Richard A. Tropp, individually, and on behalf of all others similarly situated, Plaintiff-Appellant, v. Corporation of Lloyds,
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
385 Fed. Appx. 36; 2010 U.S. App. LEXIS 14657
July 19, 2010, Decided
NOTICE: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
PRIOR HISTORY: [*1]
Appeal from a judgment of the United States District Court for the Southern District of New York (Buchwald, J.). Tropp v. Corp. of Lloyds, 2008 U.S. Dist. LEXIS 30635 (S.D.N.Y., Mar. 25, 2008)
COUNSEL: APPEARING FOR APPELLANT: RICHARD A. TROPP, Pro se, New York, NY. APPEARING FOR APPELLEE: JOHN W. BREWER, Fried, Frank, Harris, Shriver & Jacobson LLP, New York, NY.
JUDGES: PRESENT: DENNIS JACOBS, Chief Judge, RICHARD C. WESLEY, DENNY CHIN, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.
Plaintiff, Richard Tropp, pro se, appeals from an order of the United States District Court for the Southern District of New York (Buchwald, J.) dismissing his action against defendant, the Corporation of Lloyds (Lloyds), on the grounds of improper venue and failure to state a claim. We assume the parties familiarity with the underlying facts, the cases procedural history, and the issues presented for review.
Where the district court has relied on pleadings and affidavits to grant a Rule 12(b)(3) motion to dismiss on the basis of a forum selection clause, our review is de novo. Altvater Gessler-J.A. Baczewski Intl (USA) Inc. v. Sobieski Destylarnia S.A., 572 F.3d 86, 89 (2d Cir. 2009) (internal [*2] quotation marks omitted). The party seeking enforcement of a forum selection clause must demonstrate that: (1) the clause was reasonably communicated to the party resisting enforcement; (2) the clause was mandatory and not merely permissive; and (3) the claims and parties involved in the suit are subject to the forum selection clause. Id.
Once the party seeking enforcement has established these conditions, the burden shifts to the party resisting enforcement to rebut the presumption of enforceability by making a sufficiently strong showing that enforcement would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or overreaching. Phillips v. Audio Active, Ltd., 494 F.3d 378, 383-84 (2d Cir. 2007) (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972)). The Supreme Court has construed this exception narrowly. Roby v. Corporation of Lloyds, 996 F.2d 1353, 1363 (2d Cir. 1993).
Tropps primary challenge to the district courts Rule 12(b)(3) holding is that the forum selection clause is unenforceable because United Kingdom law deprived him of any remedy, See, e.g., Roby v. Socy of Lloyds, 996 F.2d 1353 (2d Cir. 1993) (A forum selection [*3] clause is unreasonable if the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy.), and that his experiences in UK courts provide a record of this deprivation that was unavailable to the courts that have previously upheld the forum selection clause contained in Lloyds General Undertaking agreement.
True, at least some claims against Lloyds are now precluded by conclusions reached in unrelated UK litigation. See Laws v. Socy of Lloyds,  EWCA (Civ) 1887, . However, the UK courts did not dismiss Tropps counterclaims on that basis. Moreover, although Tropp was unsuccessful in his attempts to assert defenses and counterclaims against Lloyds in the UK courts, his experiences do not cause us to revisit our holding that the Lloyds forum selection clauses (of which this is one) are valid because UK remedies are available. See, e.g., Roby, 996 F.2d at 1365-66.
We review de novo the district courts dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See, e.g., Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009). We assume all well-pleaded factual allegations to be true, and determine whether they [*4] plausibly give rise to an entitlement to relief. Id. (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009)).
Whether a foreign judgment is domestically enforceable is a matter of state law. Fed. R. Civ. P. 69(a)(1). New Yorks Recognition Act applies to any foreign country judgment which is final, conclusive and enforceable where rendered. N.Y. C.P.L.R. 5302. A judgment that satisfies 5302 is enforceable by an action on the judgment, a motion for summary judgment in lieu of complaint, or in a pending action by counterclaim, cross-claim or affirmative defense. N.Y. C.P.L.R. 5303. A foreign country judgment is not conclusive if, inter alia, the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law. N.Y. C.P.L.R. 5304(a). A foreign country judgment need not be recognized if, inter alia, the cause of action on which the judgment is based is repugnant to the public policy of this state. N.Y. C.P.L.R. 5304(b).
Tropp argues that Lloyds UK judgment is unenforceable because UK law employs a sub-system for claims like his, that denies due process to aggrieved Names. The New York Court [*5] of Appeals however, upholding the recognition of a default English judgment, held that the relevant inquiry under C.P.L.R. 5304(a)(1) is the overall fairness of Englands legal system, which is beyond dispute. See CIBC Mellon Trust Co. v. Mora Hotel Corp. N.V., 100 N.Y.2d 215, 792 N.E.2d 155, 160, 762 N.Y.S.2d 5 (N.Y. 2003).
Tropp contends that recognition of the UK judgment would be repugnant to various elements of New Yorks public policy. But Society of Lloyds v. Grace, 278 A.D.2d 169, 718 N.Y.S.2d 327 (N.Y. App. Div. 2000) involved a litigant in Tropps circumstances—in particular, the UK court entered summary judgment without allowing defendants to present their fraud claim or challenge the amount sought by Lloyds—and the First Department concluded that since the underlying English judgments are procedurally sound and do not violate any public policy of New York or the United States, they are entitled to comity. Id. at 328.
Finally, Tropp argues that, if the UK judgment does not violate the Recognition Act, then the Recognition Act itself violates his federal constitutional due process rights. He contends, as does the brief amicus curiae, that the case is controlled by Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio Law Abs. 185, 25 Ohio L. Rep. 236 (1927), which holds [*6] that it certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him in his case. Id. at 523. In this case however, Tropp is not facing criminal charges, but rather a civil judgment for breach of contract relating to his voluntary relationship with Lloyds. More importantly, although the UK courts gave conclusive effect to Lloyds calculation of Tropps liability, the UK courts themselves had no financial interest in the outcome of Tropps case.
Finding no merit in Tropps remaining arguments, we hereby AFFIRM the district courts judgment.