241 F. Supp.2d 123 (2003) | Cited 0 times | D. Puerto Rico | January 9, 2003


Defendant VISKASE SALES CORPORATION ("VISKASE") has moved the Court todismiss the claims asserted against it in these proceedings on threedistinct grounds. These are: improper venue, lack of in personamjurisdiction and failure to state a claim upon which relief can begranted. The Court having reviewed the memoranda and documents submittedby the parties hereby finds as follows.


Plaintiff BEATTY CARIBBEAN, INC. ("BEATTY") filed the instant complaintclaiming that VISKASE is liable under Puerto Rico's Law 75 of 1964, Tit.10 Laws of P.R. Ann. § 278 et seq. (1997) because it unilaterally andwithout just cause terminated BEATTY's right to distribute VISKASE'sproducts in the Dominican Republic. The complaint alleges, and defendantso concedes, that the parties relationship is governed by a DistributorAgreement ("the Agreement") entered into by BEATTY and VISKASE'sassignor, UNION CARBIDE CORPORATION, on May 20, 1983.

Pursuant to our standing order procedure for filing dispositive motionsVISKASE filed a "Dispositive Motion Package", which included its Motionto Dismiss Pursuant to Rule 12(b)(2), (3) and (6) of the Federal Rules ofCivil Procedure ("VISKASE's motion"), BEATTY's opposition thereto,VISKASE's reply and BEATTY's sur-reply. Inasmuch as the parties haveincluded matters outside the pleadings together with the aforementionedfiling, to wit copies of the Agreement, Puerto Rico State DepartmentCertifications, correspondence and an affidavit, pursuant to Rule12(b)(6), Fed.R. Civ. P., the Court will treat Viskase's motion todismiss for failure to state a claim, as one for summary judgment, to bedisposed of as provided by Rule 56 Fed.R.Civ.P. See Boateng v.Interamerican Univ., Inc., 210 F.3d 56 (1st Cir. 2000).


Defendant challenges venue in this jurisdiction and seeks dismissal inaccordance with 28 U.S.C. § 1406 (a) and Rule 12(b)(3) Fed.R.Civ.P.However, pursuant to 28 U.S.C. § 1391 (a)(2) actions based ondiversity jurisdiction such as the one presently before us may be broughtin "a judicial district in which a substantial part of the events oromissions giving rise to the claim occurred".

As further described below the issue present in this litigation arosefrom a commercial relationship that originated, subsequently developedand eventually partially concluded in Puerto Rico. Therefore, venue inthis jurisdiction is proper inasmuch as there is a substantial connectionbetween plaintiff's cause of action and this forum.


Defendant having challenged our authority to exercise personaljurisdiction it becomes plaintiff's burden to prove the necessaryfacts to establish that defendant is indeed amenable to judicialproceedings in this forum. Jet Wine & Sprits, Inc. v. Bacardi & Co.,298 F.3d 1, 7 (1st Cir. 2002); Daynard v. Ness, Motley, Loadholt,Richardson & Poole, 290 F.3d 42, 50 (1st Cir. 2002).

Absent an evidentiary hearing the court may determine in personamjurisdiction based on a prima facie review of the properly documentedjurisdictional facts as presented by plaintiff. Jet Wine & Spirits,Inc., 298 F.3d at 7. "[I]n evaluating whether the prima facie standardhas been satisfied, `the district court is not acting as a factfinder;rather, it accepts properly supported proffers of evidence by a plaintiffas true and makes its ruling as a matter of law.'" United States v. SwissAm. Bank, Ltd., 274 F.3d 610, 619 (1st Cir. 2001) (citing United StatesElec. Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp.,987 F.2d 39, 43 (1st Cir. 1993). See also Daynard, 290 F.3d at 51(court need not resolve disputed facts but rather accepts plaintiff'sproffer in ascertaining adequacy of prima facie showing).

In diversity suits in personam jurisdiction over a non-residentdefendant is determined according to the forum's applicable statute,Jet Wine & Spirits, Inc., 298 F.3d at 51; Daynard, 290 F.3d at 51,which in this particular case is the Puerto Rico long-arm statute.Pizarro v. Hoteles Concorde Int'l, 907 F.2d 1256, 1258 (1st Cir.1990); Am. Express Int'l, Inc. v. Mendez-Capellan, 889 F.2d 1175,1178 (1st Cir. 1989); Rosich v. Circus & Circus Enter., Inc.,3 F. Supp.2d 148, 149 (D.P.R. 1998).

