Burgan Express for General Rading and Contracting Co. et al v. Atwood et al
Filing
24
ORDER granting 6 Motion for Summary Judgment. The Court takes notice of the judgment of the Kuwaiti Court of Appeals and ORDERS Defendants to pay Plaintiffs the sum of $19,972,996.07 (at the September 26, 2012 conversion rate of the Kuwaiti award of 5,610,361.154 KD, plus 30 KD in costs and fees). Signed by Judge Algenon L. Marbley on 9/26/2012. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BURGAN EXPRESS FOR GENERAL, :
TRADING AND CONTRACTING CO., :
et al.,
:
:
Plaintiffs,
:
:
v.
:
:
MARK ANTHONY ATWOOD, et al.,
:
:
Defendants.
:
:
Case No. 2:12-cv-041
JUDGE ALGENON L. MARBLEY
Magistrate Judge King
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on Plaintiffs’, Burgan Express for General Trading and
Contracting Co. (“Burgan Express”) and Mahmoud Mohammad Abbas Hajia Khajah (“Hajia”),
Joint Motion for Summary Judgment (Dkt. 6) against Defendants Mark Anthony Atwood
(“Atwood”) and Wolfpack Security Services, Inc. (“Wolfpack”). Plaintiffs move for summary
judgment on their Notice of Foreign Judgment, to execute the Judgment of The Court of First
Instance of Kuwait, originally filed in the Ross County Court of Common Pleas and
subsequently removed to this Court by Defendants. For the reasons stated below, Plaintiffs’
Motion for Summary Judgment is hereby GRANTED.
II. STATEMENT OF FACTS
A. Factual Background
1. The Parties
Plaintiff, Burgan Express, is a corporation organized under the laws of Kuwait with its
principal place of business in Kuwait. Plaintiff, Hajia, is the owner of Burgan Express as well as
a citizen and resident of Kuwait. In 1993, Hajia initially began operating as a sole proprietorship
in Kuwait under the Burgan Express name. On February 28, 2005, he incorporated Burgan
Express in Kuwait.
Defendant Atwood is the owner of Defendant Wolfpack. Atwood is a resident of Ohio
and a 22-year veteran of the U.S. Army, to his retirement in 2001. Starting in 2002 he worked as
a civilian contractor for the U.S. Army, operating in Kuwait. In 2003, Atwood incorporated
Wolfpack in Ohio. Wolfpack provided refrigeration units to U.S. forces at forward operating
bases in Iraq for, among other things, preserving human remains. The Marine Corps gave
Wolfpack several contracts, the proceeds from which Wolfpack spent on vehicles, generator
equipment, weapons, and labor costs.
2. The Dispute
Atwood was referred to Hajia as a source of initial capital for his business operations in
Iraq. He alleges that he received a number of “loans” from Hajia, but none after 2003. Atwood
claims to have repaid those loans in full. Hajia, however, contends that in June 2004 he and
Atwood formed a contract for a joint venture between Burgan Express and Wolfpack, the terms
of which distributed 51% of the profits to Burgan Express and 49% to Wolfpack. The contract
went into effect on July 1, 2004. The joint venture was to be based in Kuwait, but serve as a
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contractor for the U.S. Armed Forces throughout the Middle East. In Hajia’s sworn affidavit, he
says this agreement was a joint venture, and not understood by either party to be a loan. Both
Hajia and Atwood agree that disputes relating to their financial relationship arose between them
in 2005. As a result, Atwood, as required by Kuwaiti law, published notices in a Kuwaiti
newspaper on October 30, 2005 and November 6, 2005 announcing the termination of “the
business relationship” between Wolfpack and Burgan Express.
It should be noted that Atwood, in his affidavit, paints a very different picture of the
history of the business relationship between Plaintiffs and Defendants. Atwood’s version,
however, was largely rejected by the Kuwaiti courts after voluminous proceedings and is wholly
unsupported by any evidence beyond Atwood’s sworn statement. Furthermore, Atwood’s
affidavit demonstrates that he, whether through ignorance or lack of diligence, simply
misunderstood much of what transpired in the Kuwaiti courts.
