NETWORLD COMMUNICATIONS, CORP. v. CROATIA AIRLINES, D.D.
OPINION fld. Signed by Judge Susan D. Wigenton on 6/1/15. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CROATIA AIRLINES, D.D., et al.,
Civil Action No. 13-4770 (SDW)
June 1, 2015
WIGENTON, District Judge.
This matter comes before the Court on Plaintiff Networld Communications, Corp.’s
(“NCC”) motion for partial summary judgment (Dkt. No. 54) and Defendants Croatia Airlines,
D.D. (“OU”) and Lidija Saban’s (“Saban”) cross motion for partial summary judgment (Dkt. No.
62) pursuant to Federal Rule of Civil Procedure 56. This Court has jurisdiction over this action
pursuant to 28 U.S.C. § 1332. Venue is proper pursuant to 28 U.S.C. § 1391. These motions are
decided without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil
Rule 78.1. For reasons discussed herein, this Court DENIES both Plaintiff’s motion for partial
summary judgment and Defendants’ cross motion for partial summary judgment.
NCC is a privately-owned New Jersey corporation with its principal place of business in
Parsippany, New Jersey. See EFC No. 46, Second Amended Complaint (“Second Am. Compl.”),
¶ 9. OU is a publicly traded Croatian corporation headquartered in Zagreb, Croatia, with the
majority of its stock owned by the Croatian government. Id. ¶ 10. Defendant Saban is an OU
employee who, for the past decade, was primarily responsible for OU’s relationship with NCC.
Id. ¶ 11.
Since at least 1997, NCC has served as OU’s General Sales Agent (“GSA”) in the United
States and Canada. Id. ¶ 2. As GSA, NCC had a variety of responsibilities relating to the
marketing and sale of OU flights to North American customers, including establishing
relationships with travel agents, implementing sales initiatives, and providing customer call center
services. Id. During the time period in which NCC served as GSA, OU saw its North American
sales grow from $2 million in 1997 to $26 million in 2012. Id.
NCC and OU’s relationship was governed by a General Sales Agency Agreement
(“Agency Agreement” or “the Agreement”). Id. ¶ 3. The parties’ fourth multi-year contract was
executed on July 1, 2011, became effective January 1, 2012, and was to last for four years.
Plaintiff’s Statement of Undisputed Facts (“Pl.’s SOF”) ¶¶ 4-6. For months before the Agreement
was executed, OU was in a financially unstable position: it was operating at a loss and had
significant loan liabilities. Defendants’ Statement of Undisputed Facts (“Defs.’ SOF”) ¶ 5; see
EFC No. 62, Declaration of Marko Baretic (“Baretic Decl.”), ¶ 24. In fact, on March 29, 2011,
approximately three months before the Agreement was negotiated and executed, in order to avoid
bankruptcy, OU’s Supervisory Board adopted a Financial Recovery Plan and a Business Plan
The following facts are undisputed, unless otherwise indicated.
outlining OU’s proposed restructuring plan. Defs’ SOF, ¶¶ 25-26. Accordingly, NCC was notified
during the 2011 negotiations that OU was undergoing a financial restructuring process. Id.
However, OU did not request special protections, such as a more permissible termination clause,
in light of its poor financial condition. Id. In addition, the parties were aware that OU would
become subject to the European Union’s (“EU”) stringent financial regulations when Croatia
joined the EU in 2013. Id. ¶¶ 4-5.
As majority shareholder, the Croatian government routinely provided direct and indirect
monetary assistance to OU, as a stopgap measure, through loan and lease guarantees. ECF No. 54,
Declaration of Davor Gjivoje Jr. (“Gjivoje Decl.”) ¶ 24. However, in early 2013, the European
Commission advised the Croatian government that the manner in which it recapitalized OU,
pursuant to a restructuring plan devised in November of 2012, violated the EU’s rules regulating
state aid. Defs.’ SOF, ¶¶ 17-18. Consequently, OU overhauled its restructuring plans to comply
with the EU’s guidelines as well as local Croatian state aid rules. Id. ¶20. The new plan, which
was formally adopted on June 27, 2013, required OU to cut “operational costs in an amount
commensurate with the value of the state aid” it received. Id. ¶¶ 20-24.
