formed specifically to operate the waterway, is an Argentine company with its principal placc of
business in Argentina. (Id. J 4, 18.) Hidrovia is a joint venture of Jan De Nul, N.V., a Belgian
company with its principal place of business in Belgium, and Emepa, S.A., an Argentine company
with its principal place of business in Argentina. (Id, ff] 5-6.) Thus, Illinois is not closely related
to the companies involved in this suit.

Illinois is also not the situs of the injury alleged in this case. Hidrovia says that Great Lakes’
actions cost it “hundreds of thousands of dollars in toll revenue” and have harmed “Hidrovia’s
goodwill, in terms of its relationship with Argentina... , the shipping interests using the Waterway
and in the marketplace in general.” (Id. § 37.) Because Hidrovia is an Argentine corporation based
in Argentina, it suffered those injuries in Argentina.

The parties’ relationship is also centered in Argentina. This whole dispute revolves around
a concession granted by the Argentine government to operate a waterway in Argentina. Absent that
concession, Hidrovia, which “can only exist for the purpose of performing the concession” and “is
required to cease its operation . . . upon the [concession’s] termination,” would have had no
interaction with Great Lakes. (See id. J 18.) Thus, Argentina is the linchpin of the parties’
relationship.

Illinois does, however, have some connection to the allegedly wrongful conduct. Hidrovia
says it was harmed by Great Lakes’ “announce[ment], through the Argentine press and otherwise”
of its intention to replace Hidrovia as concessionaire and by the proposals to the same effect that it

sent to the Argentine government. (Id, § 27a, b). Though Hidrovia does not allege whether the

statements to the Argentine media were made in Illinois, Argentina or elsewhere, the proposals were



Tllingis case law reveals no ruling that a cause of action for tortious interference with
contract can be stated on (he basis of “adverse impact” or “hindrance of contract.”
With respect to the breach element of tortious interference with contract, both the
Illinois Supreme Court and the Illinois Appellate Court consistently require more
than conduct rendering performance of the contract more burdensome, writing in
terms of requiring either a breach of contract, termination of the contractual relations,
or rendering performance impossible.

George A. Fuller Co. v. Chicago Coll, of Osteopathic Med., 719 F.2d 1326, 1330-31 (7" Cir. 1983).

Thus, even if Illinois law applied to this dispute, Hidrovia’s claim would still have to be dismissed.

Conclusion
For the reasons set forth above, defendant’s motion to dismiss is granted and this case is
dismissed without prejudice.

ENTER:
a

ons

NITED STATES DISTRICT JUDGE

DATED: Novenken 35 2002



government, the shippers who usc the waterway and its goodwill in the marketplace generally. (Id.)
Moreover, Hidrovia says, if Great Lakes persuades the Argentine government to replace Hidrovia

as the concessionaire, it will suffer damages in excess of US $500 million. (Id. 438.)

The Legal Standard

On a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-plcaded factual
allegations of the complaint, drawing all reasonable inferences in plaintiff’ s favor. Forscth v. Village
of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). No claim will be dismissed unless “il is clear that no
relief could be granted under any set of facts that could be proved consistent with the allegations.”

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

Discussion
“A federal court sitting in diversity applies the choice of law rules of the state in which it

sits.” Fredrick v. Simmons Airlines, Inc., 144 F.3d 500, 504 (7 Cir. 1998). In tort cases, the llinois

courts use the most significant relationship test to determine the applicable law. Id. Under that test,
“the law of the place of injury controls unless Illinois has a more significant relationship with the
occurrence and with the parties.” Esser v. McIntyre, 661 N.E.2d 1138, 114! (Ill. 1996), In applying
this test, we consider where the injury and the injury-causing conduct occurred, the domicile,
nationality, place of incorporation and place of business of the parties and the place where the
parties’ relationship is centered. Id.; Ingersoll v. Klein, 262 N.E.2d 593, 596 (Ill. 1970).

Great Lakes, a New Jersey corporation with its principal place of business in Illinois, is the

only entity involved in this suit that is connected to Illinois. (Compl. { 7.) Hidrovia, which was

-3-



sent from Illinois. (Id.) Thus, at least some of Great Lakes’ wrongful conduct is alleged to have
occurred in Illinois.

