IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

BURGAN EXPRESS FOR GENERAL, : 

TRADING AND CONTRACTING CO., : Case No. 2:12-cv-041 

et al., : 

 : 

Plaintiffs, : JUDGE ALGENON L. MARBLEY 

 : 

 v. : 

 : 

MARK ANTHONY ATWOOD, et al., : Magistrate Judge King 

 : 

 Defendants. :

 :

OPINION AND ORDER 

I. INTRODUCTION

 This matter is before the Court on Plaintiffs’, Burgan Express for General Trading and 

Contracting Co. (“Burgan Express”) and Mahmoud Mohammad Abbas Hajia Khajah (“Hajia”), 

Joint Motion for Summary Judgment (Dkt. 6) against Defendants Mark Anthony Atwood 

(“Atwood”) and Wolfpack Security Services, Inc. (“Wolfpack”). Plaintiffs move for summary 

judgment on their Notice of Foreign Judgment, to execute the Judgment of The Court of First 

Instance of Kuwait, originally filed in the Ross County Court of Common Pleas and 

subsequently removed to this Court by Defendants. For the reasons stated below, Plaintiffs’ 

Motion for Summary Judgment is hereby GRANTED. 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 1 of 18 PAGEID #: <pageID>
2 

II. STATEMENT OF FACTS

A. Factual Background 

1. The Parties

 Plaintiff, Burgan Express, is a corporation organized under the laws of Kuwait with its 

principal place of business in Kuwait. Plaintiff, Hajia, is the owner of Burgan Express as well as 

a citizen and resident of Kuwait. In 1993, Hajia initially began operating as a sole proprietorship 

in Kuwait under the Burgan Express name. On February 28, 2005, he incorporated Burgan 

Express in Kuwait. 

 Defendant Atwood is the owner of Defendant Wolfpack. Atwood is a resident of Ohio 

and a 22-year veteran of the U.S. Army, to his retirement in 2001. Starting in 2002 he worked as 

a civilian contractor for the U.S. Army, operating in Kuwait. In 2003, Atwood incorporated 

Wolfpack in Ohio. Wolfpack provided refrigeration units to U.S. forces at forward operating 

bases in Iraq for, among other things, preserving human remains. The Marine Corps gave 

Wolfpack several contracts, the proceeds from which Wolfpack spent on vehicles, generator 

equipment, weapons, and labor costs. 

2. The Dispute

Atwood was referred to Hajia as a source of initial capital for his business operations in 

Iraq. He alleges that he received a number of “loans” from Hajia, but none after 2003. Atwood 

claims to have repaid those loans in full. Hajia, however, contends that in June 2004 he and 

Atwood formed a contract for a joint venture between Burgan Express and Wolfpack, the terms 

of which distributed 51% of the profits to Burgan Express and 49% to Wolfpack. The contract 

went into effect on July 1, 2004. The joint venture was to be based in Kuwait, but serve as a 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 2 of 18 PAGEID #: <pageID>
3 

contractor for the U.S. Armed Forces throughout the Middle East. In Hajia’s sworn affidavit, he 

says this agreement was a joint venture, and not understood by either party to be a loan. Both 

Hajia and Atwood agree that disputes relating to their financial relationship arose between them 

in 2005. As a result, Atwood, as required by Kuwaiti law, published notices in a Kuwaiti 

newspaper on October 30, 2005 and November 6, 2005 announcing the termination of “the 

business relationship” between Wolfpack and Burgan Express. 

It should be noted that Atwood, in his affidavit, paints a very different picture of the 

history of the business relationship between Plaintiffs and Defendants. Atwood’s version, 

however, was largely rejected by the Kuwaiti courts after voluminous proceedings and is wholly 

unsupported by any evidence beyond Atwood’s sworn statement. Furthermore, Atwood’s 

affidavit demonstrates that he, whether through ignorance or lack of diligence, simply 

misunderstood much of what transpired in the Kuwaiti courts. 