In pertinent part, the local long-arm provision reads as follows:

(a) Whenever the person to be served is not domiciled in Puerto Rico, the [courts] shall take jurisdiction over said person if the action or claim arises because said person:

(1) Transacted business in Puerto Rico . . .; or

(2) Participated in tortious acts within Puerto Rico. . . .

P.R. Laws Ann. tit. 32, app. III, Rule 4.7(a) (1983).

Rule 4.7 expressly mandates that the claim asserted in the complaint"arise" from the contacts of the non-domiciled defendant with the forum.Escude Cruz v. Ortho Pharm., Corp., 619 F.2d 902, 905 (1st Cir. 1980).See also Redondo Constr. Corp. v. Banco Exterior de España, S.A.,11 F.3d 3, 5 (1st Cir. 1993) (specific jurisdiction over defendantpresent inasmuch as claim resulted from defendant's acts within forum);Am. Express, 889 F.2d at 1179 (defendant corporation's activities withinPuerto Rico unrelated to the causes of action asserted); Rosich, 3 F.Supp.2d at 150 (plaintiff's injuries must be "connected with defendant'scontacts with Puerto Rico"); Pou v. Am. Motors Corp., 127 D.P.R. 810, 819(1991) (in personam jurisdiction requires minimum contacts with the forumand that the claim be related to or arises from those contacts).

In other words, there must be a causal relationship between thedefendant's activities within the forum and the claims asserted inthe pleadings.

Whether certain events "arise out of" a nonresident defendant's actions within Puerto Rico is comparable or analogous to whether certain actions can be said to be the legal, or proximate cause of the injuries suffered by a plaintiff. This court has previously commented on the concept of legal causation.

Pizarro v. Hoteles Concorde Int'l, 907 F.2d at 1258.

Violations of Law 75 have been traditionally considered a tort inasmuchas the statute provides that termination of the relationship without justcause shall result in a "tortious act against the dealer" § 278b.See A.M. Capens' Co., 74 F.3d at 321 and 323 (breach "considered a`tortious act'" although also dubbed as "hybrid contract/tort action")and Marina Indus., Inc. v. Brown Boveri Corp., 114 D.P.R. 64, 90 (1983)(termination deemed a "tortious act").

As further described below, plaintiff's operations are concentrated inPuerto Rico since it does not own or operate any facilities or assetselsewhere. The correspondence terminating the distribution in theDominican Republic was mailed by defendant to BEATTY's local address.Therefore, the resulting tort, i.e., unjustified reduction of theterritory, necessarily arose in Puerto Rico where the effects of thetermination of the relationship are essentially felt.

Further, we find that by entering into the distribution agreement withplaintiff in Puerto Rico with its concomitant commercial relationship withBEATTY in Puerto Rico defendant has transacted business sufficient tocomport with the Puerto Rico long arm statute provision as well as dueprocess requirements since the outstanding claim arises precisely from thepartial termination of their contract. See Jet Wine & Spirits, Inc.


Rule 56(c) of the Federal Rules of Civil Procedure sets forth thestandard for ruling on summary judgment motions. See Sands v. RidefilmCorp., 212 F.3d 657, 660-61 (1st Cir. 2000). The party seeking summaryjudgment must first demonstratethe absence of a genuine issue ofmaterial fact in the record. DeNovellis v. Shalala, 124 F.3d 298, 306(1st Cir. 1997). A genuine issue exists if there is sufficient evidencesupporting the claimed factual disputes to require a trial. Morris v.Gov't Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994);LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993), cert.denied, 511 U.S. 1018, 114 S.Ct. 1398, 128 L.Ed.2d 72 (1994). A fact ismaterial if it might affect the outcome of a lawsuit under the governinglaw. Morrissey v. Boston Five Cents Sav. Bank, 54 F.3d 27, 31 (1stCir. 1995).

