1996 WL 33664486 (2nd Cir.)

For opinion see 104 F.3d 352

United States Court of Appeals, Second Circuit.

CANADIAN IMPERIAL BANK OF COMMERCE, Plaintiff-Appellee,

v.

SAXONY CARPET COMPANY, INC., Defendant-Appellant.

No. 95-9139.

July 12, 1996.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Brief of Plaintiff-Appellee Canadian Imperial Bank of Commerce

Of Counsel:

Richard C. Raymond

Mcmillan, Constabile, Maker, Murphy & Raymond, LLP Attorneys for Plaintiff-Appellee, Canadian Imperial Bank of Commerce, 2180 Boston Post Road, Larchmont, New York 10538, (914) 834-3500

CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. 26.1, plaintiff-appellee Canadian Imperial Bank of Commerce ("CIBC") states that there are not any parent companies, subsidiaries or affiliates of CIBC that have issued shares to the public.

TABLE OP CONTENTS

Certificate of Interested Parties ... i

Table of Authorities ... iv

Statement of Jurisdiction ... 1

Statement of Issues ... 1

Statement of the Case ... 2

I. COURSE OF PROCEEDINGS AND DISPOSITION BELOW ... 2

II. STATEMENT OF FACTS ... 2

A. The Parties and the Canadian Action ... 2

B. Facts Relevant to Jurisdiction ... 4

Summary of Argument ... 8

Argument ... 11

I. THE MONTREAL JUDGMENT IS FULLY ENFORCEABLE UNDER ARTICLE 53 OF THE NEW YORK C.P.L.R., THE UNIFORM FOREIGN COUNTRY MONEY JUDGMENTS RECOGNITION ACT ... 11

A. Applicable Legal Standard For Review ... 11

B. The Law Governing Foreign Country Judgments ... 12

C. The Montreal Judgment Is Final, Conclusive, And Enforceable Where Rendered ... 14

D. Saxony's Purposeful Acts in Canada Subjected It to the Jurisdiction of the Montreal Court ... 15

(1) Long-Arm Jurisdiction Provided an Adequate Basis of Jurisdiction for the Montreal Court ... 15

(2) Saxony's Contacts Amply Support A Finding of Jurisdiction ... 19

E. The Montreal Court Had Jurisdiction Over Saxony Under Canadian Principles ... 21

F. Saxony's Objections to the Finding of Jurisdiction Are Without Merit ... 22

(1) There Is Not Any Disputed Issue of Material Fact Concerning Saxony's Two-Day Visit to Canada ... 22

(2) Saxony's Argument Concerning the Location of Prior Contracts is Misplaced ... 23

(3) The Saxony Visit to Elite's Plant Was Sufficiently Related to the Claim for Non-Payment of Goods Shipped From That Plant ... 24

II. SAXONY MAY NOT COLLATERALLY ATTACK THE CANADIAN JUDGMENT ... 26

A. Saxony's Purported Defenses Are Not Available Here ... 26

B. Saxony's Purported Forum Non Conveniens Defense Is Not Available in This Case ... 26

III. THE DISTRICT COURT CORRECTLY DENIED SAXONY'S MOTION TO DISMISS ... 27

Conclusion ... 29

TABLE OF AUTHORITIES

CASES

A.I.L. Division of Cutler-Hammer v. Symetric Industries. Inc., 360 F. Supp. 1138 (E.D.N.Y. 1973) ... 25

Ackertnann v. Levine, 788 F.2d 830 (2d Cir. 1986) ... 15, 26

Anderson v. Liberty Lobby. Inc., 477 U.S. 242 (1986) ... 11

Arrowsmith v. United Press International., 320 F.2d 219 (2d Cir. 1963) ... 13

Bank of Montreal v. Rough, 612 F.2d 467 (9th Cir. 1980) ... 14

Bialek v. Racal-Milao. Inc., 545 F. Supp. 25 (S.D.N.Y. 1982) ... 17

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174 (1985) ... 20

Canadian Imperial Bank of Commerce v. Saxony Carpet Co. Inc., 899 F. Supp. 1248 (S.D.N.Y. 1995) ... 2, 11, 28

Clarkson Co. Ltd. v. Shaheen, 544 F.2d 624 (2d Cir. 1976) ... 13, 26

Colonial Bank v. Worms, 550 F. Supp. 56 (S.D.N.Y. 1982) ... 26

Concrete Detailing Services v. Thomson Steel Co., 411 F. Supp. 1021 (S.D.N.Y. 1976) ... 25

Cunard S.S. Co. v. Salen Reefer Services. AB, 773 F.2d 452 (2d Cir. 1985) ... 15

CutCo Industries. Inc. v. Naucrhton, 806 F.2d 361 (2d Cir. 1986) ... 17, 19, 20, 23

Deyoung v. Beddome, 707 F. Supp. 132 (S.D.N.Y. 1989) ... 13

Dunstan v. Hiaorins, 138 N.Y. 70, 33 N.E. 729 (1893) ... 14

Elman v. Belson, 32 A.D.2d 422, 302 N.Y.S.2d 961 (2d Dep't 1969) ... 16

Fairchild. Abrabatzis. & Smith. Inc. v. Prometco Co., 470 F. Supp. 610 (S.D.N.Y. 1979) ... 15

First National Bank & Trust Co. v. Wilson, 171 A.D.2d 616, 567 N.Y.S.2d 468 (1st Dep't 1991) ... 25

Hilton v. Guvot, 159 U.S. 113 (1895) ... 12

Hvide Marine International. Inc. v. Employer Insurance Of Wasau, 724 F. Supp. 180 (S.D.N.Y. 1989) ... 25

Juron & Minzer v. Dranoff & Patrizio, 194 A.D.2d 402, 598 N.Y.S.2d 514 (1st Dep't 1993) ... 25

Keywell Corp. v. Weinstein, 33 F.3d 159 (2d Cir. 1994) ... 11

Lancaster v. Zufle, 165 F.R.D. 38 (S.D.N.Y. 1996) ... 17, 20

Lawrence Wisser & Co. Inc. v. Slender You. Inc., 695 F. Supp. 1560 (S.D.N.Y. 1988) ... 17

Leasco Data Processing Equipment Corp. v. Maxwell, 468 F.2d 1326 (2d Cir. 1972) ... 27

Liquid Carriers Corp. v. American Marine Corp., 375 F.2d 951 (2d Cir. 1967) ... 18

Longines-Wittnauer v. Barnes & Reinecke, 15 N.Y.2d 443, 261 N.Y.S.2d 8 (1963), cert, denied. 382 U.S. 905, 86 S. Ct. 241 (1965) ... 16

