Default Judgment Research Articles

Case Note: Hubei Gezhouba Sanlian Indus Co v Robinson Helicopter Co

I. Background to the CaseOn March 29, 2011, the United States (US) Court of Appeals for the Ninth Circuit (the Ninth Circuit Court) affirmed the judgment of the United States District Court for the Central District of California (the District Court) in the case of Hubei Gezhouba Sanlian Indus Co v Robinson Helicopter Co1 That decision recognised the judgment of the High People's Court of Hubei Province of China (the Hubei High Court) in favour of Hubei Gezhouba Sanlian Indus Co (Sanlian) and Hubei Pinghu Cruise Co, Ltd (Pinghu) against Robinson Helicopter Co (Robinson), a Californian corporation.The case resulted from a helicopter accident in 1994 in which three people died and multiple damages occurred. The helicopter was manufactured by Robinson, owned by Sanlian and operated by Pinghu. In March 1995, Sanlian and Pinghu sued Robinson in the Los Angeles Superior Court for damages based on theories of negligence, strict liability and breach of implied warranty. On November 8, 1995, the action in the Los Angeles Superior Court was stayed in favour of a Chinese forum subject to forum non conveniens (FNC). Robinson agreed to submit to the jurisdiction of the appropriate court in China, to toll the statute of limitations during the pendency of the California State action, and to abide by any final judgment rendered in China.After the case was first stayed on FNC grounds, the plaintiffs' action in the Hubei High Court was dismissed in December 1995 on the grounds that the purchase agreement for the helicopter contained a provision requiring arbitration. Then Sanlian and Pinghu filed a motion to have the stay lifted on the grounds of no tribunal available in China. After several motions and appeals, the Los Angeles Superior Court finally ruled the stay remains in effect on 27 January 1998. Then Sanlian and Pinghu had to initiate arbitration proceedings against Robinson in the International Court of Arbitration of the International Chamber of Commerce (ICC). In 2000, the arbitral tribunal ruled that it lacked jurisdiction because no valid arbitration agreement existed between the two Chinese companies and Robinson. Subsequently, the plaintiffs re-filed an action in the Hubei High Court in 2001. In 2004, that Court issued a default judgment in favour of the plaintiffs. In 2006, Sanlian and Pinghu filed their complaint against Robinson in the District Court requesting enforcement of the Chinese judgment.In 2007, the District Court denied the plaintiffs' motion for summary judgment and granted a summary judgment in favour of Robinson on the grounds that the statute of limitations had expired before the Chinese lawsuit was filed. That decision was denied by the Ninth Circuit Court in 2008. The case was reversed and remanded. In 2009, the District Court issued a judgment in favor of the plaintiffs (the 2009 judgment).2 The defendant Robinson appealed to the Ninth Circuit Court. In 2011, The Ninth Circuit Court affirmed the judgment of the District Court (the 2011 judgment).II. Main Issues in SanlianThe case had undergone some complicated arbitration and litigation proceedings. In recognition and enforcement of the Chinese judgment, the District Court in the 2009 judgment mainly addressed four issues: (i) the statute of limitations; (ii) service of process; (iii) finality, conclusiveness and enforceability of the Chinese judgment; and (iv) non-recognition grounds in California's Uniform Foreign- Money Judgments Recognition Act (UFMJRA).3The first issue was the statute of limitation. Robinson argued that it agreed to toll the statute of limitations for the period beginning on the date that the plaintiffs filed their complaint in the California State court action, and ending on the date that the California State court action was finally dismissed. The District Court firstly granted Summary Judgment in favour of defendant on the grounds that the statute of limitations had expired before the Chinese lawsuit was filed. …

Rubin v. Eurofinance SA (U.K. Sup. Ct.)

