Ningbo FTZ Sanbang Industry Co. v. Frost National Bank , 338 F. App'x 415 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 22, 2009
No. 09-50063 Charles R. Fulbruge III
Summary Calendar Clerk
NINGBO FTZ SANBANG INDUSTRY CO LTD, 62 Changfeng Industrial
Zone, Zhonggongmiao Town, Yinzhou District, Ningbo, Peoples Republic of
China,
Plaintiff-Appellant
v.
FROST NATIONAL BANK, Care of Mr Stan McCormick, Registered Agent,
100 W Houston Street, San Antonio, Texas 78205,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:08-CV-585
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ningbo FTZ Sanbang Industry Company, Ltd. (“FTZ”) appeals the
magistrate judge’s grant of Frost National Bank’s (“Frost”) motion to dismiss.
For the reasons set forth below, we affirm.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 09-50063
FACTS AND PROCEEDINGS
This suit arises out of an international collection dispute. FTZ, a Chinese
corporation operating in China, sold goods to an American company. In an effort
to collect payment, FTZ contacted China Merchant Bank (“CMB”), another
Chinese corporation. In turn, CMB engaged Frost, a bank whose principal place
of business is in San Antonio, Texas. FTZ became dissatisfied with the collection
efforts and sued both banks in the Ningbo Intermediate People’s Court in China.
Subsequently, FTZ dismissed its complaint against CMB and proceeded against
Frost alone, eventually obtaining a default judgment from the Chinese court.
FTZ then sought to enforce that judgment in federal district court under the
court’s diversity jurisdiction, invoking Texas’s Uniform Foreign Country Money-
Judgments Recognition Act (“ Texas Recognition Act”). Frost moved to dismiss
the complaint for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). A magistrate judge heard the suit and granted Frost’s motion,
dismissing the complaint for failure to comply with the filing requirements of the
Texas Recognition Act. FTZ appeals.
STANDARD OF REVIEW
We review de novo the grant of a motion to dismiss for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). Kennedy v. Chase
Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004). All well-pleaded
facts are accepted as true and viewed in the light most favorable to the plaintiff.
Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th
Cir. 2004). “To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must
plead enough facts to state a claim to relief that is plausible on its face.” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal
quotations and citation omitted).
DISCUSSION
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No. 09-50063
As an initial matter, because this is a diversity suit, this court applies
Texas law with respect to the recognition of foreign money-judgments. See
Krieser v. Hobbs, 166 F.3d 736, 739 (5th Cir. 1999) (“It goes without saying that,
for a diversity action, we apply state substantive law.”). Accordingly, the Texas
Recognition Act controls. Banque Libanaise Pour Le Commerce v. Khreich, 915
F.2d 1000, 1004 (5th Cir. 1990). That Act “provides that a foreign country
money-judgment which is final, conclusive and enforceable where rendered is
enforceable in Texas in the same manner as a judgment of a sister state that is
entitled to full faith and credit.” Id. Under the Texas Recognition Act, a foreign
judgment will be recognized if: “(1) the judgment is final, conclusive, and
enforceable where rendered; (2) an authenticated copy of the judgment is filed
in the judgment debtor’s county of residence; (3) notice of the filing is given to
the judgment debtor; and (4) none of the defenses provided in [the Texas
Recognition Act] apply. Hernandez v. Seventh Day Adventist Corp., Ltd., 54
S.W.3d 335, 336–37 (Tex. App., 2001) (citing T EX. C IV. P RAC. & R EM. C ODE A NN.
§§ 36.002, 36.004, 36.005, 36.0041–42).
FTZ admits that it failed to meet the statutory requirements of the Texas
Recognition Act because it did not and has not provided an authenticated copy
of the Chinese default judgment. Nevertheless, the company argues that no
such copy is required. Further, FTZ asserts that the magistrate judge erred in
her determination that the Chinese judgment was not enforceable because FTZ’s
complaint failed to sufficiently show that the Chinese court had personal
jurisdiction over Frost.
FTZ’s arguments are without merit. As previously noted, an authenticated
copy of the foreign judgment is required under the Texas Recognition Act. Both
the statute itself and Texas courts have reiterated this requirement. T EX. C IV.
P RAC. & R EM. C ODE A NN. § 36.005; Hernandez, 54 S.W.3d at 336–37; Reading &
Bates Constr. Co. v. Baker Energy Res., 976 S.W.2d 702, 706 (Tex. App., 1998).
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No. 09-50063
Thus, the magistrate judge did not err in determining that FTZ failed to state
a claim under the Texas Recognition Act.
As the magistrate judge properly dismissed FTZ’s suit for failure to comply
with the Texas Recognition Act,1 we need not address FTZ’s jurisdictional
argument.
CONCLUSION
The judgment of the magistrate judge is AFFIRMED.
1
For the first time on appeal, FTZ also argues that the magistrate judge should have
reviewed its suit as a common-law action. This argument is not properly before this court as
“arguments not raised [below] . . . are waived and cannot be raised for the first time on
appeal.” LeMaire v. La. Dep’t of Transp. and Dev., 480 F.3d 383, 387 (5th Cir. 2007).
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