Manhattan Life Insurance Co. v. A.J. Stratton Syndicate, 731 F. Supp. 587 (S.D.N.Y 1990) ... 18, 25

McGowan v. Smith, 52 N.Y.2d 268, 437 N.Y.S.2d 643 (1981) ... 17, 25

McKee Electric Co. v. Rauland Borg Corp., 20 N.Y.2d 377, 283 N.Y.S.2d 34 (1967) ... 25

Melendez v. Professional Machine & Tool Co. Ltd., 190 A.D.2d 657, 593 N.Y.S.2d 258 (2d Dep't 1993) ... 20

New Central Jute Mills Co. v. City & Trade Industries. Ltd., 65 Misc. 2d 653, 318 N.Y.S.2d 980 (Sup. Ct. N.Y. Cty. 1971) ... 14

Pacamor Bearings. Inc. v. Molon Motors & Coil. Inc., 102 A.D.2d 355, 477 N.Y.S.2d 856 (3d Dept 1984) ... 25

Parke-Bernet Galleries v. Franklyn, 26 N.Y.2d 13, 308 N.Y.S.2d 337 (1970) ... 16

Porisini v. Petricca, 90 A.D.2d 949, 456 N.Y.S.2d 888 (4th Dept 1982) 13, 15, 26

Reiner & Co. v. Schwartz, 41 N.Y.2d 648, 394 N.Y.S.2d 844 (1977) ... 18

Sayles Biltmore Bleaschers v. Soft-Fab Textile Proc. Inc., 440 F. Supp. 1010 (S.D.N.Y. 1977) ... 25

Siedler v. Jacobson, 86 Misc. 2d 1010, 383 N.Y.S.2d 833 (App. Term, 1st Dept 1976) ... 25

Silver v. Great American Insurance Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398 (1972) ... 27

Snyder v. Madera Broadcasting. Inc., 872 F. Supp. 1191 (E.D.N.Y. 1995) ... 17, 19, 20

Soleman Ltd, v. Biederman & Co., 177 A.D.2d 350, 576 N.Y.S.2d 118 (1st Dep't 1991) ... 9, 18, 19, 26

Steinberg v. Metropolitan Entertain Corp., 145 A.D.2d 333, 534 N.Y.S.2d 995 (1st Dep't 1988) ... 14

Sterling National Bank & Trust Co. v. Fidelity Mortgage Investors. 510 F.2d 870 (2d Cir. 1975) ... 17

Tahan v. Hodgson., 662 F.2d 862 (D.C. Cir. 1981) ... 13

In re Union Carbide Corporation Gas Plant Disaster At Bhopal. 809 F.2d 195 (2d Cir.), cert, denied., 484 U.S. 871 (1987) ... 12

Wilhelmshaven Acquisition Corp. v. Asher., 810 F. Supp. 108 (S.D.N.Y. 1993) ... 17, 19, 23

STATUTES AND RULES

Federal

28 U.S.C. § 1291 ... 1

28 U.S.C. § 1332 ... 1

Fed. R. Civ. P. 12(b)(l) and (2) ... 28

Fed. R. Civ. P. 44(a)(2) ... 14

State

C.P.L.R. § 5303 ... 8, 12, 13 16, 25, 27

U.C.C. § 2-201 ... 24

U.C.C. § 2-207(1) ... 24

Foreign

Quebec Code Civ. P., Art. 68(2)&(3) (1965) ... 21

MISCELLANEOUS

Doing Business in Canada § 13.02[2] (Mathew Bender & Co., Inc. 1994) ... 21

Statement of Jurisdiction

The District Court had subject matter jurisdiction pursuant to 28 U. S. C. § 1332. Plaintiff-appellee Canadian Imperial Bank of Commerce ("CIBC") is a banking corporation organized under the laws of Canada and having its principal place of business in Canada, and defendant-appellant Saxony Carpet Company, Inc. ("Saxony") is a corporation organized under the laws of the State of New York and having its principal place of business in New York.

The District Court granted CIBC's motion for summary judgment on October 13, 1995 and judgment was entered December 11, 1995. Saxony timely filed a notice of appeal, and this Court has jurisdiction pursuant to 28 U. S. C. § 1291.

Statement of Issues

1. Did the District Court properly recognize a judgment against Saxony entered by the Superior Court of the District of Montreal, when Saxony (a) was personally served in New York with process in the Canadian action; (b) responded only by having its New York counsel send a letter to CIBC's Canadian counsel asserting that Saxony was not subject to jurisdiction in Canada,- and (c) refused to appear in the Montreal action, notwithstanding that it could have entered a special appearance to contest jurisdiction?

2. Did the District Court properly reject Saxony's jurisdictional challenges to enforcement of the Canadian judgment?

3. Did the District Court properly conclude that Saxony may not collaterally attack the Canadian judgment?

4. Did the District Court properly deny Saxony's motion *2 to dismiss?

Statement of the Case

I. COURSE OF PROCEEDINGS AND DISPOSITION BELOW

This is an action to enforce a Canadian judgment entered in the Superior Court of the District of Montreal on October 2, 1992 (the "Canadian Judgment"). (App. 20; 23.) On January 19, 1994, CIBC filed a complaint in the United States District Court for the Southern District of New York seeking enforcement of the Canadian Judgment. (App. 13-24.) Following document and deposition discovery as to jurisdictional issues, Saxony moved to dismiss the complaint (App. 1), and CIBC cross-moved for summary judgment (App. 111). On October 13, 1995, the District Court denied Saxony's motion and granted CIBC's motion for summary j udgment. Canadian Imperial Bank of Commerce v. Saxony Carpet Company. Inc. 899 F. Supp. 1248 (S. D. N. Y. 1995) (Batts, J.). Judgment in favor of CIBC was entered December 11, 1995 in the amount of $77, 343. 58 (App. 163); this appeal ensued.

II. STATEMENT OF FACTS

A. The Parties and the Canadian Action

CIBC is a banking corporation organized under the laws of Canada and having its principal place of business in Canada. (Declaration of Ingi Khouzam dated October 28, 1994 ("Khour. am Decl."), ¶ 2.) (App. 119.)

Defendant Saxony Carpet Company, Inc. ("Saxony") is a corporation organized and existing under the laws of New York. (Answer, ¶ 5.) (App. 26.)

*3 Alan Meiselman is and at all relevant times was the president of Saxony. (Deposition of Alan Meiselman ("Meiselman Dep.") at 5.) (App. 90.) His wife Pennie Meiselman is Saxony's secretary/treasurer (Meiselman Dep. at 5) (App. 90), and she was "deeply involved" in Saxony's day-to-day operations during the relevant time period. (Deposition of Alex McNee ("McNee Dep.") at 25). (App. 54.)

