Till S. DERR; Kai Derr; Katja Derr; Margret Derr, Plaintiffs-Appellants, v. Thomas L. SWAREK; Thomas Anthony Swarek, Defendants-Appellees.
No. 13-60904.
United States Court of Appeals, Fifth Circuit.
Sept. 9, 2014.
767 F.3d 430
We reach the same conclusion with respect to Howard‘s overbreadth challenge. Here, Howard has not shown that, viewing the evidence in the light most favorable to the prosecution, he was engaged in protected speech. The judge, sitting as trier of fact, found that he knowingly attempted to persuade minors to engage in illegal sex acts. As thе Sixth and Eleventh Circuits have observed, “[s]peech attempting to arrange the sexual abuse of children is no more constitutionally protected than speech attempting to arrange any other type of crime.” United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004); see also Ferber, 458 U.S. at 764, 102 S.Ct. 3348 (“When a definable class of material ... bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment.“). Thus, we agree with our sister circuits and hold that
IV. CONCLUSION
For the foregoing reasons, we AFFIRM.
John C. Henegan, Esq., Paul Michael Ellis, Lee Davis Thames, Benjamin McRae Watson, Butler Snow, L.L.P., Ridgeland, MS, for Defendants-Appellees.
Before DAVIS, SMITH, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Thomas L. Swarek and Thomas Anthony Swarek (“the Swareks“) sued Herman Derr (“Derr“) and Derr Plantation, Inc. (“DPI“) in the Chancery Court of Issaquena County, Mississippi (“Chancery Court“), alleging that Derr and his corporation breached a contract for the sale of Mississiрpi farmland. Derr died while the action was pending and, after years of stagnation in the Chancery Court, Derr‘s wife and children—Till, Kai, Katja, and Margret Derr (“Derr Heirs” or “Heirs“)—sued the Swareks in the German Regional Court in Dusseldorf, Germany, seeking a declaratory judgment that they were not liable for any claims arising from the putative land contract. After the initiation of the German lawsuit but before the decision of the Regional Court, the Swareks dismissed all of their claims against Derr with prejudice and withdrew a pending motion to substitute the Derr Heirs in the Mississippi action. The German Regional Court dismissed the Derr Heirs’ claim but the German Higher Regional Court reversed. The German appellate court granted the Derr Heirs a declaratory judgment of non-liability and assessed the Swareks, as the losing party, nearly $300,000 in court costs. The Derr Heirs returned to Mississippi and attempted to enforce the German order for costs in federal district court. The district court refused to recognize the German judgment and the Derr Heirs appealed. For the reasons that follow, we affirm.
FACTS AND PROCEEDINGS
In February of 2005, the Swareks made an offer to DPI, a Mississippi corporation, and Derr, one of its principals, to lease and then purchase a large plot of farmland owned by DPI in Issaquena County, Mississippi. On February 15, 2005, the Swareks met with Derr in Germany and the parties signed a “Lease/Buy/Sell” agreement—Derr in both his corporate and individual capacities—that the Swareks contend constituted a binding contract for the lease and sale of the farmland. On March 1, 2005, the Swareks filed a complaint and lis pendens notice in the Chancery Court
Derr passed away in February of 2006. His counsel filed a suggestion of death on May 12, 2006, and the Swareks moved to substitute his estate on June 6, 2006. On DPI‘s motion, the case was stayed on June 4, 2008, until DPI‘s interlocutory appeal challenging the decision of the Chancery Court to transfer vеnue to the Circuit Court of Issaquena County could be resolved. On March 9, 2009, while the Mississippi litigation was stayed, the Derr Heirs filed a complaint in German Regional Court against the Swareks seeking a declaratory judgment that the Swareks had no claims against them arising from the Lease/Buy/Sell agreement signed by Derr. According to the complaint in the German action, Till Derr and Kai Derr, through a German parent corporation, became the sole shareholders of DPI.
