Topic: Memorandum
Order Description
You have been engaged as outside counsel to represent a United States company, US Auto company (“US Auto”), which has a principal place of business in New York City with its offices and auto sales showrooms in New York, L.A. and Chicago. US Auto is incorporated in the State of Delaware. In 2011, US Auto entered into a ten year contract with a French company, French Auto Parts, with its principal place of business in Paris, France. The French company is incorporated in France. The French company has no offices in New York or elsewhere in the United States. The contract was signed by US Auto at US Auto’s offices in New York and by the French Company in Paris. The contract was negotiated both in Paris and New York City. The French company solicited US Auto in New York in person and by email and mail to purchase its parts for US Auto’s cars. Visits were made by the French company representatives to US Auto’s offices and showroom in to New York City, and US Auto’s representatives visited the French offices and plant in Paris. The contract required French Auto Parts to deliver to US Auto in New York specific designated auto parts for US Auto’s cars in New York. There were numerous emails, correspondence, and telephone calls by the French company to US Auto in New York, and US Auto sent numerous emails, correspondence, and telephone calls to the French company in Paris. The French company sells not only to US Auto, but also to other auto companies in the United States. However, US Auto is the only company in New York to which the French company sells its auto parts. The French company had delivered some parts to US Auto under the contract, but now has given notice to US Auto that delivery of further auto parts will stop in a month. US Auto sends money from its New York Bank to a Paris bank to pay the French company under the contract.
US Auto informed you that it was recently advised by the French company that it could not deliver the auto parts due under the contract to US Auto’s offices and showroom in New York City after the end of next month. The French company stated that because of a fire, while the plant has now been repaired, unless it worked double shifts, it would only be able to manufacture a smaller number of parts than anticipated; moreover, it did not have enough parts to meet all its current contracts, and chose instead to send the existing parts to other customers located elsewhere in the world who are paying a higher price. The French company stated it was not in breach under the contract due to impossibility of full performance because of the fire and double shifts. It further asserted its other customers would suffer more harm without sufficient auto parts than US Auto. It said US Auto had other sources of supply in the United States.
US Auto cannot repair their cars without these parts. Buying the same parts from other companies would be more expensive, may not work at all, and there would be a substantial delay even if US Auto could find parts for delivery of the autos. US Auto views the parts from the French company as unique, one-of-a-kind parts, whereas the French company argues parts from other auto parts companies work just as well.
The contract had a clause in it that said the failure to deliver these parts would constitute irreparable harm should US Auto seek to have a court enter an injunction directing the French company to provide the parts. The contract does not provide for the court, country, or legal jurisdiction where a litigation would be heard if there was a dispute.
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You have to advise your client US Auto whether to bring a lawsuit with US Auto as Plaintiff against the French company, French Auto Parts, as Defendant, whether to sue the French company in the United States, where to sue the French company in the United States, what court (state or federal) to bring the lawsuit, whether you have a meritorious claim for breach of contract, and whether to seek an injunction against the French company ordering the French company to provide the parts to US Auto in New York City.
1. Please discuss as counsel for the Plaintiff US Auto, whether you would bring a litigation, whether you would bring the litigation in the United States, whether you would bring the litigation in New York, whether you would bring the litigation in federal or state court, and why you would make each of these recommendations. Please state why you believe, depending upon your choice, you would have personal and subject matter jurisdiction over the Defendant if you choose federal court or state court. Please include in your discussion whether subject matter jurisdiction exists in federal court under 28 U.S.C. 1332-Diversity of Citizenship. Please explain the pros and cons of suing in state court vs. federal court. In doing so, you should demonstrate and include your understanding of the various differences between the state and federal courts. These could include a discussion such as the right to an interim appeal in New York State courts, but not allowed in the Federal Courts. These could include a discussion, such as the discovery rules of the state and federal courts where, for example, in the Federal Rules of Civil Procedure (FRCP) and the new rules in the Commercial Division, the number of depositions and the time allowed for each deposition are the same. These may include, among others, the differences regarding jury demands and voir dire questions to the jury in state and federal courts. Please state whether you would request a jury as plaintiff in this case. Please explain all the reasons why you would recommend the state court or the federal court.
2. Please also discuss as a separate topic specifically whether personal jurisdiction over the Defendant French Auto Parts exists after the Daimler decision and whether you would have specific jurisdiction under the requirements of the International Shoe case and subsequent line of cases under the due process clause of the United States Constitution. Your explanation should discuss whether the Defendant, French Auto Parts, has sufficient minimum contacts with New York and whether substantial justice and fair play merit finding the Defendant, French Auto Parts, can be sued in New York under the International Shoe case and subsequent line of decisions, even though French Auto Parts has no offices in New York, to meet the constitutional requirements as set forth in these cases. Please explain if and why you think Defendant, French Auto Parts, has availed itself of the benefits of New York and therefore should have expected to be sued in New York. You may also separately wish to state and discuss whether long arm jurisdiction specifically exists under one of the provisions in CPLR § 302, the long-arm statute in New York, and why. Please also state the arguments Defendant French Auto Parts would make asserting that no personal jurisdiction exists over it for it to be sued by US Auto in New York.
3. State whether or not you would seek a preliminary injunction on behalf of your client US Auto. State the reasons why you would seek a preliminary injunction, state the elements required for a preliminary injunction, and state what would be your arguments on each of the elements as to why you are entitled to a preliminary injunction against the Defendant, French Auto Parts. Please demonstrate your understanding as to how these elements are defined and what you will need to show to prevail on the motion for the preliminary injunction. In your discussion, please remember to state as Plaintiff why you believe you can show a likelihood of
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success, why you are suffering irreparable harm, and why you believe the balancing of the equities favors your client. Please also state as to each of these three elements, what you believe the arguments will be by the Defendant, French Auto Parts, in opposing your motion for preliminary injunction.
4. Assume both sides are serving discovery on each other. Please draft three document requests seeking documents from Defendant, and after each request, please explain why you chose to seek those documents.
5. Assume that the Defendant, French Auto Parts has submitted affidavits in opposition to the preliminary injunction motion, by (a) the President and CEO of French Auto Parts, (b) the person at French Auto Parts who negotiated the contract, (c) the manager at the French Auto plant where the parts are manufactured, and (d) another customer who claims they would be damaged if parts are sent to your client, U.S. Auto, rather than them. State whether you would depose some or all of these individuals and why

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