3. The Litigation in Kuwait

Shortly thereafter, on November 9, 2005, Burgan Express initiated a civil action against 

Atwood and Wolfpack in the Commercial Division of the Kuwaiti Court of First Instance, which 

is Kuwait’s court of original jurisdiction for civil suits worth more than 5,000 Kuwaiti dinars 

(“KD”), approximately $18,000.00. In this first action (Kuwait Case No. 4270/2005), Burgan 

Express sought an order confirming the existence of a joint venture agreement between Burgan 

Express and Wolfpack, as well as a court valuation of Burgan Express’s capital investments and 

profit entitlements. On November 12, 2005, Hajia, in his individual capacity, filed a second civil 

action (Case No. 4284/2005) against Atwood and Wolfpack in the same Court of First Instance, 

seeking a judgment against the Defendants for unpaid profits and money owed resulting from the 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 3 of 18 PAGEID #: <pageID>
4 

joint venture. The Court of First Instance subsequently consolidated those two cases. Also in 

November 2005, Kuwaiti prosecutors brought a criminal charge, which is the Kuwaiti equivalent 

of embezzlement, against Atwood (Kuwaiti Case No. 1094/2006). In the two civil actions 

Atwood was represented by a Kuwaiti agent, Bader Al-Barazi, and an attorney, Al-Otaibi. The 

same agent and counsel also represented Atwood in the criminal trial. 

Atwood filed pleadings and other motions in his defense in the civil actions and 

appeared, both personally and through counsel, at numerous hearings during 2006. The Court 

appointed an “Expert Committee” to determine the value of the contracts between the alleged 

joint venture and the U.S. Armed Forces, as well as the capital contributions made by Burgan 

Express. On January 24, 2007, the Expert Committee reported the Parties “were bound by a 

Joint Venture Agreement with no incorporation deed executed.” (Complaint, Exh. A at ¶15). It 

also calculated the Plaintiffs’ share of the profits as 3,516,529 KD ($12,659,504.40), with 

Defendants owing the Plaintiffs a total amount of 6,677,257.358 KD ($24,038,126.49). 

Defendants objected to the report, causing the Court to appoint a second Expert 

Committee, with new members, to evaluate the claims once again. The second Expert 

Committee reported the “net amount” due the Plaintiffs was 1,974,872.358 KD ($7,109,540.49) 

while it was unable to calculate the “additional monies” due. In consideration of the two reports, 

the Court of First Instance, at a December 31, 2008 hearing, awarded Plaintiffs 4,345,774.385 

KD ($15,644,787.79). Plaintiffs appealed that judgment in January 2009, seeking to increase the 

amount of the award. A third Expert Committee was then convened to evaluate the claim on 

appeal. On December 20, 2009, the third Expert Committee concluded the amount Defendants 

owed the Plaintiffs since the commencement of the joint venture on July 1, 2004 until December 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 4 of 18 PAGEID #: <pageID>
5 

2009 was 5,610,361.154 KD ($20,197,300.15). A June 7, 2010 hearing confirmed the award, 

but Defendants did not appear, despite having been properly noticed through counsel. 

Defendants also failed to appeal the decision to the Court of Cassation, Kuwait’s highest court 

for commercial suits, before the appeals deadline of July 14, 2010. 

4. The Criminal Case in Kuwait

 In Atwood’s criminal trial for embezzlement, the Court adjudged him guilty of 

embezzling monies and equipment from Hajia worth 3,160,728.358 KD ($12,998,622.09). On 

May 29, 2007, The Court sentenced Atwood to term of imprisonment of three years, to be 

followed by deportation. Atwood appealed the verdict on May 30, 2007. In June 2007 Atwood 

voluntarily absented himself from Kuwait and has not returned. On February 13, 2008, the Court 

of Appeal affirmed the verdict of the Court of First Instance for Crimes. As the instant case is 

purely a civil matter, there is no issue of enforcing the criminal verdict. 

