Opposition Brief — Stallion, Inc. v. John Galliano, S.A.

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Sveroma Court, U.S

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No. 10-93 Alle 16 2039

Orrin ., Te Ce I

IN THE a

Supreme Court of the United States

STALLION, INC.,

Petitioner,

v.

JOHN GALLIANO, S.A.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

Court OF APPEALS OF New YORK

BRIEF IN OPPOSITION

TED PORETZ

Counsel of Record

Ho.uiy FROoUM

IE;LLENOFF GROSSMAN & SCHOLE LLP

150 East 42" Street, 11" Floor

New York, New York 10017

(212) 370-1300

tporetz@egsllp.com

Attorneys for Respondent

231785 g

COUNSEL PRESS

(800) 274-4321 © (800) 359-6859

0

QUESTION PRESENTED

Whether Petitioner has presented a compelling

reason for this Court to review the decision of the

New York State Court of Appeals affirming each lower

court’s recognition of a judgment rendered against

Petitioner in France where: (1) the decision below was

based on the application of a New York state statute

and does not implicate any important federal] question;

(2) the decision below does not conflict with any decision

of this Court, state court of last resort or United States

Circuit Court; (3) each court below unanimously found

that service upon Petitioner of the French pleadings

comported with due process and that Petitioner had

actual notice of the French Proceedings; (4) Petitioner

contractually agreed to litigate all disputes arising

between Petitioner and Respondent in France under

French law; (5) Petitioner ignored three separate

instances of service of process over a fifteen-month

period; and (6) Petitioner has never asked the

agreed forum court in France to vacate the judgment

against it.

“7

STATEMENT PURSUANT TO RULE 29.6

Respondent, John Galliano, S.A., has no parent

corporation. No publicly held company owns 10% or

more of its stock.

Wl

TABLE OF CONTENTS

QUESTION PRESENTED .................4.

STATEMENT PURSUANT TO RULE 29.6 .

Beam hets CO CARINE TED cbc tscveccsevecccss:

Preliminary Statement ...............0e0006.

STATEMENT OF THE CASE ...............

I. New York’s Uniform Reeopnition of

Foreign Country Money Judgments Act

Article 53 of New York’s CPLR .......

Il. The Underlying Dispute ...............

Ill. Galliano is Served with French Process

RS FI ee, ree) ay ter 2 Ne ea

IV. Petitioner is Served with the krench

te ERM ae alco sate g aa

VY The Trial Court Recognizes the French

Ea eh ah aR Oe PP

VI. The Appellate Division Affirms .........

VII.The New York State Court of Appeals

MI See ieee tare aiyetas Cee eae ees

9

Iv

Contents

Page

REASONS FOR DENYING THE PETITION ... 11

I. The Court of Appeals Decision Was

Proper and Consistent with The

Authority of This Court, the Circuit

Courts and Other State Courts of Last

og SOP a Ar Fre eae ALM oe ee eee 12

II. Service Upon Petitioner Comported With

Se eS Ot lc cy a hae eee eke ok 15

Ill. The United States Does Not Require

Translation of Documents Served Under

the Hawue Convention ............6...

iw)

DO

A. Translation is Never Required

Where Service is Made Through

Article 5(2) of the Hague

Ce ce ss oy kn ees ee 24

B. The United States Does Not Require

Translations of Pleadings Served

Through Article 5(1) of the Hague

IS oe eu 8 a Sake a ae ea 29

See NEE an sh xo sin on p's bein we ea ws oe 29

TABLE OF CITEDAUTHORITIES

Page

CASES

Ackerman v. Levine,

Oe Tate Pe tee te LOO) os cena ee eve enaes 26

Arbitron, Inc. v. Marathon Media, LLC,

No. 07 Civ.2099, 2008 WL 892366

eer, te Ey EE sae cee ee ees bee eeee’ 24-25

BMW of North America, Inc. v. Gore,

517 U.S. 559, 116 S.Ct. 1589,

Re Re re COO) os ae ova ewns vas keen 2

Burda Media, Inc. v. Viertel,

417 F.3d 292 (2d Cir. 2005) .......... 17, 18, 19, 21

Christensen v. Harris County,

529 U.S. 576, 120 S. Ct. 1655 (2000) ......... 27

CIBC Mellon Trust Co. v. Mora Hotel Corp. N.V,

100 N.Y.2d 215, 762 N.Y.S.2d 5 (N.Y. 2003),

cert den’d, 540 U.S. 948, 124 S.Ct. 399, 157

PR A aE S|: rr 3, 12, 13, 14

Commonwealth v. Olivo,

369 Mass. 62, 337 N.E.2d 904 (Mass. 1975) .. 21

Kastman Kodak Co. v. Miller & Miller

Consulting Actuaries, Inc.,

195 A.D.2d 591, 601 N.Y.S.2d 10

(N.Y. App. Div., 24 Dept. 1993) .............

IO

Or

vi

Cited Authorities

Page

Fox v. Regie Nationale des Usines Renault,

103 F-R.D. 453 (W.D.Tenn.1984) ............ 19

Greene v. Le Dorze,

No. CA 3-96-CV-590-R, 1998 WL 158632

CL). SOK. MEME, SOOO? cca nv ese enaeee anes 19

Greenfield v. Suzuki Motor Co., Ltd.,

776 F. Supp. 698 (E.D.N.Y. 1991) ........... 24

Icicle Seafoods, Inc. v. Worthington,

475 U.S. 709, 106 S.Ct. 1527 (1986) ......... 19

ITsack v. Isack,

274 Mich.App. 259, 733 N.W.2d 85 (2007) .... 17

Johnson v. Pfizer, Inc.,

No. 990118821, 2002 WL 1041984

(Conn. Super. Ct. April 26, 2002) ........... 28

Julen v. Larson,

25 Cal. App. 3d 325, 101 Cal.Rptr. 796

(Coal, TTS) | oss nus aeu cee ee eee 15

Koehler v. Bank of Bermuda Limited,

No. M18-302(CSH), 2004 WL 444101

(S.D.N.Y. March 10, 2004) ............. 12, 44, 38

Lasky v. Cont'l Prods. Corp.,

97 F.R.D. TUT G6. De OSS) cscs ese eee

iw)