In October 2012, the United Kingdom Supreme Court (the Court), by a 4-1 majority, signaled a sweeping return to a more traditional approach to the enforceability of foreign judgments in avoidance in Rubin v. Eurofinance SA. The Court rejected the more liberal rule previously advocated by the Court of Appeal, which gave English courts discretion to allow enforcement of in personam judgments in avoidance where they were related to insolvency and bankruptcy proceedings. The central issue in Rubin v. Eurofinance was whether an in personam judgment, entered in default but made as part of, or pursuant to, insolvency or bankruptcy proceedings abroad could be enforced at English common law. The Court held that the American default judgment at issue in Rubin was not enforceable in English courts.

Litigation with Default Judgments

In a model of pretrial bargaining under asymmetric information, we analyze the defendant’s threat to proceed to trial in the face of a rejected offer. The incidence of trial is lower when the defendant’s constraint is binding compared with the unconstrained case. The signs of some of the comparative statics of the model are a function of whether or not the defendant’s credibility constraint is binding. In particular, fee shifting has no effect on the incidence of trial when the credibility constraint is not binding, but has an ambiguous effect when the constraint is binding. In this latter case, the use of fee shifting will lower the incidence of trial if and only if the plaintiff expects to shifts fees on net to the defendant.

Problematic Qualification Aspects of the Avoidance to Maintain a Child and Alternative Ways of Child Maintenance

The article analyzes one of the fundamental rights – the right to maintenance, which proper implementation ensures normal development of the child. This right matches with the duty of parents to maintain their minor children. Paragraph 6 of Article 38 of the Constitution of the Republic of Lithuania states that parents have a duty to educate their children to be honest people and loyal citizens, supporting them until adulthood. The obligation to maintain children is established in the first 3.192 Article paragraph of the Civil Code of the Republic of Lithuania, and the responsibility for avoiding to maintain a child is provided in Article 164 of the Criminal Code. The article discusses the fact that the analysis of criminal law rate is not precise enough. Article 164 of the Criminal Code does not match with the child maintenance methods specified in the CC Article 3.196 paragraph 1. Since criminal liability is only for judgment in default in civil cases, a person shall only be liable for breaking the right to maintain a child, provided in the CC 3.196 paragraph 1. This article deeply analyzes the problematic qualification aspects of the avoidance to maintain a child. Some alternative ways of child maintenance are mentioned, as can be chosen from other law instruments (bailiffs, Guarantee child support fund) and it leads to the ultima ratio principle. On the other hand, it is not required to seek alternative remedies for affected interests, and it is possible to initiate a pre-trial investigation. Therefore, this article seeks to identify specific civil and criminal law rules delimitation. Avoidance of child maintenance is an ongoing crime. The main problem in legal practice is to determine an end of this ongoing criminal conduct. The practice of the Supreme Court of Lithuania is not unanimous. In some cases, the end of this ongoing conduct is considered to be a moment when the past judgment has entered into force, in other cases – the moment of indictment. These positions are criticized by many authors and it is suggested to follow the Supreme Court’s practice, according to which the moment when a judgment of conviction for the criminal act is passed should be considered as an end of an ongoing criminal conduct.

Overview: Economic and Safety Regulation

The Supreme Court decided 15 cases involving economic and safety regulation in the 2011-12 legal year. Two cases involved commercial disputes. In Rainy Sky SA and others v Kookmin Bank,1 the Supreme Court reviewed principles of contract interpretation. In weighing two possible constructions of an ambiguous provision in a commercial contract, the SupremeCourt reinforced the principle that it is generally appropriate to choose the interpretation that is consistent with `business common sense'. Thus, to determine what the parties intended contract language to mean, courts may look to the commercial purpose of the agreement. In SerVaas Incorporated v Rafidian Bank and others,2 the Supreme Court addressed the scope of the commercial activity exception to sovereign immunity. According to a UK-wide statute, judgments may be enforced against state property that is `in use or intended for use for commercial purposes'.3 SerVaas obtained a default judgment in France against the Iraqi government in connection with a commercial contract and sought to enforce the judgment in England through a third party debt order over funds Rafidian Bank owed to Iraq. The Iraqi government argued successfully that the funds did not fall into the commercial activity exception because it did not intend to use Rafidian's funds for any commercial purpose. The Supreme Court observed that the origins of the underlying debt were irrelevant in determining whether the funds were `in use' for commercial purposes. The Supreme Court issued six decisions related to employment law, including three regarding workplace discrimination. In Russell and others v Transocean International Resources Limited and others,4 the Supreme Court examined whether the Working Time Regulations 1998 required that offshore workers in the oil and gas industry receive additional paid leave. Offshore employees generally alternate between two weeks working offshore and two weeks of onshore leave and