In cases where the non-movant party bears the ultimate burden ofproof, he must present definite and competent evidence to rebut a motionfor summary judgment, Anderson v. Liberty Lobby, Inc., 477 U.S. 242,256-257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Navarro v. Pfizer Corp.,261 F.3d 90, 94 (1st Cir. 2000); Grant's Dairy v. Comm'r of Maine Dep'tof Agric., 232 F.3d 8, 14 (1st Cir. 2000), and cannot rely upon"conclusory allegations, improbable inferences, and unsupportedspeculation". Lopez v. Rubianes, 230 F.3d 409, 412 (1st Cir. 2000);Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir.1994); Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8(1st Cir. 1990).


Upon review of the parties' submissions the court determines that thefollowing facts are not disputed.

On May 20, 1983 UNION CARBIDE CORPORATION ("UNION CARBIDE"), enteredinto a Distributor Agreement with plaintiff BEATTY whereby the latter wasappointed an exclusive distributor of certain products (casings, films andequipment) listed in a schedule to the Agreement. At the time of theAgreement, UNION CARBIDE was a New York corporation having an office inChicago, Illinois. BEATTY's appointment was for Puerto Rico, Jamaica,Dominican Republic, Haiti, Barbados, Trinidad, Tobago, Guyana, Surinam,Lesser Antilles, Aruba, Curacao and Bonaire ("the Territory").

The Agreement was subsequently assigned by UNION CARBIDE to VISKASE.VISKASE is a Delaware corporation with a principal place of business inChicago, Illinois.

Article 15 of the Agreement provides for yearly successive terms,unless terminated by either party upon written notice given 60 days priorto expiration. The parties further agreed that the Agreement "shall beconstrued and interpreted and its performance shall be governed by thelaws of the State of Illinois, as well as by the laws of the UnitedStates of America (including but not limited to, the Foreign ConceptPractices Act.)".

On March 17, 1999, VISKASE advised BEATTY in writing that pursuant toSection 15 of the Agreement, it elected to terminate the same, effectiveon the anniversary date of May 20, 1999. In that correspondence, VISKASEfurther advised BEATTY that a new Distributor Agreement would be offeredto BEATTY excluding the Dominican Republic. The complaint characterizedthat action as the elimination of the Dominican Republic from theTerritory. Thereafter, VISKASE continued to sell products and to honorBEATTY's status as a distributor in all other markets mentioned in theAgreement's original definition of the Territory, including Puerto Rico.


Plaintiff advocates the application of Law 75 to the partialtermination of the agreement over the parties' contractualchoice oflaw. Defendant, on the other hand, insists that Illinois law shouldprevail as specifically provided for in the agreement particularly becausethe termination only affects distribution of its products in theDominican Republic.

Courts sitting in diversity are bound to apply the substantive law ofthe forum where the action is filed including its conflict of lawprinciples. Servicios Comerciales Andinos, S.A., v. GE del Caribe,145 F.3d 463, 478 (1st Cir. 1998); Allstate Ins. Co. v. OccidentalInt'l, 140 F.3d 1, 3 (1st Cir. 1998). The Puerto Rico Supreme Court hasconsistently resorted to the rules set forth in the Restatement (Second)of Conflict of Laws (1971) ("Restatement") for guidance in resolvingissues of applicable law. See Servicios Comerciales Andinos, 145 F.3d at479 (citing pertinent local Supreme Court cases). See also AllstateIns., 140 F.3d at 3; A.M. Capen's Co., Inc. v. Am. Trading and Prod.Corp., 74 F.3d 317, 320 (1st Cir. 1996).

Freedom of contract includes the right to choose applicable legalprovisions to the established relationship. Allowing parties in multistatetransactions to select in advance the applicable law helps them "foretellwith accuracy what will be their rights and liabilities under thecontract . . . In this way, certainty and predictability of result aremost likely to be secured." Restatement § 187 cmt e.

The Restatement incorporated this freedom of choice as a generalprinciple. However, the parties' autonomy in this regard is notlimitless. According to § 187 of the Restatement the contractualselection will be upheld unless: "(a) the chosen state has no substantialrelationship to the parties or the transaction" or "(b) application ofthe law of the chosen state would be contrary to a fundamental policy ofa state which has a materially greater interest than the chosen state inthe determination of the particular issue".

The parties' choice of Illinois law would pass muster under thefirst provision since VISKASE has its principal place of business inChicago, Illinois.