On November 2, 2009, the Swareks filed a second motion to substitute with the Chancery Court, seeking to replace the estate of Herman Derr with the Derr Heirs. The same day, a supplemental motion to dismiss for lack of personal jurisdiction was filed on Derr‘s behalf. On May 10, 2010, the Swareks voluntarily dismissed with prejudice all of their claims against Derr in the Mississippi action and withdrew both of their still-pending motions to substitute for Derr his estate and the Derr Heirs.1
On August 31, 2010, the German Regional Court dismissed the Derr Heirs’ complaint for a declaratory judgment of non-liability. The Regional Court found that because the action in the Mississippi Chancery Court addressed the Heirs’ claims and must be recognized in Germany, the Heirs “lack[ed] the required legitimate interest in a declaratory judgment, but in any event lack[ed] the need for legal protection.” On appeal, the German Higher Regional Court reversed and awarded the Derr Heirs almost $300,000 in court costs as the prevailing party. The Higher Regional Court found that a declaratory judgment of non-liability was necessary because the Swareks’ dismissal of their claims against Derr “constitute[d] a unilateral statement,” which would not extinguish their claims under German law and which did not “provide the same legal protection as results from a negative declaratory cross-action.” The Higher Regional Court further held that the question of whether res judicata applied to the Swareks’ voluntary dismissal of their claims with prejudice against Derr in the Chancery Court could “remain open” because if the Swareks were to file another action against the Derr Heirs, the Heirs would be required to prove that res judicata barred the claim.
The Derr Heirs filed suit in federal district court to enforce the German judgment for costs. The district court refused to grant comity to the judgment of the German Higher Regional Court and granted the Swareks’ motion for judgment on the pleadings. The court found that the Derr Heirs’ liability had already been resolved by the Swareks’ dismissal with prejudice in the Chancery Court and, even if the dismissal was not effective, the purpose of the German litigation was to interfere with the Mississippi proceedings and
STANDARD OF REVIEW
“This Court reviews a district court‘s grant of judgment on the pleadings under
DISCUSSION
The district court refused to extend comity to the German judgment on two independent grounds. The court first ruled that the German judgment was unnecessary because the issue of the Derr Heirs’ liability under the Lease/Buy/Sell agreement had already been determined by the Swareks’ dismissal with prejudice of their claims against Derr. The court then held that even if the Swareks’ dismissal of claims against Derr did not preclude them from bringing a future action against the Derr Heirs, the Heirs’ purpose in initiating the German lawsuit was to interfere with the Mississippi litigation and the German Higher Regional Court should have left the issue to be resolved in the Chancery Court.3
Filing a mirror-image lawsuit in a foreign court while domestic litigation is
I. The mere initiation of a foreign parallel proceeding is not a ground upon which a court may refuse to enforce the resulting foreign judgment.
Judgments of a foreign country, unlike judgments of a sister state, are not entitled to the protection of full faith and credit under
In determining whether a foreign judgment is deserving of recognition, the Mississippi Supreme Court receives guidance from the Restatement (Second) of Conflict of Laws § 98. See Laskosky v. Laskosky, 504 So.2d 726, 729 (Miss.1987). The Restatement provides that a foreign judgment rendered by a court of competent jurisdiction will be enforced if
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 is sitting, or fraud in procuring the judgment....
Restatement (Second) of Conflict of Laws § 98(c) (1971) (quoting Hilton, 159 U.S. at 202, 16 S.Ct. 139). The Restatement references a number of enumerated defenses that can be asserted to oppose the enforcement of a foreign judgment. See id. § 98 cmt. g.4 Mississippi courts will also refuse
Although comity is not an “absolute obligation,” it is more than “mere courtesy and good will.” Hilton, 159 U.S. at 163-64, 16 S.Ct. 139. If an otherwise valid judgment is rendered in a foreign court, the merits of the case will not be re-litigated if “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.” Id. at 202-03, 16 S.Ct. 139; see also Somportex Ltd. v. Phila. Chewing Gum Corp., 453 F.2d 435, 440 (3rd Cir.1971) (“Comity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect.“). Because the exceptions to recognition of a valid foreign judgment are limited, the first question we must answer is whether the initiation of a parallel foreign lawsuit, without more, justifies declining comity to the resulting foreign judgment. It does not.
