Marc J. Gottridge, Esq. Hogan Lovells U.S. LLP.
Defendants: David P Stitch, Esq.
ELLEN M. COIN, J.
This is an action brought pursuant to CPLR §5303 to enforce a $25 million judgment entered in the Kingdom of Bahrain. Defendants move to dismiss the complaint pursuant to CPLR 3211(a)(7). Their motion is based on three contentions. First they argue that the complaint fails to allege the elements required under Article 53 of the CPLR. Secondly, they contend that the underlying judgment violated due process. Finally, they contend that Bahrain was an inconvenient forum. In response, plaintiff cross-moves for summary judgment pursuant to CPLR 3212. For the reasons state below, defendants' motion is denied and plaintiff's cross-motion is granted.
On a motion to dismiss pursuant to CPLR §3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. (See Goshen v Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326 ; Leon v Martinez, 84 N.Y.2d 83, 87 ).
The amended complaint alleges that the Bahrain judgment was rendered in favor of plaintiff Standard Chartered Bank ("Standard"), a banking corporation organized under the laws of England and Wales, with a New York branch, against defendants, a Saudi Arabian partnership and its partners (all of whom are citizens and residents of Saudi Arabia) in the amount of $25 million plus interest at the rate of 2% per annum from April 23, 2009, plus costs in the aggregate amount of 35, 932 Bahraini Dinars. It alleges that the judgment was entered pursuant to the law of the Kingdom of Bahrain, and that it is final, conclusive and enforceable there. It further alleges that no appeal has been taken from the Bahrain judgment and that the time to take such an appeal has expired. Finally, it alleges that the Bahrain judgment remains unsatisfied.
It is undisputed that the Bahrain judgment was rendered in the Bahrain Chamber for Dispute Resolution (BCDR). It is also undisputed that all of the defendants in the instant action appeared before the BCDR through their counsel, who made motions before the tribunal, participating in the litigation. Further, it is undisputed that defendants did not avail themselves of their right to appeal from the Bahraini judgment.
Defendants argue that the amended complaint fails to meet the pleading standards enunciated in CIBC Mellon Trust Co. v Mora Hotel Corp. N.V. : (1) a final judgment, conclusive and enforceable where rendered; (2) subject matter jurisdiction; (3) jurisdiction over the parties or the res; and (4) regular proceedings conducted under a system that provides impartial tribunals and procedures compatible with due process.
Defendants do not deny that the amended complaint alleges the first requisite element, i.e., that the Bahrain judgment was final, conclusive and enforceable there (Amd. Compl., para.7). However, they contend that plaintiff fails to allege the remaining three elements necessary for enforcement of the foreign judgment.
As plaintiff correctly notes, all of these elements are matters of defense. (CPLR §5304 subds. (a)(1)and(2), (b)(1)). (See, e.g., Chevron Corp. v Naranjo, 667 F.3d 232, 240 [2d Cir 2012]; S.C. Chimexim S.A. v Velco Enter. Ltd., 36 F.Supp.2d 206, 211 [SDNY 1999]; Blacklink Transp. Consultants PTY Ltd. v Von Summer, 18 Misc.3d 1113 (A) at *2 [Sup Ct, NY County 2008]["Under CPLR 5303 a conclusive judgment from a foreign country which meets the requirements of CPLR 5302 is enforceable in New York unless one of the factors set forth by CPLR 5304 applies"]). Indeed, §5304 lists a total of nine elements (including those defendants cite), any one or more of which may or may not be applicable in a given case (CPLR §5304(a)(1)(2), (b)(1)-(7)). Thus, plaintiff's failure to plead defendants' selected CPLR §5304 elements (subds. (a)(1), (2), (b)(1)) forms no basis for dismissal of the amended complaint.
FUNDAMENTAL DUE PROCESS
Defendants contend that the BCDR proceeding in which the decision was rendered was the functional equivalent of compulsory arbitration, in that the decision makers were not professional judges, evidence was unreasonably curtailed, and rights of appeal were so limited as to be non-existent. Thus, they claim, the procedures employed by the Bahrain tribunal were not compatible with due process and require that this Court deny recognition of the judgment pursuant to CPLR §5304(a)(1).
Plaintiff, in opposition and in support of its instant cross-motion for summary judgment, contends that the procedures of the Bahrain tribunal meet the due process requirement of the statute. Plaintiff bears the burden on its cross-motion of proving that no mandatory basis for non-recognition pursuant to CPLR 5304(a) exists. (Blacklink Transp. Consultants PTY Ltd. v Von Summer, 18 ...