Justia Civil Procedure Opinion SummariesArticles Posted in International Law
In the Matter of Akin & Suljevic
Respondent-father Nedim Suljevic appealed a circuit court order denying his motion for the court to exercise temporary emergency jurisdiction over the parties’ custody dispute pursuant to New Hampshire’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and granting petitioner-mother Senay Akin's petition to enforce the parties’ Turkish child custody order. The parties, who both have or previously had Turkish citizenship, were married in December 2010 and had a daughter the following year. According to Mother, the parties married in New Hampshire, and when she was pregnant with their daughter, she moved to Turkey while Father continued to reside in the United States. The parties’ daughter was born in Turkey in December 2011 and, until the events giving rise to this proceeding occurred in 2019, lived in Turkey continuously, attending school and receiving medical care there. The parties were divorced by a Turkish court in January 2015; the decree granted Mother sole custody of the child and allowed Father to have visitation with her. In 2019, Mother agreed that the daughter could spend July and August in the United States to visit Father. However, at the end of this two-month visit, Father refused to return the daughter to Mother. Mother made repeated overtures to Father for the daughter’s return, but he refused her entreaties. Mother accepted employment in Massachusetts during the 2020-2021 timeframe so that she could visit the daughter. During this time, Father continually rejected Mother’s requests for the daughter’s return to her custody. Because of the COVID-19 pandemic and difficulty finding a suitable attorney, Mother did not bring a court action for the daughter’s return until filing the underlying petition for expedited enforcement of a foreign child custody order in April 2021. Father was served with Mother’s petition, and then filed his own motion at issue here. As grounds for his motion, Father argued Mother physically abused the daughter while in the Mother's custody. Mother objected to Father’s motion, asserting that he had “refused repeatedly to return [her] daughter” and had issued threats. Mother asserted that Father “should not be allowed to litigate in New Hampshire when the Turkish order controls custody.” After review, the New Hampshire Supreme Court upheld the circuit court's decision to deny Father's request, and to grant Mother's petition to enforce the parties' Turkish child custody order. View "In the Matter of Akin & Suljevic" on Justia Law
Tatneft v. Ukraine
The DC Circuit affirmed the district court's grant of Tatneft's petition to confirm and enforce its arbitral award against Ukraine. The court agreed with the district court's decision rejecting Ukraine's arguments that the court should have declined to enforce the award under The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), and should have dismissed the petition on the basis of forum non conveniens. In this case, the enforcement of the arbitral award should not have been denied under the New York Convention arti. (V)(1)(C) where the district court neither exceeded its discretion nor made legal error when it denied Ukraine's motion for supplemental briefing, made years after the parties had initially briefed the merits; Ukraine can pay the $173 million judgment without risking a collapse; the district court did not exceed its authority under the New York Convention; and the court rejected Ukraine's contention that the district court mistakenly enforced the award in spite of the public policy and improper composition exceptions. Furthermore, the court has squarely held that forum non conveniens is not available in proceedings to confirm a foreign arbitral award because only U.S. courts can attach foreign commercial assets found within the United States. View "Tatneft v. Ukraine" on Justia Law
Agudas Chasidei Chabad of United States v. Russian Federation
Twentieth Century geopolitical events — World War I, the Bolshevik Revolution, the Russian Civil War, and World War II — forced leaders of Chabad Chasidism, a religious movement, to flee Russia, first to Latvia, then to Poland, and ultimately to the United States. In 1940, Chabad of the United States was incorporated under New York law and began attempting to recover 17th Century religious materials taken from its religious community.In 2004, Chabad sued Russia. In 2006, the U.S. District Court for the District of Columbia entered a partial judgment for Russia, which eventually withdrew from the case. The district court entered a default judgment against Russia in 2010, ordering it to return the materials. When Russia failed to comply, Chabad served subpoenas seeking to identify assets that could be attached for the fines imposed by the district court. Both appellants moved to quash the subpoenas. Neither, however, appealed the district court denials of their motions. Each then attempted to appeal the district court denials of their efforts to present immunity defenses. The D.C. Circuit dismissed the appeals for lack of jurisdiction. The court denied mandamus review because there was an alternative avenue for review (the collateral order appeal that was filed too late). View "Agudas Chasidei Chabad of United States v. Russian Federation" on Justia Law
Al-Qarqani v. Saudi Arabian Oil Co.
