Choi v. Kim

• Decision Date: 13 March 1995
• Docket Number: No. 94-5036,94-5036
• Citation: 50 F.3d 244
• Parties: In Sik CHOI, Appellant, v. Hyung Soo KIM; Nancy Soo Lee; and Golden Plastics, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 244

50 F.3d 244

31 Fed.R.Serv.3d 1253

In Sik CHOI, Appellant, v. Hyung Soo KIM; Nancy Soo Lee; and Golden Plastics, Appellees.

No. 94-5036.

United States Court of Appeals Third Circuit.

Argued July 20, 1994.

Opinion Reassigned Nov. 18, 1994.

Decided March 13, 1995.

Charles A. Caudill (argued), Daniels & Associates, Louisville, KY, for appellant.

Anthony D. Cipollone (argued), Saddle Brook, NJ, for appellees.

Before: SCIRICA, LEWIS and SEITZ, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

This is an appeal from a final order of the New Jersey district court in a diversity action. The order granted defendant Kim's motion for summary judgment, denied a similar

motion by plaintiff, Choi, and dismissed with prejudice the complaint against the other two defendants. Our review is plenary.

I. FACTS

Choi, a South Korean native, entered into an agreement with Kim, also a South Korean, under which Choi agreed to export cash boxes to Kim. Choi shipped the boxes to Kim for sale in the United States, but Kim failed to pay for them.

In an effort to secure payment, Choi persuaded Kim to give him a promissory note for the amount due. The note, executed in Korea, was accompanied by a "notarial deed" ("deed"). The deed included a "compulsory execution" clause, which provided, as translated, that "[i]f the promissor delay a payment of the promissory note to the creditor, the promissor acknowledged and stated that the promissor would be taken a compulsory execution immediately, he has no objection to make about it." Appendix at 45.

Kim allegedly defaulted on the note, and Choi obtained an Order of Execution in Korea to enforce his rights to compulsory execution under the deed (the alleged Korean "judgment"). ¹ Thereafter, Kim allegedly fled to the United States and conveyed all, or a substantial portion, of his property to Nancy Soo Lee ("Lee") and Golden Plastics Corporation, a New Jersey corporation ("Golden Plastics"). See Complaint pp 4-5.

Choi, by his attorney in fact Song, commenced this action in the United States District Court for the District of New Jersey against Kim, Lee, and Golden Plastics (collectively "defendants") seeking enforcement of his Korean "judgment."

In granting defendant Kim's motion for summary judgment, the district court first expressed skepticism that the deed and order of execution, prepared in Korea, amounted to a judgment under Korean law. See Song v. Kim, et al., No. Civ.A. 93-19, 1993 WL 526340, * 6-* 7 (D.N.J. Dec. 16, 1993) ("Mem.Op."). ² The court found that, even if the deed and order of execution constituted a judgment, it would not be recognized under controlling New Jersey law, because it was entered without according Kim minimal due process protections. Id. at * 8. Therefore, the district court refused to recognize the Korean "judgment." This appeal followed.

II. DISCUSSION

A. Subject Matter Jurisdiction

Before addressing the merits, the district court considered whether diversity jurisdiction existed. In doing so, it was required to decide who was the real party in interest under Rule 17(a) of the Federal Rules of Civil Procedure. ³ See Mem.Op. at 2; see also Bumberger v. Insurance Co. of North America, 952 F.2d 764, 768 (3d Cir.1991); Field v. Volkswagenwerk AG, 626 F.2d 293, 302 (3d Cir.1980). In its summary judgment opinion, the court concluded that the caption of the complaint showed that Song was the only named "plaintiff" in the action. Mem.Op. at * 8 n. 2. It then held that because Choi, not Song, was the real party in interest, it was inclined to dismiss the action under Rule 17(a) of the Federal Rules of Civil Procedure. Id. at * 3. The district court, nevertheless, proceeded to address the merits of plaintiff's claim for what it said were reasons of judicial economy. Id. at * 4. It concluded that it was free to do so We need not determine whether the district court was free to proceed to the merits. We so conclude because of our disagreement with the district court's ruling that Song was the only named plaintiff in the complaint. We turn to that issue.

because 1) Rule 17(a) was procedural in nature; 2) the case could have been continued or the complaint refiled with Choi as the named plaintiff; and 3) Choi's inclusion in the action would not destroy diversity jurisdiction. Id.

On January 18, 1992, Choi executed a Power of Attorney that gave Song the express power to bring suit. See Appendix at 56, p 1. ⁴ Thereupon, as Choi's attorney in fact or agent, Song instituted the present action in the district court. The complaint is captioned in relevant part as follows:

In Shik Choi

..

BY AND THROUGH

Murphy Inbum Song

..

Plaintiff

v.

..

Appendix at 63.

