Choi v. Kim, etc. ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
3-13-1995
Choi vs. Kim, etc.
Precedential or Non-Precedential:
Docket 94-5036
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995
Recommended Citation
"Choi vs. Kim, etc." (1995). 1995 Decisions. Paper 72.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/72
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 94-5036
IN SIK CHOI,
Appellant,
v.
HYUNG SOO KIM; NANCY SOO LEE;
and GOLDEN PLASTICS
Appellees.
Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 93-19
Argued July 20, 1994
Opinion Reassigned November 18, 1994
Before: SCIRICA, LEWIS and SEITZ, Circuit Judges.
(Filed: March 13, 1995)
Charles A. Caudill, Esquire (Argued)
Daniels & Associates
745 West Main Street
Suite 250
Louisville, Kentucky 40202
Attorney for Appellant
Anthony D. Cipollone, Esquire (Argued)
299 Market Street
P.O. Box 542
Saddle Brook, New Jersey 07662
Attorney for Appellees
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
1
. The Order of Execution provides, as translated: "NOTARIAL
DEED: I, the undersigned, grant this order of execution to the
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 ¶¶ 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,
(..continued)
creditor, In Sik Choi to perform a compulsory execution for the
debtor (promissor), Hyung Soo Kim." Appendix at 46.
2
. The district court dismissed the complaint with prejudice
against defendants Lee and Golden Plastics. Mem. Op. at *8.
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 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.
3
. Rule 17(a) provides in relevant part:
Rule 17. Parties Plaintiff and Defendant; Capacity
(a) Real Party in Interest. Every action shall be
prosecuted in the name of the real party in
interest. . . . No action shall be dismissed on
the ground that it is not prosecuted in the name
of the real party in interest until a reasonable
time has been allowed after objection for
ratification of commencement of the action by, or
joinder or substitution of, the real party in
interest; and such ratification, joinder, or
substitution shall have the same effect as if the
action had been commenced in the name of the real
party in interest.
FED. R. CIV. P. 17(a).
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.
On January 18, 1992, Choi executed a Power of Attorney
that gave Song the express power to bring suit. See Appendix at
56, ¶ 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
4
. Generally, an agent may be expressly authorized to institute
legal proceedings on behalf of his principal. See 3 AM. JUR.2D
Agency § 97 (1986).
(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 ¶ 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 an 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
5
. In his brief to this court, Song, as attorney in fact for
Choi, relies on Zaubler v. Picone, 473 N.Y.S.2d 580 (N.Y. App.
Div. 2d Dep't 1984) to support his bringing the present suit on
behalf of Choi. In Zaubler, the Second Department held that a
partner's attorney in fact, absent any indication to the
contrary, was authorized to institute an action in his
principal's name. Id. at 582. This argument, and the reliance on
Zaubler, is a further indication that Song did not institute the
present action on his own behalf. The action was brought by
Song, as attorney in fact, in the name of his principal Choi.
6
. In the Notice of Appeal, Song erroneously designated himself
as the "plaintiff," appealing the order of the district court's
dated December 17, 1993. On September 23, 1994, this court, on
Song's motion, substituted Choi for Song pursuant to Federal Rule
of Appellate Procedure 43(b) (because Choi was the real party in
interest).
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, 114 S. Ct. 389 (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 (1972).7
7
. The Restatement of the Law (Second) Conflict of Laws
provides:
The Supreme Court of the United States has never
passed upon the question whether federal or State
law governs the recognition of foreign nation
judgments. The consensus among the State courts
and lower federal courts that have passed upon the
question is that, apart from federal question
cases, such recognition is governed by State law
and that the federal courts will apply the law of
the State in which they sit.
RESTATEMENT (SECOND) OF CONFLICTS § 98 cmt c (Supp. 1988) (emphasis
added).
In New Jersey, sister state judgments by confession are
entitled to full faith and credit.8 United Pac. Ins. Co. v.