c

Cited Authorities

Page

Layne & Bowler Corp. v. Western Well

Works, Inc.,

261 U.S. 387, 43 S.Ct. 422,

0 8) 2

Matter of Faden,

96 F.3d 792 (5th Cir. 1996) ................. 19

Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 70 S.Ct. 652,

SS) US |) 18

N.L.R.B. v. Waterman S.S. Corp.,

309 U.S. 206, 60 S.Ct. 493,

84 L.Ed. 704 (1940) ................ cece eee 2

Northrup King Co. v. Compania Productora

Semillas Algodoneras Selectas, S.A.,

51 F.3d 1383 (8th Cir. 1995) ........00.0000.. Zo

Overseas Food Trading, Ltd. v. Agro

Aceitunera S.A.,

No. 06-800, 2007 WL 77337

TS 0 18, 19

Psathas v. Catskill Regional Off-Track

Betting Corporation,

173 A.D.2d 1070, 570 N.Y.S.2d 407

(N.Y. App. Div., 3d Dept. 1991) ............. 25

Vill

Cited Authorities

Page

Resource Trade Finance, Inc. v. PM1

Alloys, LLC,

No. 99 civ 5156, 2002 WL 1836818

(B.E7.05. 5. PAU EE, DD oo ev cee es kh ven 19

Soberal-Perez v. Heckler,

717 F.2d 36 (2d Cir. 1983), cert den'd,

466 U.S. 929, 104 S.Ct. 1713 (1984) ......... 21

In Re South African Apartheid Litigation,

643 F. Supp.2d 423 (S.D.N.Y. 2009) ......... 19

Sung Hwan v. Rite Aid Corp.,

7 N.Y.3d 78, 856 N.E. 2d 647, 817 N.Y¥.S.2d 600

eo Perera rr Pee oP rr ee 12, 14

Tahan v. Hodgson,

G62 P20 Gis C0. Car 196)) © o5 esiacct 21

Tulsa Professional Collection

Services Inc. v. Pope,

485 U.S. 478, 108 S.Ct. 1340 (1988) ......... 19

Vazquez v. Sund Emba AB,

152 A.D.2d 389, 548 N.Y.S.2d 728

(N.Y. App. Div., Za Dent. 19089)... cia ss. 19, 24

Volkswagenwerk Aktiengesellschaft v. Schlunk,

486 U.S. 694, 108 S. Ct. 2104 (1988) ......... 22

ix

Cited Authorities

Page

Ward v. Ludwig,

149 Ohio App. 3d 687, 778 N.E.2d 650

CLPTRO PAI., SU) EFUB. BUG) 0c ccc ctestesaess 28

Zelasko v. Comerio,

No. 08-366-MJR, 2008 WL 2755463

50D. Bi, UY 00 OO occ cncecsaeeesveaas 23-24

RULES AND STATUTES

oe la ee eee he Saal ed es eas 26

New York Civil Practice Law and Rules

a ee nt ee 3,9

New York Civil Practice Law and Rules

ns ee en Pe 13

New York Civil Practice Law and Rules

EN 2g Ras ern er ere 3,9. 13

New York Civil Practice Law and Rules

el ree eee erCeN Th 13

New York Civil Practice Law and Rules

5B804(b)(2) oo... eee e cece ccc eceeceueeucs 3,13, 17

New York Civil Practice Law and Rules

MUNI, eo es oe ee ea pase cals 3, 9,10, 13

Supreme Court Rule lO ..................... 2,11

Cited Authorities

Page

TREATISES

Hague Convention on Service Abroad of Judicial

and Extrajudicial Documents in Civil or

Commercial Matters, 20 U.S.T. 361 (1969) .. passim

]

PRELIMINARY STATEMENT

There is no compelling reason — indeed, there is no

reason at all — to grant the Writ of Certzorari. The

decision of the New York State Court of Appeals raises

no federal question. Rather, the decision below was

grounded almost entirely on well-settled New York

common law principles, and on the New York Civil

Practice Law and Rules (the “CPLR”). Neither does the

decision below conflict with any decision of this Court, a

state court of final resort, or any United States Circuit

Court. Instead, the Petition cites decisions that do not

remotely resemble the facts presented here; the closest

it comes is the 1972 decision of an intermediate

California appellate court not relied upon by any court

since. The absence of other decisions treating service

in the United States of foreign court papers makes clear

that American companies doing business abroad will

suffer no significant impairment if the Petition should

be denied.

The Petition does not genuinely raise any question

about the constitutional rights of U.S. companies doing

business abroad. One need only look to the Petition to

see that, far from raising any question of constitutional

law, Petitioner would like this Court to police the Courts

of France and to determine whether Respondent’s three

separate instances of service of French process upon

Petitioner in New York “deprived the French Court of

personal jurisdiction over [Petitioner].” (italics added)

Petitioner had years to raise this question before the

French Court, but failed to do so.

2

The Petition frames the two issues for this Court to

review: (1) whether the New York State Court of Appeals

properly applied New York’s Uniform Recognition of

Foreign Country Money Judgments Act; and (2) whether

its factual determination that service comported with due

process was correct. Neither of these issues justifies this

Court’s review. A petition for a Writ of Certiorari is rarely

granted where, as here, the “asserted error consists of

erroneous factual findings or the m sapplication of a

properly stated rule of law.” BMW of North America, Inc.

v. Gore, 517 U.S. 559, 612, 116 S.Ct. 1589, 1617, 134 L.Ed.2d

809 (1996) (Dissenting Opinion, J. Ginsberg) (citing

Supreme Court Rule 10); N.L.R.B. v. Waterman S.S. Corp.,

309 U.S. 206, 207, 60 S.Ct. 493, 495, 84 L.Ed. 704 (1940)

(“We do not ordinarily grant Certiorari to review

judgments based solely on questions of fact.”).