5. Atwood’s Allegations Regarding Litigation in Kuwait 

 Atwood’s affidavit also presents a very different account of the litigation than that found 

in the records of the Kuwaiti courts. Atwood claims his Kuwaiti counsel informed him that he 

the “Expert Committee had found in [his] favor, and that the case was over.” (Atwood Affidavit, 

at 3). Atwood claims that only a few months after the “dismissal” of the first action was he 

informed that a second action had been filed “on the same facts.” (Id.) According to Atwood, 

his Kuwaiti agent told him that Hajia “had ‘paid off the judges’ with a sum equal to several 

hundred thousand dollars U.S. to secure the reopening of the case.” (Id.) Atwood says he never 

appeared before a judge in the second action, though he admits there were three hearings before 

the Expert Committee, prior to the Court of First Instance issuing a judgment against him and 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 5 of 18 PAGEID #: <pageID>
6 

Wolfpack. (Id.) Atwood alleges he “fled” Kuwait in June 2007 following “death threats made 

by [Hajia],” but that he prepaid his Kuwaiti attorneys to continue his defense in both the civil and 

criminal cases after his departure. (Id. at 4) 

 Atwood adds that “upon information and belief” his attorneys ceased defending him after 

he left Kuwait. He also admits “upon information and belief” that he was sentenced to three 

years of imprisonment “for an alleged business debt.” (Id. at 4). Atwood claims he was not 

informed a judgment had been entered against him until “the summer of 2010” when Bader, his 

Kuwaiti agent, so informed him. Atwood reports Bader told him, “You were an American in a 

Muslim court system in the Middle East – what did you expect?” Upon information and belief, 

Atwood also alleges Hajia, pursuant to a Kuwaiti court order, seized equipment from Wolfpack 

valued at $3.5 million. He says Wolfpack’s profits from its operations in the Middle East totaled 

approximately $5 million. 

Finally, he claims to have been unable to secure documents from Kuwait to verify his 

account, though he is continuing his efforts through new counsel in Kuwait. He attached no 

documents or other evidence in support of his contentions, apart from his sworn affidavit. 

B. Procedural History 

On December 14, 2011, Burgan Express and Hajia filed a Notice of Foreign Judgment in 

the Ross County Court of Common Pleas, pursuant to O.R.C. 2329.023. The certified and 

translated judgment from the Kuwaiti Court of Appeal was attached to the Notice, stating 

judgment had been entered against Atwood and Wolfpack for $20,283,412.39. 

On January 16, 2012, Defendants removed the case to this Court pursuant to 28 U.S.C. § 

1441 and 28 U.S.C. § 1332. Plaintiffs filed this Motion for Summary Judgment on February 23, 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 6 of 18 PAGEID #: <pageID>
7 

2012. On May 18, 2012, the Magistrate Judge denied the Defendants’ Motion for Extension of 

Time for Discovery because Defendants filed a Response in Opposition to Plaintiffs’ Motion for 

Summary Judgment on May 15, 2012. On June 19, 2012, the Court set the hearing on Plaintiffs’ 

Motion for Summary Judgment for September 20, 2012. Subsequently, the Court denied 

Defendants’ Motion for Leave to File a Supplemental Memorandum on September 13, 2012 

because Defendants failed to demonstrate good cause. 

III. STANDARD OF REVIEW

 Fed.R.Civ.P. 56 provides, in relevant part, that summary judgment is appropriate “if the 

pleadings, depositions, answers to interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material fact and the moving party 

is entitled to judgment as a matter of law.” A fact is deemed material only if it “might affect the 

outcome of the lawsuit under the governing substantive law.” Wiley v. United States, 20 F.3d 

222, 224 (6th Cir.1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, (1986)). 

The nonmoving party must then present “significant probative evidence” to show that 

“there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris 

Cos., Inc., 8 F.3d 335, 339–40 (6th Cir.1993). The suggestion of a mere possibility of a factual 

dispute is insufficient to defeat a movant's motion for summary judgment. See Mitchell v. Toledo 

Hospital, 964 F.2d 577, 582 (6th Cir.1992) (citing Gregg v. Allen–Bradley Co., 801 F.2d 859, 

863 (6th Cir.1986)). Further, “summary judgment will not lie if the dispute is about a material 

fact that is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict 

for the non-moving party.” Anderson, 477 U.S. at 248. When a plaintiff, however, invokes 

summary judgment “and a showing is made by the [plaintiff], the burden rests on the [defendant] 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 7 of 18 PAGEID #: <pageID>
8 

to show that he has a ground of defense fairly arguable and of a substantial character.” Pen-Ken 

Gas & Oil Corp. v. Warfield Natural Gas Co., 137 F.2d 871, 877 (6th Cir. 1943). 