This case stems from plaintiffs' claim of rights under a 1933 agreement between Standard Oil of California and the Kingdom of Saudi Arabia and a 1949 agreement between the purported ancestors of plaintiffs and the Arabian American Oil Company. Plaintiffs seek to enforce an arbitral award against defendant, Saudi Arabian Oil Company (Saudi Aramco), which they were awarded by an Egyptian arbitration panel.After determining that plaintiffs' motion for reconsideration tolled the period for filing a notice of appeal, consistent with Federal Rule of Civil Procedure 83(a)(2), the Fifth Circuit vacated the district court's judgment and remanded with instructions for the district court to dismiss the case based on lack of jurisdiction. The court concluded that Saudi Arabian Oil Company is an instrumentality of a foreign state and is therefore immune from suit under the Foreign Sovereign Immunities Act of 1976 (FSIA). The court stated that the arbitral proceedings give every appearance of having been a sham, and there exists no agreement among these parties to arbitrate this dispute, or anything else for that matter. The court decided that, instead of denying the petition for enforcement, the case is more properly dismissed for lack of jurisdiction, given that Saudi Aramco qualifies as a foreign state for purposes of the FSIA. View "Al-Qarqani v. Saudi Arabian Oil Co." on Justia Law
Prevent USA Corp. v. Volkswagen AG
Prevent, a group of European companies that specializes in turning around distressed automotive parts suppliers, organized an effort to halt supplies of their parts to obtain better terms from Volkswagen, based in Germany. Volkswagen responded by not doing business with the affiliated companies. Begun in 2016, this litigation initially involved claims of unfair business practices and anticompetitive behavior under German and European law and was handled by German courts. Volkswagen prevailed in most of the suits.In 2019 two members of Prevent, Eastern, based in the Netherlands, and Prevent's American subsidiary sued Volkswagen and its American subsidiary in Michigan, alleging that the carmaker unfairly prevented them from acquiring distressed automotive-parts manufacturers. The district court dismissed the complaint, citing forum non conveniens. The Sixth Circuit affirmed. Germany is an adequate forum to hear this case. It appears that a Germany-based antitrust lawsuit would reach more conduct and more injuries than an American suit. German and Portuguese are the languages of the relevant documents. Local interest in the dispute, the location of the injury, the fullness of the court’s docket, preference for trying cases in the place of the governing law, hesitance to apply foreign law, and desire to avoid conflict-of-law problems, predict an American court’s potential “administrative and legal problems” with trying the case. View "Prevent USA Corp. v. Volkswagen AG" on Justia Law
WhatsApp Inc.v. NSO Group Technologies Ltd.
WhatsApp sued under the Computer Fraud and Abuse Act and California state law, alleging that NSO, a privately owned and operated Israeli corporation, sent malware through WhatsApp’s server system to approximately 1,400 mobile devices. NSO argued that foreign sovereign immunity protected it from suit and, therefore, the court lacked subject matter jurisdiction because NSO was acting as an agent of a foreign state, entitling it to “conduct-based immunity”—a common-law doctrine that protects foreign officials acting in their official capacity.The district court and Ninth Circuit rejected that argument. The Foreign Sovereign Immunity Act, 28 U.S.C. 1602, occupies the field of foreign sovereign immunity and categorically forecloses extending immunity to any entity that falls outside the Act’s broad definition of “foreign state.” There has been no indication that the Supreme Court intended to extend foreign official immunity to entities. Moreover, the FSIA’s text, purpose, and history demonstrate that Congress displaced common-law sovereign immunity as it relates to entities. View "WhatsApp Inc.v. NSO Group Technologies Ltd." on Justia Law
Cohen v. American Airlines, Inc.