3. The Litigation in Kuwait
Shortly thereafter, on November 9, 2005, Burgan Express initiated a civil action against
Atwood and Wolfpack in the Commercial Division of the Kuwaiti Court of First Instance, which
is Kuwait’s court of original jurisdiction for civil suits worth more than 5,000 Kuwaiti dinars
(“KD”), approximately $18,000.00. In this first action (Kuwait Case No. 4270/2005), Burgan
Express sought an order confirming the existence of a joint venture agreement between Burgan
Express and Wolfpack, as well as a court valuation of Burgan Express’s capital investments and
profit entitlements. On November 12, 2005, Hajia, in his individual capacity, filed a second civil
action (Case No. 4284/2005) against Atwood and Wolfpack in the same Court of First Instance,
seeking a judgment against the Defendants for unpaid profits and money owed resulting from the
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joint venture. The Court of First Instance subsequently consolidated those two cases. Also in
November 2005, Kuwaiti prosecutors brought a criminal charge, which is the Kuwaiti equivalent
of embezzlement, against Atwood (Kuwaiti Case No. 1094/2006). In the two civil actions
Atwood was represented by a Kuwaiti agent, Bader Al-Barazi, and an attorney, Al-Otaibi. The
same agent and counsel also represented Atwood in the criminal trial.
Atwood filed pleadings and other motions in his defense in the civil actions and
appeared, both personally and through counsel, at numerous hearings during 2006. The Court
appointed an “Expert Committee” to determine the value of the contracts between the alleged
joint venture and the U.S. Armed Forces, as well as the capital contributions made by Burgan
Express. On January 24, 2007, the Expert Committee reported the Parties “were bound by a
Joint Venture Agreement with no incorporation deed executed.” (Complaint, Exh. A at ¶15). It
also calculated the Plaintiffs’ share of the profits as 3,516,529 KD ($12,659,504.40), with
Defendants owing the Plaintiffs a total amount of 6,677,257.358 KD ($24,038,126.49).
Defendants objected to the report, causing the Court to appoint a second Expert
Committee, with new members, to evaluate the claims once again. The second Expert
Committee reported the “net amount” due the Plaintiffs was 1,974,872.358 KD ($7,109,540.49)
while it was unable to calculate the “additional monies” due. In consideration of the two reports,
the Court of First Instance, at a December 31, 2008 hearing, awarded Plaintiffs 4,345,774.385
KD ($15,644,787.79). Plaintiffs appealed that judgment in January 2009, seeking to increase the
amount of the award. A third Expert Committee was then convened to evaluate the claim on
appeal. On December 20, 2009, the third Expert Committee concluded the amount Defendants
owed the Plaintiffs since the commencement of the joint venture on July 1, 2004 until December
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2009 was 5,610,361.154 KD ($20,197,300.15). A June 7, 2010 hearing confirmed the award,
but Defendants did not appear, despite having been properly noticed through counsel.
Defendants also failed to appeal the decision to the Court of Cassation, Kuwait’s highest court
for commercial suits, before the appeals deadline of July 14, 2010.
4. The Criminal Case in Kuwait
In Atwood’s criminal trial for embezzlement, the Court adjudged him guilty of
embezzling monies and equipment from Hajia worth 3,160,728.358 KD ($12,998,622.09). On
May 29, 2007, The Court sentenced Atwood to term of imprisonment of three years, to be
followed by deportation. Atwood appealed the verdict on May 30, 2007. In June 2007 Atwood
voluntarily absented himself from Kuwait and has not returned. On February 13, 2008, the Court
of Appeal affirmed the verdict of the Court of First Instance for Crimes. As the instant case is
purely a civil matter, there is no issue of enforcing the criminal verdict.
5. Atwood’s Allegations Regarding Litigation in Kuwait
Atwood’s affidavit also presents a very different account of the litigation than that found
in the records of the Kuwaiti courts. Atwood claims his Kuwaiti counsel informed him that he
the “Expert Committee had found in [his] favor, and that the case was over.” (Atwood Affidavit,
at 3). Atwood claims that only a few months after the “dismissal” of the first action was he
informed that a second action had been filed “on the same facts.” (Id.) According to Atwood,
his Kuwaiti agent told him that Hajia “had ‘paid off the judges’ with a sum equal to several
hundred thousand dollars U.S. to secure the reopening of the case.” (Id.) Atwood says he never
appeared before a judge in the second action, though he admits there were three hearings before
the Expert Committee, prior to the Court of First Instance issuing a judgment against him and
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Wolfpack. (Id.) Atwood alleges he “fled” Kuwait in June 2007 following “death threats made
by [Hajia],” but that he prepaid his Kuwaiti attorneys to continue his defense in both the civil and
criminal cases after his departure. (Id. at 4)
Atwood adds that “upon information and belief” his attorneys ceased defending him after
he left Kuwait. He also admits “upon information and belief” that he was sentenced to three
years of imprisonment “for an alleged business debt.” (Id. at 4). Atwood claims he was not
informed a judgment had been entered against him until “the summer of 2010” when Bader, his
Kuwaiti agent, so informed him. Atwood reports Bader told him, “You were an American in a
Muslim court system in the Middle East – what did you expect?” Upon information and belief,
Atwood also alleges Hajia, pursuant to a Kuwaiti court order, seized equipment from Wolfpack
valued at $3.5 million. He says Wolfpack’s profits from its operations in the Middle East totaled
approximately $5 million.
