. On October 17, 2001 Defendant Jones, on behalf of Defendants, wrote to Plaintiff committing to an order for $36,000.00 worth of Diploma Covers to be delivered at specified dates. (Exhibit "B"). Although there was an outstanding balance due, Defendant University made partial payment on its account in 2001 as consideration for Plaintiff to satisfy their next order .

19. Plaintiff placed another order on behalf of Defendants relying on their promise to pay the balance within a few months, their partial payment made and Defendant Jones personal guarantee that payment would be made.

20. For the past two years, Defendants Jones, Ash and Smith have promised to pay the outstanding balances through phone calls made from their residences in the United States to Plaintiff, as well as Plaintiff has called them at those numbers as well as calls to and from Liberia. Those acts of Defendants' placing orders and confirming them via telephone and mail from Liberia, excludes them as foreign sovereigns immune to suit because although their acts occurred outside of the United States, they had a direct effect within this country by having Plaintiff fulfilling them in the United States and shipping them from the Unites States at a total loss to Plaintiff of $63,264.84.

21. Defendants convinced Plaintiff to continue to fulfill their orders by making partial payments over the years and promising to pay the balance, but never making a full payment.

22. Plaintiff billed Defendant each month, sent billing statements each month for accrued balances, contacted Defendants by phone and letters, had its representatives in Liberia contact Defendants personally, all in a effort to obtain outstanding amounts due. To date Defendants have not paid in full and have accrued an outstanding balance of $63,264.84 due to date, which accrues interest at 2% monthly. The interest rate is clearly stated on each billing statement (See billing sttaements attached hereto and made a part hereof as Exhibit "C").

23. Although demand has been duly made each month for the past two years by account stated, Defendants have failed and refused to pay the aforesaid claim and $63,264.84 is due and owing to Plaintiff, along with costs, disbursements, reasonable attorney fees and interest.

AS AND FOR A FIRST CAUSE OF ACTION: BREACH OF CONTRACT

24. Plaintiff repeats and realleges each allegation in paragraphs "1" through "23" of the complaint as if fully set forth at length herein.

25. Defendants placed orders for certain products over the past two years from Plaintiff.

26. From their past business relationship, Defendants always made payment for products delivered and their promise to pay was not only expressly made but understood from prior custom and conduct between the parties.

27. In 2001 and 2002 Plaintiff fulfilled Defendants orders in consideration of their past business relationships, in consideration that Defendants expressly represented they had cash available to immediately pay and in consideration of their past business relationship, customs and conduct of fulfilling orders and Defendant paying in full.

28. Defendants made some payment but never paid in full for the 2001 orders. Defendant Jones then guaranteed payment in writing (Exhibit "C").

29. Defendants breached their contract to pay for goods ordered with Plaintiff.

AS AND FOR A SECOND CAUSE OF ACTION: FRAUD

30. Plaintiff repeats and realleges each allegation in paragraphs "1" through "29" of the complaint as if fully set forth at length herein.

31. At the time Defendant Ash placed the $25,000.00 order in 2001 she promised that she had cash readily available to pay Plaintiff upon his fulfilling Defendants' order.

32. Defendant Ash did not have said monies and purposely misrepresented that fact to Plaintiff to induce him to fulfill a large order for Defendants. Defendant Ashs false representations on behalf of Defendants was materially false and misleading, made with the intent to defraud Plaintiff and with the intention that Plaintiff rely upon Defendant's false and misleading statements.

33. Defendants Jones and Smith subsequently made numerous promises from 2001 through 2002 that Defendant University would pay their outstanding balance in full.

34. The representations made by Defendant Ash, Richard and Jones on behalf of Defendants were materially false, misleading and fraudulent to their knowledge as employees working for and on behalf of Defendants when made.

35. Those representations were false in fact and known to be false by the Defendants' at the time they were so made, and in truth and in fact Defendants never intended to honor their statements and promises when made, avoided Plaintiff's calls, letters, and accounts stated.

36. Plaintiff believed in the truth of Defendants' statements as well as upon the executed contract with Defendant Jones assurance to make payment, and in reliance upon those statements and that contract Plaintiffs was induced thereby to enter into the contract and fulfill orders in the total amount of $63,264.84 that was never paid to date by Defendants.

AS AND FOR A THIRD CAUSE OF ACTION: ACCOUNT STATED

37. Plaintiff repeats and realleges each allegation in paragraphs "1" through "36" of the complaint as if fully set forth at length herein.

38. Plaintiff sent and Defendants received monthly account statements accruing to date at $63,264.84, plus interest. Defendants made no objections but in fact promised to pay.

39. No part of which has been paid despiet demands made monthly from 2001 to date.

WHEREFORE, Plaintiff prays as follows:

1. For compensatory damages in the amount of $63,264.84, along with costs, disbursements, reasonable attorney fees and interest at 2% per month;

2. Punitive damages of $25,000.00; and

3. That plaintiff may have such other and further relief as it may be entitled to receive.

Dated: New York, New York Yours, etc.,

______________________
Susan Chana Lask, Esq. (1744)
Attorney for Plaintiff
853 Broadway, Suite 1516
New York, NY 10003 (212) 358-5762

STATE OF NEW YORK, COUNTY OF NEW YORK ) ss.:

MATTHEW SMITH, being duly sworn, states that he is the PRESIDENT OF Plaintiff in this action and that the foregoing complaint is true to his own knowledge, except as to matters therein stated to be alleged on information and belief and as to those matters he believes it to be true.

Sworn to and Subscribed before me this 4 day of November, 2002 ______________________________

MATTHEW SMITH, PRESIDENT

_____________________

---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Case No. Year 2002

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

__________________________________

SMITH INTERNATIONAL,

Plaintiff,

-against-

UNIVERSITY OF LIBERIA, REPUBLIC OF

LIBERIA-MINISTRY OF EDUCATION, DR. BEN A.

Jones, DR. Lucy Ash &

DR. Will Smith

Defendants.

__________________________________

SUMMONS & COMPLAINT

_________________________________

Attorneys for Plaintiff

LAW OFFICES OF

SUSAN CHANA LASK

853 Broadway, Suite 1516

New York, New York 10003

(212) 358-5762

To: Ministry of Education: Minister: Dr. Evelyn White Kandakai, Broad Street , P.O. Box 10-1545 ,

1000 Monrovia 10, Liberia Tel: 22 62 16/22 64 06

Embassy of the Republic of Liberia, 5201 16th Street, NW , Washington, D.C. 20011 , Tel.: (202) 723-0437 Fax: (202) 723-0436