Estate of Lamanna, 436 A.2d 965, 968-74 (N.J. Super. Ct. 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, 395 A.2d 1300, 1303 (Burlington County Ct. 1978),
aff'd, 413 A.2d 996 (N.J. Super. Ct. App. Div.), certif. denied,
427 A.2d 563 (N.J. 1980), cert. denied, 450 U.S. 997 (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.
8
. The Full Faith and Credit Clause of the United States
Constitution provides that "Full Faith and Credit shall be given
in each State to the public Acts, Records, and judicial
Proceedings of every other State . . . ." U.S. CONST. art. IV,
§ 1. As the New Jersey Supreme Court explained, "That clause
directs the courts of each state to give preclusive effect to the
judgments of a sister state." Watkins v. Resorts Int'l Hotel &
Casino, Inc., 591 A.2d 592, 596 (N.J. 1991).
9
. As the district court pointed out, in New Jersey valid
foreign judgments are also entitled to full faith and credit. See
Watkins, 591 A.2d at 596; Maglio & Kendro, Inc. v. Superior
Enerquip Corp., 558 A.2d 1371, 1357 n.4 (N.J. Super. Ct. App.
Div. 1989).
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 challenge
the "judgment" once the creditor acted upon the order of
execution. See Mem. Op. at *7. All parties disagree with the
district court and agree that provisions exist that allow a
debtor to challenge a judgment in Korea. See Brief of Appellant
at 22, 30, Choi v. Kim, et al. (No. 94-5036); Supplemental Brief
of Appellant at 8-9, Choi v. Kim, et al. (No. 94-5036);
Supplemental Brief of Appellees at 6 (unnumbered pages), Choi v.
Kim, et al. (No. 94-5036) (Defendants' point out that "[a]
judgement [sic] debtor is entitled to challenge the judgment in
accord with the procedures of the Korean Code of Civil
Procedure."). The parties, however, disagree as to whether
Korean law provides every judgment debtor with notice of the
entry of an order of execution.
Defendants argue that provisions to challenge the deed and
order of execution are meaningless because the debtor, Kim, was
never notified of the entry of the order of execution. Id. As a
result, Kim could not challenge the deed or the order of
execution. Id. We will assume, without deciding, that the
parties have correctly stated the Korean law (regarding the
existence of provisions to challenge the entry of the order of
execution) and next determine whether the debtor was provided
with adequate notice of the entry of the order of execution, so
that he might challenge it.
In the deed the debtor waived his right to notice and the
opportunity to be heard prior to the issuance of the order of
execution. This is not in dispute. As this court has recently
pointed out, the United States Supreme Court has held that a
judgment debtor's "constitutional right to due process was not
violated when judgment was confessed against him . . . without
prior notice or hearing, because `due process rights to notice
and hearing prior to a civil judgment are subject to waiver.'"
Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1270
(3d Cir. 1994) (quoting D.H. Overmeyer Co., Inc. v. Frick Co.,
405 U.S. 174, 185 (1972)) (internal citations omitted). This
holding has been adopted as the law in New Jersey. See Estate of
Lamanna, 436 A.2d at 969-70. In this case, the waiver was proper
and did not offend due process.10
What does offend due process, defendants argue, is that
the debtor was never notified of the entry of the order of
execution and, therefore, was unable to challenge either the
order of execution or the execution clause in the deed. We turn
now to that issue.
In Estate of Lamanna, the court evaluated the Pennsylvania
confession of judgment procedure, and held that for a confession
of judgment to satisfy due process, there must at least be some
provision for post-judgment notice and hearing─before the
10
. The waiver must be made knowingly and voluntarily. D.H.
Overmeyer Co., Inc., 405 U.S. at 185; Jordan, 20 F.3d at 1270;
Estate of Lamanna, 436 A.2d at 969-70. In the present case,
there has been no claim that the waiver was coerced or in any way
not consented to knowingly or voluntarily.
deprivation of debtor's property takes place. See id. at 969-70;
973-74.11 The debtor must be given an opportunity to challenge
the initial waiver of pre-judgment notice and hearing in the
confession clause and to raise any defenses to the debt or the
entry of the judgment. See id.; see also D.H. Overmeyer Co., Inc.
v. Frick Co., 405 U.S. 174 (1972); Jordan, 20 F.3d at 1272
(discussing a court's review of a waiver in a confessed
judgment); Girard Trust Bank v. Martin, 557 F.2d 386 (3d Cir.),
cert. denied, 434 U.S. 985 (1977).12 The Estate of Lamanna court
concluded that because the debtor did not receive pre-deprivation
notice, it could not raise defenses to the earlier waiver
contained in the confessed judgment.