Petitioner has not succeeded in locating a single

decision in which a court has held that a U.S. defendant in

a contractually-agreed foreign judicial forum is entitled to

a full translation of the foreign complaint. See Layne &

Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387,

393, 43 S.Ct. 422, 423, 67 L.Ed. 712 (1923) (Dissenting

Opinion, J. Taft) explaining that:

it is very important that we be consistent in not

granting the writ of certiorari except in cases

involving principles the settlement of which is

of importance to the public, as distinguished

from that of the parties, and in cases where

there is a real and embarrassing conflict of

opinion and authority between the Circuit

Courts of Appeals. /d.

Simply put, Petitioner has singularly failed to

carry its burden of demonstrating that there are

3

any compelling reasons for this Court to grant the

Petition.

The Petition should be denied.

STATEMENT OF THE CASE

I. New York’s Uniform Recognition of Foreign

Country Money Judgments Act - Article 53 of

New York’s CPLR

Under New York’s Uniform Recognition of Foreign

Country Money Judgments Act, codified at CPLR

Article 53 (“Article 53”), a foreign money judgment that

is final, conclusive, and enforceable where rendered is

generally to be recognized in New York unless an

enumerated ground for non-recognition under CPLR

5304 exists. CIBC Mellon Trust Co. v. Mora Hotel Corp.

N.V, 100 N.Y.2d 215, 222, 762 N.Y.S.2d 5 (N.Y. 2003)

cert den’d 540 U.S. 948, 124 S.Ct. 399, 157 L.Ed.2d 279

(2003). CPLR 5304’s grounds for non-recognition

include a lack of personal jurisdiction over the defendant

(CPLR 5304(a)(2)) and a defendant’s failure to receive

“notice of the proceedings in sufficient time to enable

him to defend” (CPLR 5304(b)(2)). However, CPLR

5304’s grounds for non-recognition must be read

together with CPLR 5305(a)(3), which forecloses

challenges to the foreign court’s personal jurisdiction

where, as here, “the defendant prior to commencement

of the proceedings had agreed to submit to the

jurisdiction of the foreign court with respect to the

subject matter involved.”

4

II. The Underlying Dispute

On January 23, 1998, Petitioner and Respondent’s

predecessor in interest, Les Jardins D’avron

(“Les Jardins”), a French Company, entered into a

licensing agreement (the “Agreement”) pursuant to

which Les Jardins agreed to license the “John Galliano”

trademark to Petitioner. The Agreement and

subsequent assignment of rights to Respondent John

Galliano, S.A. (“Galliano”), also a French company, were

executed in Paris, France.

The Agreement is governed by the laws of France.

It provides for an exclusive forum in the courts of Paris,

France, for any dispute arising out of the Agreement.

Nothing in the Agreement requires translation of French

pleadings into English.

In 2001, disputes arose between Galliano and

Petitioner regarding royalties and other charges due

to Galliano under the Agreement. On November 6, 2001,

Galliano’s Chicago-based counsel sent a letter to John

Georgiades, Petitioner’s president, notifying him, in

English, that if Petitioner did not make payment of

$187,500 in outstanding royalties by November 15, 2001,

Galliano “[would] commence an action in the appropriate

French Court...” Petitioner acknowledged that these

discussions took place and failed.

5

III. Galliano is Served with French Process

Three Times

In 2002, Galliano brought suit against Petitioner in

the Paris Commercial Court. Petitioner was personally

served at its offices on three separate occasions with

French “writs,” the French equivalent of a summons and

complaint (the “French Writs”), first by the United

States Marshal on behalf of the Department of Justice

(“DOJ”), as Central Authority for the United States

under the Convention on Service Abroad of Judicial and

E.xtrajudicial Documents in Civil or Commercial Matters

(the “Hague Convention”), and twice subsequently by

private process servers contracted by the DOJ.’

In connection with each writ, the Paris Court issued a

“Demande/Request” (“Demande”) to the DOJ that

Petitioner be served in accordance with Article 5(2) of

the Hague Convention. All three of the French Writs

contain repeated references to “Stallion,” “Galliano,”

“Les Jardin,” and the “$187,500” figure Galliano

demanded from Petitioner, and the stamp of “Pascal

Robert, Hussier de Justice,” so that it would not be

difficult to discern the nature of the papers, even written

in French, simply by reviewing them. In each case, the

U.S. Central Authority completed and returned the

required Certificate/Attestation documenting that

service had been effected.

' The French Court asked Galliano to supplement the first

writ to add additional details of its claim. Accordingly, a second

writ was prepared and served on Petitioner. It contained an

arithmetical error as to the relief demanded, requiring service

of a third writ, largely identical to the second but with the error

corrected.

6

Petitioner has never denied being served with the

French Writs, or accepting service thereof.

Notwithstanding that fact, Petitioner ignored all three

writs and allowed judgment in Paris to be entered in

favor of Galliano.

lV. Petitioner is Served with the French

Judgment

By Judgment, dated October 7, 2004 (the “I'rench

Judgment”), the Paris Commercial Court awarded

damages to Galliano on most, but not all of its monetary

claims.’ Article 15 of the Hague Convention prohibits a

signatory nation’s court from entering judgment by

default unless it is satisfied that the foreign defendant

was served “in sufficient time to enable the defendant

to respond.” Affidavits submitted by both parties are in

accord.®

* The French Judgment shows that the French Court

examined Galliano’s proofs before entering judgment and sua

sponte struck one of Galliano’s claims.

* The affidavit submitted by Galliano’s French counsel says

“the [French] Court unquestionably satisfied itself that

| Petitioner] was served properly and in accordance with the

applicable law, and that it had thereby acquired jurisdiction

over [Petitioner], or it would not have entered judgment for

Galliano.” The French attorney who submitted an expert

affidavit to the Trial Court on Petitioner's behalf agreed that a

French judge “must be assured that a defendant has knowledge

through service — that he is a party to a case in a foreign

country ...” and has the “discretion to implement any action to

verify the validity of service... to ensure the defendant is fully

aware of the ongoing proceeding.”

7

On or about December 16, 2004, the DOJ served

the French Judgment, pursuant to the French court's

request, on Petitioner through the Hague Convention

“by delivery to the addressee, if he accepts it voluntarily

(second paragraph of Article 5 jof the Hapue

Convention]).” The Affidavits of Service contained in

the record reflect that, on February 9, 2005, a process

server named Maria Bass served a copy of the French

Judgment on Petitioner, by “presenting to and leaving

the same with” Petitioner’s receptionist.”"