Finally, he claims to have been unable to secure documents from Kuwait to verify his
account, though he is continuing his efforts through new counsel in Kuwait. He attached no
documents or other evidence in support of his contentions, apart from his sworn affidavit.
B. Procedural History
On December 14, 2011, Burgan Express and Hajia filed a Notice of Foreign Judgment in
the Ross County Court of Common Pleas, pursuant to O.R.C. 2329.023. The certified and
translated judgment from the Kuwaiti Court of Appeal was attached to the Notice, stating
judgment had been entered against Atwood and Wolfpack for $20,283,412.39.
On January 16, 2012, Defendants removed the case to this Court pursuant to 28 U.S.C. §
1441 and 28 U.S.C. § 1332. Plaintiffs filed this Motion for Summary Judgment on February 23,
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2012. On May 18, 2012, the Magistrate Judge denied the Defendants’ Motion for Extension of
Time for Discovery because Defendants filed a Response in Opposition to Plaintiffs’ Motion for
Summary Judgment on May 15, 2012. On June 19, 2012, the Court set the hearing on Plaintiffs’
Motion for Summary Judgment for September 20, 2012. Subsequently, the Court denied
Defendants’ Motion for Leave to File a Supplemental Memorandum on September 13, 2012
because Defendants failed to demonstrate good cause.
III. STANDARD OF REVIEW
Fed.R.Civ.P. 56 provides, in relevant part, that summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law.” A fact is deemed material only if it “might affect the
outcome of the lawsuit under the governing substantive law.” Wiley v. United States, 20 F.3d
222, 224 (6th Cir.1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, (1986)).
The nonmoving party must then present “significant probative evidence” to show that
“there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris
Cos., Inc., 8 F.3d 335, 339–40 (6th Cir.1993). The suggestion of a mere possibility of a factual
dispute is insufficient to defeat a movant's motion for summary judgment. See Mitchell v. Toledo
Hospital, 964 F.2d 577, 582 (6th Cir.1992) (citing Gregg v. Allen–Bradley Co., 801 F.2d 859,
863 (6th Cir.1986)). Further, “summary judgment will not lie if the dispute is about a material
fact that is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict
for the non-moving party.” Anderson, 477 U.S. at 248. When a plaintiff, however, invokes
summary judgment “and a showing is made by the [plaintiff], the burden rests on the [defendant]
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to show that he has a ground of defense fairly arguable and of a substantial character.” Pen-Ken
Gas & Oil Corp. v. Warfield Natural Gas Co., 137 F.2d 871, 877 (6th Cir. 1943).
The necessary inquiry for this Court in determining whether summary judgment is
appropriate is “whether ‘the evidence presents a sufficient disagreement to require submission to
a jury or whether it is so one-sided that one party must prevail as a matter of law.’” Patton v.
Bearden, 8 F.3d 343, 346 (6th Cir.1993) (quoting Anderson, 477 U.S. at 251–52). In evaluating
such a motion, the evidence must be viewed in the light most favorable to the nonmoving party.
See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The mere existence of a scintilla of
evidence in support of the opposing party's position will be insufficient; there must be evidence
on which the jury could reasonably find for the opposing party. See Anderson, 477 U.S. at 251;
Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995). Self-serving affidavits, alone, are not
enough to create an issue of fact sufficient to survive summary judgment. Wolfe v. Vill. of Brice,
Ohio, 37 F. Supp. 2d 1021, 1026 (S.D. Ohio 1999). See Anderson, 477 U.S. at 251; Copeland,
57 F.3d 476 at 479.
With regard to affidavits, Rule 56 (e) requires that affidavits submitted in support of or in
opposition to motions for summary judgment include facts based on personal knowledge and that
personal knowledge “must be evident from the affidavit.” Reddy v. Good Samaritan Hosp. &
Health Ctr., 137 F.Supp.2d 948, 956 (S.D. Ohio 2000). Thus, “statements made ‘on information
and belief’ are insufficient to satisfy the personal knowledge requirement of Rule 56(e). Id.