By email dated May 27, 2013, OU advised NCC of its desire to “deeply revise” NCC’s
compensation structure as contemplated in the Agency Agreement, explaining that in an effort to
restore OU’s profitability, the company was obligated to “achieve the required level of selfcontribution in [its] overall restructuring costs.” See EFC No. 62, Declaration of Andrea Galovac
Ivanovic (“Ivanovic Decl.”), Ex. A. OU further indicated that it was offering NCC, as well as its
other business partners, “appropriate proposals of amendment to our existing contract.” Id.
The email contained an attachment titled “ANNEX 1 TO THE GENERAL SALES
AGREEMENT”, proposing changes to Articles 9.1.2(b) and 10.2 of the Agency Agreement, to
become effective four days later, on June 1, 2013. Ivanovic Decl., Ex. B. Specifically, the amended
agreement would entirely delete Article 9.1.2(b), which governed the payment of performancebased incentive commissions for sales, and delete the portion of Article 10.2 that provided for
payment of a fixed monthly incentive commission to NCC. Id.
On May 30, 2013, Davor Gjivoje, Chief Executive Officer and Vice Chairman of NCC
confirmed receipt of the email, and on June 9, 2013, advised that NCC was preparing an answer
to the proposed revisions. Ivanovic Decl., Ex. C; Gjivoje Decl., ¶ 1. On June 10, 2013, Gjivoje
sent an email to OU’s representative explaining that it would be imprudent to amend the Agency
Agreement because NCC was undergoing a routine audit by the Internal Revenue Service (“IRS”)
at the time and revision of NCC’s partner contracts would likely invite heightened scrutiny by the
IRS and “change the focus and the scope of the audit . . .” Ivanovic Decl., Ex. D. Also, as NCC’s
CEO later elaborated, NCC was opposed to OU’s plan to reduce NCC’s commission structure. See
Gjivoje Decl., ¶ 20. OU did not reply to NCC’s response email. Id.
On or about July 30, 2013, OU notified NCC via letter that it was terminating the Agency
Agreement effective September 1, 2013 “pursuant to Article 3.2 of [the Agency] Agreement.”
Second Am. Compl., ¶ 4; Gjivoje Decl., Ex. B. Article 3.2 governs early termination of the Agency
Agreement. Pl.’s SOF, ¶ 7. Article 3 provides, in pertinent part:
3.1 This Agreement is valid for a period of four (4) years
commencing on 01 January 2012 and terminating on 31 December
2015 (the Initial Term).
After the Initial Term, this Agreement shall hereafter automatically
extend for further successive periods of 4 years, unless terminated
by either party giving to the other at least six (6) months prior written
notice of cancellation before the end of Initial Term or before the
end of each subsequent four-year term, as the case may be, that shall
be without prejudice to any outstanding liabilities accrued and
arising hereunder between the parties hereto.