On the other hand, a controversy remains as to whether Law 75 embodiesa local "fundamental policy" and whether Puerto Rico "has a materiallygreater interest" than Illinois in disposing of the termination issue.1

Law 75

Puerto Rico Distributorship Act, Law 75 of June 24, 1964, P.R. LawsAnn. tit. 10 § 278 et seq. (1997) ("Law 75") "governs the businessrelationship between principals and the locally appointeddistributors/dealers for marketing their products. The statute wasinitially enacted to avoid the inequity of arbitrary termination ofdistribution relationships once the designated dealer had successfullydeveloped a local market for the principal's products and/or services".Irvine v. Murad Skin Research Lab., Inc., 194 F.3d 313, 317 (1st Cir.1999); Euromotion, Inc. v. BMW of N. Am., Inc., 136 F.3d 866, 870 (1stCir. 1998); Borschow Hosp. and Med. Supplies, Inc. v. CésarCastillo, Inc., 96 F.3d 10, 14 (1st Cir. 1996); R.W. Intern. Corp. v.Welch Foods, Inc., 88 F.3d 49, 51 (1st Cir. 1996).

A "dealer" is defined in the statute as a "person . . . havingeffectively in his charge in Puerto Rico the distribution . . . orrepresentation of a given merchandise or service" P.R. Laws Ann. tit.10, § 278(a) (1997) and a "dealer's contract" as a "relationshipestablished between a dealer and a principal . . . whereby andirrespective of the manner in which the parties may call, characterize orexecute such relationship, the former actually and effectively takescharge of the distribution of merchandise . . . on the market of PuertoRico." § 278(b).

The Court of Appeals for the First Circuit has interpreted the dealer'sdefinition to require that the substantial part of the dealer's businessoperate locally. Otherwise, Puerto Rico would have no valid interest inthe application of the statute.

The alternative, that the phrase could simply refer to a company with a contractual right to distribute in Puerto Rico, regardless of the bulk of its business, is a less likely reading. First, under such circumstances, Puerto Rico would have little or no interest in providing the dealer with an additional remedy for the breach of contract, and second, Puerto Rico would face significant legal and practical problems regulating conduct outside its borders.

A.M. Capen's Co., Inc. v. Am. Trading and Prod. Corp., 202 F.3d 469,473 (1st Cir. 2000).

The distributor must have consequential local presence for thestatute to apply. In Capen's the local presence requirement was notmet by the mere fact that Puerto Rico was a destination of the goodsinasmuch as the distributor had "no employees, no office space orwarehouses, and no assets in Puerto Rico [and] [o]ther than the twoor three times a year that an agent visits Puerto Rico to take ordersdirectly, all other contact and orders are made through New Jersey,where Capen's maintains a place of business and is incorporated."Capen's, 202 F.3d at 475.

In enacting Law 75 the legislators were concerned with the inequitiesinherent in a commercial relationship between parties of disparateeconomic strength. Distributors had no meaningful leverage at thecontractual stage and were impotent before manufacturers who displacedthem after having successfully developed a market for their products.Capen's, 74 F.3d at 321. The Puerto Rico Supreme Court has explicitlyindicated that "Act No. 75 unquestionably represents a strong publicpolicy directed to level[ing] the contractual conditions between twogroups financially unequal in their strength." Medina & Medina v.Country Pride Foods, Ltd., 858 F.2d 817, 820 (1st Cir. 1988) (emphasisours) (response of Puerto Rico Supreme Court to certified questionconcerning Law 75) Capen's, 202 F.3d at ___; Capen's, 74 F.3d at 321.

Through the enactment of Law 75 Puerto Rico has sought to safeguardlocal dealers from indiscriminate termination of their services as soonas they had successfully developed a lucrative business. "The legislativehistory clearly focuses on the problems faced by dealers in Puerto Ricowho are terminated once they have invested in and created a favorablemarket for a principal's product." Capen's, 202 F.3d at 474; Euromotion,136 F.3d at 870.

The Commonwealth of Puerto Rico cannot remain indifferent to the growing number of cases in which domestic and foreign enterprises, without just cause, eliminate their dealers . . . as soon as these have created a favorable market and without taking into account their legitimate concerns.

The Legislative Assembly of Puerto Rico declares that the reasonable stability in the dealer's relationship in Puerto Rico is vital to the general economy of the country, to the public interest and to the general welfare. . . .