The necessary inquiry for this Court in determining whether summary judgment is 

appropriate is “whether ‘the evidence presents a sufficient disagreement to require submission to 

a jury or whether it is so one-sided that one party must prevail as a matter of law.’” Patton v. 

Bearden, 8 F.3d 343, 346 (6th Cir.1993) (quoting Anderson, 477 U.S. at 251–52). In evaluating 

such a motion, the evidence must be viewed in the light most favorable to the nonmoving party. 

See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). The mere existence of a scintilla of 

evidence in support of the opposing party's position will be insufficient; there must be evidence 

on which the jury could reasonably find for the opposing party. See Anderson, 477 U.S. at 251; 

Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995). Self-serving affidavits, alone, are not 

enough to create an issue of fact sufficient to survive summary judgment. Wolfe v. Vill. of Brice, 

Ohio, 37 F. Supp. 2d 1021, 1026 (S.D. Ohio 1999). See Anderson, 477 U.S. at 251; Copeland,

57 F.3d 476 at 479. 

With regard to affidavits, Rule 56 (e) requires that affidavits submitted in support of or in 

opposition to motions for summary judgment include facts based on personal knowledge and that 

personal knowledge “must be evident from the affidavit.” Reddy v. Good Samaritan Hosp. & 

Health Ctr., 137 F.Supp.2d 948, 956 (S.D. Ohio 2000). Thus, “statements made ‘on information 

and belief’ are insufficient to satisfy the personal knowledge requirement of Rule 56(e). Id. 

Affidavits at the summary judgment stage also may also not rely upon inadmissible hearsay 

because inadmissible hearsay “cannot create a genuine issue of material fact.” North American 

Specialty Ins. Co. v. Myers, 111 F.3d 1273, 83 (6th Cir. 1997). 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 8 of 18 PAGEID #: <pageID>
9 

IV. LAW AND ANALYSIS

Both Plaintiffs and Defendants agree that the recognition and enforcement of foreign 

judgments are matters of state substantive law. Samyang Food Co., Ltd. v. Pneumatic Scale 

Corp., 5:05-CV-636, 2005 WL 2711526, at *5 (N.D. Ohio Oct. 21, 2005). Here, the governing 

provision of Ohio law is Ohio Rev. Code § 2329.91 which states, in relevant part: 

[A]ny foreign country judgment that is final, conclusive, and enforceable where 

rendered shall be recognized and enforced by the courts of this state, even though 

an appeal from the judgment is pending or the judgment is subject to an appeal. 

Such a foreign country judgment is enforceable in this state in the same manner as 

a judgment of another state that is entitled to full faith and credit. 

Moreover, the Supreme Court held, in Hilton v. Guyot, the seminal case on recognition of 

foreign judgments: 

[W]here there has been opportunity for a full and fair trial abroad before a court 

of competent jurisdiction, conducting the trial upon regular proceedings, after due 

citation or voluntary appearance of the defendant, and under a system of 

jurisprudence likely to secure an impartial administration of justice between the 

citizens of its own country and those of other countries, and there is nothing to 

show either prejudice in the court, or in the system of laws under which it was 

sitting, or fraud in procuring the judgment, or any other special reason why the 

comity of this nation should not allow it full effect, the merits of the case should 

not, in an action brought in this country upon the judgment, be tried afresh, as on 

a new trial or an appeal, upon the mere assertion of the party that the judgment 

was erroneous in law or in fact. The defendants, therefore, cannot be permitted, 

upon that general ground, to contest the validity or the effect of the judgment sued 

on. 