Petitioner did nothing after being: served with the

Krench Judgment, even though French law affords

Petitioner one year to seek to vaeate a default

judgment. Thus, on four separate occasions, Petitioner's

employees accepted and ignored court documents

served by professional process servers acting under the

authority of the United States povernment.

V. The Trial Court Recognizes the French

Judgment

The Trial Court granted Galliano’s motion for

summary judgment in lieu of complaint, concluding that

the French Judgment met the substantive requirements

for recopnition under Article 53. See Trial Court Decision,

Appendix ©, at p. 15Qa) (quoting Article 53).

The Trial Court also found that Petitioner's

challenges to service lacked merit, finding that persona!

* The Amended Affidavit of Service shows that the French

Judgment was “voluntarily accepted” by Petitioner's employee

Maria D’iste. All four instances of service took place at

Petitioner's principal place of business.

8

delivery of the French Writs on three separate occasions

to Petitioner’s employees who do not deny receiving

them or claim to have rejected service was service

“made in a manner calculated to give the defendant fair

notice of the legal proceedings against it.” /d. at p. 20a.

The Trial Court further found “nothing unfair or

inappropriate” about personal service of the French

Writs upon Petitioner in the language in which it agreed

to litigate and noted that:

Stallion had every reason to anticipate that

in the event of litigation bet veen the parties,

it would be subject to proceeaings in a French

Court conducted in French. Appendix C, at

pp. 19a-20a.

The Trial Court also considered and rejected

Petitioner’s claim that service was fatally-defective under

the Hague Convention because the French Writs were

served in French. The Court correctly observed that

Petitioner failed to cite “any rule or regulation

promulgated by the [DOJ]” which “requires” that

foreign judicial documents served in the United States

pursuant to the Hague Convention to be translated into

English. /d. at 17a. Petitioner subsequently moved for

renewal based on documentation ostensibly obtained

through a FOJA request, the same documentation it

presented to the Appellate Division, Court of Appeals,

and now to this Court. The Trial Court concluded that

these documents also failed to establish a requirement

under the Hague Convention or any United States

statute, rule, regulation or treaty declaration, and were

at best advisory opinions without the force of law.

No subsequent reviewing court has disagreed.

Ss)

VI. The Appellate Division Affirms

In its Decision and Order, the Appellate Division of

the New York State Supreme Court (the “Appellate

Division”) affirmed the Trial Court’s recognition of the

French Judgment based on its application of Article 53.

The Appellate Division, like the Trial Court, concluded

that the French Jucgmen. met the substantive

requirements for enforcement under Article 53, holding

that Petitioner’s service defenses were foreclosed by

CPLR 5305(a)(3) and that, in any event, service upon

Petitioner comported with due process. “Defendant

received notice of the French action; its service by

personal delivery is unlikely to give rise to any

objections based on due process.” Appellate Division

Decision, Appendix B, at p. lla. The Appellate Division

also rejected Petitioner’s argument that the United

States required translation under the Hague

Convention holding that “even after considering the

[FOIA] materials defendant submitted on renewal,”

summary judgment was properly granted. /d. at p. 10a.

VII. The New York State Court of Appeal

Affirms

The New York State Court of Appeals affirmed

recognition of the French Judgment based on its

application of Article 53 and its factual determination

that service upon the Petitioner comported with due

process. Acknowledging CPLR 5304’s grounds for non-

recognition, the Court of Appeals concluded that

Petitioner’s challenges to the French Judgment based

on CPLR 5304(a)(2) were foreclosed because “. . . the

defendant prior to commencement of the proceedings

10

had agreed to submit to the jurisdiction of the foreign

court with respect to the subject matter involved.” Court

of Appeals Decision, Appendix A, at p. 4a (quoting CPLR

5305(a)(3)).

In light of Petitioner’s agreement to litigate ail

disputes before the French Court, including service

issues, the Court. of Appeals, following its precedents,

declined to engage in a “microscopic analysis” to

determine if the French Court correctly assumed

jurisdiction over the dispute between the parties.

Appendix A, at p. 7a.° Rather, it limited its inquiry to

whether the French Judgment comported with

New York’s notions of due process. Court of Appeals

Decision, Appendix A, at p. 7a.

The Court of Appeals agreed with the factual

findings below, holding that Petitioner “received notice

of the French action,” and that the method by which it

was served was “unlikely to give rise to any objections

based on due process.”

Accordingly, the Court of Appeals affirmed,

concluding that:

On this reeord, the enforcement of the French

judgment is not repugnant to our notion of

* The Court of Appeals properly noted that before

rendering the default judgment the French Court satisfied itself

that service was proper. Appendix A, at p. 6a (“for our purposes

in applying Article 53 in this case, before it could properly issue

a judgment against Petitioner in Petitioner's absence... it would

seem clear that it was “established” to that court's satisfaction

that Article 15’s requirements were met.”).

11

fairness. Petitioner was well aware of its

ongoing disputes with Galliano, and it was also

aware that, under the licensing agreement.

those disputes, if litigated, would be

adjudicated in accordance with French law by

a court in France.

Id. at p. 6a.

REASONS FOR DENYING THE PETITION

The Court of Appeals decision was based on its

application of Article 53, a state statute, the

constitutionality of which has never been challenged,

and its factual determination, based on the record, that

service comported with due process. The decision does

not implicate an important federal question that has not

been resolved by this Court, nor does it conflict with a

decision of this Court, any Cireuit Court or any other

state court of last resort. It does not interpret a federal

treaty. Accordingly, Petitioner has not carried its burden

of demonstrating any “compelling reasons” for the

Petition to be granted. See Sup. Ct. R. 10.

Petitioner states only two “Reasons for Granting the

Petition,” and they are both different formulations of

the same argument: Respondent’s ostensible “failure

to effect proper service under the Hague Convention”

and its “failure to serve process sufficient to accord

Stallion reasonable notice and opportunity to be heard”

—in each ease, by failing to serve English translations

of the French Writs - “deprived the French Court of

personal jurisdiction over Stallion.”