The district court, relying on Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909 (D.C.Cir.1984), held that because the purpose of the German litigation was to interfere with the Mississippi action, the German court should have deferred to the first-filed Chancery Court action. In Laker Airways, Laker, a British airliner, brought an antitrust suit under American law in the U.S. District Court for the District of Columbia against foreign and domestic defendants. Some of the foreign defendants sought and obtained an injunction from the United Kingdom‘s High Court of Justice prohibiting Laker from pursuing its antitrust claims in the United States court. Id. at 917-18. The district court then granted Laker‘s motion for an injunction preventing the United States defendants and two foreign defendants from obtaining the same relief in the British court. Id. at 918-19. The court of appeals upheld the district court‘s anti-suit injunction issued to protect its jurisdiction over Laker‘s claims. Id. at 930-31.
The Laker court, however, made clear that “parallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously, at least until a judgment is reached in one which can be pled as res judicata in the other.” Id. at 926-27. It distinguished the usual case of permissible parallel proceedings from the case at issue, finding it was “not a situation where two courts are proceeding to separate judgments simultaneously under one causе of action. Rather, the sole purpose of the English proceeding is to terminate the American action.” Laker Airways, 731 F.2d at 930. Here, the German litigation did not strip the Mississippi Chancery Court of jurisdiction over the Swareks’ claims. Both
But even if the Swareks could have enjoined the Derr Heirs from litigating their declaratory judgment action in Germany, they did not seek to do so.5 The Swareks point to no authority holding that the relevant considerations in enjoining parallel litigation are identical to those in recognizing a foreign judgment that has resulted after the foreign proceeding has been allowed to unfold. And it is clear that they are not. See Laker Airways, 731 F.2d at 928-29 (“[T]he possibility of an ‘embarrassing race to judgment’ or potentially inconsistent adjudications does not outweigh the respect and deference owed to independent foreign proceedings. The parallel proceeding rule applies only until a judgment is reached in one of the actions.” (footnotes omitted)). Even if the Derr Heirs instituted their declaratory suit in Germany for the purpose of obtaining a judgment before one could be reached in the Mississippi litigation, this “interference,” in the absence of a final judgment in the Chancery Court, does not fit within one of the narrow exceptions permitting a court to refuse comity to a valid foreign judgment. Accordingly, the district court‘s anti-suit injunction analysis cannot support its refusal to recognize the German judgment.
II. The Swareks’ unilateral dismissal with prejudice in the Mississippi litigation was a final judgment on the merits invoking a res judicata bar to re-asserting the dismissed claims against the Derr Heirs.
To uphold the district court‘s refusal to recognize the German judgment, then, the Swareks’ dismissal with prejudice of their claims against Derr in the Mississippi Chancery Court must have constituted a judgment barring a subsequent suit on the same claims against the Derr Heirs. The Swareks сontend, as they did in the German Higher Regional Court, that their voluntary dismissal with prejudice pursuant to
“Res judicata is a doctrine of claim preclusion.” Garcino v. Noel, 100 So.3d 470, 475 (Miss.Ct.App.2012). “[W]hen a court of competent jurisdiction adjudicates—that is, enters a final judgment on the merits of an action—the parties or their privies are precluded from re-litigating claims that were decided or could have been raised in that action.” Id. at 476 (internal quotation marks omitted). “For the bar of res judicata to apply in Mississippi there are four identities which must be present: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made.” Harrison v. Chandler-Sampson Ins., Inc., 891 So.2d 224, 232 (Miss.2005). “[T]he absence of any one of the elements is fatal to the defense of res judicata.” Id.