Hilton v. Guyot, 159 U.S. 113, 202-03, (1895). The Court went on to add that it was not 

prepared to hold a procedural difference “of itself, a sufficient ground for impeaching the foreign 

judgment.” Id. at 205. The Second Circuit further clarified that, “Clear and convincing evidence 

of fraud is required in order successfully to attack a foreign judgment, just as such proof is 

necessary before a court will set aside its own judgment.” Clarkson Co. v. Shaheen, 544 F.2d 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 9 of 18 PAGEID #: <pageID>
10 

624, 631 (2d Cir. 1976). Thus, a “party challenging the validity of a foreign judgment has the 

burden of presenting evidence of its invalidity.” Samyang, 2005 WL 2711526 at *5. 

The federal courts’ limits on recognizing foreign judgments obtained in the absence of 

due process or by fraud are consistent with the limits of Ohio Rev. Code § 2329.91. That statute, 

Ohio’s partial codification of the Uniform Foreign Judgments Recognition Act, states a foreign 

country judgment is not conclusive, and therefore not entitled to recognition or enforcement, 

where the court that rendered it lacked personal or subject matter jurisdiction, or where 

“judgment was rendered under a system that does not provide impartial tribunals or procedures 

that are compatible with the requirements of the due process of law.” Consistent with the 

Supreme Court’s holding in Hilton that procedural differences alone are not grounds for setting 

aside a foreign judgment, “The Uniform Act and Ohio law do not contemplate that foreign 

judgments only become enforceable when exact Ohio's procedures are followed. Instead, the 

statute concerns itself with whether the foreign court offers a fair procedure generally compatible 

with the due process obligations of notice and opportunity to be heard.” Samyang, 2005 WL 

2711526 at *6. Ohio Rev. Code § 2329.92 specifically states a judgment shall not be recognized 

under § 2329.91 if: 

(1) The defendant in the proceedings in the foreign court did not receive 

notice of the proceedings in sufficient time to enable him to defend; 

(2) The foreign country judgment was obtained by fraud; 

(3) The claim for relief on which the foreign country judgment is based is 

repugnant to the public policy of this state; 

(4) The foreign country judgment conflicts with another conclusive and final 

judgment; 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 10 of 18 PAGEID #: <pageID>
11 

(5) The proceedings in the foreign court were contrary to an agreement 

between the parties under which the dispute in question was to be settled 

otherwise than by proceedings in that court; 

(6) If jurisdiction was based only on personal service, the foreign court was a 

seriously inconvenient forum for the trial of the action. 

Thus, the overall thrust of Ohio and federal law concerning recognition of foreign judgments is 

that the foreign court’s procedures must broadly comport with due process as defined in the 

United States. The procedures need not exactly mirror procedures of United States courts, 

provided the differences do not render the proceedings fundamentally unfair. To the extent the 

Plaintiffs make a showing they received a “conclusive judgment” in their favor, the court 

rendering the judgment properly had jurisdiction, and Defendants received due process, the 

Defendants must then produce some evidentiary support for their affirmative defenses or 

demonstrate an actual dispute regarding the evidence supporting the Plaintiffs’ factual 

contentions. 

A. Elements of Plaintiffs’ Burden 

1. Conclusive, Final, and Enforceable Kuwaiti Judgment

 There is no question that the judgment rendered by the Kuwaiti Court of Appeals is 

conclusive, final, and enforceable. In the Court of First Instance, Defendants had the opportunity 

to appeal the findings of the First Expert Committee, which led to the appointment of the Second 

Expert Committee. Although the Second Expert Committee decreased the award recommended 

by the First Expert Committee, it still found for the Plaintiffs in the amount of approximately 

$7.1 million. The Plaintiffs then appealed to the Court of Appeals, where their award was 

increased to the amount of $20,283,412.39 sought here. Defendants were represented throughout 

the first proceeding and did not appear at proceedings before the Court of Appeals despite 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 11 of 18 PAGEID #: <pageID>
12 

receiving adequate notice through counsel of record. The judgment of the Court of Appeals was 

filed with this Court as an exhibit, as well as a Certificate of Non-filing of Cassation Petition 

which shows Defendants did not appeal the Court of Appeals’ judgment to Kuwait’s highest 

court. At that time, the judgment became final. The judgment awarded monetary damages, as is 

standard in such contract cases in both the United States and Kuwait, and such an award can be 

enforced by this Court. 