The 'Sophisticated Judge' Standard: A New Approach to Judicial Deception Under the Fair Debt Collection Practices Act

The goal of a plaintiff seeking a default judgment in a debt collection suit is to convince the judge that the alleged debt is valid and owed, and therefore there is nothing for the judge to do but enter a judgment in favor of the debt collector. Unfortunately, some debt collectors take it too far. A serious problem arises when questionable tactics are used; in particular, the submission of misleading and deceptive documents in an effort to deceive the court. Although the Fair Debt Collection Practices Act (FDCPA) is meant to protect consumers from deceptive practices of debt collectors, the Seventh Circuit has recently held that the FDCPA does not extend to communications directed at judges. This article examines the background of the FDCPA and its application in the Seventh Circuit's recent decision in O'Rourke v. Palisades Acquisition XVI. It will argue that, contrary to the majority‘s holding in O'Rourke, Section 1692e of the FDCPA should cover communications provided to a judge. The article explains the necessity of a new alternative, the 'sophisticated judge' standard, to cover these types of misleading and deceptive representations. Finally, the article proposes that the 'sophisticated judge' standard could allow judges hearing FDCPA suits to view the issue of deception as a question of law, rather than a question of fact - thus, extrinsic evidence would not be needed to overcome a defendant‘s motion for summary judgment.

Judgment by failure to appear

The paper addresses the judgment by failure to appear, which was reintroduced by the new Law on Civil Procedure in 2011. An evolution of this type of judgment is shown, in particular the fact that the 2004 law abolished the judgment by failure to appear in general civil procedure, whereas the default judgment was introduced. In our new Law on Civil Action (ZPP), both institutes are kept. A common result - effect of these judgments is dealt with. Both failure of the defendant/respondent to appear and to file a pleading has as a consequence entering a judgment by which the claim of plaintiff is sustained. The paper analyses comparative legal solutions as well as the (evolution of) domestic theory and practice.

A Bunny's Tale: The Impact of a Playboy Playmate on Federal Jurisdiction

In this article, Professor Ralph Whitten tells you everything you always wanted to know (and then some) about Marshall v. Marshall, now pending in the United States Supreme Court. The article discusses the nuances of bankruptcy jurisdiction and the probate exception to federal jurisdiction arising in Anna Nicole Smith’s bankruptcy proceeding. Anna Nicole Smith was a model and celebrity who married oil tycoon J. Howard Marshall in 1994. Almost immediately after her husband died the next year, she and her much older step-son, E. Pierce Marshall, became embroiled in litigation over her right to inherit half of an estate with an estimated value of $1.6 billion dollars. While the Texas probate proceedings were pending, Anna filed bankruptcy in California in 1996 after a default judgment for $83'8000 was entered against her in a suit brought by her former nanny, Marira Antonia Cerrato alleging sexual harassment.

Repugnant Foreign Judgments

I am between flights at Dallas-Ft. Worth Airport, sitting on a comfortable chair outside of Starbucks and thinking about an editorial that ran in the New York Times a few weeks earlier. It seems that an author, resident in New York State, had authored a book accusing a Saudi sheik of financing terrorism. The sheik sued the author in Great Britain for libel where it was reported only a few copies of her book were sold. She failed to appear or defend and a default judgment was entered against her.The author had no assets in Great Britain or Saudi Arabia so the sheik sought to enforce his judgment in New York under New York’s Uniform Foreign Money Judgment Recognition Act (UFMJRA) which provides, with a few exceptions, that foreign judgments are final, conclusive and enforceable in the country where rendered and are deemed conclusive between the parties and enforceable by United States Courts. The Times was outraged because it believed that the author would have been able to assert First Amendment defenses had she been sued in the United States.The author goes on to explain how this situation was handled and finally resolved, with some additional comments on how this fits in with Maryland law.