Capens, 202 F.3d at 474 (emphasis ours) (citing Roberco, Inc. v.Oxford Indus., Inc., 122 D.P.R. 115, 121-22 (1988) (quoting from theStatement of Motives, 1964 Laws of Puerto Rico 243-244).

In order to effectively safeguard the interests which prompted itsenactment Law 75 proscribes waiver of its application. In pertinent part§ 278b-2 of the statute specifically provides:

The dealer's contracts referred to in this chapter shall be interpreted pursuant to and ruled by the laws of the Commonwealth of Puerto Rico, and any other stipulation to the contrary shall be void.

Any stipulation that obligates a dealer to . . . litigate any controversy that comes up regarding his dealer's contract outside of Puerto Rico, or under foreign law or rule of law, shall be likewise considered as violating the public policy set forth by this chapter and is therefore null and void.

Based on the foregoing it may reasonably be concluded that Puerto Ricohas explicitly enunciated its interest in regulating commercialrelationships involving local distributors. We find that this interestapplies to distributors such as BEATTY regardless of the fact that part oftheir commercial interests may extend beyond our geographical boundariesgiven the extent of their local presence. BEATTY is a Puerto Ricocorporation. Its warehouse, headquarters, and all administrative andoperation offices are also located in Puerto Rico. The Agreement wasnegotiated for the most part in Puerto Rico. All sales orders for theentire territory covered by the Agreement are placed from BEATTY'soffices in Puerto Rico. Some of the products are shipped from BEATTY'swarehouse in Puerto Rico and others directly by VISKASE to the clients.

Faced with the facts as presented in this case disregarding Law75 would run contrary to fundamental policy of Puerto. Rico whoseinterest in this issue surpasses the interest of Illinois which fromthe record before us sits merely as defendant's home state.

Dormant Commerce Clause

Given the undisputed interest of Puerto Rico in safeguarding theefforts of the local distributors in reaping the fruits of theirefforts in developing a market the issue then becomes whether thisinterest may be legally extended to the distribution of productsoutside of Puerto Rico regardless of the parties' contractual choiceof law.

According to the affidavit submitted by plaintiff which standsuncontested [exh. I to sur-reply] all of its operations, assets andemployees are located in Puerto Rico and all business dealings arecarried out locally. The declaration specifically states that "executionof [the] agreement is conducted through only one consolidated operationin Caguas, Puerto Rico." ¶ 7. The operations are described asfollows:

6. This distribution agreement has always been executed exclusively in and from Puerto Rico. All sales orders from the entire territory of the agreement are placed in Beatty's office in Caguas, Puerto Rico, by fax, telephone or other electronic means.

Thus, in the particular situation before us even though the contractcovers the distribution of products outside of Puerto Rico as a practicalmatter all substantive business undertakings in the execution of thecontract are carried out locally. The fact that the products' destinationis the Dominican Republic does not automatically wipe out Puerto Rico'sinterest in therelationship when virtually all of plaintiff's endeavorsin the distribution process are concentrated in Puerto Rico.

The situation before us is similar to that of Instructional Sys., Inc.v. Computer Curriculum Corp., 35 F.3d 814 (4th Cir. 1994) inasmuch asthe interests sought to be protected by Law 75 are affected regardless ofthe fact that the distribution is carried out outside Puerto Rico whichallows for its extraterritorial application. Instructional Sys. dealtwith an exclusive multi-state distribution contract for the northeasternUnited States between the principal, a Delaware corporation withheadquarters in California, and the distributor, a New Jerseycorporation. The contract for a five-year period provided for theapplication of California law to the relationship. Upon conclusion of thecontract term the principal offered to extend the exclusive distributionrights to only part of the original territory including New Jersey. Thedistributor instituted suit claiming that the original agreementconstituted a "franchise" under the New Jersey Franchise Practices Act("NJFPA") and that the manufacturer was liable thereunder for havingfailed to renew the contract without just cause and for attempting toimpose unreasonable standards of performance. The federal court attemptedto reconcile the lawfulness of the extraterritorial application of theNJFPA and certified the issue to the New Jersey Supreme Court.