2. Kuwaiti Court’s Subject Matter Jurisdiction

 The Defendants do not contest that the Kuwaiti Court of First Instance and Court of 

Appeals properly had subject matter jurisdiction. Additionally, this Court takes judicial notice of 

Kuwait’s Civil and Commercial Pleadings Law, essentially Kuwait’s civil code. Article 34 

provides, in relevant part, that the Court of First Instance has preliminary jurisdiction in matters 

exceeding 5,000 KD (approximately $18,000). If the matter exceeds 5,000 KD, Article 36 grants 

appellate jurisdiction to The Court of Appeals. The value of this suit greatly exceeded 5,000 

KD; thus, The Court of First Instance had subject matter jurisdiction and The Court of Appeals 

properly had jurisdiction over the appeal. 

3. Kuwaiti Court’s Personal Jurisdiction

 The Defendants do not contest that the Kuwaiti Court of First Instance properly had 

personal jurisdiction over Defendants. Again, Kuwait’s Civil and Commercial Pleadings Law 

provides the relevant Kuwaiti law. Article 23 grants Kuwait’s courts personal jurisdiction over 

foreigners domiciled or having place of residence in Kuwait, while Article 24(b) states “The 

Kuwaiti Courts shall cognize cases brought against a foreigner who has no domicile or place of 

residence in Kuwait . . . if the case is . . . relevant to an obligation originated, executed or 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 12 of 18 PAGEID #: <pageID>
13 

required to be executed [in Kuwait].” Defendant Atwood was resident in Kuwait at the time the 

original suit was brought, but even had he not been resident there, the contract giving rise to the 

suit originated in Kuwait. Moreover, Wolfpack operated out of Kuwait at the time. Thus, the 

Kuwaiti Court of First Instance had personal jurisdiction over Defendants. 

4. Notice

 Defendants had actual notice of the suit in the Court of First Instance, as evidenced by 

their multiple appearances before that Court and appeal of the findings of the First Expert 

Committee. In essence, Defendants fully participated in the litigation in Kuwait at least until the 

time Atwood voluntarily absented himself from the country. Moreover, Defendants had 

constructive notice of Plaintiffs’ appeal by notice being given to Defendants’ counsel of record. 

Such notice is sufficient under Kuwaiti law. 

5. Plaintiffs Satisfied Burden Under Section 2329.91 

 Plaintiffs, by submitting a certified copy of a final judgment from a Kuwaiti court and 

demonstrating the court rendering that judgment had subject matter and personal jurisdiction, 

and that Defendant had notice of the suit, have satisfied the requirements of Ohio Rev. Code 

2329.91 in order to enforce a foreign country judgment. Those material facts are not in dispute, 

particularly in light of Plaintiffs’ documentary evidence. The burden then shifts to Defendants to 

raise an issue of material fact which is central to the Plaintiffs’ case. 

B. Affirmative Defenses 

1. Lack of Due Process

 Kuwait’s justice system is not identical to that of the United States, but like the United 

States’ legal system, it evolved from the Common Law of the British Commonwealth. While 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 13 of 18 PAGEID #: <pageID>
14 

some of its procedures differ from those of American courts, there is no evidence in the record to 

suggest the Kuwaiti courts denied Defendants due process. The certified judgment of The Court 

of Appeals clearly shows Defendants were represented by Kuwaiti counsel throughout the 

adversarial proceedings in The Court of First Instance. In fact, the Defendants appealed the 

findings of the First Expert Committee and won a downward revision of the Plaintiffs’ award 

from a Second Expert Committee, though it still found for Plaintiffs in the amount of 

1,974,872.358 KD ($7,109,540.49). 