Rubin v. Islamic Republic of Iran: Legal Threats to Cultural Property

The case of Rubin v. Islamic Republic of Iran reads like a blockbuster movie with an all-star cast. A terrorist organization blows up a crowded shopping mall in Jerusalem, killing and injuring Americans in the process. Some of those severely injured sue the nation of Iran for their part in supporting Hamas, who carried out the bombing. Iran never makes a court appearance, so the plaintiffs win a default judgment for hundreds of millions of dollars. However, in trying to get some money out of Iran, the plaintiffs try to attach property in the United States, which may or may not be owned by Iran. Among the items of attached property are Persian antiquities that are suspected of being stolen, or at least improperly exported, from Persia in the 1930s by an American archaeologist, who later sold his findings to the Field Museum in Chicago, Illinois. The plaintiffs want this cultural property sold to the highest bidder to pay for their default judgment, but not everyone is happy with the idea. Not everyone believes that cultural property can be treated in this way - bought and sold like a regular commodity. Certainly, Iran, who finally entered the litigation, is not happy, but neither are the museums that currently hold the antiquities. What to do in this unhappy dilemma? The plaintiffs deserve the money they have been awarded to pay for their injuries. Terrorism must be stopped and its victims allowed recourse for their suffering. But not all would agree that the attachment of cultural property is a viable way to give terrorism victims relief. In the Rubin case, an important precedent is about to be set.

Description of a Rule-based System for the i2b2 Challenge in Natural Language Processing for Clinical Data

The Obesity Challenge, sponsored by Informatics for Integrating Biology and the Bedside (i2b2), a National Center for Biomedical Computing, asked participants to build software systems that could “read” a patient's clinical discharge summary and replicate the judgments of physicians in evaluating presence or absence of obesity and 15 comorbidities. The authors describe their methodology and discuss the results of applying Lockheed Martin's rule-based natural language processing (NLP) capability, ClinREAD. We tailored ClinREAD with medical domain expertise to create assigned default judgments based on the most probable results as defined in the ground truth. It then used rules to collect evidence similar to the evidence that the human judges likely relied upon, and applied a logic module to weigh the strength of all evidence collected to arrive at final judgments. The Challenge results suggest that rule-based systems guided by human medical expertise are capable of solving complex problems in machine processing of medical text.

Are the English Courts Ready for Service through Facebook?

On 16 December 2008, in the case of MKM Capital Property Limited v. Corbo and Poyser, Master Harper of the Australian Capital Territory Supreme Court permitted service of a default judgment via the social networking website Facebook. The first part of this article considers the MKM Capital decision and an earlier decision of the Queensland District Court, in which permission to serve via Facebook was refused. In the second part, after providing an outline of the recent amendments to the rules for service of documents contained in Part 6 of the Civil Procedure Rules (CPR), which came into force on 1 October 2008, this article then goes on to consider whether, on the basis of existing case law and in light of those amendments, the English courts would be likely to permit service of documents through Facebook or another social networking website.

LA CONDUCTA COOPERATIVA DE LAS PARTES EN EL PROCESO CIVIL Y LA REBELDÍA: HACIA SU ADECUADA REGULACIÓN EN LA NUEVA JUSTICIA CIVIL CHILENA

Los juicios en rebeldía sonpronunciamientos vinculantes a favor deldemandante ante la falta de respuesta deldemandado no respondiendo o no compareciendo.Su regulación es una importante herramientapara la aceleración del proceso y la posibilidadde poder pronunciar y ordenar el cumplimientode determinadas resoluciones cuando se verificansus presupuestos. Permite igual acceder a unasentencia con valor de cosa juzgada. La rebeldíaexplica los puntos de contacto entre la autoridady la participación como su interacción. El poderde adjudicación fundado en una discusión ocontroversia real en un proceso debe prever la faltade cooperación igualmente para no impedir laprosecución y conclusión del proceso. Muchosson los elementos que interactúan para unproceso civil moderno y efectivo.