3.2 Either Party my [sic] by giving written notice to the other
Party, terminate this Agreement with effect from the date stated in
such notice or, if none, with immediate effect, if:
3.2.1 the other Party ceases or threatens to cease to carry
on its business or substantially the whole of its business, or
stops or suspends making payments with respect to all or any
class of its debts or announces an intention to do so, if any
such action is not cured, pursuant to section 3.2.2 below,
within thirty (30) days from written notice or demand; or
3.2.2 the other Party fails to pay any amount due under this
Agreement and such default is not cured within thirty (30)
days from written demand, unless the GSA has taken the
necessary legal actions to pursue recovery of funds when/if
the delay is not caused by the GSA.; or
3.2.3 the other Party calls a meeting for the purpose of
passing a resolutions [sic] to wind it down or such a
resolution is passed, or a resolution is passed by the directors
of the other Party to seek a winding up or administration
order, or the other Party presents, or has presented, a petition
for a winding up order, or presents, or has presented, a
petition to appoint an administrator, or has an administrative
receiver, or receiver appointed overall or any part of its
business, undertaking, property or assets (otherwise than for
the purposes of a solvent amalgamation or reconstruction
where the resulting entity is at least as creditworthy as the
other Party and assumes all of the obligations of the other
Party under this Agreement); or
3.2.4 the other Party fails to pay its debts as they fall due,
except as described and called for in clause 3.2.2 above; or
3.2.5 the other Party suffers of [sic] undergoes any
procedure analogous to any of those specified in Clauses
3.2.1 or 3.2.3 inclusive or any other procedure available in
the country in which the other Party is constituted,
established or domiciled against or to an insolvent debtor or
available to the creditors of such a debtor; or
3.2.6 the other Party commits a breach, other than the ones
described and called for in sections 3.2 - 3.2.5 above, of its
obligations under this Agreement which is not remedied
within thirty (30) days of the receipt by the other Party of a
written notice from the Party not in breach requiring the
See id. ¶ 7; see also, Gjivoje Decl., Ex. A.
NCC brought suit against OU on September 8, 2013, alleging that OU breached the Agency
Agreement by terminating the contract without good cause and, further, that Defendants engaged
in a fraudulent conspiracy to deprive NCC of commissions and other revenue to which NCC is
entitled. See ECF No. 1, Complaint. NCC asserted the following eleven causes of action: (1)
breach of contract for improper termination; (2) breach of the implied covenant of good faith and
fair dealing for improper termination of the Agency Agreement; (3) breach of contract for failure
to pay amounts due; (4) breach of the implied covenant of good faith and fair dealing for failure
to pay amounts due; (5) fraud; (6) breach of contract for cancellation and return of guarantee; (7)
declaratory judgment; (8) accounting; (9) unjust enrichment; (10) tortious interference with
contract; (11) violation of the New Jersey Sales Representative Rights Act (“SSRA”). See Second
Am. Compl., ¶¶ 52-112.
NCC now moves for summary judgment as to Count 1 of the Complaint. ECF No. 54.
Specifically, NCC seeks summary judgment as to its allegation of breach of contract for improper
termination because “OU’s notice of termination . . . did not reference any of the six reasons for
early termination listed in Section 3.2 of the 2011 Agreement.” Pl.’s SOF, ¶ 10. Defendants
oppose NCC’s motion for partial summary judgment, cross-move for partial summary judgment,
and request an Order finding that OU “properly terminated the parties’ agreement pursuant to
Croatian law.” ECF No. 62; Defendants’ Brief, p. 2.
Article 24 of the Agency Agreement provides that the Agency Agreement “shall be
governed by and construed in accordance with the laws of the Republic of Croatia.” Gjivoje Decl.,
Ex. A. Accordingly, OU invokes Article 829 of the Republic of Croatia’s Civil Obligations Act
(“COA”), which provides that a party may terminate an agency contract for “important reasons.”
See Defs.’ SOF ¶ 45. In its entirety, Article 829 states as follows:
Termination of Contract
(1) Each party may terminate a permanent contract without
prior notice, or terminate a fixed-term contract prior to
expiration of the period for which it was concluded, for
important reasons, which must be stated, specially [sic] the
failure of the other party to fulfill the contractual obligations
or due to changes of circumstances.
(2) The parties may not waive or limit this right
(3) If the notice for termination of a permanent contract does
not state an important reason, it shall be considered as
termination with a regular period of notice.
(4) A contracting party has a right to compensation of
damage if the other party did not have an important reason
for termination of the contract.
(5) Unfounded termination entitles the other party to
terminate a permanent contract without a period of notice,
and/or to terminate a fixed-term contract prior to expiration
of the period for which it was concluded.
See id. at ¶ 46; Baretic Decl. Ex. B.