On or about May 17, 1991, Saxony was personally served with process in an action brought by CIBC in the Superior Court of the District of Montreal, in the City of Montreal, Province of Quebec, Canada. Service was made by personal delivery in New York City on Alan Meiselman. (Meiselman Dep. at 18 (App. 103), Compl., Ex. A (affidavit of service) (App, 17.)

The Montreal action was properly commenced under Quebec procedural law. (Khouzam Decl., 1 3.) (App. 119.)

Upon receiving the Declaration commencing the Montreal action, Alan Meiselman consulted counsel. Saxony's attorney then wrote a letter dated May 23, 1991 to CIBC's Canadian counsel in which he asserted that Saxony was not subject to jurisdiction in the Montreal action. (Meiselman Dep. at 19-20 (App. 104-05) and Ex. 7.) Saxony did not retain Canadian counsel. (Meiselman Dep. at 20.) (App. 105.) Other than the May 23, 1991 letter, Saxony took no other action in response to the Montreal action. (Meiselman Dep. at 21.) (App. 106.)

Following Saxony's failure to appear in the Montreal action, on or about October 2, 1992, the Superior Court of the *4 District of Montreal entered the Canadian Judgment in favor of CIBC and against Saxony for Cdn. $73, 149.16. (Compl., Ex. B.) (App. 20, 23.) The Canadian Judgment is final, conclusive and enforceable. (Khouzam Decl., ¶ 4.) (App. 120.)

Under the substantive law and procedural rules applicable to actions in the Superior Court of the District of Montreal, Saxony could have undertaken a procedure akin to a New York "special appearance," in which a defendant appears for the limited purpose of contesting jurisdiction. (Khouzam Decl., ¶ 5.) (App. 120.)

Since being served with process in the Montreal action, Saxony did not pay any of the amounts Plaimed by CIBC in that action and that comprise the Canadian Judgment. (Meiselman Dep. at 19.) (App. 104.)

B. Facts Relevant to Jurisdiction

The dispute before the Montreal court involved the balance on due certain contracts for the manufacture and sale of specially-made carpeting. Saxony was the buyer, and CISC's assignor, Elite Carpets Ltd. ("Elite), was the seller. (Answer, 51 4-6.) (App. 26.) CIBC brought the action because as a lender to Elite, it took as security for its loan a general assignment of Elite's receivables. (Khouzam Decl., ¶ 7.) (App. 120.)

Elite and Saxony first developed a substantial business relationship in 1986. (McNee Dep. at 8-9.) (App. 37-38.) Thereafter, Alan Meiselman and Pennie Meiselman, Saxony's president and secretary/treasurer, respectively, spent two days with Elite in *5 Canada in July 1987. They visited Elite's plant in St. Terese, Quebec, and the plant of an affiliated company in Waterloo, Ontario. (McNee Dep. at 43-44) (App. 72-73); Meiselman Dep. at 8-9) (App. 93-94.)

Alex McNee, Elite's former vice president of sales and marketing, testified at his deposition:

Q. What was the purpose of that particular meeting?

A. The purpose was to acquaint Mr. and Mrs. Meiselman with the complete facilities that Elite and Designer Classics had to offer Saxony Carpets. They had been beginning to show some signs of doing a significantly increased volume of business and it was that [sic] important that they should spend some time with us at our manufacturing facilities to get a better understanding of the capabilities of the two companies.

Q. Was there a discussion about increases in sales as a result of those meetings?

A. Yes, there was.

Q. Were there, in fact, increased sales by Elite to Saxony after the Meiselmans' visit?

A. Yes, there were.

(McNee dep. at 44) (App. 73.)

Alan Meiselman, Saxony's principal owner, was present during McNee's deposition and testified at his own deposition as follows:

Q. I believe you heard Mr. McNee testify that there was a two-day visit by you and a Mrs. Meiselman to Canada in July of 1987; correct?

A. Yes.

Q. Mr. McNee's description of that visit, does that generally comport with your recollection *6 of that visit?

A. The part that he was aware of, yes.

Q. Was there another part that he wasn't aware of?

A. Yes.

Q. What was that?

A. The trip started out as a social visit to friends in Brantford, which is outside of Toronto. Ian McCasaill by name, we went sailing with him on the weekend.

Q. Is that the weekend before you visited the Elite facility?

A. Yes. We went to Waterloo on Monday and then to St. Terese on Tuesday and then back home.

Q. During those days that you were with Mr. McNee however, you were visiting the plants?

A. Correct.

Q. You were discussing business?

A. Yes.

The Meiseltnans thus visited the Canadian plants in order to get a better understanding of the manufacturing capabilities of Elite, and the parties discussed increased sales from Elite to Saxony. (McNee Dep. at 44 (App. 73); Meiseltnan Dep. at 9 (App. 94).)

Subsequent to the Meiseltnans1 visit to Elite, Saxony's purchases from Elite increased from a level of $30 - 40,000 per annum to $100,000 per annum (according to Mr. Meiselman) or $125,000 per annum (according to Mr. McNee). (Meiselman Dep. at 6 (App. 91); McNee Dep. at 45 (App. 74).)

*7 When Elite received orders from Saxony, they were accompanied by or followed by a written purchase order from Saxony. (McNee Dep. at 42-43.) (App. 71-72.) Elite would accept the order by means of a writing sent from its offices in Quebec. (McNee Dep. at 42-43.) (App. 71-72.)

The contract thus concluded would then be performed by Elite by manufacturing the carpet ordered by Saxony at Elite's plant in St. Terese, Quebec. (Answer, ¶ 6 (App. 26); McNee Dep. at 43-44 (App. 72-73). Until the May, 1988 order. Saxony regularly made payments to Elite in Canada. (McNee Dep. at 27.) (App. 56.)

Under Quebec law, Saxony was and is subject to personal jurisdiction in Quebec in respect of the dispute arising out of its purchase of carpets from Elite that led to the Montreal Judgment. (Khouzam Decl., ¶ 7.) (App. 120.)

Meiselman testified that in 1988 Saxony and Elite discussed distributing Saxony's designs in Canada, and he authored a letter sent to Canada in which Saxony sought to collect copyright royalties from Elite for designs on certain carpets. (Meiselman Dep. at 14-15). (App. 99-100.) In addition to purchases of carpet from Elite, Saxony thus had other purposeful contacts with Canada as well.