In the present case, defendants claim that the debtor,
Kim, never received notice of the entry of the execution clause.
Choi claims that because Kim was present when the deed was
prepared, and was thereby aware of the compulsory execution
clause, and signed it, there was implicit notice of execution.
However, in Estate of Lamanna, where the judgment debtors
11
. The Lamanna's Estate court adopted the rule articulated in
Community Thrift Club, Inc. v. Dearborn Acceptance Corp., 487 F.
Supp. 877 (N.D. Ill. 1980). In Community Thrift, the court held
that notice and an opportunity to challenge the waiver of due
process is not sufficient "if the debtor cannot challenge the
cognovit clause prior to the deprivation of his property through
execution of the confessed judgment." Id. at 883.
12
. The New Jersey legislature has imposed stricter requirements
on the in-state confession of judgment practice. Rule 4:45-2 of
the New Jersey Rules Governing Civil Practice (entitled the
Procedure to Confess Judgment) requires that a judgment debtor be
given notice even before the judgment is entered. See N.J. CIVIL
PRACTICE RULES R. 4:45-2.
executed a similar cognovit clause, this implicit "notice" did
not satisfy due process. Thus, there is no evidence that the
debtor was notified at the time the order of execution was
issued. In fact, when a debtor is "abroad," as was the case
here, the Korean Code allows a creditor to dispense with any
notice before compulsory execution. See KOREAN CODE CIV. P., Art.
502 (1990). (In other cases, some form of notification is
required. See id., Art. 501.). As in Estate of Lamanna, this
lack of notice would render any provisions for challenging the
"judgment" meaningless. Under New Jersey law, the Korean
procedure does not comport with due process.
III. CONCLUSION
The order of the district court will be affirmed.
In Sik Choi v. Hyung Soo Kim, et al.
No. 94-5036
LEWIS, Circuit Judge, concurring in the judgment.
I agree with the majority that if one were to reach the
issue of whether the laws of South Korea accorded the defendant,
Kim, American due process in the circumstances predicating this
lawsuit, one would likely reach the conclusion the majority
espouses. However, I do not think we should pursue that course.
I believe that before we render an opinion which finds the legal
system of a foreign sovereign wanting in that it produces
judgments that do not comport with our homegrown notions of
justice, prudence dictates that we determine whether what we are
criticizing is in fact a "judgment" at all. Since the plaintiff,
Choi, did not establish his prima facie case for domestication of
the ostensible South Korean judgment, I would grant summary
judgment on that ground and leave the due process concerns for
another day.
A.
A plaintiff has a prima facie burden when he or she
asserts that he or she is entitled to enforcement in one state of
a court judgment of another. Courts in a variety of
jurisdictions have recognized this basic burden: a proffered
judgment must at least appear to be a valid judgment before an
enforcing court will accord it a presumption of enforceability.
E.g., Knighton v. Int'l Business Machines Corp., 856 S.W.2d 206,
209 (Tex. App. -- Houston [1 Dist.] 1993) (noting that prima
facie case of enforcement is demonstrated upon introduction of "a
foreign judgment [that] appears to be a valid, final, and
subsisting judgment"); Fischer v. Kipp, 277 P.2d 598 (Kan. 1954)
("duly authenticated copies" of foreign judgments suffice to make
out prima facie case for enforcement); see generally Fred R.
Surface & Assoc., Inc. v. Worozbyt, 260 S.E.2d 762, 764 (Ga. App.
1979) (judgment creditor's mere assertion of indebtedness,
without tender of judgment, does not prove its case). Thus, the
Full Faith and Credit Act, 28 U.S.C. § 1738, which describes
materials that are entitled to full faith and credit, states in
pertinent part:
The records and judicial proceedings of any
court of any . . . State, Territory or
Possession, or copies thereof, shall be
proved or admitted in other courts within the
United States and its Territories and
Possessions by the attestation of the clerk
and seal of the court annexed, if a seal
exists, together with a certificate of a
judge of the court that the said attestation
is in proper form.
