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Jones v. Safaris

United States District Court, Ninth Circuit

October 31, 2013

CHAPUNGU SAFARIS, a partnership, CHAPUNGU SAFARIS AFRICA (PRIVATE) LIMITED, a limited liability company organized under the laws of Zimbabwe; RAYMOND TOWNSEND and PATRICIA TOWNSEND, husband and wife; JACQUES HARTZENBERG and SONJA THOMPSON, husband and wife, Defendants.


B. LYNN WINMILL, Chief District Judge.

Defendants Chapungu Safaris Africa (Private) Limited, Raymond Townsend and Patricia Townsend move for summary judgment (Dkt. 45) and defendant Jacques Hartzenberg joins the motion (Dkt. 46). The Court heard argument on August 7, 2013 and now issues its decision. For the reasons explained below, the Court will deny the motion.


In 2006 and 2007, plaintiff Michael Jones went on big-game hunts with Chapungu Safaris in Zimbabwe. Although Chapungu billed Jones for the 2006 trip in December 2006, the company presented a revised bill to Jones two years later, in December 2008. This revised bill included new charges for the 2006 hunt, plus charges for the 2007 hunt. See Dkt. 49, at 4-5, 7. Jones disputed the new charges.

Before this dispute arose, Jones and Raymond Townsend agreed to form a joint venture whereby Jones would ship vehicles to Zimbabwe and Raymond sell them. In keeping with that agreement, in June 2008, Jones sent two Toyota LandCruisers to Zimbabwe. Jones also says he later sent four other vehicles to Zimbabwe: two Landrover Anabels, a Chevy Suburban, and a Ford pickup.[1] See Letter from PL Townsend to the American Embassy, Dkt. 45-3, at 26-30 (referring to a "first consignment of two old landcruiser station wagons", id. at 26; "another two Santana landrovers", id. and "another 2" that apparently arrived afterward, id. at 27).

Meanwhile, the parties' relationship deteriorated as they fought over charges related to the 2006 and 2007 safaris as well as the status of some of the vehicles Jones had shipped to Zimbabwe. In early 2009, the Townsends indicated that they intended to keep vehicles "as security" for Jones' alleged outstanding balance on the 2006 and 2007 safari bills. See Feb. 20, 2009 email from PL Townsend to Mike Von Jones, Dkt. 45-3, at 32. Then, in March, 2009, Patricia Townsend sent an email to Jones, which stated: "YOU WILL GET THE FINAL HUNTING BILL TODAY WHICH YOU MUST PAY IMMEDIATELY.... UNTIL THEN YOU CAN KISS ALL THOSE VEHICLES GOODBYE AS THEY WILL BE SOLD TO DEFRAY EXPENSES IF IT IS NOT PAID. IT IS VERY SIMPLE." Mar. 2, 2009 email from Pat-Chapungu Safaris to Mike Von Jones, Dkt. 52, at 5.

Jones says he has not been paid for these vehicles and that he does not know where they are. He sued in January 2011, alleging three claims: (1) breach of contract; (2) conversion; and (3) fraud. Jones concedes his fraud claim should be dismissed, so the Court will focus on the remaining two claims.


1. The Contract Claim

The Court will deny defendants' motion for summary judgment of plaintiff's breach-of-contract claim. Before addressing the substantive arguments, however, the Court will take up defendants' recent assertion that Zimbabwe law governs this claim.

A. Defendants' Invocation of Zimbabwe Law

Defendants' invocation of Zimbabwe law came as a surprise because they moved for summary judgment on the grounds that Idaho law governed this entire action. See Mot. Mem., Dkt. 45-1, at 9-11 (citing various Idaho authorities). In a supplemental, post-hearing brief, however, defendants argued that Zimbabwe law governs the contract claim. See Defendants' Supp. Br., Dkt. 61, at 2-3.