*8 Summary of Argument

The District Court applied settled principles and properly enforced CIBC's Canadian Judgment under Article 53 [FN1] of New York's Civil Practice Law and Rules ("C.P.L.R."). Saxony could have entered a special appearance to contest jurisdiction in the Montreal action, but it elected not to. Instead, Saxony asserted below and asserts in this Court that it was never subject to jurisdiction in the Montreal court, and seeks thereby to prevent CISC from enforcing the Canadian Judgment here.

FN1. Article 53 "applies to any foreign country judgment which is final, conclusive and enforceable where rendered even though an appeal therefrom is pending or it is subject to appeal."

Saxony's calculated gamble failed, and its present objections are without merit. New York has enacted the Uniform Foreign Judgments Recognition Act, C.P.L.R. Art. 53. Except for certain enumerated exceptions, Article 53 provides that a foreign judgment granting recovery of a sum of money is "conclusive between the parties." C.P.L.R. § 5303. While a foreign court's lack of personal jurisdiction is one such exception, jurisdictional objections are construed narrowly when the foreign jurisdiction is a sister common law jurisdiction like Canada. Saxony was subject to jurisdiction in Montreal under principles of New York long-arm jurisdiction, based on a variety of factors that demonstrate the nexus between the business transacted, the defendant's contacts with the forum country and the cause of action sued upon. Saxony was also subject to jurisdiction in Montreal under principles of Canadian law.

*9 Here, Saxony refused to pay for specialty carpet Elite manufactured in Canada to Saxony's specifications and shipped to Saxony in New York. The disputed shipment arose in the context of a business relationship (a) that had been greatly expanded by a two-day business visit to Elite's facilities in Canada by two Saxony executives; (b) in which orders from Saxony were confirmed by Elite in Canada; (c) where Elite's performance of the contract took place entirely in Canada,- (d) where payments were regularly made to Elite in Canada and where payment under the order at issue was to be made; and (e) where Saxony benefitted from a substantial volume of business it did with Elite prior to the disputed shipment. Under controlling precedent, Saxony transacted business in Canada and purposefully availed itself of the benefits of that forum. Soloman Ltd, v. Biederman & Co., 177 A.D.2d 350, 576 N.Y.S.2d 118 (1st Dep't 1991).

Saxony tries to avoid the Canadian Judgment on several grounds. First, it seeks to create a triable issue of fact by misstating the record concerning Saxony's two-day visit to Elite's facilities. Second, it apparently argues that because prior orders may have been concluded in New York, Saxony's Canadian contacts should somehow be discounted. Third, it argues that the two-day visit to Elite's carpet plant was not sufficiently related to the claim for nonpayment for carpets shipped to Saxony from that plant. Fourth, Saxony attacks certain findings below as to Canadian law. Fifth, Saxony asserts that it should have been entitled to collaterally attack the Canadian Judgment. Finally, Saxony *10 complains that its motion to dismiss was improperly denied.

Each of these arguments is without merit. No amount of characterizing the two-day plant visit as "social" in Saxony's brief can obscure the undisputed record - including testimony of Saxony's principal - concerning the visit's business purpose and effect. Nor can the argument that certain prior orders were concluded in New York obscure the undisputed record that the regular course of dealing, which covered the order at issue, involved Saxony's sending mail or telephone orders into Canada and Elite's acceptance of them by written confirmation sent from Quebec.

Saxony's argument that the visit was not sufficiently related to the dispute is equally flawed. Saxony relies on inapposite cases, and ignores settled authority in this Circuit that the totality of a defendant's contacts with the forum must be considered in evaluating jurisdiction. Saxony also disregards the comity concerns underlying recognition of a foreign judgment, especially a Canadian one where purported jurisdictional defects are narrowly construed.

Saxony's argument that it is entitled to collaterally attack the Canadian Judgment is simply wrong. If, as the District Court concluded, the Canadian Judgment is entitled to recognition, then under settled principles it may not be relitigated. Finally, the District Court's denial of Saxony's motion to dismiss was entirely proper, as the motion was concededly made under the wrong procedural rule. Moreover, Saxony does not and cannot demonstrate any prejudice that may have resulted, as there was full briefing, *11 following discovery, on Cube's motion for summary judgment, in which the District Court recognized its obligation to resolve all ambiguities and draw all inferences in favor of Saxony. 899 F. Supp. at 1251. Because Saxony lost under that standard on the identical jurisdictional issue it raised on its motion to dismiss, Saxony could not have prevailed had the District Court converted its motion into a motion for summary judgment.

Having flaunted the Montreal court, Saxony must accept its verdict, as recognized by the court below. Accordingly, the judgment in favor of CISC should be affirmed.

Argument

I. THE MONTREAL JUDGMENT IS FULLY ENFORCEABLE UNDER ARTICLE 53 OF THE NEW YORK C.P.L.R., THE UNIFORM FORBIQN COUNTRY MONEY JUDGMENTS RECOGNITION ACT

A. Applicable Legal Standard For Review

This Court's review of a grant of summary judgment is de novo,- the Court must determine whether a genuine issue of material fact exists and whether the District Court correctly applied the law. Keywell Corp. v. Weinstein. 33 F.3d 159, 163 (2d Cir. 1994). As the District Court noted, the court must "resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought." Canadian Imperial Bank, supra. 899 F. Supp. at 1251 (quoting LaFond v. General Physics Servs. Corp. 50 F.3d 165 (2d Cir. 1995). Once the motion is properly made, however, the burden then shifts to the nonmoving party to set forth facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby. Inc. 477 U.S. 242, 250 (1986).

*12 B. The Law Governing Foreign Country Judgments

New York law governs actions brought in New York to enforce foreign judgments. In re Union Carbide Corporation Gas Plant Disaster At Bhopal. 809 F.2d 195, 204 (2d Cir.), cert, denied. 484 U.S. 871 (1987). Codifying long-settled principles of comity toward foreign judgments, see Hilton v. Guyot. 159 U.S. 113 (1895), New York has enacted the Uniform Foreign Judgments Recognition Act, C.P.L.R. Art. 53.

Article 53 provides that, with limited exceptions, a firal foreign country judgment is "conclusive between the parties to the extent that it grants or denies recovery of a sum of money." C.P.L.R. § 5303. One statutory exception is where the foreign court did not have personal jurisdiction over the defendant. C.P.L.R. § 5304 (a) (2) [FN2]. The jurisdictional exception is strictly limited, however; the statute sets out various circumstances in which a jurisdictional objection cannot apply, and adds that "[t]he courts *13 of this state may recognize [any] other basis of jurisdiction." C.P.L.R. § 5305 (b).