12

In its travels through the New York State court

system, Petitioner was unable to persuade a single judge

of the proposition that there was anything unfair about

the manner in which Petitioner was served on three

separate occasions. Nothing about its successive losses

below entitles Petitioner to the extraordinary relief it

now seeks.

I. The Court of Appeals Decision Was Proper and

Consistent with The Authority of This Court, the

Circuit Courts and Other State Courts of Last

Resort

The Court of Appeals’ recognition of the French

Judgment was based on its proper application of the

CPLR, in aceordance with Article 53’s plain terms, its

purpose and well-settled New York precedent. By its

Petition, Petitioner does not challenge the

constitutionality of Article 53, and it did not do so below.

Article 53 was enacted to “promote the efficient

enforcement of New York judgments abroad by assuring

foreign jurisdictions that their judgments would receive

streamlined enforcement here.” C/BC Mellon Trust Co.,

100 N.Y.2d at 221, 762 N.Y.S.2d 5. In accordance with

its purpose, Article 53 is “liberally construed by New

York courts in favor of recognition and enforcement.”

Koehler v. Bank of Bermuda Limited, No. M18-

302(CSH), 2004 WL 444101 at p. * 9 (S.D.N.Y. March

10, 2004); Sung Hwan v. Rite Aid Corp., 7 N.Y.3d 78,

850 N.E. 2d 647, 817 N.Y.S.2d 600 (2006). Under Article

53, a money judgment issued by a foreign court will

generally be recognized and enforceable in New York,

unless it fits within one of the specifically enumerated

13

exceptions set forth in CPLR 5304(a) and 5304(b). CIBC

Mellon, 100 N.Y.2d at 221-222, 762 N.Y.S.2d at 9.

Grounds for non-recognition include: (a) a lack of

personal jurisdiction over the defendant by the foreign

court (CPLR 5304(a)(2)); and (b) defendant’s failure to

receive notice of the proceedings in sufficient time to

enable him to defend himself (CPLR 5304(b)(2)).

However, CPLR 5304(a)(2)’s provision for non-

recognition on personal jurisdiction grounds does not

apply, pursuant to CPLR 53805(a)(3), where, as here,

“the defendant prior to the commencement of the

proceedings had agreed to submit to the jurisdiction of

the foreign court with respect to the subject matter

involved.” CPLR 5305(a)(8). As above, Petitioner

expressly agreed to the application of French law and

the exclusive forum of the Courts of Paris, France, and

any challenge to its acquisition of jurisdiction over

Petitioner was properly directed to the agreed forum

eourt in France, not to the U.S. courts years after

judgment was entered in France.

retitioner argues that the French Court did not

have personal jurisdiction over Petitioner because

service in New York of writs written in French did not

comply with the Hague Convention. Relying on CPLR

5304(a)(2), Petiticner argued that the French Judgment

must be refused recognition because the French Court

lacked personal jurisdiction.

There are several glaring flaws with this argument.

First, as the Court of Appeals properly noted,

Petitioner’s objection to service “was an issue for the

court in France,” the contractually-agreed forum for

14

resolution of all disputes between the parties. See Court

of Appeals Decision, Appendix A, p. 7a. Affiants on both

sides agreed that the French Court was required to

review the question of service before it could render a

judgment, as does the text of the Hague Convention

itself. The New York State Court of Appeals

determination was in keeping with its standing refusal

to engage in a “microscopic analysis” of the judgment

of a foreign court. Sung Hwan Co. Ltd., supra; See also

Koehler, supra, 2004 WL 444101, at p. *15 (citing CIBC

Melion, supra) (holding that defendant who is given

ample notice and opportunity to present a defense but

who elects to forgo these opportunities, is precluded from

contesting recognition of foreign country judgment

based on technical challenges to service). The French

Court system has been widely recognized for its fairness

and respect for due process.

Second, every court below that has examined the

question has come to the unanimous conclusion that

“Stallion ‘received notice of the French action [and] its

service by personal delivery is unlikely to give rise to

any objections based on due process.” Court of Appeals

Decision, Appendix A, 5a (quoting Appellate Division

Decision, Appendix B, 11a). To this day, Petitioner has

still provided no factual evidence to the contrary; the

affidavits of its receptionists do not assert that service

was never effected or that they refused to accept it, and

the affidavit of Petitioner’s principal does not assert that

Petitioner did not know that Galliano had brought suit

in France.

Finally, as discussed in more detail below, neither

the Hague Convention nor United States law requires

15

that foreign judicial papers served in the United States

be translated into English. Neither the plain language

of the treaty nor any governing statute, regulation or

treaty declaration requires that foreign litigants

translate foreign court papers into English. No United

States court has read such a requirement into the Hague

Convention.® And no court has found anything unfair

about serving a defendant which has agreed to litigate

in France, as Petitioner did, with Court papers written

in the language of the agreed forum. Not only is there

no constitutional issue at stake here, the Courts below

were clearly correct.

II. Service Upon Petitioner Comported Witin Due

Process

Petitioner’s due process arguments also fail to

establish that it is entitled to this Court’s review.

Petitioner claims that service of the French Writs

® With one inapplicable exception, Julen v. Larson, 25 Cal.

App. 3d 325, 101 Cal.Rptr. 796 (Cal. 1972), the cases cited by

Petitioner are all from United States courts determining that

they did not acquire jurisdiction over a foreign defendant when

the foreign defendant was served defectively abroad. Just as

the United States courts were able to determine their own

jurisdiction, so too was it for the French forum court to decide

whether service on Petitioner caused it to acquire personal

jurisdiction over Petitioner. And Julen, the decision of an

intermediate California state court, which has not been relied

upon by any other court, expressly does not hold that the Swiss

papers served on a California defendant must be translated

into English, even in the absence of a forum selection clause.

Unlike the instant case, Larson denied knowing that he had

been sued in Switzerland.

16

violated its due process rights because: (1) service of

the French Writs failed to comply with the Hague

Convention; and (2) service of pleadings that are not

translated per se violates due process. Each of the courts

below conducted a due process analysis and found

Petitioner’s arguments unavailing. Petitioner has

presented no evidence to this Court to warrant a

different finding.