Affidavits at the summary judgment stage also may also not rely upon inadmissible hearsay
because inadmissible hearsay “cannot create a genuine issue of material fact.” North American
Specialty Ins. Co. v. Myers, 111 F.3d 1273, 83 (6th Cir. 1997).
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IV. LAW AND ANALYSIS
Both Plaintiffs and Defendants agree that the recognition and enforcement of foreign
judgments are matters of state substantive law. Samyang Food Co., Ltd. v. Pneumatic Scale
Corp., 5:05-CV-636, 2005 WL 2711526, at *5 (N.D. Ohio Oct. 21, 2005). Here, the governing
provision of Ohio law is Ohio Rev. Code § 2329.91 which states, in relevant part:
[A]ny foreign country judgment that is final, conclusive, and enforceable where
rendered shall be recognized and enforced by the courts of this state, even though
an appeal from the judgment is pending or the judgment is subject to an appeal.
Such a foreign country judgment is enforceable in this state in the same manner as
a judgment of another state that is entitled to full faith and credit.
Moreover, the Supreme Court held, in Hilton v. Guyot, the seminal case on recognition of
foreign judgments:
[W]here there has been opportunity for a full and fair trial abroad before a court
of competent jurisdiction, conducting the trial upon regular proceedings, after due
citation or voluntary appearance of the defendant, and under a system of
jurisprudence likely to secure an impartial administration of justice between the
citizens of its own country and those of other countries, and there is nothing to
show either prejudice in the court, or in the system of laws under which it was
sitting, or fraud in procuring the judgment, or any other special reason why the
comity of this nation should not allow it full effect, the merits of the case should
not, in an action brought in this country upon the judgment, be tried afresh, as on
a new trial or an appeal, upon the mere assertion of the party that the judgment
was erroneous in law or in fact. The defendants, therefore, cannot be permitted,
upon that general ground, to contest the validity or the effect of the judgment sued
on.
Hilton v. Guyot, 159 U.S. 113, 202-03, (1895). The Court went on to add that it was not
prepared to hold a procedural difference “of itself, a sufficient ground for impeaching the foreign
judgment.” Id. at 205. The Second Circuit further clarified that, “Clear and convincing evidence
of fraud is required in order successfully to attack a foreign judgment, just as such proof is
necessary before a court will set aside its own judgment.” Clarkson Co. v. Shaheen, 544 F.2d
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624, 631 (2d Cir. 1976). Thus, a “party challenging the validity of a foreign judgment has the
burden of presenting evidence of its invalidity.” Samyang, 2005 WL 2711526 at *5.
The federal courts’ limits on recognizing foreign judgments obtained in the absence of
due process or by fraud are consistent with the limits of Ohio Rev. Code § 2329.91. That statute,
Ohio’s partial codification of the Uniform Foreign Judgments Recognition Act, states a foreign
country judgment is not conclusive, and therefore not entitled to recognition or enforcement,
where the court that rendered it lacked personal or subject matter jurisdiction, or where
“judgment was rendered under a system that does not provide impartial tribunals or procedures
that are compatible with the requirements of the due process of law.” Consistent with the
Supreme Court’s holding in Hilton that procedural differences alone are not grounds for setting
aside a foreign judgment, “The Uniform Act and Ohio law do not contemplate that foreign
judgments only become enforceable when exact Ohio's procedures are followed. Instead, the
statute concerns itself with whether the foreign court offers a fair procedure generally compatible
with the due process obligations of notice and opportunity to be heard.” Samyang, 2005 WL
2711526 at *6. Ohio Rev. Code § 2329.92 specifically states a judgment shall not be recognized
under § 2329.91 if:
(1)
The defendant in the proceedings in the foreign court did not receive
notice of the proceedings in sufficient time to enable him to defend;
(2)
The foreign country judgment was obtained by fraud;
(3)
The claim for relief on which the foreign country judgment is based is
repugnant to the public policy of this state;
(4)
The foreign country judgment conflicts with another conclusive and final
judgment;
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(5)
The proceedings in the foreign court were contrary to an agreement
between the parties under which the dispute in question was to be settled
otherwise than by proceedings in that court;
(6)
If jurisdiction was based only on personal service, the foreign court was a
seriously inconvenient forum for the trial of the action.