FN2. C.P.L.R. § 5304 provides the following grounds for non-recognition: "(a) l. the judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law; 2. the foreign court did not have personal jurisdiction over the defendant; (b) Other grounds for non-recognition. A foreign country judgment need not be recognized if: 1. the foreign court did not have jurisdiction over the subject matter; 2. the defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend; 3. the judgment was obtained by fraud; 4. the cause of action on which the judgment is based is repugnant to the public policy of this state,- 5. the judgment conflicts with another final and conclusive judgment; 6. the proceedings in the foreign court was contrary to an agreement between the parties under

which the dispute in question was to be settled otherwise than by proceedings in that court; or 7. in the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action."

In construing the bases of jurisdiction that will satisfy C.P.L.R. § 5305 (b). New York courts apply New York principles to the facts presented in determining whether a foreign court indeed had personal jurisdiction over the defendant. Porisini v. Petricca. 90 A.D.2d 949, 456 N.Y.S.2d 888, 890 (4th Dep't 1982) ("...New York may, and appropriately should, recognize a foreign country judgment predicated on any jurisdictional basis it recognizes in its internal law.") See also. Arrowsmith v. United Press Int'l. 320 F.2d 219, 223 (2d Cir. 1963) (a federal district court must look to the long-arm statute of its forum state to obtain personal jurisdiction over a party who is not an inhabitant of the state) [FN3].

FN3. New York follows the general rule that "American court: recognize and respect the judgments entered by foreign courts to the greatest extent consistent with our own ideals of justice and fair play." Tahan v. Hodason. 662 F.2d 862, 868 (B.C. Cir. 1981).

Foreign judgments such as those of Canada, enjoy a strong presumption of validity in New York courts. In Clarkson Co. Ltd. v. Shaheen. 544 F.2d 624 (2d Cir. 1976), for example, this Circuit rejected a challenge by a New York domiciliary to the jurisdiction of the Canadian Bankruptcy court. The Court emphasized that Canada "[is] a sister common law jurisdiction with procedures akin to our own." 544 F.2d at 630. Similarly, in Deyoung v. Beddome. 707 F. Supp. 132, 135 (S.D.N.Y. 1989) the district court rejected a challenge to the jurisdiction of a Canadian court, and held that Canadian proceedings do not offend the laws or public policy of New *14 York. Cf. Bank of Montreal v. Koucrh. 612 F.2d 467, 471 (9th Cir. 1980) (sustaining Canadian long-arm jurisdiction and enforcing Canadian judgment under California's version of the Uniform Foreign Money Judgments Recognition Act).

As demonstrated below, it is abundantly clear that CISC meets the statutory tests for enforcement of the Canadian Judgment, and furthermore that none of the exceptions to enforcement under Article 53 is present.

C. The Montreal Judgment Is Final. Conclusive, and Enforceable Where Rendered

The judgment of the Montreal court is final, conclusive and enforceable in the Province of Quebec, Canada. (Khouzam Decl., 1 4) (App. 120); (see Canadian Judgment, Cotnpl., Ex. B.) (App. 20, 23.) Saxony has not and cannot make any showing to the contrary. [FN4]

FN4. See. Fed. R. Civ. P. 44\{a)(2) and Supplementary Note: "Under this rule a document that, on its face, appears to be an official publication, is admissible, unless a party opposing its admission into evidence shows that it lacks character."

It is wholly immaterial to enforceability and finality that the Canadian Judgment was rendered due to Saxony's willful default. See Steinberg v. Metro Entertain Corp. 145 A.D.2d 333, 534 N.Y.S.2d 995 (1st Dep't 1988) ("Absent fraud or a jurisdictional challenge, a final judgment rendered on default of a party to the action is conclusive and not subject to collateral attack") [FN5]; *15New Central Jute Mills Co. v. City & Trade Industries. Ltd. 65 Misc. 2d 653, 318 N.Y.S.2d 980, 983 (Sup. Ct. N.Y. Cty. 1971) (enforcing in New York default judgment rendered in Republic of India). [FN6]

FN5. The court held in Dunstan v. Higgins. 138 N.Y. 70, 75, 33 N.E. 729 (1893) "where a party is sued in a foreign country upon a contract made there, he is subject to the procedure the court in which the action is pending, and must resort to it for the purpose of his defense, if he has any, and any error committed must be reviewed or corrected in the usual way."

FN6. As in the instant case, the defendant in New Central Jute deliberately elected not to appear in the action before the foreign country tribunal.

Similarly, this Circuit recognizes that "[a foreign country] default judgment is not more or less conclusive but 'as conclusive an adjudication' as a contested judgment". Ackermann v. Levine. 788 F.2d 830, 842 (2d Cir. 1986) (emphasis supplied) (enforcement of default judgment rendered in the Republic of Germany). As the court further remarked, "[by defaulting], a defendant ensures that a judgment will be entered against him, and assumes the risk that an irrevocable mistake of law or fact may underlie the judgment." 788 F.2d at 842. [FN7]

FN7. See also. Fairchild. Abrabatzis. & Smith. Inc. v. Prometco Co. 470 F. Supp. 610, 615 (S.D.N.Y. 1979): "A foreign judgment when sued upon in New York normally precludes a retrial upon the merits unless the judgment is tainted by fraud or with an offense against public policy or the foreign court had no jurisdiction over the person of the defendant or the subject matter of the action." As this Circuit commented in Cunard S.S. Co. v. Salen Reefer Services. AB. 773 F.2d 452, 457 (2d Cir. 1985), "the rationale

underlying the granting of comity to a final foreign judgment is that litigation should end after the parties have had an opportunity to present their cases fully and fairly to a court of competent jurisdiction."

D. Saxony's Purposeful Acts in Canada Subjected It to the Jurisdiction of the Montreal Court

(1) Long-Arm Jurisdiction Provided an Adequate Basis of Jurisdiction for the Montreal Court

Any basis of jurisdiction New York would recognize in its internal law will suffice to sustain a foreign judgment. *16Porisini. supra. 456 N.Y.S.2d at 890. Here, the Montreal court's exercise of jurisdiction comported with the standards of C.P.L.R. § 302 (a) (1).-long-arm jurisdiction unquestionably would have been available to a New York court similarly situated to the Montreal court under these facts.

C.P.L.R. § 302 (a) (1), New York's long-arm statute, permits a New York court to exercise personal jurisdiction over any nondomiciliary who in person or through an agent "transacts any business within the state or contracts anywhere to supply goods or services in the state." The test under C.P.L.R. § 302 (a)(l) is not narrowed to a strict commercial sense and does not. as Saxony's brief implies, depend on whether the defendant enters into a formal contract in the forum. Rather, "the test is whether a defendant has engaged in some purposeful activity in [the forum state] in connection with the matter in suit." Eltnan v. Bel son. 32 A.D.2d 422, 302 N.Y.S.2d 961, 964 (2d Dept. 1969).

