United States District Court, S.D. New York
April 5, 2005.
HOKYUNG "HARRISON" KIM, Plaintiff,
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.
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 (1970);
Voreep v. Tarom Romanian Air Transp., No. 96 Civ. 1384, 1999 WL
311811, at *3-4 (S.D.N.Y. May 18, 1999).
Singapore law*fn5 would preclude an action where there was
an earlier action on the same subject matter, between the same
parties, which resulted in a final adjudication or an order that
was intended to have preclusive effect. See Lee Hiok Tng v.
Lee Hiok Tng,  3 S.L.R. 41, 49-50 (Ct. of App.);
Hendrawan Setiadi v. OCBC Sec. Pte Ltd.,  4 S.L.R. 503,
508 (High Ct.).
Here, it is undisputed that the present action is based on the
same subject matter as the Singapore action,*fn6 see Stip.
¶ 1, and that the parties are the same.*fn7 The only
disputed issue is the preclusive effect that a Singapore court
would afford the Singapore order.
Defendant points to well-established Singapore law that orders
of dismissal following the commencement of trial are preclusive.
See Expert Decl. of Govinda Pannirselvam, dated May 11, 2004,
("Pannirselvam Decl.") ¶¶ 16-26; see also Setiadi, 4 S.L.R.
503. Defendant contends that this line of authority applies
equally to situations where litigation has progressed to an advanced stage
and plaintiff has expressed an unwillingness to proceed. See
Def.'s R.J. Mem. at 10; see also Jeffrey Pinsler, Singapore
Court Practice, "Pinsler Treatise") at 632, reprinted in
Def.'s Exs. With Respect to Res Judicata Issues Ex. E.
Plaintiff argues that the Singapore order should not be given
preclusive effect because the court did not grant Prayer 2, see
Pl.'s R.J. Mem. at 1-2, 9, and because the action had been
successfully discontinued by plaintiff, see id. at 1, 5, 23.
In addition, plaintiff contends that the Singapore action was not
at an advanced stage, see id. at 19, and that, regardless,
the Singapore court would have no power to dismiss the action
with prejudice solely on the basis of excessive delays, see
Jeyaretnam Joshua Benjamin v. Lee Kuan Yew,  4 S.L.R. 1
(Ct. of App.); see also Birkett v. James,  A.C. 297
Plaintiff's argument has a variety of defects. First, despite
plaintiff's repeated representations that he discontinued the
Singapore action by way of his February 21, 2002 Notice of
Discontinuance, see Pl.'s R.J. Mem. at 1, 5, 23, his own expert
as well as a cursory examination of Singapore law reveal that
this was not the case, see Decl. of Jeffrey Pinsler, dated May
11, 2004, ("Pinsler Decl.") ¶ 9 n. 1; S.R.C. Order 21, Rules 2-3.
The statutory authority that plaintiff purportedly relied upon is
clearly irrelevant to this issue. See S.R.C. Order 59, Rule 10.
Rather, in clear contravention of Singapore law requiring a
plaintiff to obtain leave of Court to discontinue an action,
S.R.C. Order 21, Rule 3, plaintiff refused to get such leave, Stip. Ex. D ¶¶ 13-14, and thus his notice was "of
no effect," see Pinsler Treatise at 621.
Second, plaintiff improperly conflates dismissals and
discontinuances. Plaintiff argues that he never thought that
Prayer 1 standing alone could have preclusive effect, see Pl.'s
R.J. Mem. at 6-7, and he contends that the Singapore court's
failure to address Prayer 2 amounted to a denial of that request
thus foreclosing any argument that the Singapore order would have
preclusive effect, see id. at 1-2, 9. However, that argument
is refuted by the opinions of both experts as well as by case
law. See Pinsler Decl. ¶ 9 & n. 1; Pannirselvam Decl. ¶¶ 28-29
(expressing opinion that having decided to grant Prayer 1,
Singapore court was without the power to grant Prayer 2); Hanhyo
Sdn Bhd v. Marplan Sdn Bhd,  1 M.L.J. 51, 63 (High Ct.
(Kuala Lumpur)) (citing case acknowledging that discontinuances
and dismissals have different preclusive effects). Therefore,
although the court's failure explicitly to order preclusion would
be fatal to defendant's case if this were a discontinuance, see
S.R.C. Order 21, Rules 3-4, it is not the case on this order of
Third, although it is true that the Singapore action did not go
to trial, it is clear that the action had progressed through
numerous appeals, refinements, and discovery proceedings. See
Stip. ¶¶ 1-4. Although plaintiff now contends that the matter
"was far from ready for trial," Pl.'s R.J. Mem. at 19, his
Singapore counsel indicated that the "[c]laim nearly went to
trial in year 2000," Stip. Ex. E at 2, and the Singapore court
taxed costs against him in the amount of S$324,612.06, see
Stip. Ex. H.