Thus, the overall thrust of Ohio and federal law concerning recognition of foreign judgments is
that the foreign court’s procedures must broadly comport with due process as defined in the
United States. The procedures need not exactly mirror procedures of United States courts,
provided the differences do not render the proceedings fundamentally unfair. To the extent the
Plaintiffs make a showing they received a “conclusive judgment” in their favor, the court
rendering the judgment properly had jurisdiction, and Defendants received due process, the
Defendants must then produce some evidentiary support for their affirmative defenses or
demonstrate an actual dispute regarding the evidence supporting the Plaintiffs’ factual
contentions.
A. Elements of Plaintiffs’ Burden
1. Conclusive, Final, and Enforceable Kuwaiti Judgment
There is no question that the judgment rendered by the Kuwaiti Court of Appeals is
conclusive, final, and enforceable. In the Court of First Instance, Defendants had the opportunity
to appeal the findings of the First Expert Committee, which led to the appointment of the Second
Expert Committee. Although the Second Expert Committee decreased the award recommended
by the First Expert Committee, it still found for the Plaintiffs in the amount of approximately
$7.1 million. The Plaintiffs then appealed to the Court of Appeals, where their award was
increased to the amount of $20,283,412.39 sought here. Defendants were represented throughout
the first proceeding and did not appear at proceedings before the Court of Appeals despite
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receiving adequate notice through counsel of record. The judgment of the Court of Appeals was
filed with this Court as an exhibit, as well as a Certificate of Non-filing of Cassation Petition
which shows Defendants did not appeal the Court of Appeals’ judgment to Kuwait’s highest
court. At that time, the judgment became final. The judgment awarded monetary damages, as is
standard in such contract cases in both the United States and Kuwait, and such an award can be
enforced by this Court.
2. Kuwaiti Court’s Subject Matter Jurisdiction
The Defendants do not contest that the Kuwaiti Court of First Instance and Court of
Appeals properly had subject matter jurisdiction. Additionally, this Court takes judicial notice of
Kuwait’s Civil and Commercial Pleadings Law, essentially Kuwait’s civil code. Article 34
provides, in relevant part, that the Court of First Instance has preliminary jurisdiction in matters
exceeding 5,000 KD (approximately $18,000). If the matter exceeds 5,000 KD, Article 36 grants
appellate jurisdiction to The Court of Appeals. The value of this suit greatly exceeded 5,000
KD; thus, The Court of First Instance had subject matter jurisdiction and The Court of Appeals
properly had jurisdiction over the appeal.
3. Kuwaiti Court’s Personal Jurisdiction
The Defendants do not contest that the Kuwaiti Court of First Instance properly had
personal jurisdiction over Defendants. Again, Kuwait’s Civil and Commercial Pleadings Law
provides the relevant Kuwaiti law. Article 23 grants Kuwait’s courts personal jurisdiction over
foreigners domiciled or having place of residence in Kuwait, while Article 24(b) states “The
Kuwaiti Courts shall cognize cases brought against a foreigner who has no domicile or place of
residence in Kuwait . . . if the case is . . . relevant to an obligation originated, executed or
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required to be executed [in Kuwait].” Defendant Atwood was resident in Kuwait at the time the
original suit was brought, but even had he not been resident there, the contract giving rise to the
suit originated in Kuwait. Moreover, Wolfpack operated out of Kuwait at the time. Thus, the
Kuwaiti Court of First Instance had personal jurisdiction over Defendants.
4. Notice
Defendants had actual notice of the suit in the Court of First Instance, as evidenced by
their multiple appearances before that Court and appeal of the findings of the First Expert
Committee. In essence, Defendants fully participated in the litigation in Kuwait at least until the
time Atwood voluntarily absented himself from the country. Moreover, Defendants had
constructive notice of Plaintiffs’ appeal by notice being given to Defendants’ counsel of record.
Such notice is sufficient under Kuwaiti law.