The New York Court of Appeals has consistently held that C.P.L.R. § 302 (a) (1) is "a single-act statute requiring but one transaction - albeit a purposeful transaction - to confer jurisdiction in New York." Parke-Bernet Galleries v. Franklyn. 26 N.Y.2d 13, 308 N.Y.S.2d 337 (1970). See also. Longines-Wittnauer v. Barnes & Reinecke. 15 N.Y.2d 443, 261 N.Y.S.2d 8 (1963) cert, denied. 382 U.S. 905, 86 S. Ct. 241 (1965). [FN8]

FN8. The Longines-Wittnauer court concluded that "preliminary negotiations" by high-level corporate executives in New York and subsequent visits to New York "more than [satisfied] the statutory standard." 15 N.Y.2d at 457-58.

*17 Courts in this Circuit have long recognized that no single event need satisfy the jurisdictional requirement by itself; rather, "the totality of all defendant's contacts with the forum state must indicate that the exercise of jurisdiction would be proper." CutCo Industries. Inc. v. Naucrhton. 806 F.2d 361, 365 (2d Cir. 1986); Sterling Nat'1 Bank & Trust Co. v. Fidelity Mortgage Investors. 510 F.2d 870, 873-74 (2d Cir. 1975); Lancaster v. Zufle. 165 F.R.D. 38, 40 (S.D.N.Y. 1996); Snyder v. Madera Broadcasting. Inc. 872 F. Supp. 1191, 1194 (E.D.N.Y. 1995); Wilhelmshaven Acquisition Corp. v. Asher. 810 F. Supp. 108, 112 (S.D.N.Y. 1993).

The requirement of purposeful activity serves to demonstrate "the existence of some articulable nexus between the business transacted and the cause of action sued upon..." McGowan v. Smith. 52 N.Y.2d 268, 437 N.Y.S.2d 643, 645 (1981). The foreign defendant's transaction of business in New York must "bear a substantial relationship to the transaction out of which the instant cause of action arose." Id. [FN9]

FN9. It is settled that "far fewer contacts are needed to show that a defendant 'transacts business1 in New York within the meaning of Section 302(a)(l) than are necessary to show that a defendant is doing business in New York as that term has been interpreted in connection with Section 301 [the general jurisdictional statute]". Bialek v. Racal-Milgo. Inc. 545 F. Supp. 25, 34 (S.D.N.Y. 1982). See also. Lawrence Wisser & Co. Inc. v. Slender You. Inc. 695 F. Supp. 1560, 1562 (S.D.N.Y. 1988)(transacting business requires only a minimum quantity of activity, provided it is of the right nature and quality.)

The largest single factor leading to a finding of a long-arm jurisdiction is the making of an in-state visit by a defendant *18 during which business is carried on. Reiner & Co. v. Schwart;z. 41 N.Y.2d 648, 394 N.Y.S.2d 844, 848 (1977). In Reiner. the New York Court of Appeals held that a one-day visit to New York was sufficient to confer jurisdiction over a foreign defendant where the day was filled with establishing a contractual relationship with a New York corporation.

Similarly, in Liquid Carriers Corp. v. American Marine Corp. 375 F.2d 951 (2d Cir. 1967), this Circuit upheld personal jurisdiction over a nonresident defendant under C.P.L.R. 302 (a) (1) based on preliminary negotiations conducted in New York. The Court held that the defendant's visits meant "[the defendant] had purposely entered New York state in connection with his corporate dealings...and caused his corporation to be protected by New York law." 375 F.2d at 956. Contacts such as a single meeting and follow up letters to a meeting "are of sufficient quantity to find that the defendant [t] [was] transacting business if the meeting in New York had some substantial or critical relationship to the matters which form the basis for [the] litigation." Manhattan Life Ins. Co. v. A.j. Stratton Syndicate. 731 F. Supp. 587, 593 (S.D.N.Y 1990).

The foregoing principles were recently applied to sustain a foreign judgment against a jurisdictional challenge. In Soloman Ltd. v. Biederman & Co. 177 A.D.2d 350, 576 N.Y.S.2d 118, 119 (1st Dep't 1991), the court enforced a seller's default judgment obtained in the United Kingdom against a New York buyer, where the only contacts were a series of telephone ca3 is and letters between *19 the parties, and a one-hour meeting in London. The court noted that "[w]hile the content of the [London] meeting [was] in dispute...several months later defendant ordered a quantity of the [product] before the defendant repudiated its purchase." Id.

(2) Saxony's Contacts Amply Support a Finding of Jurisdiction

Solotnan. which reflects the comity concerns that underpin Article 53, compels recognition of the Canadian Judgment because Saxony had far more extensive contacts with the forum state than the defendant there. First, Saxony's top officers traveled to Canada to tour Elite's facilities and to discuss ways of increasing business. This conduct alone would subject Saxony to personal jurisdiction under New York long-arm jurisdictional principles. It is uncontested that the business trip by Saxony to Canada was followed by a substantial increase in sales between the parties, from approximately $30,000 in sales in 1986 to over $100,000 in sales annually by 1987. (McNee Dep. at 17.) (App. 46.) The visit thus substantially furthered the parties' business relationship. CutCo. supra. 806 F.2d at 367-68; Wilhelmshaven. supra. 810 F. Supp. at 113.

Second, over the course of Saxony's two-year relationship with Elite, Saxony sent numerous letters, faxes and telephone calls to Canada in connection with its regular purchases from Elite. E.g. Snyder. supra. 872 F. Supp. at 1195.

Third, Saxony was obliged to - and did - make payments into Canada, a factor that courts have consistently deemed *20 jurisdictionally significant. CutCo. supra. 806 F.2d at 368; Lancaster, supra. 165 F.R.D. at 40-41; Snyder. supra. 872 F. Supp. at 1195; cf. Burger King Corp. v. Rudzewicz. 471 U.S. 462, 105 S. Ct. 2174, 2186-87 (1985) (contract provision requiring payment into forum state jurisdictionally relevant for due process analysis).

Fourth, assertion of jurisdiction by the Montreal court could in no way be deemed improper or unfair where the Saxony did in excess of $100,000 annually in business with a Canadian corporation. New York courts have subjected nondomiciliary corporations to jurisdiction where the foreign corporation "derived a total of $175,000 Canadian from sales made in New York in the year in question, and this constituted approximately 8% of [the defendant's] total sales that year. Melendez v. Professional Machine & Tool Co. Ltd. 190 A.D.2d 657, 593 N.Y.S.2d 258, 259 (2d Dep't 1993).

