Dresdner Bank Ag v. Haque
| Decision Date | 11 April 2001 |
| Docket Number | No. 00 CIV. 1655(SAS).,00 CIV. 1655(SAS). |
| Citation | 161 F.Supp.2d 259 |
| Parties | DRESDNER BANK AG, Plaintiff, v. Imhad HAQUE, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Stephen S. Hart, Esq., Alston & Bird, LLP (formerly Walter, Conston, Alexander & Green, P.C.), New York City, for Plaintiff.
Ralph P. Casella, Esq., Ralph P. Casella, P.C. & Associates, Staten Island, NY, for Defendant.
Dresdner Bank AG (the "Bank" or "plaintiff") brings this diversity action against Imhad Haque (the "defendant") pursuant to New York Civil Practice Law and Rules ("CPLR") Article 53 and New York common law. The Bank now moves for summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure. For the following reasons, plaintiff's motion for summary judgment is granted.
On February 27, 1998, plaintiff sued defendant in Germany on defendant's personal guaranty of the obligations of a German corporate entity (the "German Action").2 See Plaintiff's Local Rule 56.1 Statement ("Pl.56.1") ¶¶ 1-2. The complaint was served in Hamburg, on Thomas Luba, who had been authorized by defendant to accept service of process on his behalf. See id. ¶ 3. On May 11, 1998, defendant filed an answer to the complaint, denying liability. See id. ¶ 12. On June 16, 1998, plaintiff filed a reply to defendant's answer. See id. ¶ 14. On June 30, 1998, defendant filed a response to plaintiff's reply. See id. ¶ 15.
On July 9, 1998, a trial was held before a three judge panel of the Landgericht Hamburg (the "Trial Court").3 See id. ¶ 16. The trial concluded the same day and a judgment was rendered in plaintiff's favor in the amount of 3,000,000 Deutsche Marks ("DM") plus interest thereon from December 13, 1997, at the rate of five percent above the Deutsche Bundesbank's discount rate.4 See id. ¶ 17.
On August 12, 1998, the Trial Court awarded costs in plaintiff's favor in the amount of DM 64,123.40, plus interest on that amount from July 31, 1998 at the rate of four percent, in connection with the proceedings in the Trial Court. See id. ¶ 19. On August 31, 1998, defendant's counsel in the German Action filed a notice of appeal with the Hanseatisches Oberlan-desgericht (the "Appellate Court").5 See id. ¶ 20. On December 22, 1998, the Appellate Court issued a judgment affirming the Trial Court's judgment. See id. ¶ 23. On January 27, 1999, the Trial Court awarded costs in plaintiff's favor in the amount of DM 36,917.00, plus interest from January 13, 1999, at the rate of four percent, in connection with the appeal. See id. ¶ 24.
Defendant initiated a plenary action to attack the Trial Court's judgment, but by a May 15, 1999 judgment of the Trial Court and a July 9, 1999 judgment of the Appellate Court, the judgment was reaffirmed in its entirety. See id. ¶ 25. On May 17, 1999, the Trial Court awarded costs in the plaintiffs favor in the amount of DM 14,327.40, plus interest from May 7, 1999, at the rate of four percent, in connection with the plenary action. See id. ¶ 26.
The judgment and all three awards of costs by the Trial Court are final, conclusive, and enforceable in Germany. See id. ¶ 27. They remain unsatisfied, in full force and effect, and no appeals are pending. See id. Defendant has never claimed: that the Trial Court or the Appellate Court lacked jurisdiction over defendant's person or the subject matter of the litigation; that it was an inconvenient forum; that he had not received notice of the proceedings in sufficient time to enable him to defend; that any of the judicial decisions rendered were obtained by fraud or conflicted with another final and conclusive judgment; or that the proceeding was contrary to any agreement between the parties under which the underlying dispute was to be settled other than by proceeding in those courts. See id. ¶ 28.
Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is `material' for these purposes if it `might affect the outcome of the suit under the governing law[,]' [while] [a]n issue of fact is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir.2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).
In assessing the record to determine whether genuine issues of material fact are in dispute, a court must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d Cir.2001). "Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the non-movant must `set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (quoting Anderson, 477 U.S. at 256, 106 S.Ct. 2505). However, the non-moving party may not "rest upon ... mere allegations or denials." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir.2000). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir.1999), cert. denied, 530 U.S. 1242, 120 S.Ct. 2688, 147 L.Ed.2d 960 (2000); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998) () (internal quotation marks, citations, and alterations omitted).
Plaintiff seeks to enforce the German judgment and three subsequent awards of costs, pursuant to both Article 53 of the CPLR and New York common law.6 Article 53 of the CPLR "applies to any foreign country judgment which is final, conclusive and enforceable where rendered even though an appeal therefrom is pending or it is subject to appeal." N.Y. C.P.L.R. § 5302 (McKinney 2000). Such a judgment is "conclusive between the parties to the extent that it grants or denies recovery of a sum of money." N.Y. C.P.L.R. § 5303 (McKinney 2000).
Section 5304 of the CPLR enumerates grounds for the non-recognition of a foreign country judgment. See N.Y. C.P.L.R. § 5304 (McKinney 2000). A foreign country judgment is not conclusive if either of the following two circumstances exists: (1) "the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law"; or (2) "the foreign court did not have personal jurisdiction over the defendant." N.Y. C.P.L.R. § 5304(a) (McKinney 2000). Similarly, a foreign country judgment "need not be recognized" if:
(1) the foreign court did not have jurisdiction over the subject matter; (2) the defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend; (3) the judgment was obtained by fraud; (4) the cause of action on which the judgment is based is repugnant to the public policy of this state; (5) the judgment conflicts with another final and conclusive judgment; (6) the proceeding in the foreign country was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court; or (7) in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action.
The burden of proof in "establishing the conclusive effect of a foreign judgment is on the party asserting conclusiveness." Bridgeway Corp. v. Citibank, 45 F.Supp.2d 276, 286 (S.D.N.Y.1999) (quoting 11 Jack B. Weinstein et al., New York Civil Practice ¶ 5302.01 (1998)), aff'd, 201 F.3d 134 (2d Cir.2000). As the Second Circuit has explained:
[A] plaintiff seeking enforcement of a foreign country judgment granting or denying recovery of a sum of money must establish prima facie: (1) a final judgment, conclusive and enforceable where rendered; (2) subject matter jurisdiction; (3) jurisdiction over the parties or the res; and (4) regular proceedings conducted under a system that provides impartial tribunals and procedures compatible with due process.
Ackermann v. Levine, 788 F.2d 830, 842 n. 12 (2d Cir.1986) (citations omitted). Although the Ackermann court did not specify how these burdens apply with respect to Article 53 of the CPLR, "it would appear that the plaintiff seeking enforcement of the foreign judgment bears the burden of proving that no mandatory basis for nonrecognition pursuant to CPLR § 5304(a) exists, and that the defendant opposing enforcement has the burden of proving that a discretionary basis for non-recognition pursuant to CPLR § 5304(b) applies." Bridgeway, 45 F.Supp.2d at 286 ).
The plaintiff has met its burden of proof. Plaintiff asserts that the German court system provides impartial tribunals and procedures compatible with due process.7 See Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment ("Pl.Mem.") at 8. With respect to personal jurisdiction, Section 5305(a) of the CPLR provides in part that:
[T]he foreign country judgment shall not be refused recognition for lack of personal jurisdiction if: (1) the defendant was served personally in the foreign state; [or] (2) the defendant voluntarily...
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