In discussing the interest of New Jersey in the relationship —even though termination did not affect the New Jersey distributionrights — the New Jersey Supreme Court reasoned as follows:

[The defendant] attempts to split the contract into sales that occur in New Jersey and sales that occur in other states. However, the purpose behind franchise-act legislation is that dealers geographically situated in a forum state are to be the desired beneficiaries of the legislation in order to make their bargaining position more equal to the manufacturers. To strip away the spokes of the hub-type franchise would counter the purpose of such legislation.

Instructional Sys., Inc. v. Computer Curriculum Corp., 614 A.2d 124,135, 130 N.J. 324 (1992) (citations and internal quotations omitted).

The controversy in Instructional Sys. centered around the applicationof New Jersey's NJFPA to other states which triggered a possible conflictwith what is commonly known as the dormant Commerce Clause. Pursuant tothe Commerce Clause "Congress shall have [the] power . . . [t]o regulateCommerce . . . among the several States . . ." U.S. Const., art. I §8 cl.3. "[T]his affirmative grant of authority to Congress alsoencompasses an implicit or `dormant' limitation on the authority of theStates to enact legislation affecting interstate commerce." Healy v. BeerInst., 491 U.S. 324, 326 n. 1, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989).Because Congress was specifically conferred authority over interstatecommerce states may not interfere therewith even in the absence offederal legislation. "This negative command, known as the dormantcommerce clause, prohibits states from acting in a manner that burdensthe flow of interstate commerce." Pharm. Research and Mfr. of Am. v.Concannon, 249 F.3d 66, 79 (1st Cir. 2001). Different standards ofscrutiny will apply in examining the validity of the statute in questiondepending on whether it "directly controls commerce occurring whollyoutside [the state's] boundaries" in which case there is a "per seviolation of the Commerce Clause"; if it "discriminates againstinterstate commerce" in which case "strict scrutiny" will be applied, orif it "regulates evenhandedlyand has only incidental effects oninterstate commerce" in which case the local interest will be compared tothe burden on interstate commerce. Pharm. Research, 249 F.3d at 79-80.See also Catherine Gage O'Grady, Targeting State Protectionism Instead ofInterstate Discrimination under the Dormant Commerce Clause, 34 San DiegoL.Rev. 571 (May-June 1997).

As previously noted, the controversy in Instructional Sys. was theextended protection of the NJFPA to other states by virtue of thedistribution agreement. In the case before us, however, the distributionat issue pertains to sales in the Dominican Republic which consequentlydoes not impact on interstate commerce rendering the dormant CommerceClause analysis inapposite. In other words shipment of products to theDominican Republic falls outside the realm of interstate commercelimitations.


One alternative route would be to apply the parties' choice of lawselectively that is, only to a portion of the contract. Under choice oflaw principles, the courts have the discretion of applying laws fromdiverse states to different issues arising in a single litigation. Thisprocedure is known as depecage. "[D]ifferent substantive issues [can]properly be decided under the laws of different states whenchoice-influencing considerations differ as they apply to the differentissues." Leflar, American Conflicts Law, § 96 at 280 (4th ed.1986). See Edward M. Borges, Extraterritorial Application of State Law,18 Wtr Franchise L.J. 102, 104 (Winter, 1999) and Thomas M. Pitegoff,Choice of Law in Franchise Relationships; Staying within Bounds, 14-Spg.Franchise L.J. 89 (Spring, 1995) (advocating the use of this mechanism insituations similar to Instr. Systems).

Policy and fairness considerations, however, play a key role in itsapplication. Even though the depecage alternative is appealing at firstblush, it would be impracticable in the case before us inasmuch as wewould fragmentize a distribution mechanism that functions through asingle consolidated operation. Further, we would be directly affectingparamount local policy concerns.


Based on the foregoing, we find Law 75 applicable to the claimsasserted in the complaint and therefore, defendant's Motion to Dismiss. . . (docket No. 15)2 is hereby DENIED.


1. Apart from insisting on the contractual choice of law provisiondefendant has not pointed out any specific portion of Illinois law whichwould apply to the situation at hand nor to any policy concerns thatwould merit consideration under the Restatement analysis. Therefore, weshall focus our examination on whether any interest that Puerto Rico mayhave in the relationship is sufficient to trump the parties' contractualchoice.

2. See also Opposition to Defendant's Motion to Dismiss (docket No.16); Reply to Plaintiff's Opposition to Viskase's Motion to Dismiss(docket No. 17) and Sur-Reply to Defendant's Reply . . . (docket No.18).

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