Finally, Saxony and Elite entered into negotiations for the distribution of Saxony's designs by Elite in Canada, and Saxony sent a letter to Canada in which it sought to collect royalties from Elite for designs on certain carpets. (Meiselman Dep. at 14-15; App. 99-100.) Given the totality of Saxony's conduct, it is incontrovertible that Saxony transacted business in Canada and purposefully engaged in activity there. This conduct clearly evidenced Saxony's intent to avail itself of the privileges and benefits of the Canadian forum. Accordingly, it was proper for the Montreal court to assert personal jurisdiction, and this Court should affirm the District Court's grant of summary judgment.

*21 E. The Montreal Court Had Jurisdiction Over Saxony Under Canadian Principles

Saxony argues, for the first time on appeal, that the Montreal court lacked jurisdiction over Saxony under Canadian principles. That assertion is without merit. CIBC submitted below the affidavit of a Canadian attorney admitted to the bar of Quebec. As set for forth therein, the 1991 action in the Montreal court was properly commenced under Quebec procedural law. (Khouzam Decl.,¶ 3.) (App. 119.) Under Quebec law jurisdiction may be asserted over a nonresident defendant if Quebec was the place where the contract was concluded or the place where the cause of action arose. (Khouzam Decl., ¶ 9.) (App. 120.) See Quebec Code Civ. P., Art. 68 (2) & (3) (1965).

Under Quebec law, the contract giving rise to the dispute was concluded in Quebec because the last act necessary for contract formation - acceptance by Elite - took place in Quebec. The cause of action arose in Quebec because Saxony's nonpayment caused prejudice to Elite at its place of business in Quebec. (App. 120.)

Saxony's efforts to cast doubt on the Canadian court's exercise of jurisdiction are unavailing. Saxony argues that"... the Quebec court cannot exercise personal jurisdiction over a nonresident defendant who has 'transacted' business in the province of Ontario," citing Doing Business in Canada § 13.02 [2] (Mathew Bender & Co., Inc. 1994). (Saxony Br. at 19-21.)

Saxony's argument fails for two reasons. First, nothing in the cited authority supports the asserted proposition; indeed, the treatise recognizes that each province may provide for long-arm *22 jurisdiction under its own rules. [FN10] CIBC presented proof of Quebec law that the exercise of jurisdiction over Saxony was proper; Saxony has proffered nothing to the contrary.

FN10. If a defendant is absent from the jurisdiction when served, the Canadian court will not assume jurisdiction "unless service ex juris is authorized by the procedural rules of the province or territory." Id., § 13.02 [2], at p. 13-19.

Second, Saxony's argument is disingenuous, for it refers exclusively to Saxony's visits to Ontario, while ignoring the uncontroverted record that Saxony's principals visited Elite's plant in St. Terese, Quebec, that Elite confirmed receipt of orders there, that Elite manufactured the disputed carpet there, and that Elite was injured in Quebec when Saxony failed to pay. Thus the only relevant evidence of Canadian law - amply supported by the record - conclusively demonstrates that the Canadian court properly exercised jurisdiction over Saxony.

F. Saxony's Objections to the Finding of Jurisdiction Are Without Merit

(1) There Is Not Any Disputed Issue of Material Fact Concerning Saxony's Two-Day Visit to Canada

Saxony repeatedly refers to the Meiseltnan's two-day visit to Elite's facilities in Canada as "social" (Saxony Br., passim). and argues that the District Court improperly resolved issues of fact as to the nature of Saxony's visit. (Id. at 34-35.) No amount of characterizing, however, can obscure the undisputed record or create an issue of fact where none exists.

Saxony's Meiselman conceded at his deposition that:

- he and his wife (also an officer of Saxony) visited *23 Elite's mills in Canada over a two-day period;

- the purpose of the visit was to acquaint Saxony with the full range of Elite's capabilities in conjunction with a potential significant increase in the volume of business done between the two companies;

- during the visit, the parties discussed an increase in business between the two companies; and

- the business volume did in fact increase substantially after the visit, and that increased volume included the May, 1988 sale that formed the basis for the Montreal action.

The District Court thus correctly concluded that the visit was a significant contact with Canada having a clear nexus with the cause of action. As this Court observed in CutCo Industries. Inc. v. Naughton. 806 F.2d 361, 367-68 (2d Cir. 1986), "few business discussions can be characterized as purely social". The test for jurisdictional purposes is whether business discussions took place which substantially furthered the parties' business relationship. It is clear in this case, as in CutCo. that "[Saxony's] visit to [Canada] created the likelihood of a more solid business relationship between the parties..." Id.; Wilhelmshaven, supra, 810 F. Supp. at 113 jurisdictional significance can be attached to "social" visit during which substantive business discussions take place).

(2) Saxony's Argument Concerning the Location of Prior Contracts is Misplaced

Mr. McNee of Elite visited New York on several occasions *24 prior to the May 1988 order at issue, and oral discussions as to orders by Saxony were held at such meetings. Saxony apparently asserts that Saxony's contacts with Canada should thus somehow be discounted.

Saxony's argument is without merit. First, Saxony concedes (Saxony Br. At 6) that the "oral agreements" reached during McNee's visits were followed by written purchase orders sent by Saxony to Canada. It is not disputed that Elite responded by sending written conformations. (App. 71-72.)

Second, in addition to orders that followed Mr. McNee's visits to New York, there were other orders that were initiated by telephone contact, subject to the same purchase order and confirmation sequence. (App. 70-72.)

Finally, Saxony's argument that under UCC § 2-201 the contracts were made in New York, upon Saxony's sending of a purchase order, is wrong and irrelevant. UCC § 2-207(1) provides that "... a written confirmation which is sent within a reasonable time operates as an acceptance..." Elite's acceptance thus took place in Canada upon its confirmation. Even if the New York law were otherwise, it is uncontested that under Canadian principles the contract was concluded in Canada (App. 21), and the issue is not whether a contract was formed but rather whether Saxony had sufficient contacts with Canada to support jurisdiction.

