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Al-Khaldiya Electronics and Electrical Equipment Co., W.L.L. v. Boeing Co.

July 7, 2009

AL-KHALDIYA ELECTRONICS AND ELECTRICAL EQUIPMENT CO., W.L.L., APPELLANT,
v.
THE BOEING COMPANY; BOEING GLOBAL SALES CORPORATION; MCDONNELL DOUGLAS SERVICES; MCDONNELL DOUGLAS CORPORATION; MCDONNELL DOUGLAS HELICOPTER CORPORATION, APPELLEES.



Appeal from the United States District Court for the Eastern District of Missouri.

The opinion of the court was delivered by: Benton, Circuit Judge

Submitted: March 10, 2009

Before GRUENDER, ARNOLD, and BENTON, Circuit Judges.

Al-Khaldiya Electronics and Electrical Equipment Co. sued The Boeing Company and its subsidiaries for alleged contract breaches. The district court*fn1 granted summary judgment to Boeing. Al-Khaldiya appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

This case involves a Boeing subsidiary, McDonnell Douglas Corporation (MDC), and its subsidiaries -- Boeing Global Sales Corporation (formerly McDonnell Douglas International Sales Corporation) (MDISCO); McDonnell Douglas Services (MDS); and, McDonnell Douglas Helicopter Company.

In 1996, Al-Khaldiya and MDISCO entered into a representation agreement for January 22, 1996, to January 21, 1998. According to this 1996 agreement, AlKhaldiya was to solicit and promote sales or leases of McDonnell Douglas products. As amended, the 1996 agreement tied compensation to the successful sale of AH-64 Apache helicopters. It also stated that Al-Khaldiya would be paid $100,000 for the successful sale and transfer of A-4 aircraft from the government of Kuwait to a party other than MDC. During the term of the 1996 agreement, Al-Khaldiya promoted Apache helicopters to Kuwait, but none was sold.

Sales of major military equipment by the U.S. to Kuwait are conducted between governments rather than as direct commercial sales. See 22 U.S.C. § § 2751-2796d. Foreign Military Sales (FMS) procedures require that Kuwait express interest in an item by sending a Letter of Request (LOR) to the U.S. If the U.S. is willing to sell the item, it sends an offer in a Letter of Offer and Acceptance (LOA), which Kuwait may sign. The U.S. may then either procure the item from the manufacturer and resell it to Kuwait, or fill the order from inventory.

In 1996, Kuwait asked the U.S. Embassy to provide an LOA for 16 Apache helicopters, including 6 with Longbow Fire Control Radar. The U.S. issued an LOA for the helicopters, but without Longbow radar. Kuwait did not sign the LOA. Meanwhile, Al-Khaldiya facilitated the sale of the A-4 aircraft from Kuwait to Brazil.

In May 1998, Al-Khaldiya and MDISCO signed a new representation agreement, for June 18, 1998, to June 17, 2000. In 1999, the U.S. notified Kuwait that it authorized the release of the Longbow radar. Kuwait submitted an LOR for Apache helicopters in 2001 and signed an LOA in 2002. The U.S. purchased Apaches for Kuwait from McDonnell Douglas Helicopter Company in December 2002, after both representation agreements had expired.

On January 26, 2000, Al-Khaldiya and MDS entered a joint-venture agreement (JVA) to engage in the provision of Contractor Maintenance Support (CMS) for the F/A-18 aircraft, and/or the AH-64 Apache helicopter. The JVA was terminable by either party upon written notice to the other if "a notice of award with respect to the Program(s) [was] not received by the Company prior to 31 December, 2000" or "[t]he Contract(s) [were] determined finally to be awarded to a third party or parties on any basis."

The MDS proposal for F/A-18 CMS services was rejected by the U.S. Navy in March 2000. The Navy awarded the CMS contract to another contractor. MDS sent Al-Khaldiya a letter on June 5, 2000, terminating the JVA.

II.

This court reviews a district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party. Hartford Fire Ins. Co. v. Clark, 562 F.3d 943, 945 (8th Cir. 2009). The parties agree that this case is governed by Missouri law. Under Missouri law, summary judgment in a contract case is appropriate only where the contract language is so clear and unambiguous that the contract's meaning is readily ...


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