The Trial Court found that personal delivery of the

French Writs on three separate occasions to Petitioner’s

employees who did not deny receiving them or claim to

have rejected service was “service... made ina manner

calculated to give the defendant fair notice of the legal

proceedings against it...” Appendix C, at p. 20a. The

Trial Court found “nothing unfair or inappropriate

about service of the French Court documents,” upon

Petitioner in the language in which it had chosen to

litigate, noting that:

[Petitioner] had every reason to anticipate

that, in the event of litigation between the

parties, it would be subject to proceedings in

a French court conducted in French. Appendix

C, 18a-19a.

The facts presented by Petitioner do not show it

received inadequate notice. Rather, they “show that

{Petitioner] received papers it did not immediately

understand and chose simply to ignore them.” /d. at 19a.

17

Petitioner had a great deal of time in which to change

its mind, but failed to.’

Like the court below, the Appellate Division

unanimously concluded that: “Defendant received notice

of the French action [and that] its service by personal

delivery is unlikely to give rise to any objection based

on due process.” Appendix B, at lla. The Appellate

Division found that Petitioner was much like the

defendant in Burda Media, Inc. v. Viertel, 417 F.3d 292,

303 (2d Cir. 2005), who was personally served with

foreign court pleadings, had actual notice of the foreign

proceedings and made the tactical decision to ignore

them.

The New York State Court of Appeals also reviewed

the record and unanimously concluded that service

comported with due process, explaining that:

On this record, the enforcement of the French

judgment is not repugnant to our notion of

fairness. Petitioner was well aware of its

ongoing disputes with Galliano, and it was also

7 In the courts below, Petitioner did not rely on CPLR

5304(b)(2), and with good reason. That provision clearly

addresses temporal concerns relating to events within the

litigation, making reference to an insufficient period of time to

respond. Michigan’s highest Court has reviewed various state

cases on the issue and, in interpreting identical statutory

language, concluded that CPLR 5304(b)(2)’s language about

“notice of the proceedings” is temporal and refers to “notice of

particular relevant action taken within the case” as opposed to

the case “as a whole.” See [sack v. Isack, 274 Mich.App. 259, 733

N.W.2d 85 (2007).

18

aware that, under the licensing agreement,

those disputes, if litigated, would be

adjudicated in accordance with French law by

a court in France. Petitioner was delivered

court papers written in French, first by a U.S.

Marshal, then subsequently on two occasions

by process servers from Process Forwarding

International (the entity selected by the

Department of Justice to carry out service in

the United States under the Hague

Convention), all in an effort to notify it of the

commencement of the French proceeding.

Id. at 6a.

Due process requires notice that is reasonably

calculated to apprise a party of the pendency of a lawsuit

and to afford that party the opportunity to present their

objections. Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 314, 70 S.Ct. 652, 656, 94 L.Ed. 865

(1950). It does not, as Petitioner argues, require

pinpoint compliance with applicable service rules.

See, e.g., Koehler, supara, 2004 WL 444101, at p.*15.

Thus, service that provides the notice contemplated by

Mullane but does not strictly comply with the Hague

Convention still affords due process. See, e.g., Burda

Media, Inc., 417 F.3d at 302; Koehler, supra, 2004 WL

444101, at p.* 15; Overseas Food Trading, Ltd. v. Agro

Aceitunera S.A., No. 06-800, 2007 WL 77337 at * :

(D.N.J. Jan. 8, 2007) (strict compliance with Hague

Convention unnecessary where defendant received

19

actual notice and plaintiff made good faith effort to serve

in accordance with Hague Convention). *

Moreover, where, as here, there is no dispute that

the defendant actually received the pleadings, service

is generally deemed proper under traditional notions of

due process, even if governed by the Hague Convention.

See Burda Media, Inc., supra; In Re South African

Apartheid Litigation, 643 F. Supp.2d 423, 432 (S.D.N-Y.

2009); Resource Trade Finance, Inc. v. PMI Alloys,

LLC, No. 99 civ 5156, 2002 WL 1836818, at p. *4 (S.D.N-Y.

August 12, 2002); Vazquez v. Sund Emba AB, 152

A.D.2d 389, 397, 548 N.Y.S.2d 728, 732-33 (N.Y. App. Div.,

2d Dept. 1989); Greene vu. Le Dorze, No. CA 3-96-CV-

590-R, 1998 WL 1586382, at *4 (N.D.Tex. Mar.24, 1998)

(failure to comply strictly with Hague Convention is not

automatically fatal to effective service) (emphasis in

original); For v. Regie Nationale des Usines Renault,

103 EFLR.D. 458, 455 (W.D.Tenn.1984) (same); Overseas

Food Trading, Ltd., supra.

* As the circuit courts have noted, and the lower

courts’ decisions demonstrate, “whether a particular method

of notice is reasonable depends on the particular [factual]

circumstances.” Matter of Faden, 96 F.3d 792, 796 (5th Cir. 1996)

(quoting Tulsa Professional Collection Services Inc. v. Pope,

485 U.S. 478, 484, 108 S.Ct. 1340, 1344 (1988). Those factual

findings should not be disturbed on review unless they are

“clearly erroneous.” See, e.g., /cicle Seafoods, Inc. v. Worthington,

475 U.S. 709, 106 S.Ct. 1527 (1986) (Facts necessary to proper

determination of legal question should be reviewed by courts

of appeals pursuant to “clearly erroneous” standard of review),

Petitioner does not argue that the lower courts’ factual findings

were “clearly erroneous.”

20

Applying these principles to the case at bar, itis clear

that Petitioner has no legitimate challenge to the lower

courts’ factual finding that service complied with due

process notwithstanding service of the writs in French.

Petitioner does not claim that it did not know that a

French Proceeding had been instituted ayainst it.

Petitioner does not claim that none of its employees

speak I’rench or that it could not have easily ascertained

that the three French Writs were the lawsuits Galliano

previously had threatened (in English). All the French

Writs prominently contained the words “Galliano” and

“Stallion”, along with references to $187,500, the precise

figure demanded in the English language letter of

Galliano’s attorneys.

