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HayJo S.A. de CV v. Sponge-Jet, Inc.

United States District Court, D. New Hampshire

December 23, 2015

HayJo S.A. de CV
Sponge-Jet, Inc. Opinion No. 2015 DNH 235

Nicholas F. Casolaro, Esq., Peter E. Ferraro, Esq., Joshua William Gardner, Esq., Jeremy T. Walker, Esq.


Joseph DiClerico, Jr. United States District Judge

HayJo S.A. de CV, a Mexican corporation, and its president, Sami Hayek Dominguez, brought suit against Sponge-Jet, Inc. after Sponge-Jet terminated HayJo’s distributor agreement and an employee of HayJo left to work for a new company.[1] Sponge-Jet moves for summary judgment. HayJo objects to summary judgment.

Preliminary Matters

Sponge-Jet charges in its reply that HayJo’s objection to summary judgment is deficient because it lacks a statement of material facts as required by Local Rule 56.1(b).[2] Contrary to Sponge-Jet’s challenge, however, HayJo’s objection includes a section titled “Statement of Undisputed Material Facts.” That section includes citations to the summary judgment record. Therefore, HayJo complied with Local Rule 56.1.

Sponge-Jet objects generally in a footnote to emails submitted by HayJo in support of its objection that they are in Spanish without English translations. Under Local Rule 5.1(h), “the court will reject documents not in the English language unless translations are furnished.” In its objection, HayJo translated some but not all of the emails that were submitted in Spanish, specifically in Exhibits F and G. The court will consider the translated parts of the emails, for purposes of summary judgment, but not the emails provided only in Spanish.

Sponge-Jet requests in a footnote that HayJo’s objection be struck for violating the parties’ protective order. The issue of sealing confidential documents apparently has been resolved.

Standard of Review

Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A genuine dispute is one that a reasonable fact-finder could resolve in favor of either party and a material fact is one that could affect the outcome of the case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). Reasonable inferences are taken in the light most favorable to the nonmoving party, but unsupported speculation and evidence that “is less than significantly probative” are not sufficient to avoid summary judgment. Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 174 (1st Cir. 2015) (internal quotation marks omitted).


Sponge-Jet manufactures and sells abrasive blasting material used to clean industrial infrastructure. The products are sold globally. To distribute its products, Sponge-Jet makes agreements with independent distributors.

In 2001, Michael Merritt, president of Sponge-Jet, met Sami Hayek, president of HayJo. In 2003, Sponge-Jet appointed HayJo as its distributor in Mexico. Hayek used his contacts in the Mexican oil industry and the government to institute a government standard that required a product that met the specifications of the Sponge-Jet product. He also worked to educate the oil industry about the requirement to use Sponge-Jet products.

Hayek’s brother was his business partner at HayJo. Hayek hired Francisco Malagon, Hayek’s brother’s son-in-law, to be the main sales person at HayJo. Malagon was the only person in the company who spoke English and became the main contact with Sponge-Jet. Malagon was made the “commisario” in the company, a position with particular duties under Mexican law.

Sponge-Jet and HayJo entered into a written distributorship agreement in 2007. In 2009, Diego Cavalieri, Sponge-Jet’s vice president for Latin American sales, wanted to cancel HayJo’s distributorship but Merritt told him to give Hayek a chance. HayJo and Sponge-Jet signed two new distributorship agreements in 2010.

The agreements divided Mexico into two territories, north and south. The terms of the agreements were the same except for the regions covered. Under both agreements, HayJo was “the authorized, Sole non-exclusive distributor of all Sponge-Jet’s products designated in Exhibit ‘A’ (‘Products’).” Sponge-Jet sold products to HayJo “at such prices and upon such terms and conditions as determined and established by Sponge-Jet.” The prices current at that time were provided in “Exhibit C.” Under the agreement, Sponge-Jet also retained the right to sell its products directly to customers in Mexico and promised to “attempt to keep the Distributor informed of such sales.” ...

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