Ifthe number of contacts were the deciding factor, clearly Argentina would win. But it is not.
Rather, as Hidrovia points out, the contacts must be evaluated in light of the “‘intercsts and public
policics of potentially concerned states .. , as they relate to the transaction in issue.’” Fredrick, 144

F.3d at 504 (quoting Jones v, State Farm Mut. Auto Ins, Co., 682 N.E.2d 238, 249 (Ill. App. Ct.

1997)), In Hidrovia’s view, Illinois’ interest in deterring and punishing the kind of conduct alleged
here makes its interest in this suit superior to Argentina’s.

The Court disagrees. The parties’ dispute arises from a contract between Hidrovia, an
Argentine company that is owned jointly by an Argentine and a Belgian company, and the Argentine
government to operate a waterway in Argentina. Great Lakes is alleged to be interfering with that
contract by pressuring the Argentine government, both directly and through the shippers who use the
waterway, to terminate its relationship with Hidrovia, Given the international flavor of this dispute,
and the Argentine government’s intimate involvement in it, it hardly seems appropriate to allow
Tllinois Jaw to dictate the result. Illinois’ interest in regulating Great Lakes’ behavior, though valid,
does not trump a sovereign nation’s interest in defining acceptable conduct for the transactions that
occur within its borders, particularly those to which its government is a party.

In sum, Argentina not only has a greater number of contacts with this dispute, it has a greater
interest in having its law apply to this dispute. Because Argentina is the jurisdiction with the most
significant relationship to this case, its law applics.

Great Lakes asserts, without contradiction by Hidrovia, thal a viable claim of tortious

interference can be stated under Argentine law only if Hidrovia alleges that Great Lakes’ conduct

-5-



‘ .

Minute Order Form (497)
VO United States District Court, Northern District of Illinois
j— of Assigned Jus he
y Por Magterae udge Paul B. Plunkett “than Awigned Judge
Case NUMBER 02 C 5408 DATE 11/5/2002
CASE HIDROVIA, 8.A. vs. GREAT LAKES DREDGE
TITLE

[In the following hox (a) indicate the party filing the motion, ¢.g.. plaintitt, defendant, 3rd parly plaintiff, and (b) state briefly the nature
of the motion being presented.)

MOTION;

DOCKET ENTRY:

qd) oOo Filed motion of [ use listing in “Motion” box above. |

(2) Oo Brief in support of motion due

3g) a Answer brief to motion due___. Reply to answer brief due

(4) o Ruling/Hearingon_____set for__ at

(5) oO Status hearing[held/continued to] [set for/re-set for]on set for at

(6) oO Pretrial conferencefheld/continued to] [set for/re-set for]on__———s set for al.
(7) oO Trial[set for/re-set for]on at

(8) O [Bench/Jury trial] [Hearing] held/continued to at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

CFRCP4(m) ClLocal Rule 41.1 CFRCP41(a)(1) Ol FRCP41(a)(2).

ao [Other docket entry) ENTER MEMORANDUM OPINION AND ORDER: Defendant’s motion
to dismiss is granted and this case is dismissed without prejudice.

(1) [For further detail see order attached to the original minute order. |

No notices required, advised in open court.

No notices required.
umber af nicer

Notices muiled by judge's staff. NOV 0 7 2002

Notificd counsel by telephone,

date dacketed

oY | Docketing to mail notices.

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V | Mail ao4s0 & fouusia sn

Copy to judge/magistrate judge.

ack depul

SS :Q1HY 9~ AGN 20

date rite ni
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TBK deputy's
initials

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caused the Argentine government to breach the concession contract. (See Def.’s Mem. Law Supp.
Mot. Dismiss, Ex. A, Rolon Aff.; Pl.’s Resp. Def.’s Mot. Dismiss at 11.) Hidrovia has made no such
allegation. On the contrary, Hidrovia alleges that the contract remains in full force and effect.
(Compl. {J 23, 29-34, 38-39.) Because Ilidrovia has affirmatively alleged that the Argentine
government has not breached the concession contract, its tortious interference claim must be
dismissed.