Although Defendants contest Plaintiffs’ assertion that Defendants were “represented at all 

appellate proceedings,” the dispute of fact is not material because Defendants did receive due 

process. Atwood fled Kuwait after a criminal verdict, following a proceeding in which he was 

represented, sentenced him to three years imprisonment. Atwood had sought the protection of 

Kuwaiti laws in the civil proceedings with Plaintiffs; then he chose to flaunt Kuwaiti laws after 

losing his criminal case. It is, at best, disingenuous for Atwood to contest the decision of The 

High Court of Appeals on the grounds he did not appear before it, as he was voluntarily a 

fugitive from Kuwait’s justice system at the time. Moreover, even in the United States, a 

defendant does not have a constitutional right to legal counsel in a civil proceeding. Lassiter v. 

Department of Social Services of Durham County, N.C., 452 U.S. 18, 26-7 (1981). 

The allegations in Atwood’s affidavit and Response in Opposition to Plaintiffs’ Motion 

for Summary Judgment do not indicate a dispute of material fact, but rather a fundamental lack 

of understanding of the litigation in Kuwait through either sincere or willful ignorance. 

Defendants allege that there were two separate suits in Kuwait based on substantially the same 

facts, whereas the judgment of The Court of Appeals clearly states that there were two actions 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 14 of 18 PAGEID #: <pageID>
15 

filed, one by Burgan Express and the other personally by Hajia, based on different causes of 

action and seeking different relief. Since both actions related to the same joint venture with 

Atwood and Wolfpack, the Court of First Instance joined the actions. Moreover, the fact that 

Kuwaiti courts refer complex damages calculations to expert committees whose findings must be 

approved by the courts does not mean Defendants did not receive due process. In the United 

States’ justice system, it is not uncommon for questions of liability to be decided separately from 

questions of damages, even by different finders of fact. Suffice to say, the Defendants selfinterested allegations do not raise material questions as to whether Defendants received due 

process when compared with the certified judgment of The Court of Appeals. In light of the 

evidence that the Defendants actually received due process, the Court need not address 

Defendants’ unsupported argument that the Kuwaiti justice system “systemically” fails to 

provide due process. 

2. Fraud

 Since fraud is an affirmative defense, the burden is on Defendants to “show that [they 

have] a ground of defense fairly arguable and of a substantial character.” U.S. v. General Motors 

Corp., 518 F.2d 420, 442 (D.C. Cir. 1975). By Defendant Atwood’s own admission, his 

allegation of fraud rests “upon information and belief.” Even if it were appropriate for this Court 

to consider statements made “upon information and belief” at the summary judgment stage when 

Defendants have had opportunity for discovery, the “information” herein is simply hearsay. 

Atwood’s Kuwaiti representative Bader, allegedly told Atwood that Plaintiffs had paid a bribe to 

permit the “Second Action.” As explained, supra, the second action was filed by Hajia as an 

individual and subsequently joined by the Court. The certified judgment of The Court of 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 15 of 18 PAGEID #: <pageID>
16 

Appeals explains this clearly and gives no appearance of impropriety. Furthermore, given that 

Bader is unlikely to have observed any such bribe, Atwood’s allegations of fraud in his affidavit 

are hearsay which rest upon hearsay. Simply put, Defendants have put nothing in the record to 

raise a material question as to the existence of fraud in obtaining the judgment. 

3. Repugnant to Public Policy

 In arguing that enforcing the judgment of the Kuwaiti courts would be “repugnant to 

public policy,” Defendants offer conclusory legal statements regarding the “injustices” allegedly 

permitted by Kuwaiti courts. In the absence of evidence of these “injustices” and considering the 

presence of a certified Kuwaiti judgment demonstrating due process was provided, Defendants 

fail to raise any issue of material fact as to the “repugnancy” of the Kuwaiti decision. To the 

contrary, given Ohio’s commitment to enforcing lawfully obtained foreign judgments, 

demonstrated by Ohio Rev. Code § 2329.91, it would be repugnant to public policy to allow 

Defendants unsupported accusations to defeat the Plaintiffs’ certified decision. 