At first glance, the Derr Heirs’ conclusion that the Swareks’ dismissal lacked res judicata effect appears to be compelled by the requirements necessary to invoke the doctrine. A court that lacks jurisdiction over a defendant does not have the authority to address the merits of the case and must dismiss the action. Horne v. Mobile Area Water & Sewer Sys., 897 So.2d 972, 975 (Miss.2004). “[A] dismissal for want of jurisdiction has no preclusive effect and the same action subsequently may be brought in a court of competent jurisdiction.” Id. (internal quotation marks omitted). So in the ordinary case, a court‘s dismissal of claims against a defendant—even if purportedly rendered on the merits—would not bar re-litigation of those claims if the court did not have personal jurisdiction over the defendant.
But here it was not the Chancery Court that dismissed the Swareks’ claims against Derr, but the Swareks themselves.
That res judicata bars the Swareks’ claims against Derr does not end the inquiry into whether the Swareks were foreclosed from re-alleging the same claims in a subsequent action against the Derr Heirs. The Heirs maintain that they were not parties to the Mississippi litigation and, consequently, the Swareks’ dismissal had no effect on their potential liability for breach of the purported land contract. But this narrow view ignores that “strict identity of parties is not necessary for either res judicata or collateral estoppel to apply, if it can be shown that a nonparty stands in privity with the party in the prior action.” EMC Mortg. Corp. v. Carmichael, 17 So.3d 1087, 1090–91 (Miss.2009) (internal quotation marks omitted). “[P]rivity is a broad concept, which rеquires [the court] to look to the surrounding circumstances to determine whether claim preclusion is justified.” Id. at 1091 (internal quotation marks and alterations omitted). As relevant here, privies are “those who stand in mutual or successive relationship to the same [r]ights of property.” Clement v. R.L. Burns Corp., 373 So.2d 790, 794 (Miss.1979) (quoting Lipscomb v. Postell, 38 Miss. 476, 489 (Miss. Err. & App.1860)). It is clear that the Heirs are in privity with Derr. The alleged purpose of the Heirs’ German action was to protect them from the claims filed against Derr in the Mississippi litigation, which would affect them only as successors-in-interest to his property.9
Finally, although Derr passed away in 2006, the Chancery Court never acted on Derr‘s initial motion to dismiss or the Swareks’ timely motion to substitute his estate, so the Swareks’ claims against Derr were still pending at the time of the Swareks’ voluntary dismissal. See
III. The district court did not abuse its discretion by refusing comity to the German judgment that resulted from the German Higher Regional Court‘s own refusal to extend comity to the Mississippi judgment.
We now address the question of whether the district court abused its discretion by denying comity to the German judgment on the ground that the German Higher Regional Court ignored the Swareks’ dismissal with prejudice of the very claims upon which the Derr Heirs sought a declaratory judgment of non-liability. As relevant here, Mississippi provides for two exceptions to the general rule that a valid foreign judgment rendered by a foreign court of competent jurisdiction will be enforced domestically. Mississippi courts will not grant comity where doing so would “render meaningless substantial rights of the non-moving party,” Harrison, 700 So.2d at 250, or violate the public policy of the state, Restatement (Second) of Conflict of Laws § 98(g) (recognizing public policy exception). In this instance, the two inquiries merge. See C.I.T. Corp. v. Turner, 248 Miss. 517, 541, 157 So.2d 648 (Miss.1963) (“Public policy and the interest of litigants alike require that there be an end to litigation which, without the doctrine of res judicata, would be endless.“). Res judicata “is a doctrine of public policy designed to avoid the expense and vexation attending multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions.” Little v. V & G Welding Supply, Inc., 704 So.2d 1336, 1337 (Miss.1997) (quoting Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979)) (internal quotation marks omitted).