The record also shows that on four separate

occasions, a process server, one of whom was a

uniformed United States Marshal, visited Petitioner’s

principal place of business and handed French legal

papers — the French Writs and French Judgment — to

three different employees of Petitioner, none of whom

denies receiving them. Petitioner’s principal also does

not deny knowing that Galliano had commenced suit in

France.

Ignoring these undisputed facts, Petitioner argues

that it is necessarily a due process violation for an

American entity to be served foreign legal documents

written in the language of the contractually-agreed

foreign court. No Court has ever adopted so expansive

and radical a rule. To the contrary, courts have routinely

upheld service of documents written in a language not

understood by its recipients where the attendant

circumstances trigger a “duty of further inquiry.”

Soberal-Perez v. Heckler, 117 b2d 86 (2d Cir, 1983) cert

den'd 466 U.S. 929, 104S.C1L. 17138 (1984) (service of notice

from Department of Health and Human Services

reyarding plaintiff's eligibility for certain benefits does

not violate due process where Spanish-speaking plaintiff

does not speak English, the language in which the

notices were served) (citing Commonwealth v. Olivo, 369

Mass. 62, 69, 337 N.fe.2d 904, 909 (Mass. 1975) (service

of documents constitutes “actual notice” even though

Spanish speaking plaintiff did not understand [nylish,

the language in which documents were served, because

service triggered a “duty of further inquiry” as to nature

of documents served)); Tahan v. Hodgson, 662 F.2d #62,

865 (D.C. Cir, 1981) (recognizing judgment obtained in

Israel even though defendant had been served in Israel

in Hebrew, concluding that “[el]ven if the defendant were

unable to read Hebrew, he should have surmised that

the papers being served upon him were legal in nature,

and that he could ignore them only at his peril.”).

The lower courts said the same of Petitioner,

Petitioner was engaged in an ongoing dispute with

Galliano governed by a contract requiring resolution of

the dispute in France. No reasonable construction of the

largely undisputed facts supports an argument that

Petitioner did not receive actual and timely notice of

the filing of suit in France. Petitioner’s efforts to

distinguish this case from Burda, supra, the precedent

relied upon by the Appellate Division, miss the mark.

In burda, the Second Circuit held that due process

concerns were alleviated by “service of process by

personal delivery through the French authorities.”

A417 I.3d at 308. The Court in Burda was concerned with

actual notice. /d. Petitioner still does not deny actual

=

notice of the commencement of suit in France, and both

the Appellate Division and the New York State Court of

Appeals found no reason to question Petitioner’s actual

notice. The Petition provides no cogent reason to

overturn these unanimous rulings.

III. The United States Does Not Require Translation

of Documents Served Under the Hague

Convention

On its face, the Hague Convention never requires

service of translated documents. The purpose of the

Hague Convention is to facilitate service of process

abroad by simplifying and expediting the procedures

for such service, and to assure defendants of adequate

notice that a foreign proceeding has commenced.

Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S.

694, 699-708, 108 S. Ct. 2104, 2108-2110 (1988).

In furtherance of this purpose, each signatory nation is

required to designate a Central Authority to serve

judicial documents requested by a signatory’s courts.

In the United States, the DOJ is the Central Authority,

and it delegated process-serving responsibilities

first to the United States Marshal’s Service and

subsequently to a private process serving firm.

Far from dictating the specific methods by which

international service must be effected, Article 5 of the

Hague Convention allows service in the following three

ways:

(a) by amethod prescribed by its internal laws

for the service of documents in domestic

actions upon persons who are within its

territory, or

23

(b) by a particular method requested by the

applicant, unless such a method is

incompatible with the law of the State

addressed,

Subject to paragraph (b) of the first

paragraph of this article, documents may

always be served by delivery to an addressee

who accepts it voluntarily (also known as

“informal service” or “voluntary acceptance”).

R. 175. See 20 U.S.T. 361 (1969).

Article 5 of the Hague Convention specifically

addresses translation of documents only as follows:

If the document is to be served under the first

paragraph above, the Central Authority may

require the document to be written in, or

translated into, the official languages of the

State addressed.

Id. (emphasis added).° The discretionary “may” in the

translation provision of Article 5 does not require

translation unless the Hague Convention signatory

expressly requires it. See, e.g., Northrup King Co. v.

Compania Productora Semillas Algodoneras Selectas,

S.A., 51 F.3d 1383, 13889 (8th Cir. 1995); Zelasko v.

Comerio, No. 08-366-MJR, 2008 WL 2755463 at p. * 2

° The reference to the “first paragraph above” is to

subparagraphs (a) and (b) of Article 5. The paragraph beneath

those provisions ts commonly referred to as the “second

paragraph” of Article 5.

24

(S.D. Tl. July 14, 2008); Vazquez, 152 A.D.2d at 397, 548

N.Y.S.2d at 732-33.

A. Translation is Never Required Where Service

is Made Through Article 5(2) of trae Hague

Convention

Translation of documents served under the second

paragraph of Article 5 of the Hague Convention is never

required. See Vazquez, supra, 152 A.D.2d at 397, 548

N.Y.S.2d at 732-33 (“[TJhe convention provides no right

to require translation of a document where service

is made by the Central Authority by a particular

method requested by the applicant pursuant to article

5(b). .. .”) (internal quotations and citations omitted).

Petitioner does not dispute this.

The second paragraph of Article 5 of the Hague

Convention permits service upon an addressee who

“voluntarily accepts” the papers as long as such method

is compatible with the law of the State addressed. Here,

service was indisputably requested pursuant to Article

5(2) and the courts below found that the facts established

that Petitioner’s receptionists voluntarily accepted

service of the papers. See Decision of the Trial Court,

Appendix C, at p. 19a; Appellate Division Decision,

Appendix B, at p. 10a. This finding was in accord with

well-settled New York statutory precedent. In fact,

Petitioner adduced no evidence whatsoever that its

employees refused to accept service. See Greenfield v.