In Defendants’ view, NCC’s refusal to amend the Agency Agreement to cooperate with
OU in complying with the strictures imposed by its new financial restructuring process caused OU
financial harm, and significantly so, because NCC’s commission structure was far more generous
than that of OU’s other business partners. Defs.’ Br. p. 15. Under such circumstances therefore,
Defendants argue, OU had an “important reason”, i.e. the new financial restructuring process, to
terminate the Agency Agreement under Article 829, regardless of the terms of the Agreement. Id.
at p. 27.
STANDARD OF REVIEW
A moving party is entitled to judgment as a matter of law where there is no genuine issue
as to any material fact. See Fed R. Civ. P. 56(c); Brooks v. Kyler, 204 F.3d 102, 105 n.5 (3d Cir.
2000) (citing Fed R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548,
91 L. Ed. 2d 265 (1986)); Montone v. City of Jersey City, 709 F.3d 181, 189 (3d Cir. 2013). The
burden of demonstrating the absence of a genuine issue of material fact falls on the moving party.
See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 305 (3d Cir. 1999). Once the moving party
has satisfied this initial burden, the opposing party must identify “specific facts which demonstrate
that there exists a genuine issue for trial.” Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366
(3d Cir. 1996).
Not every issue of fact will be sufficient to defeat a motion for summary judgment; issues
of fact are genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed.
2d 202 (1986). Further, the nonmoving party cannot rest upon mere allegations; he must present
actual evidence that creates a genuine issue of material fact. See Fed. R. Civ. P. 56(e); Anderson,
477 U.S. at 249 (citing First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 290, 88 S. Ct. 1575, 20
L. Ed. 2d 569 (1968)). In conducting a review of the facts, the non-moving party is entitled to all
reasonable inferences and the record is construed in the light most favorable to that party. Hip
Heightened Indep. & Progress, Inc. v. Port Auth. of New York & New Jersey, 693 F.3d 345, 351
(3d Cir. 2012). Accordingly, it is not the Court’s role to make findings of fact, but to analyze the
facts presented and determine if a reasonable jury could return a verdict for the nonmoving party.
See Brooks, 204 F.3d at 105 n.5 (citing Anderson, 477 U.S. at 249); Big Apple BMW v. BMW of
N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
To prevail on a breach of contract claim, a party must establish “(1) [a] contract between
[the] Parties; (2) [a] breach of that contract; (3) damages flowing therefrom; and (4) that the party
stating [the] claim performed its own contractual obligations.” Frederico v. Home Depot, 507 F.3d
188, 203 (3d Cir. 2007). Plaintiff alleges that OU’s unexplained termination of the Agreement
before its expiration date is actionable breach of the Agreement because the plain and unambiguous
language of the Agency Agreement requires cause for early termination. In NCC’s view, this
Court need only address whether a particular clause of the contract—Article 3.2—was breached.
Conversely, Defendants urge this Court to enforce the choice of law clause in the Agency
Agreement, which provides that Croatian law controls the interpretation of the Agreement, and
determine the termination issue under Article 829 of the COA. In order to interpret the Agreement,
this Court must first resolve the choice of law question.
Choice of Law
The parties disagree as to which law applies to the interpretation of the Agency Agreement.
Pointing to the choice of law provision in Article 24 of the Agreement, Defendants seek application
of Croatian law; specifically, Article 829 of the COA. Plaintiff does not squarely address whether
Croatian law should apply or not; rather, Plaintiff contends that application of the COA does not
obviate its entitlement to summary judgment.
It is an “elementary canon” of contract interpretation “that a contract must be read as a
whole, and that individual provisions must be read in their context and not in a vacuum.” Internat’l
Ass’n of Machinists and Aerospace Workers v. U.S. Airways, Inc., 358 F.3d 255, 266 (3d Cir.
2004) (citing In re New Valley Corp., 89 F.3d 143, 149 (3d Cir. 1996)). It is an “equally
fundamental canon that a contract must be read so as to give effect to all of its parts.” Id. (citing
New Wrinkle, Inc. v. John L. Armitage & Co., 238 F.2d 753 (3d Cir. 1956)).