5. Plaintiffs Satisfied Burden Under Section 2329.91
Plaintiffs, by submitting a certified copy of a final judgment from a Kuwaiti court and
demonstrating the court rendering that judgment had subject matter and personal jurisdiction,
and that Defendant had notice of the suit, have satisfied the requirements of Ohio Rev. Code
2329.91 in order to enforce a foreign country judgment. Those material facts are not in dispute,
particularly in light of Plaintiffs’ documentary evidence. The burden then shifts to Defendants to
raise an issue of material fact which is central to the Plaintiffs’ case.
B. Affirmative Defenses
1. Lack of Due Process
Kuwait’s justice system is not identical to that of the United States, but like the United
States’ legal system, it evolved from the Common Law of the British Commonwealth. While
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some of its procedures differ from those of American courts, there is no evidence in the record to
suggest the Kuwaiti courts denied Defendants due process. The certified judgment of The Court
of Appeals clearly shows Defendants were represented by Kuwaiti counsel throughout the
adversarial proceedings in The Court of First Instance. In fact, the Defendants appealed the
findings of the First Expert Committee and won a downward revision of the Plaintiffs’ award
from a Second Expert Committee, though it still found for Plaintiffs in the amount of
1,974,872.358 KD ($7,109,540.49).
Although Defendants contest Plaintiffs’ assertion that Defendants were “represented at all
appellate proceedings,” the dispute of fact is not material because Defendants did receive due
process. Atwood fled Kuwait after a criminal verdict, following a proceeding in which he was
represented, sentenced him to three years imprisonment. Atwood had sought the protection of
Kuwaiti laws in the civil proceedings with Plaintiffs; then he chose to flaunt Kuwaiti laws after
losing his criminal case. It is, at best, disingenuous for Atwood to contest the decision of The
High Court of Appeals on the grounds he did not appear before it, as he was voluntarily a
fugitive from Kuwait’s justice system at the time. Moreover, even in the United States, a
defendant does not have a constitutional right to legal counsel in a civil proceeding. Lassiter v.
Department of Social Services of Durham County, N.C., 452 U.S. 18, 26-7 (1981).
The allegations in Atwood’s affidavit and Response in Opposition to Plaintiffs’ Motion
for Summary Judgment do not indicate a dispute of material fact, but rather a fundamental lack
of understanding of the litigation in Kuwait through either sincere or willful ignorance.
Defendants allege that there were two separate suits in Kuwait based on substantially the same
facts, whereas the judgment of The Court of Appeals clearly states that there were two actions
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filed, one by Burgan Express and the other personally by Hajia, based on different causes of
action and seeking different relief. Since both actions related to the same joint venture with
Atwood and Wolfpack, the Court of First Instance joined the actions. Moreover, the fact that
Kuwaiti courts refer complex damages calculations to expert committees whose findings must be
approved by the courts does not mean Defendants did not receive due process. In the United
States’ justice system, it is not uncommon for questions of liability to be decided separately from
questions of damages, even by different finders of fact. Suffice to say, the Defendants selfinterested allegations do not raise material questions as to whether Defendants received due
process when compared with the certified judgment of The Court of Appeals. In light of the
evidence that the Defendants actually received due process, the Court need not address
Defendants’ unsupported argument that the Kuwaiti justice system “systemically” fails to
provide due process.
2. Fraud
Since fraud is an affirmative defense, the burden is on Defendants to “show that [they
have] a ground of defense fairly arguable and of a substantial character.” U.S. v. General Motors
Corp., 518 F.2d 420, 442 (D.C. Cir. 1975). By Defendant Atwood’s own admission, his
allegation of fraud rests “upon information and belief.” Even if it were appropriate for this Court
to consider statements made “upon information and belief” at the summary judgment stage when
Defendants have had opportunity for discovery, the “information” herein is simply hearsay.
Atwood’s Kuwaiti representative Bader, allegedly told Atwood that Plaintiffs had paid a bribe to
permit the “Second Action.” As explained, supra, the second action was filed by Hajia as an
individual and subsequently joined by the Court. The certified judgment of The Court of
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Appeals explains this clearly and gives no appearance of impropriety. Furthermore, given that
Bader is unlikely to have observed any such bribe, Atwood’s allegations of fraud in his affidavit
are hearsay which rest upon hearsay. Simply put, Defendants have put nothing in the record to
raise a material question as to the existence of fraud in obtaining the judgment.