Although we have previously explained that the mode of
authenticating court records described in section 1738 is not
exclusive (United States v. Mathies, 350 F.2d 963, 966 n.4 (3d
Cir. 1965)), the statute clearly reflects the sense that not just
any piece of paper can serve as evidence of a judgment satisfying
a plaintiff's prima facie burden.
Of course, the issue of whether a putative judgment is
in fact a judgment -- that is, "the sentence of the law given by
[a] court as the result of proceedings instituted therein for the
redress of an injury" (Allegheny County v. Maryland Cas. Co., 132
F.2d 894, 897 (3d Cir. 1943) -- does not arise very often in the
garden variety full faith and credit case. Full faith and credit
cases usually involve domestication or enforcement in one state
of a judgment of the tribunal of another state. It is ordinarily
quite easy to tell whether a plaintiff has a "judgment" entitled
to a presumption of validity. Such documents tend to share
common characteristics among the states of the Union.
Furthermore, practitioners generally recognize that they should
present a formal, properly authenticated copy of a judgment to
the enforcing court.13
13
. By contrast, this case is obviously more awkward than the
usual full faith and credit case because it is only as a result
of a treaty that South Korean judgments are accorded full faith
and credit treatment. See Maj. Op. at __ [Typescript at 8].
Thus, because of the treaty, courts in the United States are
Even when a party is seeking enforcement of a confessed
judgment, in the ordinary case the putative judgment would have
the appearance of a judicial or quasi-judicial instrument. E.g.,
N.J. R. 4:45-2 (court issues confessed judgment); Pa. Civ. Pro.
R. 2951(a) (prothonotary issues confessed judgment upon filing of
instrument with confession of judgment clause). Thus, if a
litigant arrived at the courthouse door in New Jersey with a
document that looked, to all the world, like a notarized private
agreement signed in (for instance) Nevada between himself and
another party, the enforcing court would reasonably look upon the
ostensible "judgment" with suspicion.
That was precisely the case here. Choi presented a
document that appeared to be nothing more than a private contract
between himself and Kim, notarized by a South Korean notary. Not
surprisingly, the district court noted that it was "skeptical
that the Deed and Order" at issue "constitute[d] a valid
judgment, as if rendered and entered by a Korean court of law."
Song v. Kim, et al., No. Cir. A. 93-19, 1993 WL 526340, *6 (D.
N.J. Dec. 16, 1993) ("Op."). In fact, the court ruled that
"[b]ased on the parties' submissions, the Court finds that no
(..continued)
forced to credit and enforce legal instruments that may be
unfamiliar to us -- both in language and in appearance. Absent
the treaty, the South Korean "judgment" at issue here would have
been scrutinized under the less deferential standards used to
determine the validity and enforceability of foreign-country
judgments. See generally Restatement (Third) of the Foreign
Relations Law of the United States §§ 481, 482 (1987).
Korean court has entered a judgment against Kim, nor has Choi
ever brought the matter before a Korean court." Id. at *7. The
court should have stopped there: Choi had failed to prove his
prima facie case, and his case should have been dismissed with
prejudice.14
14
. Choi argues that supplemental materials submitted to us
during this appeal establish that he has a valid judgment
entitled to full faith and credit. Because I believe that the
district court should have ended its inquiry with a finding that
Choi had not established his prima facie case in the district
court, I would not make any determinations of South Korean law
here. However, from the parties' submissions and my independent
research, it seems apparent that Choi did not strictly follow
South Korean procedures for obtaining a valid confessed judgment.
First, Article 522 of the South Korean Civil Code states that
"[a]n execution clause of a deed drawn up by a notary public
shall be issued by the notary public who is preserving the deed."
Art. 522(1). Although the same law and notary office -- Dong Wha
Law & Notary Office Inc. -- issued both the notarial deed and the
order of execution in this case, different people at different
branches of Dong Wha actually performed the notarizing. See App.
