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COMPETEX, S.A. v. LABOW

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


July 22, 1985

COMPETEX, S.A. (in liquidation), Plaintiff, Judgment Creditor, against RONALD LABOW, Defendant, Judgment Debtor

The opinion of the court was delivered by: SPRIZZO

SPRIZZO, D.J.:

OPINION & ORDER

On March 16, 1981, plaintiff Competex obtained a final judgment in England, requiring defendant LaBow to pay plaintiff 187,929.82 English pounds. Defendant never paid that judgment. As a consequence, on April 28, 1981, plaintiff brought a diversity action in the United States District Court for the Southern District of New York to enforce the English judgment. At the bench trial of this action held on October 4-5, 1983, defendant made numerous arguments before Judge Werker as to why the English judgment should not be enforced.

 Judge Werker rejected all of these arguments and converted the English judgment "to United States dollars at the exchange rate prevailing on March 16, 1981," the date of the final English judgment. See Competex, S.A. v. LaBow, No. 81 Civ. 2550 (HFW), slip op. at 11 (S.D.N.Y. October 17, 1983). This sum amounted to $413,445.60, plus interest and costs. See id.1 In so doing, Judge Werker followed New York law, which applies the breach-day rule. Id. at 10. Prior to the entry of this united States judgment, defendant did not tender an amount sufficient to satisfy the English judgment in pounds. LaBow's appeal to the Second Circuit was dismissed in March of 1984.

 On July 19, 1984, plaintiff sought provisional remedies under New York law to enforce the United States judgment entered by Judge Werker, which was filed on February 10, 1984. *fn2" In resisting plaintiff's application for provisional remedies, LaBow contended that he was entitled, as a matter of law, to satisfy the United States judgment by the payment of the English judgment in pounds. In so doing, LaBow relied upon In re James, 248 N.Y.1, 161 N.E. 201 (1928).

 However, the James case does not support defendant's argument. In that case, the facts presented were the converse of the situation in the case at bar. The plaintiffs in James had first obtained a United States judgment and then, when executions upon a New York "Surrogate's Court" decree were returned unsatisfied in the United States, sought the enforcement of that judgment by means of a proceeding instituted in France. See id. at 4. After a French judgment had been obtained in francs and paid by the defendant executrix, the issue presented to the New York State Court of Appeals was whether or not the defendant had satisfied her obligation under the American decree by the payment of the French judgment in francs. Id.

 The court in James held, notwithstanding the depreciation of the franc in its relationship to the dollar since the date of the French judgment, that the French judgment created an obligation payable in francs. Id. at 4-6. Thus, the judgment creditors were obliged to accept payment in francs in satisfaction of the French judgment. The language employed by the James court is especially applicable to this case. The court stated:

 

[The French judgment] directed execution of the American judgment by the payment of 2,303,248.59 francs and not otherwise. The debtor has obeyed that command and has handed the last centime to her creditors. If the franc had risen to twice its value instead of shrunk to half she would have been bound by the same inexorable decree. She was obliged to pay that certain number of francs without regard to their value. After the translation of the judgment [from dollars into francs], her liability was in francs alone. *fn3"

 Id. at 5-6 N.E. 201.

 The James case, which is part of the substantive law of New York which must be applied in this diversity action, *fn4" thus supports plaintiff's contention that the United States judgment must be paid in dollars. If a plaintiff can be forced to accept French francs in satisfication of a French judgment which had converted an American judgment from dollars into francs, *fn5" it follows that a plaintiff may properly insist on being paid in United States dollars when an English judgment has been converted from pounds into dollars.

 It this case, defendant argues that, under James, a defendant judgment debtor has the option, depending upon currency fluctuations, to either pay the English judgment in pounds or the United States judgment in dollars. However, that analysis flatly contradicts the court's reasoning in James, which clearly reflects the view that, in enforcing judgments, courts should, as a matter of policy, be indifferent to currency fluctuations. See id. at 6 (and cases cited therein).

 Defendant also relies upon numerous cases which hold that, where an obligation is payable in foreign currency, a defendant is entitled to satisfy that obligation in that currency. See, e.g., Transamerica General Corp. v. Zunino, 82 N.Y.S.2d 595 (Sup.Ct. 1948). The Court does not dispute the soundness of that proposition, which, if anything, undermines defendant's argument. A United States judgment is an obligation payable in dollars and therefore is satisfiable only in dollars. While it is true that the English judgment which formed the underlying basis for the United States judgment could have been satisfied in pounds, it does not follow that a United States judgment payable in dollars can be similarly satisfied.

 Nor is this result unfair to defendant. Prior to the entry of the United States judgment, defendant had the option of satisfying the English judgment by paying it in pounds. He chose not to do that, but rather to litigate whether or not that English judgment debt should be incorporated in a United States judgment. He had a full day in court on that issue and lost. Having failed to take advantage of the opportunity to abate the United States action by paying the English judgment in pounds, he cannot now complain of being required to satisfy the United STates judgment in dollars.

 The defendant makes much of the fact that the English judgment did not merge into the United States judgment. Even assuming, as the Court must, that a United States court, in entering a United States judgment, does not have the power to affect the continuing validity of the English judgment, it is equally true that the satisfaction of the English judgment does not render unenforceable an obligation imposed by and existing under the laws of the United States.

 Plaintiff relies heavily on the ALI's draft, dated April 12, 1985, of a proposed section 823 of the new Restatement of Foreign Relations Law of the United States, which generally reflects, as a matter of policy, that a defendant debtor should not profit by his failure to timely pay his debt. See Exhibit to Letter of Sheldon H. Elsen, dated May 14, 1985. However, in a diversity case, the Court is not free to disregard New York law and to follow the Restatement view, in the absence of some indication that the courts of New York would not currently adhere to the James case. See Vishipco Line v. Chase Manhattan Bank, N.A., 660 F.2d 854, 865 & n. 7 (2d Cir. 1981), cert. denied, 459 U.S. 976, 74 L. Ed. 2d 291, 103 S. Ct. 313 (1982); cf. Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938. *fn6"

 In any event, the result reached here, although it flows from an application of the James case, and not the Restatement itself, is not inconsistent with the policy expressed in the Restatement.

 CONCLUSION

 Defendant's motion for relief from the Judgment and orders of Judge Werker, brought pursuant to Fed. R. Civ. P. 60(b), is denied. Plaintiff's motions to compel installment payments and withholding of salary from defendant are granted pursuant to the terms of a separate Order.

 It is SO ORDERED.


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