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KIM v. CO-OPERATIVE CENTRALE RAIFFEISEN-BOERENLEENBANK

April 5, 2005.

HOKYUNG "HARRISON" KIM, Plaintiff,
v.
CO-OPERATIVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., ET AL., Defendants.



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.

BACKGROUND

  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. ¶ 6.*fn2

  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.

  DISCUSSION

  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 ...


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