45 (notarial deed executed by Choong Won Kim of Dong Wha office
at 58-7 Seosomun-dong, Joong-ku Seoul, Korea); id. 46 (execution
order signed by Ho Yang Shin of Dong Wha office at 814-6
Yoksam-dong, Kangnam-ku Seoul, Korea). Second, Article 522(1) of
the South Korean Civil Code also states that the notary "who is
preserving the deed" must issue the execution clause. Similarly,
Article 56-2(3) of the South Korean Notary Public Act states with
respect to notarial deeds that
When a notary public prepares a [notarial]
deed . . . he shall make a script of the deed
in adherence to the original of [sic] bill or
check, and an original and a transcript of
[sic] deed in adherence to a copy of [sic]
bill or check, and deliver then the script to
the creditor as specified on the bill or
check, and the transcript, to the debtor
thereon. The original of the deed shall be
preserved by the notary public.
B.
However, although the district court had essentially
found that Choi had not made out a prima facie case, the court
nevertheless took the matter a step further. The court stated
that although the instrument before it had not been proven to be
a judgment, that "may be beside the point, as the Court will
accept, for purposes of argument, that [sic] Deed and Execution
Order do constitute a valid judgment under Korean law." Op. at
*7. Having made this assumption, the district court then
addressed whether the South Korean legal system had accorded Kim
American-style due process. The district court's analysis of the
"process" provided by South Korean law is brief enough that I
quote it in full:
While Kim may have waived his right to notice
and hearing prior to execution on the Deed,
the Court is unable to ascertain whether
Korea provides Kim any opportunity to vacate
or challenge this `judgment' once Choi acts
upon the Execution Order. As the Court
understands Song's argument, Choi could seize
any of Kim's attachable assets in Korea
without ever having a Korean court of law
enter a judgment on the Deed and Execution
Order. Whether or not this is a correct
(..continued)
(Emphasis added.) There is no indication that any notary office
is "preserving" the deed in this case. To the contrary, the
notarial deed itself states that "this original of the deed and
its copy are made according to the request of the creditor and
the debtor and the original is gave [sic] to the creditor, In Sik
Choi and the copy is gave [sic] to the debtor, Hyung Soo Kim."
App. 45. Therefore, it does not appear from the record before us
that there was a copy or original left to be "preserved" at Dong
Wha.
interpretation of Korean law, and
irrespective of the notice, hearing and
opportunity to vacate questions, this kind of
judgment without judicial oversight is
anathema to our concept of due process.
Id. (emphasis added). As the italicized portions of the district
court opinion demonstrate, the district court did not ascertain
what the law of South Korea was, but rather determined that what
might be the law of South Korea did not accord Kim American due
process.
On appeal, the majority takes the same path. The
majority first assumes that a valid judgment was before the
district court (Maj. Op. at __ [Typescript at 8]), then approves
the district court's conclusion that what might be the South
Korean law implicated here did not afford Kim American due
process (Maj. Op. at __ (noting that majority "assume[d], without
deciding, that the parties have correctly stated the Korean
law"), __-__ (determining that according to what the parties say
South Korean law was, "the Korean procedure does not comport with
due process") [Typescript at 10, 10-13]).
I believe that the district court erred in assuming
that Choi had presented a valid judgment to the district court.
That is because, having made this assumption, the court was
forced to decide whether the laws of South Korea pertaining to
instruments analogous to American confessions of judgment accord
American due process. There having been a less intrusive manner
in which this case could be resolved (the finding that Choi had
failed to make out a prima facie case for enforcement), comity
counsels that American courts avoid subjecting the laws of a
foreign sovereign to evaluations based on American notions of due
process.
I do not mean to suggest that comity prevents us from
subjecting the laws of South Korea to a due process evaluation in
all cases, or even many cases. Rather, I would invoke comity in
the prudential sense that we should avoid disparaging the law of
a foreign sovereign which, though certainly not intended, I
believe both the district court opinion and the majority opinion
have the effect of doing. As we have observed recently, comity,
though difficult to define, is in one respect "a version of the
golden rule: a `concept of doing to others as you would have
them do to you . . . .'" Republic of the Philippines v.
Westinghouse Elec. Corp., 43 F.3d 65, 75 (3d Cir. 1994), quoting
Lafontant v. Aristide, 844 F. Supp. 128, 132 (S.D. N.Y. 1994). I
would not want a tribunal in South Korea, which could resolve on
narrow grounds a case involving a putative American judgment, to
reach out and judge our own procedures as unjust based on South
Korean notions of what process is due a litigant.
For the foregoing reasons, I am unable to join in the
majority's analysis although I do concur in the judgment.