The Second Circuit affirmed the district court's dismissal of plaintiff's claims as time-barred under the two year statute of limitations set forth in the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention), and denial of plaintiff's motion to amend the complaint. Plaintiff filed suit against American and others, alleging that, while boarding a flight from Paris, France, to Dallas, Texas, on December 28, 2015, a flight attendant struck him, causing injury.The court concluded that, because plaintiff alleged that he was injured while boarding an international flight, his claims fall under the Montreal Convention, a multilateral treaty that "applies to all international carriage of persons, baggage or cargo performed by aircraft." Furthermore, the district court did not abuse its discretion in denying leave to amend. The court considered plaintiff's remaining arguments and found them to be without merit. View "Cohen v. American Airlines, Inc." on Justia Law
Broidy Capital Management LLC v. Muzin
Broidy, an activist businessman, urged the government to oppose Qatar’s alleged funding and harboring of terrorists and to support the efforts of Qatar’s neighbors to isolate it economically. Broidy alleges that Qatar engaged in “a multi-million dollar dark money effort to recruit lobbyists and influencers to polish Qatar’s public image.” Qatar allegedly paid the defendants, U.S.-citizen public relations contractors, millions in hopes of rehabilitating its image with “the Republican, American Jewish community and other conservative supporters of Israel.” They allegedly retained a cybersecurity firm “to coordinate an offensive cyber and information operation against” Broidy and his company.Broidy sued, alleging violations of RICO, Stored Communications Act, Computer Fraud and Abuse Act, Defend Trade Secrets Act, and California law. Without acknowledging involvement in the alleged scheme, the defendants claimed immunity based on Broidy’s allegations regarding their relationship to Qatar, a foreign sovereign. The court dismissed certain claims as legally inadequate and rejected the immunity defense.The D.C. Circuit affirmed. The Foreign Sovereign Immunities Act by its terms does not apply. Qatar has not said that the challenged conduct was at its behest nor has it urged the United States to recognize the defendants’ immunity. The State Department has never suggested that the defendants are immune as agents of Qatar. Without any such acknowledgment or suggestion, a private party claiming foreign sovereign immunity bears a heavy burden. The defendants here are U.S. citizens sued in their private capacities by U.S. plaintiffs for violations of U.S. and California law within the U.S. View "Broidy Capital Management LLC v. Muzin" on Justia Law
Swenberg v. Dmarcian
Swenberg sued Dmarcian, Draegen, and Groeneweg, alleging claims related to his ownership interest in and employment with the company. Dmarcian was incorporated in Delaware and, in 2017, registered with the California Secretary of State as a foreign corporation with its “principal executive office” in Burlingame. Groeneweg, who resides in the Netherlands, is alleged to be a chief executive of, and have an ownership interest in, “a company whose true name is unknown to Swenberg, but which was a European affiliate entity of” Dmarcian (Dmarcian EU). The complaint alleges on information and belief that Groeneweg is presently a shareholder or beneficial owner of Dmarcian.The trial court granted Groeneweg’s motion to quash service for lack of personal jurisdiction. The court of appeal reversed. By publicly presenting himself as a leader of Dmarcian, having Dmarcian EU’s web address automatically route to Dmarcian’s Web site, administered in California, and receiving prospective customers directed to Dmarcian EU by a Dmarcian employee in California, Groeneweg “purposely availed himself " of forum benefits and purposefully derived benefit from his activities in the forum. There is no unfairness in requiring him to subject himself to the jurisdiction of California courts in litigation involving his relationship with that California company and its employees. View "Swenberg v. Dmarcian" on Justia Law
Next Investments, LLC v. Bank of China
In 2013, Nike and its subsidiary, Converse, brought a trademark infringement action under the Lanham Act against hundreds of participants in Chinese counterfeiting networks. The district court entered five prejudgment orders, a default judgment, and one postjudgment order against defendants, who never appeared in court. Each order enjoined defendants and all persons acting in concert or in participation with any of them from transferring, withdrawing or disposing of any money or other assets into or out of defendants' accounts regardless of whether such money or assets are held in the U.S. or abroad. In 2019, Nike's successor-in-interest, Next, moved to hold appellees—six nonparty Chinese banks—in contempt for failure to implement the asset restraints and for failure to produce certain documents sought in discovery.The Second Circuit affirmed the district court's judgment, holding that the district court did not abuse its discretion in denying Next's motion for contempt sanctions against the Banks because (1) until the contempt motion, Nike and Next never sought to enforce the asset restraints against the Banks; (2) there is a fair ground of doubt as to whether, in light of New York's separate entity rule and principles of international comity, the orders could reach assets held at foreign bank branches; (3) there is a fair ground of doubt as to whether the Banks' activities amounted to "active concert or participation" in defendants' violation of the asset restraints that could be enjoined under Federal Rule of Civil Procedure 65(d); and (4) Next failed to provide clear and convincing proof of a discovery violation. View "Next Investments, LLC v. Bank of China" on Justia Law