Finally, plaintiff ignores the fact that he has engaged in a
series of actions that a Singapore court would find abusive. As
stated above, in clear contravention of the S.R.C., plaintiff
attempted to discontinue the Singapore action without leave of
court. Leaving aside plaintiff's repeated representations that this discontinuance was
somehow successful, plaintiff's Singapore counsel admitted that
the Singapore court found this attempted discontinuance to be "an
abuse of process," Decl. of Julia Yeo, dated Aug. 6, 2003, ¶ 44,
and courts considering similar situations have found that
preclusion of future actions was appropriate, see, e.g.,
Hanhyo Sdn Bhd,  1 M.L.J. at 66.
In addition to flouting the rules, plaintiff inexcusably
delayed the prosecution of his Singapore action because he was
"financially unable to go through trial," Stip. Ex. E at 1, and
desired to "transfer the dispute resolution process to New York,"
Decl. of Hokyung Kim, dated Aug. 6, 2003, ¶ 337. As even
plaintiff's expert indicates, such refusal to go to trial
constitutes a "procedural default," Pinsler Decl. ¶ 24, and
courts considering such recalcitrance coupled with other abuses
of process have determined that preclusion of future actions is
appropriate, see, e.g., Grovit v. Doctor,  2 All E.R.
417 (H.L.); Arbuthnot Latham Bank Ltd. v. Trafalgar Holdings
Ltd.,  2 All E.R. 181 (C.A.); OCD (M) Sdn Bhd v. Wah Nam
Plastic Indus. Pte Ltd.,  2 S.L.R. 381 (High Ct.).
Because the Singapore action was dismissed after having
progressed to an advanced stage of litigation, and following
plaintiff's violation of Singapore rules and his expressed
unwillingness to prosecute his action, this Court finds that
Singapore law would preclude the present action.*fn9
Having found the present action precluded, the Court now turns
to the effect of the Singapore judgment which awarded defendant
costs. This Court must apply New York law to determine if the
Singapore judgment should be recognized. See Seetransport Wiking Trader
Schiffahrtsgesellschaft MBH & Co., Kommanditgesellschaft v.
Navimpex Centrala Navala, 989 F.2d 572, 582 (2d Cir. 1993).
"New York has traditionally been a generous forum in which to
enforce judgments for money damages rendered by foreign courts."
CIBC Mellon Trust Co. v. Mora Hotel Corp., 100 N.Y.2d 215, 221,
792 N.E.2d 155, 159, 762 N.Y.S.2d 5, 9 (2003). Article 53 of the
Civil Practice Law and Rules codifies New York's approach.
Subject to a number of exceptions, New York will recognize and
enforce foreign money judgments that are "final, conclusive and
enforceable where rendered." N.Y.C.P.L.R. 5302-5303. A judgment
can not be recognized if the rendering jurisdiction does not
provide "procedures compatible with the requirements of due
process of law," or if "[t]he foreign court did not have personal
jurisdiction over the defendant." N.Y.C.P.L.R. 5304(a). The
burden of proof on these issues is with the party seeking to
enforce the judgment. See Dresdner Bank AG v. Hague,
161 F. Supp. 2d 259, 263 (S.D.N.Y. 2001). Recognition may be denied if
the opposing party can prove any number of other defenses,
including that the foreign judgment "is repugnant to the public
policy of this state," N.Y.C.P.L.R. 5304(b); see Dresdner Bank
AG, 161 F. Supp. 2d at 263.
Here, defendant has easily carried its burden. The Singapore
judgment is enforceable in Singapore, see Kumar Decl. ¶ 33, and
it is clear that there was personal jurisdiction over all parties
in the Singapore action, see id. ¶ 37, and that the Singapore
legal system affords due process, see id. ¶¶ 40-46. Plaintiff
presents no evidence otherwise, and, while he did assert a number
of defenses in his answer to this counterclaim, see Answer to
Countercls., he has not raised those defenses in opposition to
this motion and he has presented no evidence in support of them.*fn10 See Fed.R.Civ.P.
56(e); Dresdner Bank AG, 161 F. Supp. 2d at 264.
Therefore, defendant is entitled to summary judgment on its
counterclaim seeking the enforcement of the Singapore judgment.
Because a portion of this judgment seems to have been collected,
and because the parties have failed to brief this Court on the
issue of interest, this Court will reserve decision on damages at
Based on the foregoing, Rabobank's Motion for Summary Judgment
on plaintiff's causes of action shall be and hereby is granted.
Defendant Ice's Motion is granted insofar as the causes of action
asserted against him allege conduct committed in the scope of his
employment with Rabobank. In addition, Rabobank's Motion for
Summary Judgment on its counterclaim seeking to enforce the
Singapore judgment shall be and hereby is granted. A Pre-Trial
Conference to discuss the issue of interest and the status of
this action as against Ice and Di Stefano shall occur on May 19,
2005 at 3:00 p.m. in Courtroom 705, 40 Centre Street.
It is SO ORDERED.