The opinion of the court was delivered by: JOHN SPRIZZO, Senior District Judge
MEMORANDUM OPINION AND ORDER
The present controversy involves the effect that a Singapore
court's order dismissing a claim and granting costs has on a
subsequent action brought in this Court between the same parties
on the same causes of action. Because Singapore law would deem
this action precluded, and because New York law would recognize
and enforce the Singapore judgment for costs, this Court grants
defendants' motions for summary judgment.
Plaintiff, Hokyung "Harrison" Kim ("Kim" or "plaintiff"),
brought this action by Complaint dated March 6, 2003 against
defendants, Co-Operative Centrale Raiffeisen-Boerenleenbank B.A.
("Rabobank" or "defendant"), Michael Ice, and Michele Di
Stefano*fn1 (collectively "defendants"), seeking to recover
for breach of contract and for misrepresentations made when
defendants recruited Kim to head Rabobank's "Structure Finance
and Arbitrage Desk." See Compl. ¶¶ 87-127. After answering the
Complaint, defendant submitted a Motion for Summary Judgment
dated July 7, 2003, in which it maintained that this action was
barred by an order dismissing an earlier Singapore action, and
that defendant was entitled to summary judgment on its
counterclaim which sought to enforce the Singapore judgment
awarding it costs. See Def.'s Summ. J. Mem. at 1-2. Defendant Ice joined
that Motion insofar as it sought to dismiss the Complaint on
preclusive effect grounds. See Mem. of Michael Ice at 1-5.
The Singapore action at issue was commenced in 1999 by Kim, and
it asserted causes of action against defendant that "were based
on substantially the same set of operative facts as the present
action." Stipulation of Undisputed Facts ("Stip.") ¶ 1. Between
1999 and 2001 the Singapore litigation was dismissed on the
pleadings, reinstated upon appeal, see id. ¶ 2, subject to a
variety of orders and appeals concerning the specificity of the
pleadings, see id. ¶ 3, and subject to disagreements over
document demands and discovery, see id. ¶ 4. The expensive
discovery process dragged on, see Def.'s Mem. With Respect to
Res Judicata Issues ("Def.'s R.J. Mem.") at 5; Pl.'s Summ. J.
Mem. at 12-13, and the case was never set for trial, see Stip.
On February 21, 2002, plaintiff served defendant with a Notice
of Discontinuance which purported to "wholly discontinue" the
Singapore action. See id. ¶ 7; id. Ex. B. Plaintiff
indicated that he would not seek leave of court or consent from
defendant to discontinue, see id. Ex. D ¶¶ 13-14, and he
relied on Order 59, Rule 10 of the Singapore Rules of Court
("S.R.C.") as a basis for the discontinuance, see Pl.'s Opp'n
Mem. to Res Judicata Defense ("Pl.'s R.J. Mem.") at 5.
Defendant responded by filing an application dated April 3,
2002, in which it asked the Singapore court for orders on several
prayers for relief. Defendant asked for orders dismissing the
action ("Prayer 1"), precluding "any claim in [the] future in the
Republic of Singapore or any jurisdiction in respect of the
subject matter of this action against the Defendants" ("Prayer
2"), and assessing costs against plaintiff ("Prayer 3").*fn3 Stip. ¶ 8; id. Ex. C.
A Hearing on defendant's application was held on April 17,
2002. Id. ¶ 11. At the Hearing, which is memorialized by only a
skeletal transcript, see id. Ex. E, the primary issue
discussed was "where the prejudice lies," id. Ex. E at 2.
Plaintiff's counsel argued that the "[o]nly prejudice is costs,"
id. Ex. E. at 2, and stated that Kim was "financially unable to
go through trial at this point," id. Ex. E at 1, and that the
"Court cannot compel the plaintiff? to litigate against his
wishes," id. Ex. E at 2. Plaintiff did not seek an order of
discontinuance from the court, see Pl.'s R.J. Mem. at 6, and he
maintained that under Singapore court rules the action would have
been deemed discontinued by operation of law in just a few months
because of inactivity by both parties, see Stip. Ex. E. at 2.
Defendant responded by arguing that "[i]nability to continue an
action is not a good reason," and pointed out that Kim had
earlier sought to discontinue while "refus[ing] to take out [an]
application to discontinue." Id. Ex. E. at 2. Defendant
maintained that this amounted to abuse of process and want of
prosecution. See id. Ex. E at 2.
Following arguments, the Singapore court granted Prayers 1 and
3. See id. Ex. E at 2. Prayer 2, seeking an order of
preclusion, was not addressed.*fn4 See id. Ex. E at 2. A
written Order was entered on May 6, 2002 and an amended Order was
entered on September 4, 2002 ("Singapore order"). See Stip. ¶
13. On January 28, 2003 the Singapore court taxed costs against
plaintiff in the amount of S$324,612.06 (Singapore dollars) ("Singapore judgment"). See Stip. ¶ 14; id. Ex. H;
Decl. of Ashok Kumar, dated July 7, 2003, ("Kumar Decl.") ¶¶
31-33. Of this amount, $$60,000 was collected by defendant from
the security posted by plaintiff. Kumar Decl. ¶ 32.
As stated above, plaintiff initiated the present action in this
Court on March 6, 2003. Following a November 14, 2003 Oral
Argument on defendants' motions for summary judgment, this Court
ordered the submission of expert affidavits and legal memoranda
on the issue of Singapore law. A Hearing to that effect was held
on November 8, 2004.
A court may only grant summary judgment when "there is no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P.
56(c). All ambiguities and factual inferences must be drawn in
favor of the party opposing the motion. See Mitchell v.
Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999).
Summary judgment is not inappropriate when factual disputes are
irrelevant to the outcome of the case, see Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir. 1996), or when the parties
present conflicting evidence about the "content, applicability,
or interpretation of foreign law," Rutgerswerke AG v. Abex
Corp., No. 93 Civ. 2914, 2002 U.S. Dist. LEXIS 9965, at *52
(S.D.N.Y. June 3, 2002); see Bassis v. Universal Line, S.A.,
436 F.2d 64, 68 (2d Cir. 1970). Pursuant to Federal Rule of Civil
Procedure 44.1, it is the Court's function to determine foreign
law, and the Court is given wide latitude in making that
determination. See Rutgerswerke AG, 2002 U.S. Dist. LEXIS
9965, at *51.
In this diversity action this Court must apply New York choice
of law rules. See Gilbert v. Seton Hall Univ., 332 F.3d 105,
109 (2d Cir. 2003). In determining the preclusive effect of the
Singapore dismissal, a New York court would look to the law of
Singapore and would give that order the same preclusive effect that it would
enjoy in Singapore. See Watts v. Swiss Bank Corp.,
27 N.Y.2d 270, 275, 265 N.E.2d 739, 742, 317 N.Y.S.2d 315, 318 ...