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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND, NORTHERN DIVISION * FLUXO-CANE OVERSEAS LTD., * Plaintiff, * v. * E.D. & F. MAN SUGAR INC., * Defendant. * * * * * * * * * * * * * * CIVIL NO.: WDQ-08-356

MEMORANDUM OPINION Plaintiff Fluxo-Cane Overseas Ltd. ("Fluxo-Cane") sued E.D. & F. Man Sugar Inc. ("Man Sugar") for breach of contract, conversion, and misappropriation of bills of lading and sugar cargo for Man Sugar's refusal to pay $6,013,149.93 for 17,727.060 metric tons of sugar. Pending are Fluxo-Cane's and Man Sugar's

motions for summary judgment, Fluxo-Cane's motions for leave to file a surreply, and Man Sugar's motion to amend its motion for summary judgment. For the following reasons, Fluxo-Cane's motion

for summary judgment and motion for leave to file a surreply will be denied, Man Sugar's motion for summary judgment will be granted in part and denied in part, and its motion to amend its motion for summary judgment will be granted. I. Background Man Sugar and E.D. & F. Man Commodity Advisers, Ltd. ("MCA") are subsidiaries of E.D. & F. Man Holdings, Ltd., a London-based 1

group of companies that trade in commodities worldwide. Cross. Mot. Summ. J. at 1.

Def.

On February 1, 2005, Fluxo-Cane

entered into a contract with MCA to trade commodities futures. Id. at Ex. A. On January 7, 2008, Man Sugar agreed to buy 25,209.99 metric tons of sugar ("sugar contract") from Fluxo-Cane. Pl. Mot. Summ.

J. Ex. 8. On January 28, 2008, Fluxo-Cane invoiced Man Sugar for $6,135,867.28 for the sugar. Pl. Mot. Summ. J. Ex. 14. On June

2, 2008, Fluxo-Cane issued a final invoice to Man Sugar for $6,597,456.62. Id. at 5.

Before February 4, 2008, MCA terminated the futures contract, liquidated Fluxo-Cane's account, and determined that Fluxo-Cane owed it $41,961,982.07.1 Pl. Mot. Summ. J. Ex. 16.

On February 4, 2008, MCA assigned $6,013,149.14 of that amount to Man Sugar in exchange for $5,900,000, due upon Fluxo-Cane's satisfaction of the assigned debt. Id. On that day, Man Sugar

also notified Fluxo-Cane that it was setting off its $6,135,867.28 debt under the sugar contract against the

On September 19, 2008, the High Court of Justice, Queen's Bench Division, Commercial Court, in the United Kingdom issued its Reasons for its August 8, 2008, Order for Summary Judgment. The U.K. Court held that MCA and Fluxo-Cane agreed on January 17, 2008, to abstain for less than 24 hours from unilaterally liquidating Fluxo-Cane's account. MCA liquidated Fluxo-Cane's account during that period, and Fluxo-Cane's debt to MCA resulted. Pl. Supp. Aff. MCA's appeal of this decision was granted. Def. Am. Mot. Summ. J. The U.K. Court has not addressed whether this liquidation was improper. Pl. Supp. Aff.; Def. Am. Mot. Summ. J. 2

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$6,013,149.40 assignment from MCA. Fluxo-Cane demanded payment. Sugar refused. suit. Id.

Id.

On February 7, 2008, Man

Pl. Mot. Summ. J. Ex. 17, 18.

On February 8, 2008, Fluxo-Cane filed this

On June 10, 2008, Fluxo-Cane moved for summary judgment.

On July 18, 2008, Man Sugar filed a cross motion for summary judgment. On September 12, 2008, Fluxo-Cane moved for leave to On September 19, 2008, Fluxo-Cane moved for

file a surreply.

leave to file a supplemental affidavit, which the Court granted on October 10, 2008. On November 26, 2008, Man Sugar moved to

amend its cross motion for summary judgment with the most recent decision in the U.K. action. II. Analysis A. Summary Judgment Motions 1. Standard of Review

Under Rule 56(c), summary judgment is appropriate when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Catrett, 477 U.S. 317, 322 (1986). Celotex Corp. v.

A dispute about a material

fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must view the facts and reasonable inferences therefrom "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 Anderson v.

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U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam)). The opposing party, however,

must produce evidence upon which a reasonable factfinder could rely. Celotex, 477 U.S. at 324. A mere "scintilla" of evidence Anderson, 477 U.S.

is insufficient to preclude summary judgment. at 252.

When multiple parties file motions for summary judgment, the Court applies the same standard of review to each motion. Corp. v. Michelin Tire Corp., 722 F.2d 42, 45 n.3 (4th Cir. 1983). The Court must consider each motion "separately on its ITCO

own merits to determine whether either of the parties deserves judgment as a matter of law." Rossignol v. Vorhaar, 316 F.3d

516, 523 (4th Cir. 2003) (citing Philip Morris Inc. v. Harshbarger, 122 F.3d 58, 62 n.4 (1st Cir. 1997)). "When

considering each individual motion, the [C]ourt must take care to resolve all factual disputes and any competing, rational inferences in the light most favorable to the party opposing that motion." Id. (citing Wightman v. Springfield Terminal Ry. Co.,

100 F.3d 228, 230 (1st Cir. 1996)). 2. Applicable Law

In diversity jurisdiction cases, a federal court must apply the choice of law rules of the state in which it sits. Klaxon

Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941). Maryland follows the principle of lex loci contractus, which 4

applies the law of the state where the contract was made. Allstate Ins. Co. v. Hart, 327 Md. 526, 528, 611 A.2d 100, 101 (Md., 1992). Maryland also follows the principle of lex loci

delicti, which applies the law of the state where the injury occurred. Laboratory Corp. of America v. Hood, 395 Md. 608, 615, The sugar contract between Fluxo-

911 A.2d 841, 845 (Md. 2006).

Cane and Man Sugar was made under the Domino Sugar Rules,2 and is governed by New York law. Pl. Mot. Summ. J. Ex. 8, Ex. 10

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