3. The Saxony Visit to Elite's Plant Was Sufficiently Related to the Claim for Non-Payment of Goods Shipped From That Plant

Saxony also argues that the two-day visit by Saxony's *25 principals is not sufficiently related to the cause of action to support jurisdiction. (Saxony Br. at 29-34.) The case law on which Saxony relies does not support its contention. All of the cases Saxony cites involve a vist after the contract was formed [FN11], involve visits to third parties having nothing to do with the plaintiff, [FN12] or involve an isolated transaction not, as here, forming part of a regular course of dealing over a period of years. [FN13]

FN11. Manhattan life Ins. Co. v. A.T. Stratton Syndicate Co., 731 F. Supp. 587 (S.D.N.Y.) 1990); Hvide Marine Int'l, Inc. v. Employer Ins. Of Wasa, 724 F. Supp. 180 (S.D.N.Y. 1989); Sayles Biltmore Bleaschers v. Soft-Fab Textile processors. Inc., 440 F. Supp. 1010 (S.D.N.Y. 1977); Concrete Detailing Services v. Thomson Steel Co., 411 F. Supp. 1021 (S.D.N.Y. 1976); A.I.L. Div. of Cutler-Hammer v. Symetric Industries, Inc., 360 F. Supp. 1138 (E.D.N.Y. 1973); McKee Elec. Co. v. Rauland Bora Corp., 20 N.Y.2d 377, 283 N.Y.S.2d 34 (1967); First Nat'1 Bank & Trust Co. v. Wilson. 171 A.D.2d 616, 567 N.Y.S.2d 468 (1st Dep't 1991).

FN12. MGGowan v. Smith, 52 N.Y.2d 268, 437 N.Y.S.2d 643 (1981); Pacamor Bearings. Inc. v. Molon Motors & Coil, Inc., 102 A.D.2d 355, 477 N.Y.S.2d 856 (3d Dep't 1984).

FN13. Juron & Minzer v. Dranoff & Patrizio, 194 A.D.2d 402, 598 N.Y.S.2d 514 (1st Dep't 1993); Pacamor, supra; Siedler v. Jacobson, 86 Misc.2d 1010, 383 N.Y.S.2d 833 (App. Term, 1st Dep't 1976).

Of all these cases, the only Article 53 case to decline enforcement on jurisdictional grounds is Siedler v. Jacobson. 86 Misc. 2d 1010, 383 N.Y.S.2d 833 (App. Term, 1st Dep't 1976), in which the defendant purchased an antique while on vacation in Austria but refused to honor payment. The court concluded that Article 53 should not be construed to have the same reach as the "transacting business" standard under C.P.L.R. § 302. Siedler, 383 N.Y.S.2d at 834. Higher New York courts have more recently *26 rejected this assertion, either explicitly, Porisini, supra, 456 N.Y.S.2d at 889-90 (..."New York may and appropriately should, recognize a foreign judgment predicated on any jurisdictional basis it recognizes in its internal law...") or by necessary implication, Soloman. supra, 576 N.Y.S.2d at 119 (finding "clear nexus between business transacted by defendant's representatives in the United Kingdom and the cause of action based on the order of specially manufactured goods"). Siedler is thus distinguishable because Saxony's contacts were far more extensive, and is of doubtful continued validity even on its own facts.

II. SAXONY MAY NOT COLLATERALLY ATTACK THE CANADIAN JUDGMENT

A. Saxony's Purported Defenses Are Not Available Here

Saxony asserts that the carpet underlying the account receivable was defective and therefore it should be permitted to assert those defenses in a new trial on the merits. Whatever the validity of Saxony's claimed defenses, Saxony waived them by failing to appear in the Canadian proceeding. Once the Court is satisfied that the foreign court's exercise of jurisdiction was permissible, a foreign default judgment is as conclusive an adjudication as a contested judgment, absent a clear showing of fraud. Ackermann, 788 F.2d at 842; see also Clarkson, 544 F.2d at 631; Colonial Bank v. Worms, 550 F. Supp. 56, 59 (S.D.N.Y. 1982); Porisini, 456 N.Y.S.2d at 890.

B. Saxony's Purported Forum Non Conveniens Defense Is Not Available in This Case

The cases cited above preclude Saxony's belated argument *27 that Montreal was an inconvenient forum. Moreover, the defense of a "seriously inconvenient forum" under Article 53 applies only if the foreign court's jurisdiction rested solely on local service of process on a transient defendant in a foreign country. C.P.L.R. § 5304(b)(7). Where as here, Saxony had significant contacts with the foreign state, there is no basis for a finding of forum non conveniens. See, e.g., Silver v. Great American Ins. Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398 (1972) (a foreign tribunal should not be deemed seriously inconvenient unless New York in an analogous situation would have dismissed under its own doctrine). See, McKinney's New York Pract. Under the C.P.L.R., sect. 5304.02. ("the defense of forum non conveniens would arise only where the action and the defendant had no connection with the foreign jurisdiction in which the defendant was personally served."). (Emphasis supplied). [FN14]

FN14. Even if Article 53 were not so straightforwrd, a forum non conveniens defense would not be available here. The standard for dismissing

on forum non conveniens grounds is "extreme inconvenience and the clear prospect of material injustice". Leasco Data Processing Equip. Corp. v. Maxwell, 468 F.2d 1326, 1344 (2d Cir. 1972). Neither factor is present here. Saxony found it convenient to go to Canada in 1987 to increase its business several-fold, and cannot seriously complain that Montreal was an inconvenient forum for trial of a resulting dispute. Likewise, Saxony cannot show any actual or possible prospect for material injustice in the Canadian legal system.

III. THE DISTRICT COURT CORRECTLY DENIED SAXONY'S MOTION TO DISMISS

Saxony presented its jurisdictional challenge to the Canadian Judgment in two ways: it moved to dismiss the action, and *28 it opposed CIBC's motion for summary judgment. The District Court properly denied the motion to dismiss since Fed. R. Civ.P. 12(b)(1) and (2) provide vehicles for challenging the jurisdiction of the court before whom the matter is pending, in this case the court below.

Saxony now argues that the District Court erred in denying its motion to dismiss, asserting that it was in reality a motion to dismiss for failure to state a claim or should have been treated at a motion for summary judgment. In either event, Saxony clearly objected below to the jurisdiction of the Canadian court, and those objections were fully considered by the District Court. Saxony does not point to any prejudice resulting from its own choice of procedural vehicle, nor can it. There was document and deposition discovery on the issue of jurisdiction, and the District Court recognized that in evaluating CIBC's motion for summary judgment it was required to "resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought." Canadian Imperial. 899 F. Supp. at 1251 (quoting LaFond v. General Physics Services. Corp. 50 F.3d 165 (2d Cir. 1995)). Because CIBC met this high standard on its motion on the identical issue of jurisdiction, Saxony would have necessarily failed had the District Court engaged in needless formalism and treated Saxony's motion to dismiss as a motion for summary judgment (in which all inferences would have been resolved in favor of CIBC).

*29 Conclusion

For the reasons set forth above, the judgment of the District Court should be affirmed.