3. Repugnant to Public Policy
In arguing that enforcing the judgment of the Kuwaiti courts would be “repugnant to
public policy,” Defendants offer conclusory legal statements regarding the “injustices” allegedly
permitted by Kuwaiti courts. In the absence of evidence of these “injustices” and considering the
presence of a certified Kuwaiti judgment demonstrating due process was provided, Defendants
fail to raise any issue of material fact as to the “repugnancy” of the Kuwaiti decision. To the
contrary, given Ohio’s commitment to enforcing lawfully obtained foreign judgments,
demonstrated by Ohio Rev. Code § 2329.91, it would be repugnant to public policy to allow
Defendants unsupported accusations to defeat the Plaintiffs’ certified decision.
At oral argument, Defendants’ repeatedly mentioned the valuable service Defendants
provide to the U.S. in Iraq. While the Defendants’ willingness to risk harm in order to preserve
the remains of members of the armed forces is laudable, it is not, of itself, a fact of legal
significance. It does not provide a defense to violation of a contract or flouting of the law of an
allied nation which hosted Defendants’ business. In short, these concerns raise no issue of
material fact as to whether enforcing the Kuwaiti judgment is repugnant to public policy.
4. Reciprocity
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Defendants claim it is “unclear” whether Kuwaiti courts enforce judgments from United
States’ courts, and argue, thus, the Kuwaiti judgment should not be recognized. The governing
law, Ohio Rev. Code § 2329.92, states, in relevant part:
A foreign country judgment rendered in a foreign country that does not have a
procedure for recognizing judgments made by courts of other countries . . .
substantially similar to sections 2329.90 to 2329.94 of the [Ohio] Revised Code
may be recognized and enforced pursuant to section 2329.91 of the Revised Code
in the discretion of the court.
Even if Kuwaiti courts lacked a procedure for enforcing foreign judgments, this Court could
exercise its discretion to enforce their judgment. This is academic, however, as Kuwait does
have just such a procedure, codified in Article 199 of Kuwait’s Civil and Commercial Pleadings
Law. Article 199 states “[i]t shall be permissible to order the execution of judgments and orders
issued in a foreign country inside Kuwait according to the conditions decided . . .” Those
“conditions” include the judgment having been “given by a competent Court in conformity with
the law of the country wherein it is given,” the litigants receiving notice and representation, the
judgment having “had the force of the adjudicated order . . . not contradictory to a preceding
judgment or order given by a Court in Kuwait and [] not against the ethics or the public order in
Kuwait.” Defendants argue that these conditions make Kuwait’s recognition of foreign
judgments “questionable.” These conditions, however, are substantially the same as those
contained in sections 2329.90 to 2329.94 of Ohio’s Revised Code. Kuwait is concerned, as is
Ohio, that foreign judgments enforced in its courts are arrived at through due process by a
competent authority, and that they are not repugnant to Kuwait’s public policy. Thus, the
Defendants have not raised an issue of material fact as to whether Kuwait recognizes foreign
judgments.
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5. Accord and Satisfaction
Defendants also allege “[u]pon information and belief [Wolfpack’s] seized property was
turned over to the Plaintiffs to satisfy their judgment.” As explained above, however, at the
summary judgment stage, this Court does not consider statements made upon information and
belief. Sufficient time for discovery has elapsed to allow for better evidence if it exists to be
found. Moreover, in this case, Plaintiff Hajia has attached a sworn affidavit, not made solely
upon information and belief, that he has “not received any money towards satisfaction of
judgment by way of seizure of equipment or through any other means.” Additionally, the
judgment of the Kuwaiti Court failed to mention any partial satisfaction of its award, lending
further credence to the Plaintiff’s affidavit. In light of those facts, and that Defendants’ only
apparent support of this allegation is that “Defense Counsel has been attempting to get in touch
with U.S. government personnel who allegedly witnessed this seizure and know the
circumstances behind it,” there is no material issue of fact as to accord and satisfaction.
V. CONCLUSION
For the foregoing reasons, the Plaintiffs’ Motion for Summary Judgment is hereby
GRANTED. The Court takes notice of the judgment of the Kuwaiti Court of Appeals and
ORDERS Defendants to pay Plaintiffs the sum of $19,972,996.07 (at the September 26, 2012
conversion rate of the Kuwaiti award of 5,610,361.154 KD, plus 30 KD in costs and fees).
IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: September 26, 2012
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