The German Higher Regional Court‘s failure to respect the Swareks’ dismissal with prejudice of their claims against Derr—and by the rule of privity, the Derr Heirs—violated Mississippi public policy and rendered meaningless the right of the Swareks to put an end to litigation of their claims. The German appellate court wholly ignored the res judicata issue, instead finding that the question could “remain open” because there was a possibility that the Swareks could pursue the identical claims against the Derr Heirs under German law in the future, in which case the Heirs would bear the burden of “proving” that the action was foreclosed. But this reasoning misunderstands the very purpose of according comity to foreign judgments. “[O]nce the parties have had an opportunity to present their cases fully and fairly before a [foreign] court of competent jurisdiction, the results of the litigation process should be final.” Int‘l Transactions, 347 F.3d at 593. The German appellate court‘s justification for pretermitting the res judicata question and re-litigating the very issues that had been decided in the Mississippi court leaves no place for comity at all. See Turner Entm‘t Co. v. Degeto Film GmbH, 25 F.3d 1512, 1521 (11th Cir.1994) (“While courts regularly permit parallel proceedings in an American court and a foreign court, once a judgment on the merits is reached in one of the cases, ... failure to defer to the judgment would have serious implications for the concerns of interna
The Derr Heirs’ corollary argument that the German Higher Regional Court was correct to apply German law and civil procedure to determine the Heirs’ liability in Germany similarly misses the mark. Uniformity of laws and procedural rules between the domestic and foreign states is not necessary for a final judgment in one forum to be respected in another. See Ohno v. Yasuma, 723 F.3d 984, 1005 (9th Cir.2013) (The comity determination “focus[es] on the fundamentals of the cause of action underlying the foreign judgment ... not the differences in the bodies of law or in the way in which remedies are afforded.“) (internal quotation marks omitted); see also Soc‘y of Lloyd‘s v. Turner, 303 F.3d 325, 332 (5th Cir.2002) (same, interpreting Texas law).10 The defect in the German appellate prоceedings was not the Higher Regional Court‘s application of German law and procedure to rule on the Heirs’ claim for a declaratory judgment, but its disregard of the binding dismissal with prejudice in the Mississippi litigation that obviated the need to entertain the duplicative action at all.
The Derr Heirs’ final argument is that they were not seeking to enforce the German Higher Regional Court‘s substantive judgment of non-liability in the Mississippi district court, but only its attendant order for costs. This attempt to separate the cost award from the underlying decision on liability is unpersuasive. German law provides for the award of costs to the prevailing party—the cost award does not exist independently of the underlying judgment. If the Derr Heirs had not obtained a declaratory judgment of non-liability on the identical claims that the Swareks had dismissed with prejudice nearly two years earlier, no order for costs would have issued.
The Swareks’ voluntary dismissal with prejudice in the Chancery Court operated as an adjudication on the merits under Mississippi law and thus already provided the Derr Heirs with the judgment of non-liability they were seeking in Germany. Had the German Higher Regional Court recognized the Mississippi judgment, it would have dismissed the Heirs’ redundant action—as the German trial court did—and the Swareks would not have been saddled with the costs of the unnecessary litigation. The German Higher Regional Court‘s decision to sidestep the comity determination and re-adjudicate claims that had already been settled in the Chancery Court violated the Mississippi public policy of res judicata and the Swareks’ right to
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
W. EUGENE DAVIS, Circuit Judge, concurring in part and dissenting in part:
I agree with my colleagues in the majority as to the conclusions set forth in Part I of their opinion. One litigant‘s initiation of a parallel lawsuit in a foreign country while a domestic lawsuit remains pending is not a basis on which a district court may deny comity to the resulting foreign judgment.1 I disagree, however, with Part III of the majority‘s opinion. I therefore do not reach the difficult question of first impression under Mississippi law addressed in the majority‘s Part II.2
As explained below, even if the Swareks’ voluntary dismissal of their contract claim “with prejudice” under
Accordingly, there is no conflict between the two purported final judgments in the present case. There is no recognized basis, therefore, on which to deny comity.3 For these reasons, I respectfully dissent.
I.
