The opinion of the court was delivered by: KAPLAN
LEWIS A. KAPLAN, District Judge.
This matter is before the Court on plaintiff's motion to enjoin defendant Kookmin Bank ("Kookmin") from proceeding with a previously filed action against plaintiff in the courts of the Republic of Korea. As there is no persuasive reason to grant such relief, the motion is denied.
On June 11, 1996, plaintiff Hamilton Bank, N.A. ("Hamilton") issued a letter of credit ("L/C") in favor of Sung Jin Trading Co., an exporting firm located in Pusan, Korea, in connection with a transaction in which Sung Jin was to ship 40,000 pairs of sport shoes to the applicant for the L/C, Sky Industries Corporation ("Sky"), for $ 1.5 million. Hamilton telexed the L/C to Dong Nam Bank, the advising bank, which also is located in Korea. The L/C provided that Hamilton would pay the $ 1.5 million to Sung Jin upon the presentation of certain documents specified in the L/C evidencing the shipment of the goods.
In due course, Sung Jin presented shipping documents to Kookmin, which determined that they satisfied the L/C and, allegedly in reliance on the L/C, paid $ 1.5 million less its fee to Sung Jin. Upon presentation of the shipping documents to Hamilton, however, Hamilton refused to reimburse Kookmin. It subsequently claimed that the documents presented did not comply with the L/C.
On or about December 5, 1997, Kookmin sued Hamilton in the District Court of Seoul, Korea. Notice was sent to Hamilton through the Korean consulate in Miami, Florida, the site of Hamilton's main office. The first hearing in that action is scheduled for April 16, 1998.
In this Circuit, a movant ordinarily is entitled to a preliminary injunction only if it demonstrates that it is threatened with irreparable injury and either (i) is likely to prevail on the merits, or (ii) has raised serious questions on the merits and the balance of hardships tips decidedly in its favor.
Absent proof of threatened irreparable injury, there is no occasion even to address the second part of the analysis.
Hamilton argues, however, that the issuance of antisuit injunctions such as that sought here is governed by a different standard. As Hamilton is not entitled to relief under the standard it advocates, the relevance of the traditional standard in these circumstances need not be determined.
Hamilton relies upon American Home Assurance Co. v. Insurance Corp. of Ireland,3 which adopted a two part test that later was cited with approval by the Second Circuit in China Trade and Development v. M.V. Choong Yong.4 The first criterion is whether the resolution of the action before the court which is asked to issue an injunction would be dispositive of the action sought to be enjoined. If so, the enjoining court must weigh the following factors to determine if an injunction is justified: whether (1) the prosecution of the foreign action would frustrate a policy of the enjoining forum, (2) the foreign action would be vexatious, (3) the foreign action would threaten the enjoining court's in rem or quasi in rem jurisdiction, (4) the proceedings in the foreign forum would prejudice other equitable considerations, and (5) the adjudication of the same issue in separate actions would result in delay, inconvenience, expense, inconsistency, or a race to judgment.
In the last analysis, however, the determination whether to issue an anti-suit injunction requires careful consideration of the equities in order "to determine whether . . . the injunction is required to prevent an irreparable miscarriage of justice," bearing in mind "the fundamental corollary . . . [that] parallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously" and that antisuit injunctions "are rarely issued."
In this case, the threshold test apparently is satisfied in that the determination of this action presumably would be dispositive of Kookmin's action in Korea. But Hamilton does not fare so well on the second branch of the American Home standard.
Hamilton's principal argument is that "the Korean action is designed to evade U.S. principles of personal jurisdiction protected by the Due Process clause of the Constitution" and that "allowing the Korean action to continue . . . would frustrate the United States' policy under the Constitution against personal jurisdiction over defendants who lack minimal contacts with the forum state."
In essence, then, Hamilton invites this Court to oust the Korean court of the ability to proceed with a lawsuit duly commenced before it for fear that it would subject Hamilton to personal jurisdiction in circumstances that would be offensive under our principles. The argument is unpersuasive.