In a diversity case, a federal court applies the choice of law rules of the jurisdiction in
which it sits. See Amica Mut. Ins. Co. v. Fogel, 656 F.3d 167, 2011 U.S. App. LEXIS 18623, 2011
WL 3930285, *3 (3d Cir. 2011). New Jersey courts tend to enforce private choice of law clauses
provided that they do not offend New Jersey public policy and the contract bears some relation to
the chosen jurisdiction. See GMC v. New A.C. Chevrolet, Inc., 263 F.3d 296, 331 (3d. Cir. 2001)
(citing Instructional Systems, Inc. v. Computer Curriculum Corp., 130 N.J. 324, 341, 614 A.2d
124 (1992)); Nuzzi v. Aupaircare, Inc., 341 Fed. Appx. 850, 851 (3d Cir. 2009) (the choice of law
provision is enforceable when the language is unambiguous and does not violate public policy);
Security Sav. Bank v. Green Tree Acceptance, Inc., 703 F. Supp. 350, 354 (D.N.J. 1989); (“New
Jersey conflict of laws principles clearly recognize the validity and enforceability of choice of law
provisions in contracts . . . .”); see also Gay v. Credit Inform, 511 F.3d 369, 389 (3d Cir. 2007)
(“courts generally honor the intent of the contracting parties and enforce choice of law provisions
in contracts executed by them.”). In short, a choice-of-law clause will be enforced, unless 1) it is
contrary to the public policy of the forum state; 2) the source of law has no reasonable relationship
to the parties or the transaction; or 3) its language is ambiguous.
Applying these factors, this Court is satisfied that the parties’ choice of law provision is
enforceable. First, Article 24 of the Agreement unambiguously provides that the Agency
Agreement “shall be governed by and construed in accordance with the laws of the Republic of
Croatia.” Gjivoje Decl., Ex. A. Secondly, based upon the facts presently before this Court,
application of Croatian law presents no discernable conflict with New Jersey’s public policy.
Thirdly, Croatia has a reasonable relationship to the parties and the transaction: 1) the Agency
Agreement concerns the provision of air travel by OU to and from Croatia; 2) OU is a publicly
traded Croatian corporation headquartered in Zagreb, Croatia; and 3) the Croatian government
owns a majority of OU’s shares. See Second Am. Compl. ¶ 9-11.
Because there is ample federal authority honoring choice of law provisions in contracts,
coupled with New Jersey’s generous stance on enforcing choice of law provisions, this Court finds
that Croatian law governs the interpretation of the Agency Agreement.
Article 829 of the Civil Obligations Act
Defendants do not dispute that the Agency Agreement was terminated before its effective
end date, and they do not, and perhaps cannot, dispute that the July 2013 termination letter failed
to specify grounds for the early termination of the Agreement. Rather, Defendants contend that
the Agency Agreement was terminable at will under Article 829 of the COA, which permits
unilateral early termination of an agency contract for “important reasons”—here, OU’s 2013
financial restructuring plan—regardless of whether the terms of the contract provide that right.
Defs.’ SOF ¶ 46.
However, as Plaintiff correctly points out, Defendants’ contentions of intensive fiscal
problems rely on evidence entirely within Defendants’ control. Defendants also acknowledge that
discovery has yet to be conducted in this case. “[B]y its very nature, the summary judgment
process presupposes the existence of an adequate record.” See Doe v. Abington Friends Sch., 480
F.3d 252, 257 (3d Cir. 2007). Because discovery is not yet complete, Plaintiff’s motion for partial
summary judgment and Defendants’ cross-motion for partial summary judgment are not ripe for
adjudication and will be denied.
For the foregoing reasons, Plaintiff’s motion for partial summary judgment (Dkt. No. 54)
and Defendants’ cross-motion for partial summary judgment (Dkt. No. 62.) are DENIED. An
Order consistent with this Opinion follows.
s/ Susan D. Wigenton, U.S.D.J.
Hon. Steven C. Mannion, U.S.M.J.
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