The majority explains that Mississippi courts would deny comity to the German judgment bеcause “[t]he German Higher Regional Court‘s failure to respect the Swareks’ dismissal with prejudice ... violated Mississippi public policy and rendered meaningless the right of the Swareks to put an end to litigation of their claims.” In support, the majority cites several general statements by Mississippi courts regarding the importance of the public policies underlying the doctrine of res judicata. The majority identifies no decisions by Mississippi courts, however, that have ever denied comity to a judgment based on a foreign court‘s “failure to respect” a res judicata decision rendered earlier in time by a Mississippi court. Nor does the majority identify any such decisions by the federal courts. Nor does the majority identify any such decisions by the courts of any other state in the United States.4
The majority‘s “failure to respect” rationale bears some resemblance to a well-recognized exception to the doctrine of comity. This exception is applicable in cases where a foreign judgment “conflicts with another final judgment.”5 Certainly, аs the Eleventh Circuit explained in one of the cases cited favorably by the majority, “attempts to enforce conflicting judgments raise major concerns of international comi
It is possible, therefore, that Mississippi‘s public policy does require denial of enforcement to a foreign judgment that “conflicts” with a final judgment rendered earlier in time9 by a Mississippi court. Even if this is correct, however, there is no such conflict between the German judgment and the Swareks’
II.
Roughly three pages of the German Higher Regional Court‘s ruling address the substantive merits of the Swareks’ contract claim against Derr and the Derr Heirs.10 From this, we can plainly see that the German Higher Regional Court did not conclude that the Swareks’ contract claim was extinguished by the
Had the German Higher Regional Court ruled on the basis of res judicata, the result would have been identical. That is, the Swareks would have recovered no damages nor received any other relief on their contractual claims, and the Derr Heirs would have been awarded costs under German law as the successful parties. Accordingly, even though the German
The absence of any conflict is demonstrated, in particular, by two aspects of the German Higher Regional Court‘s reasoning. First, as the majority acknowledges, the German Higher Regional Court explicitly pretermitted the applicability of res judicata. In its written opinion, the German Higher Regional Court explained that the question of whether the Swareks’ voluntary “withdrawal of the complaint” gave rise to “a procedural preclusion (‘res judicata‘) ... c[ould] remain open.”13 Logically, if there were an actual conflict between the proposed res judicata outcome of the
Second, as the German Higher Regional Court also stated explicitly, costs would have accrued even if the doctrine of res judicata had been the basis of the German judgment. According to the German Higher Regional Court, “[e]ven if” the Swareks’ voluntary dismissal had res judicata effect, the Derr Heirs would nonetheless “be required to prove that the res judicata effect extend[ed] to them” in “the event of an action filed against them” and “any ambiguity w[ould] be resolved at their expense.”16 As this explanation demonstrates, even a result predicated on res judicata would have given rise to costs in the German litigation. The record presents no reason to think that such costs would not also form the basis for a costs award under § 91(1) of the German Code of Civil Procedure.17
Indeed, as has often been explained by the Second, Sixth, and District of Columbia Circuits, after “a judgment is reached” in one of two “[p]arallel рroceedings in the same in personam claim,” the first forum‘s judgment must then be “pled as res judicata in the other.”18 These statements explicitly contemplate at least one more stage of litigation in the second forum even after final judgment has been rendered in the first forum—the post-judgment proceeding in which the parties’ arguments regarding res judicata are asserted and considered. The doctrine of res judicata does not obligate the second forum to forgive the costs that would ordinarily accrue during this post-judgment litigation. Nor does the doctrine of res judicata obligate the second forum to immediately stop its work sua sponte so that no further litigation costs will accrue against the unsuccessful litigant.
Nor would there seem to be any obligation, in the present case, for the German courts to forgive those costs that had already accrued before the Swareks’
I therefore do not understand the majority‘s conclusion that “[i]f the Derr Heirs had not obtained a declaratory judgment of non-liability on the identical claims that the Swareks had dismissed with prejudice nearly two years earlier, no order for costs would have issued.” On the contrary, costs apparently would have accrued anyway during post-judgment litigation when the
Accordingly, as is evident from the written opinion of the German Higher Regional Court, such costs would have been awarded against the Swareks under § 91(1) of the German Code of Civil Proce
III.