Suzuki Motor Co., Ltd., 776 F. Supp. 698 (E.D.N.Y. 1991)

where the Court found thai, as here, “there was not. any

rejection of service by defendant to indicate that service

was not voluntarily.” See also Arbitron, Inc. v. Marathon

Or

awd

Media, LLC, No. 07 Civ.2099, 2008 WL 892365, at p. * 3

(S.D.N.Y. Apr. 1, 2008); Kastman Kodak Co. v. Miller &

Miller Consulting Actuaries, Inc., 195 A.D.2d 591, 592,

601 N.Y.S.2d 10 (N.Y. App. Div., 2d Dept. 1993); Psathas

v. Catskill Regional Off-Track Betting Corporation, 173

A.D.2d 1070, 1071, 570 N.Y.S.2d 407, 408 (N.Y. App. Div.,

3d Dept. 1991).

Petitioner asks this Court to determine that

translation is required where documents are served

under the first paragraph of Article 5(1). There is no

need to reach this issue given the clear evidence that

service was effectuated upon Petitioner through the

second paragraph of Article 5 of the Hague Convention

where, undisputedly, translation may never be

required."

B. The United States Dees Not Require

Translations of Pleadings Served Through

Article 5(1) of the Hague Convention

The United States does not require translation even

when service is made through Article 5(1) of the Hague

Convention. Service, as deseribed in the affidavits of

the process servers, also satisfies the requirements of

Article 5(1).

As above, Article 5(1) merely authorizes a treaty

signatory to require translation. It contains no treaty

obligation to translate. Where the Hague Convention

0 The claim that the French pleadings were “thrust” in

the hands of its “support staff” is not supported in the Record,

and is made for the first time in the Petition.

26

gives signatories the authority to opt out of a treaty

obligation, or to impose a local requirement, these

decisions will be evidenced in the signatory’s official

Declarations in the Record (“an Official Declaration”)

appended to the Hague Convention. See, e.g., Ackerman

v. Levine, 788 F.2d 830, 840 (2d Cir. 1986) (whether

plaintiff violated F.R.C.P 4 by effectuating service by

mail was irrelevant since “the United States has made

no declaration or limitation to its ratification of the

Convention regarding Federal Rule 4”). Signatories

wishing to make clear that they require translation of

documents served under the first paragraph of Article

5 do so by publishing an Official Declaration, which

becomes part of the treaty itself. Although the United

States has issued Official Declarations to the Hague

Convention on other topics, the treaty contains no

Official Declaration by the United States requiring

translation."

Recognizing this, and the equal lack of a statute or

DOJ regulation requiring translation, Petitioner seeks

to cobble together a United States translation

requirement from documents it claims to have obtained

" Other signatories to the Hague Convention express their

decision to require translated documents in this way. For

example, Germany (“Formal service [Paragraph 1 of Article 5

of the Convention] shall be permissible only if the document to

be served is written in, or translated into the German

language”) and Sweden (“By virtue of the third paragraph of

Article 5 of the Convention, the Central Authority requires that

any document to be served under the first paragraph of the

same article must be written in or translated into Swedish.”)

have both issued Official Declarations making clear their

translation requirements.

27

primarily through a FOIA request. Among these are (a)

an unofficial response by a DOJ employee to a

questionnaire from the Hague Convention treating a

wide variety of issues (posted on a website of the Hague

Convention), (b) two letters from a DOJ official to third

parties, and (c) an unsigned “Circular Note” from

Secretary of State Colin Powell’s office to the “chiefs of

the mission in the United States.”

Merely examining these documents should be

sufficient to demonstrate that none of them remotely

have the force of law. Every court below has rejected

Petitioner’s attempt to impute to them any persuasive

value at all. None purports to be an official act or

pronouncement of the United States, let alone a rule,

regulation or statute that would carry the weight of law.

See Christensen v. Harris County, 529 U.S. 576, 587,

1208. Ct. 1655, 1663 (2000) (opinion letters from agency

officials do not amount to law or rule making). No foreign

litigant, deciding how to seek service of a foreign court

document on a United States party, would ever make a

FOIA request to discern U.S. law on translation, and

even if a litigant was to find Petitioner’s FOIA

docuinents, the litigant would not conclude that any of

Petitioner’s documents are authoritative. The litigant

would look to the text of the Hague Convention itself

and the Official Declarations of the United States, as its

signatories intended, and would find no United States

translation requirement.

The cases cited by Petitioner for the proposition that

English translation is required under the Hague

Convention all involve service of United States court

papers in nations that have made a formal declaration

9Q

ae (

that translation is required. See, e.g., Johnson v. Pfizer,

Inc., No. 990118821, 2002 WL 1041984 at *1, 4 (Conn.

Super. Ct. April 26, 2002) (service of English language

papers in Sweden improper where Sweden’s declaration

on Hague Convention requires translation into Swedish);

Ward v. Ludwig, 149 Ohio App. 3d 687, 778 N.E.2d 650

(Ohio App., 4th Dist. 2002) (service of English language

papers in Germany improper where Germany’s

declaration on the Hague Convention requires

translation into German): Lasky v. Cont’l Prods. Corp.,

97 FE. R.D. 717 (E.D.Pa 1983) (service of English language

papers in Germany improper where Germany’s

declaration on the Hague Convention requires

translation into German). These cases are all wholly

inapposite to the facts presented here.” Petitioner has

not cited a single decision interpreting the Hague

Convention or the United States Official Declarations

thereto to require that service of foreign court

documents in the United States, especially on a United

States party who has contractually agreed to litigate

abroad, must be accompanied by an English translation.

'2 So too is Petitioner’s claim, made for the first time in the

Petition, that the doctrine of comity precludes recognition of

the French Judgment because France requires translation.

Frances translation requirement — expressed in an Official

Declaration to the Hague Convention - is irrelevant to the

question of what the United States requires.

29

CONCLUSION

Petitioner has not provided a single compelling

reason for this Court to grant its Petition for a Writ of

Certiorart. Accordingly, the Petition for a Writ of

Certiorart should be denied.

Respectfully submitted,

TED PORETZ

Counsel of Record

Houiy F Roum

EXLLENOFF GROSSMAN & SCHOLE LLP

150 East 42™ Street, 11° Floor

New York, New York 10017

(212) 370-1300

tporetz@egsllp.com

Attorneys for Respondent