conclude that the basic contracts were employment by the defendant and agreement by the plaintiffs to be employed in Venezuela. Accordingly, the place of performance was in that county and the cause of action arose therein.
Counsel for defendant has submitted an affidavit consisting of 18 pages as sworn to by a lawyer, resident in Caracas, Venezuela. This affidavit sets forth the Venezuelan law that defendant says applies herein. Plaintiffs' attorney has offered nothing other than his brief in reply.
The affidavit as submitted by defendant takes into consideration the Massachusetts actions and the fact that demands may have been made upon defendant by plaintiffs between the dates of the termination of the employment in August of 1956 and the institution of the Massachusetts actions in December of 1956. In substance the affidavit makes the following points:
1. Under Venezuelan Labor Law a period of limitations of 6 months is placed on actions based on employment contracts to be performed in Venezuela regardless of the place where such contracts were entered into.
2. Under Venezuelan law the 6 month period may be interrupted by a law suit or by a formal demand on defendant and by other means not applicable to the present case.
3. Under Venezuelan law, the plaintiffs had permitted their Massachusetts actions to lapse (i.e. rejected their own complaints) by their failure to take steps from being nonsuited. Because plaintiffs were nonsuited for failure to take procedural steps and because the final judgment of the nonsuit vitiates both the service of process and the complaint in the Massachusetts actions, those actions would not operate to interrupt the 6 month statute of limitations.
4. Under Venezuelan law the statute of limitations would commence to run at the August, 1956 termination of the contracts or the date would not be after December, 1956, the date the Massachusetts actions were commenced.
5. Under Venezuelan law, this action, commenced March 18, 1958, would be barred by the statute of limitations.
Plaintiffs' counsel offers no counter affidavit as to what the Venezuelan law is, although he has had ample opportunity to do so. He offers only the contention previously discussed, that the contracts were not to be performed in Venezuela and the further contention that even if performance were there, the Venezuelan statute of limitations is so repugnant to this jurisdiction, that is, the Venezuelan 6 month statute of limitations, is so different from the Pennsylvania 6 year statute of limitations, that it should not be applied here. His case law cited as authority is inapposite here.
As the court said in Komlos v. Compagnie Nationale Air France, D.C.S.D.N.Y.1952, 111 F.Supp. 393, at page 406, reversed on other grounds 2 Cir., 1953, 209 F.2d 436:
'Under the circumstances I feel justified in disposing of that question on the affidavits of defendant's experts and on the reply affidavit of plaintiff's attorney in the Komlos action. The summary of what the defendant's experts state the Portugese law to be has been hereinabove set forth. * * *'
This court likewise feels justified in disposing of the law of Venezuela on the basis of the Venezuelan lawyer's affidavit submitted by defendant, and especially so since plaintiffs' counsel argues only the place of performance and repugnancy of that law. Under the Venezuelan law each of the 19 plaintiffs are barred by the 6 month statute of limitations. For the foregoing reasons defendant's motion for summary judgment is granted and it will be so ordered.
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