The result would be the same, even if Illinois law applicd to this case, As Hidrovia points
out, an allegation of breach is not a prerequisite to an interference claim under Tllinois law. Rather,
“the scope of the cause of action is broader and encompasses the situation in which the defendant
prevents the plaintiff from performing the contract.” Scholwin v. Johnson, 498 N.E.2d 249, 255 (Ill.
App. Ct. 1986). But Hidrovia alleges that Great Lakes’ actions have rendered its performance more
burdensome, not impossible, Hidrovia says that allegation is sufficicnt, but it has not proffered, and
we could not find, a single Illinois case in which allegations of increased burden werc held sufficient
to state a tortious interference of contract claim.

In the absence of supportive case law, Hidrovia turns to the Restatement of orts, which
defines the tort of contractual interference very liberally:

One who intentionally and improperly interferes with the performance of a contract

... between another and a third person, by preventing the other from performing the

contract or causing his performance to be more expensive or burdensome, is subject

to liability to the other for the pecuniary loss resulting to him.

RESTATEMENT (SECOND) OF TORTS § 766A. Though the Illinois courts have cspoused the

prevention of performance component of that section, (hey have yet to adopt the more expensive or

burdensome component. On the contrary, as the Seventh Circuit noted:



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF LLLINOIS

EASTERN DIVISION
NOV 0 7 2002
HIDROVIA, S.A., )
)
Plaintiff, )
)
v. ) No. 02 C 5408

) Paul E. Plunkett, Senior Judge
GREAT LAKES DREDGE )
& DOCK CORPORATION, y
)
Defendant. )

MEMORANDUM OPINION AND ORDER
Hidrovia, $.A., an Argentine corporation, has sued Great Lakes Dredge & Dock Corporation
(“Great Lakes”) for its alleged interference with Hidrovia’s contract with the government of
Argentina. Defendant has filed a Federal Rule of Civil Procedure (“Rule”) 12(b)(6) motion to

dismiss the complaint. For the reasons set forth below, the motion is granted.

Facts

Hidrovia is an Argentine corporation with its principal place of business in Buenos Aires,
Argentina. (Compl. 4.) Hidrovia is operated as a joint venture by its principal sharcholders Jan
De Nul, N.V, a Belgian corporation with its principal place of business in Belgium, and Limepa, S.A,

an Argentine corporation with its principal place of business in Buenos Aires, Argentina, (Jd. 5-6.)

-l-



Great Lakes is a New Jersey corporation with its principal place of business in Oak Brook, Illinois.
dd. 117.)

In 1995, the government of Argentina awarded to Hidrovia the concession for dredging,
signalization and operation of the Rio de la Plata and Parana River waterway. (Id. § 14.) The
concession requires Hidrovia to make substantial repairs and renovations to the 800 km waterway,
its signals and navigational aids. (Id. Jf 14-15.) The concession contemplates two sources of
compensation for Hidrovia’s work: tolls paid by the shippers that use the waterway and an annual
subsidy of US $10 million paid by the Argentine government. (Id. 15-16.) Since 1995, Iidrovia
has invested in excess of US $500 million to improve the waterway. (Id. J 20.)

Originally, the contract for the concession had a ten-year term. (Id. § 23.) In October 1997,
however, the Argentine government extended it for eight years, until 2013, in exchange for
Hidrovia’s agreement 1o perform additional work. (Id.)

Sometime in 2001, Great Lakes “[pJublicly announced, through the Argentine press and
otherwise” ils intention to replace Ilidrovia as the concessionaire, (Id. { 27a.) In addition, Great
Lakes sent proposals to the Argentine government “that stated its willingness to take over the . . .
concession and accept a far lower toll rate” (han that granted to Hidrovia. (Id. | 27b.)

Hidrovia says that Great Lakes’ conduct has caused the Argentine government to suspend
payments of the annual subsidy and to reduce the toll rate Hidrovia is permitted to charge. (1d. 37.)
Great Lakes’ public statements have also prompted the shippers who usc the waterway lo pressure
the Argentine government to prevent [lidrovia from increasing the tol! rate and to allow them to pay
tolls in devalued Argentine currency instead of US dollars. (Id.) Hidrovia says that these actions

have cost it hundreds of thousand of dollars, have damaged its relationship with the Argentine