This court has found a number of cases where attorneys in fact initiated the suits on behalf of named principals or plaintiffs. In those cases, the captions were drafted in the same way as the caption in the present complaint. See, e.g., Canton v. Duvergee, 438 F.2d 1218 (3d Cir.1971); National Ins. Underwriters v. Mark, 704 F.Supp. 1033 (D.Colo.1989); Lumberman's Underwriting Alliance v. Hills, 413 F.Supp. 1193 (W.D.Mo.1976); Wimberly By Bauer v. Furlow, 869 S.W.2d 314 (Mo.Ct.App.1994). These cases support the conclusion that Song, as attorney in fact, instituted the present action on behalf of Choi.

It is true that the complaint contained one reference to Song, rather than Choi, as the plaintiff. See Complaint p 2. However, the remainder of the complaint clearly identified Choi, not Song, as the named plaintiff. Indeed, defendants' answer indicates that the defendants knew that Choi was the named plaintiff.

In a footnote in its opinion, the district court questioned the way in which plaintiff's summary judgment motion was styled. See Mem.Op. at * 8 n. 2. The court stated that plaintiff's summary judgment motion was entitled "Plaintiffs' Motion for Summary Judgment." The court "wondered" whether "inadvertent error has created the impression that Choi is also a named plaintiff, or if Song's counsel is simply unsure as to how this action should be styled." Id. Despite this statement, the court confined its analysis to the complaint and concluded that Song was the only named plaintiff.

However, a reading of the entire summary judgment motion, including the caption on page one, reasonably indicates that Choi, not Song, was the named plaintiff, and that Song brought the present suit as Choi's agent pursuant to the power of attorney. Thus, we are inclined to agree with the district court that plaintiff's counsel probably made a typographical error in entitling the motion in the plural.

We conclude that the complaint, reasonably construed, alleges that Choi, not Song, is not only the named plaintiff, ⁵ but also, as the district court found, the real party in interest. ⁶ As such, Choi has standing to bring this action as plaintiff.

We now consider the merits of this timely appeal.

B. The Status of the Deed and Order of Execution

Choi contends that the district court erred in concluding that the Korean Code of Civil Procedure does not provide a debtor with a procedure to challenge the order of execution in a Korean court. As a result, Choi argues, the judgment was not obtained in violation of due process, and, therefore, the district court should have recognized it.

As we have noted, the district court expressed skepticism as to whether the deed and order of execution constitute a valid judgment. It, nevertheless, assumed, arguendo, that the documents constituted a judgment. See Mem.Op. at * 7. However, the district court referred to and treated the documents as a valid confession of judgment. See id. We will assume, without deciding, that the deed and order of execution amount to a valid foreign confession of judgment. We will now consider whether New Jersey would recognize this Korean confession of judgment.

The Treaty of Friendship, Commerce and Navigation Between the United States of America and The Republic of Korea, 8 U.S.T. 2217, elevates a Korean judgment to the status of a sister state judgment. See Vagenas v. Continental Gin Co., 988 F.2d 104, 106 (11th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 389, 126 L.Ed.2d 337 (1993) (elevating a Greek judgment to the status of sister state judgment under identical provisions in Greek-U.S. treaty); see also Mem.Op. at * 5. In this diversity action, New Jersey law governed the district court's determination whether to recognize a foreign country or sister state judgment. Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir.1971), cert. denied, 405 U.S. 1017, 92 S.Ct. 1294, 31 L.Ed.2d 479 (1972). ⁷

In New Jersey, sister state judgments by confession are entitled to full faith and credit. ⁸ United Pac. Ins. Co. v. Estate of Lamanna, 181 N.J.Super. 149, 436 A.2d 965, 968-74 (Law Div.1981); see Somportex Ltd., 453 F.2d at 440. ⁹ However, New Jersey courts will not enforce these foreign judgments if the rendering state 1) lacked personal jurisdiction over the judgment debtor, 2) lacked subject matter jurisdiction, and 3) failed to provide the judgment debtor adequate notice and an opportunity to be heard. See Estate of Lamanna, 436 A.2d at 968-74; City of Phila. v. Stadler, 164 N.J.Super. 281, 395 A.2d 1300, 1303 (Burlington County Ct.1978), aff'd, 173 N.J.Super. 235, 413 A.2d 996 (App.Div.), certif. denied, 85 N.J. 465, 427 A.2d 563 (1980), cert. denied, 450 U.S. 997, 101 S.Ct. 1702, 68 L.Ed.2d 198 (1981); see also Maglio & Kendro, Inc., 558 A.2d at 1373. In this case, neither personal nor subject matter jurisdiction is at issue. The issue is whether Korea provided the debtor, Kim, with notice of the entry of the order of execution and an opportunity to be heard as to its validity.

The district court stated that although Kim waived his right to notice and an opportunity to be heard prior to execution on the deed, it was unable to find any provision in the Korean Code that provided Kim with an opportunity to vacate or...