Federal Rule of Civil Procedure 44.1 applies when a party seeks to raise an issue about a foreign country's laws.[2] The party must (1) raise the issue in the pleadings or in another writing, and (2) explain the foreign law so that the court is in a position to apply the foreign country's law to the facts before it. See, e.g., Bel-Ray Co., Inc. v. Chemrite (Pty) Ltd., 181 F.3d 435, 440 (3d Cir. 1999). If an issue of foreign law is not raised in the pleadings, the notice provided must be "reasonable." DP Aviation v. Smith Indus. Aerospace & Defense Sys., Ltd, 268 F.3d 829, 846 (9th Cir. 2001). The district court, in its discretion, decides what is "reasonable." Id.

District courts should consider at least the following factors in determining reasonableness: "The stage which the case had reached at the time of the notice, the reason proffered by the party for his failure to give earlier notice, and the importance to the case as a whole of the issue of foreign law sought to be raised, ...." Fed.R.Civ.P. 44.1, Advisory Committee's Notes. As for the timing of the notice, there is no bright-line rule. See id. Generally, however, the Ninth Circuit has said that if foreign law is not raised in the pleadings, the party should give notice "before or during the pretrial conference, and normally a contention of application of foreign law should be disclosed at the latest in the pretrial order." DP Aviation, 268 F.3d at 847. But a notice given before the pretrial conference might still be unreasonable under Ninth Circuit authority. The key is that the party seeking to invoke foreign law should do so "as early as is practicable and, in any event, at a time that is reasonable in light of the interests of all parties and the court." Id. at 847.

The Court finds that defendants' notification to the plaintiff and the Court regarding Zimbabwe law unreasonable.

First, the defendants seeking to apply Zimbabwe law to this claim have not explained why they did not give notice earlier. These defendants first appeared nearly two years ago, in December 2011. See Dkt. 21 (Dec. 9, 2011 motion to dismiss for lack of jurisdiction). They answered the complaint nearly a year ago, in October 2012. See Dkt. 39 (Oct. 17, 2012 answer to amended complaint).

Second, defendants moved for summary judgment based on Idaho law, putting plaintiff and the Court to the task of analyzing the issues under Idaho law. Changing course now would be inefficient and arguably prejudicial to the plaintiff.

Third, not only have defendants failed to explain Zimbabwe contract law to the Court, they concede - even after the summary judgment hearing - that neither party is "presently in a position" to do so. Supp. Br., Dkt. 61, at 3. They then suggest that the Court might want to pass on the difficult issues arising within the contract claim in accordance with the international comity doctrine.[3] Id. Raising the specter of foreign law without any meaningful attempt to explain that law or how it applies to the facts is unreasonable, particularly at this stage in the proceedings. See generally Bel-Ray, 181 F.3d at 440 (explaining the dual burden under Rule 44.1 to (1) give notice about foreign law and (2) explain that law).

Given defendants' unreasonable notice about the potential applicability of Zimbabwe law, the Court will apply Idaho law to the contract claim. See Comm'l Ins. Co. v. P. Peru-Constr. Corp., 558 F.2d 948, 952 (9th Cir. 1977) (applying forum law where parties failed to raise issue of foreign law's applicability); Restatement (Second) Conflict of Laws § 136 cmt. h (1971) ("[W]here either no information, or else insufficient information, has been obtained about the foreign law, the forum will usually decide the case in accordance with its own law, except when to do so would not meet the needs of the case or would not be in the interests of justice.").

B. Idaho Law

Under Idaho law, there are triable factual issues on plaintiff's contract claim.

In his complaint, Jones alleges the existence of two separate contracts: (a) an alleged contract related to big-game hunting safaris (the safari contract) and (b) an alleged contract between Raymond Townsend and Jones whereby Raymond would sell vehicles plaintiff sent to Zimbabwe (the import contract). See Am. Compl., Dkt. 34, ¶¶ 5-12. Defendants contend they are entitled to summary judgment regarding an alleged breach of either contract claim. In opposing this motion, plaintiff did not ...

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