As explained above, even if the Mississippi doctrine of res judicata had been applied in the German court precisely as the Swareks now articulate that doctrine, we would still be faced with a German declaratory judgment awarding no damages to the Swareks and awarding costs to the Derr Heirs. Only the reasoning of the declaratory judgment would be different.
At most, therefore, all that can be said is that the German Higher Regional Court did not apply Mississippi law on claim preclusion when it proceeded to analyze the merits of the Swareks’ contract claim. This was not necessarily even legal error. There are also courts in the United States that have applied the claim preclusion rules of the enforcement forum rather than those of the rendering forum when faced with enforcing a foreign country‘s judgment.21 In any event, even if the German Higher Regional Court‘s costs award were predicated on a legal error, such error would not affect this case. Under Hilton v. Guyot, 159 U.S. 113, 202-03, 16 S.Ct. 139, 40 L.Ed. 95 (1895), the Restatement (Second) of Conflict of Laws § 98, and numerous other federal and state authorities, a foreign court‘s “error of law” is not a sufficient reason to deny comity to a foreign judgment.22
In summary, the majority‘s interpretation of the public policy exception to the doctrine of comity is unsupported by Mississippi law or by any other authorities identified during these proceedings. This interpretation denies enforcement to a judgment that was evidently rendered by “a court of competent jurisdiction ... under a system of jurisprudence likely to secure an impartial administration of justice” absent any indication of “prejudice in the court ... or fraud in procuring the judgment.”23 The majority‘s interpretation recognizes, apparently for the first time, a broad exception to the doctrine of comity where a foreign court “fail[s] to respect” a rеs judicata decision rendered earlier in time by a Mississippi court, even where the two resulting judgments are not in conflict with one another.
For these reasons, I would reverse the district court‘s order granting the Swareks’ motion for judgment on the pleadings. Accordingly, I respectfully dissent.
Notes
(2) A court in the United States need not recognize a judgment of the court of a foreign state if:
(a) the court that rendered the judgment did not have jurisdiction of the subject matter of the action;
(b) the defendant did not receive notice of the proceedings in sufficient time to enable him to defend;
(c) the judgment was obtained by fraud;
(d) the cause of action on which the judgment was based, or the judgment itself, is repugnant to the public policy of the United States or of the State where recognition is sought;
(e) the judgment conflicts with another final judgment that is entitled to recognition; or
(f) the proceeding in the foreign court was contrary to an agreement between the parties to submit the controversy on which the judgment is based to another forum.
Restatement (Third) of Foreign Relations Law of the United States § 482(2) (1987). Indeed, some authorities suggest that courts have discretion to enforce the later-in-time judgment. See Koehler v. Bank of Bermuda Ltd., No. M18-302, 2004 WL 444101, at *17 (S.D.N.Y. Mar. 10, 2004) (“If ... there is a conflict between the Arizona judgment and the Bermuda Declaratory Judgment that is material to recognition analysis, the 2001 Bermuda Declaratory Judgment must be preferred over the 1994 Arizona judgment of dismissal because it is latest in time.“); Ambatielos v. Found. Co., 203 Misc. 470, 116 N.Y.S.2d 641, 648 (N.Y.Sup.Ct.1952) (“Where, as here, the party against whom enforcement is sought had full opportunity in the second action to argue the binding force of the earlier judgment, there is every reason for applying the [last-in-time] rule to inconsistent judgments rendered by the tribunals of foreign nations.“); see also Byblos Bank Europe, S.A. v. Sekerbank Turk Anonym Syrketi, 10 N.Y.3d 243, 855 N.Y.S.2d 427, 885 N.E.2d 191, 193-94 (2008) (“The last-in-time rule, apрlicable in resolving conflicting sister state judgments under the Full Faith and Credit Clause of the Constitution ... need not be mechanically applied when inconsistent foreign country judgments exist.” (citations omitted)).