Hong Kong Court declares Hennessy trade marks well known on a default basis

Societe Jas Hennessy & Co. (‘Hennessy’) has successfully persuaded the Hong Kong Court of First Instance to grant a declaration that the ‘Hennessy’ trade marks are well known on a default judgment basis.

RADIOGRAFÍA DE LA REBELDÍA EN EL PROCESO CIVIL: TÓPICOS HACIA UNA ADECUADA REGULACIÓN EN LA NUEVA JUSTICIA CIVIL

Default judgments are judgments binding judgments in favor of the plaintiff when the defendant has not responded to a summons or has failed to appear before...

When Does Culture Matter? Effects of Personal Knowledge on the Correction of Culture-Based Judgments

Four experiments demonstrate that culture-based differences in persuasion arise when a person processes information in a cursory, spontaneous manner, but these differences dissipate when a person's intuitions are supplemented by more deliberative processing. North Americans are persuaded more by promotion-focused information, and Chinese people are persuaded more by prevention-focused information, but only when initial, automatic reactions to messages are given. Corrections to these default judgments occur when processing is thoughtful. These results underscore the idea that culture does not exert a constant, unwavering effect on consumer judgments. A key factor in determining whether culture-based effects loom large or fade is the extent to which a person draws on cultural versus more personal knowledge when he or she is forming judgments.

United States Supports Dismissal of U.S. POWs’ Billion-Dollar Default Judgment Against Iraq; U.S. Supreme Court Denies Certiorari

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Who's your daddy?

Who's your daddy?

Sanctions in Pre-Trial Discovery

In this paper, we make an economic analysis of various sanctions for disobedience to the discovery request in the common law tradition and in the civil law tradition mainly by examining their effects on settlement rates and social welfare. We find that sanctioning through inference discloses less information and encourages less settlements than both sanctioning by default judgment and sanctioning adopted in the civil law tradition. Also, we show that sanctioning through inference used together with financial sanction duplicates the outcome under default judgment if the penalty size is so chosen as to be equal to the defendant's discovery cost.

Allocating the Burden of Proof in Rule 60(b)(4) Motions to Vacate a Default Judgment for Lack of Jurisdiction

Suppose a plaintiff files a civil complaint in federal court. Suppose further that the defendant learns of the action but believes that the court lacks personal jurisdiction. The defendant may choose to appear in the action and challenge the court's jurisdiction.' Alternatively, the defendant may choose to risk a default judgment. A civil defendant might wait to contest a judgment until after the entry of default, or until the plaintiff obtains and seeks to register a default judgment, for a number of reasons. The defendant may believe that settlement is possible, may prefer to postpone the expenditure of her time and money until a later date,2 or may wish to contest jurisdiction in a forum closer to her assets. Since the plaintiff may move for the court to attach these assets, this wait and challenge approach may allow a defendant to appear in a forum closer to home, where the defendant has a more prominent presence and better access to choice legal counsel than she does in the forum of the issuing court. Federal Rule of Civil Procedure 60(b)(4) allows a defendant to attack a default judgment by subsequently challenging the personal jurisdiction of the court that issued the judgment.3 Which party should bear the burden of proof in such a motion? Rule 60 is silent on the issue and the other federal rules provide no explicit answers. However, the controlling burden of proof rule is often critical: in over 90 percent of the reported cases where courts have ruled on Rule 60(b)(4) motions to void a default judgment for lack of personal jurisdiction, the party bearing the burden of proof has lost.4 The allocation of the burden of proof may drive a case's final disposition.