Civil Procedure Exam 1997 Spring
The employees can enforce that part of the judgment pertaining to the sheep shearing shed under whatever procedure isn’t made available by the new state for enforcement. Presumably that simply would involve some officer of the new state government performing the same functions of a sheriff or United States Marshal seizing the property and turning over effective control of it to the plaintiffs. Transfer of ownership of the assets similarly would be accomplished under new state law, perhaps by making some entry in a registry of ownership somewhere.
As to the “deficiency judgment for money damages, that must be enforced in a Pennsylvania and Delaware court if the employees wish to get all of the available assets. Either state or federal court would work in both states. Federal court would have diversity jurisdiction because this is a suit between citizens of a foreign state and citizens of a state, and the jurisdictional amount is satisfied. [HHP no close quote]
Before the new state judgment can be enforced in Pennsylvania and Delaware, however, it must be recognized.
Because it is a judgment from a foreign country (if it has that status; see part B) the full faith and credit clause does not apply, and recognition must be sought by the employees either under the common law comity doctrine or under the Uniform Recognition of Foreign Money Judgments Act. Pennsylvania, I think, has adopted the Recognition Act, but Delaware has not - at least at the time of the Delamata case it had not.
The criteria for recognition under the comity doctrine and the Recognition Act are similar because the Recognition Act simply codifies the comity doctrine. Specific criteria are analyzed in the answer to part (B).
Assuming the judgment is recognized, it them must be enforced. If either or both states has adopted the Uniform Enforcement of Foreign Judgments Act, the plaintiff/judgment creditor simply would register the judgment with the clerk or prothonotary, and, after a hearing on the recognition issue, the clerk or prothonotary would issue a writ of execution on the recognized judgment. If either state has not adopted the Uniform Enforcement Act, the plaintiff/judgment creditors must file a new lawsuit attaching the new state judgment and claiming a cause of action in debt. The recognition issue would be decided and the context of deciding whether there is a meritorious cause of action based on the judgment. If it is not recognized, it is no judgment and therefore there is no debt to support the lawsuit.
If the judgment is recognized, and the action for debt succeeds, that would produce a brand new Pennsylvania and Delaware judgment - one from each court - and a writ of execution would issue on those judgments.
The sheriff would execute the writ of execution by garnishing the bank account and the stock, and levying on and selling the tangible property. The Rosemont Bank and the Wilmington Bank would be the garnishees for the bank account and the stock, respectively.
The new state judgment cannot be executed on unless it is recognized, as explained in the answer to part (A). My client can oppose recognition on two overlapping but independent grounds: that neither the Recognition Act (if it has been enacted) nor the comity doctrine authorizes recognition of this “judgment”; and it would violate procedural due process guarantees under the United States Constitution to enforce it against my client’s property.
The Recognition Act and comity doctrines effectively incorporate most of the due process arguments, and therefore I will consider the arguments together, only occasionally distinguishing the due process and Recognition Act/comity argument.
For example, § 1 of the Uniform Recognition Act defines foreign judgment and foreign state so as to exclude arguably new state. Due process would prevent enforcing something that purports to be a judgment that is not really because it is not from a real court.
Section 4(a)(2) denies recognition to a foreign judgment when the foreign court did not have personal jurisdiction over the defendant. Section 4(a)(1) denies recognition to judgments from do not comport with due process of law. Section 4(b)(6) denies recognition to a judgment from a court that was a seriously inconvenient forum for trial (although this grounds for avoiding recognition is limited to cases commenced by personal service and arguably is not implicated in this case because the case arguably was commenced by the presence of property.
In all of these instances, the Recognition Act links to concepts that are cognizable under procedural due process, without really elaborating on them. Therefore, it is appropriate simply to talk about the conceptual basis, recognizing that they can be asserted under the statute, under the common law comity doctrine, and under constitutional procedural due process.
The first and most basic argument is that this piece of paper from the new state is not a judgment at all. Because the new state has not been recognized, its so-called courts are not really courts, and thus are incapable of producing judgments entitled to recognition under the Recognition Act, under comity, or under notions of procedural due process. This is a reasonably strong argument because the United States has not recognized the new state, and one of the purposes of diplomatic recognition is to give legal affect to the decisions of state institutions. By negative implication, absence of U.S. diplomatic recognition of new state indicates that the United States government intends for the legal institutions of new state not to have legal power.
The second argument is that even if the courts of new state are real and empowered to issue judgments, the judgment in this case is void because it was not supported by personal jurisdiction under American (and international) notions of procedural due process. There is probably not difficulty with an affirmative basis of jurisdiction under new state law. My client invested in the sheep shearing shed and arguably owns a portion of the property present in new state. That surely is a basis for in rem jurisdiction and no doubt, new state law asserts jurisdiction akin to quasi in rem: the presence of the property establishes in personam jurisdiction over my client.
We argue, however, that quasi in rem jurisdiction violates procedural due process unless the minimum contacts and fair play and substantial justice requirements of International Shoe are satisfied. We would argue that they are not. My client never went to new state, and even if he did, it wasn’t new state when he went there; it was another country Albania. While his ownership of the property and his investment in the sheep shearing shed may have purposely availed himself of the protections of Albanian law, it did not purposefully avail him of the benefits of new state law.
The problem with these arguments is that he certainly did direct his activities to the territory now governed by new state by investing in the sheep shearing shed. This is not at all like World Wide Volkswagen or Asahi where the contact was accidental or merely foreseeable. It was purposeful.
His stronger argument is under the fair play and substantial justice branch of the International Shoe analysis. The best form of this argument is that it is not only inconvenient, it is life threatening, for him to have participated in the new state proceeding. Not only that, he tried but was unable to participate because he could not find counsel or any information about the procedure. Accordingly, it was as though he was denied access altogether, and this surely means that the new state forum was not really available to him - the ultimate inconvenience. This really is the same concept as the availability of an unbias decisionmaker under Judge Friendly’s test and all of the other elements of his test.
Finally, he would argue that the email notice to him was not good service of process and flunked the constitutional test for notice. This is probably a weak argument because he had actual notice and the state of technology in the United States at least is good enough that an email message is reasonably calculated to give actual notice, the constitutional test under Mullane.
Also, although Ingersoll holds that public policy arguments are disfavored as basis for denying recognition to foreign country judgments, I would argue that the public policy of Pennsylvania and Delaware is violated by enforcing a judgment based on such a cause of action. There is nothing but prejudice and bias against foreigners that could justify a law such as that in new state that is the only basis for the new state judgment. Surely, the public policy of Pennsylvania and Delaware are offended by allowing such prejudice against Pennsylvania citizens to be given effect.
State law in Pennsylvania and Delaware will determine whether the judgment should be recognized and how it should be enforced against assets located there. This is so whether enforcement and execution sought in state court or federal court, because of Fed. R. Civ. P. 69.
The scope of the judgment-if there is any question about that - would be determined by the law of the rendering state, which is new state.
Obviously, also, the merits of the substantive claim are based on new state law, although my client’s arguments opposing execution are not based on the merits but on jurisdictional considerations.
All of the procedural due process arguments are based on federal law, because the federal constitution under the Supremacy Clause limits the power of state courts. The closely related comity and Uniform Recognition Act arguments are matters of state law.
International law figures in this case only in one respect: it determines whether the new state court is really a “court,” entitled to comity. To put the matter another way, international law determines whether new state is a sovereign.