 At oral argument, Defendants’ repeatedly mentioned the valuable service Defendants 

provide to the U.S. in Iraq. While the Defendants’ willingness to risk harm in order to preserve 

the remains of members of the armed forces is laudable, it is not, of itself, a fact of legal 

significance. It does not provide a defense to violation of a contract or flouting of the law of an 

allied nation which hosted Defendants’ business. In short, these concerns raise no issue of 

material fact as to whether enforcing the Kuwaiti judgment is repugnant to public policy. 

4. Reciprocity

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 16 of 18 PAGEID #: <pageID>
17 

 Defendants claim it is “unclear” whether Kuwaiti courts enforce judgments from United 

States’ courts, and argue, thus, the Kuwaiti judgment should not be recognized. The governing 

law, Ohio Rev. Code § 2329.92, states, in relevant part: 

A foreign country judgment rendered in a foreign country that does not have a 

procedure for recognizing judgments made by courts of other countries . . . 

substantially similar to sections 2329.90 to 2329.94 of the [Ohio] Revised Code 

may be recognized and enforced pursuant to section 2329.91 of the Revised Code 

in the discretion of the court. 

Even if Kuwaiti courts lacked a procedure for enforcing foreign judgments, this Court could 

exercise its discretion to enforce their judgment. This is academic, however, as Kuwait does 

have just such a procedure, codified in Article 199 of Kuwait’s Civil and Commercial Pleadings 

Law. Article 199 states “[i]t shall be permissible to order the execution of judgments and orders 

issued in a foreign country inside Kuwait according to the conditions decided . . .” Those 

“conditions” include the judgment having been “given by a competent Court in conformity with 

the law of the country wherein it is given,” the litigants receiving notice and representation, the 

judgment having “had the force of the adjudicated order . . . not contradictory to a preceding 

judgment or order given by a Court in Kuwait and [] not against the ethics or the public order in 

Kuwait.” Defendants argue that these conditions make Kuwait’s recognition of foreign 

judgments “questionable.” These conditions, however, are substantially the same as those 

contained in sections 2329.90 to 2329.94 of Ohio’s Revised Code. Kuwait is concerned, as is 

Ohio, that foreign judgments enforced in its courts are arrived at through due process by a 

competent authority, and that they are not repugnant to Kuwait’s public policy. Thus, the 

Defendants have not raised an issue of material fact as to whether Kuwait recognizes foreign 

judgments. 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 17 of 18 PAGEID #: <pageID>
18 

5. Accord and Satisfaction

 Defendants also allege “[u]pon information and belief [Wolfpack’s] seized property was 

turned over to the Plaintiffs to satisfy their judgment.” As explained above, however, at the 

summary judgment stage, this Court does not consider statements made upon information and 

belief. Sufficient time for discovery has elapsed to allow for better evidence if it exists to be 

found. Moreover, in this case, Plaintiff Hajia has attached a sworn affidavit, not made solely 

upon information and belief, that he has “not received any money towards satisfaction of 

judgment by way of seizure of equipment or through any other means.” Additionally, the 

judgment of the Kuwaiti Court failed to mention any partial satisfaction of its award, lending 

further credence to the Plaintiff’s affidavit. In light of those facts, and that Defendants’ only 

apparent support of this allegation is that “Defense Counsel has been attempting to get in touch 

with U.S. government personnel who allegedly witnessed this seizure and know the 

circumstances behind it,” there is no material issue of fact as to accord and satisfaction. 

V. CONCLUSION

 For the foregoing reasons, the Plaintiffs’ Motion for Summary Judgment is hereby 

GRANTED. The Court takes notice of the judgment of the Kuwaiti Court of Appeals and 

ORDERS Defendants to pay Plaintiffs the sum of $19,972,996.07 (at the September 26, 2012 

conversion rate of the Kuwaiti award of 5,610,361.154 KD, plus 30 KD in costs and fees). 

IT IS SO ORDERED. 

 s/ Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE 

 

DATED: September 26, 2012 

Case: 2:12-cv-00041-ALM-NMK Doc #: 24 Filed: 09/26/12 Page: 18 of 18 PAGEID #: <pageID>