1 Pursuant to 5 T H C I R

. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 5, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

03-21022

Summary Calendar

THE SOCIETY OF LLOYD’S,

Plaintiff-Appellee,

VERSUS

KEVIN COHEN,

Defendants-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

(H-02-MC-464)

Before DUHÉ, STEWART and CLEMENT, Circuit Judges.

PER CURIAM: 1

Plaintiff-Appellee the Society of Lloyd’s obtained a default

judgment in Eng land against Defendant-Appellant Kevin Cohen for

premiums he ow e d in connection with underwriting obligations.

Lloyd’s then brought this action in federal district court seeking

recognition of its judgment as final and enforceable, entitled to

full faith and credit in Texas. In a motion for non-recognition of

the foreign country judgment, Cohen asked the district court to2 The Act is found in Tex. Civ. Prac. & Rem. Code Ann. §§

36.001-36-008 (West 1997); see Banque Libanaise Pour Le Commerce v.

Khreich

, 915 F.2d 1000, 1004 (5th Cir. 1990) for its applicability.

3 Tex. Civ. Prac. & Rem. Code Ann. §§ 36.002(a)(1), 36.004 (West

1997).

4 Id. § 36.005(a)(2).

5 Terry v. Raymond Int'l, Inc.

, 658 F.2d 398, 401, 403 (5th Cir.

1981)(recognizing service of process, along with amen ability to

jurisdiction, as a “component of personal j urisdiction”), c ert.

denied , 456 U.S. 928, 102 S.Ct. 1975, 72 L.Ed.2d 443 (1982).

2 find that service of process upon a “substitute agent” in England

was unacceptable and that he did not receive proper notice of the

English law suit before suffering a default judgment. The district

court denied the motion and enforced the default judgment against

Cohen. Because Cohen agreed to submit to the jurisdiction of the

courts of England, we affirm.

I.

The parties agree that the Uniform Foreign Mone y-Judgments

R ecognition Act, or Texas Recognition Act, governs whether th e

judgment will be enforced in Texas. 2 The Act makes enforceable any

“foreign country judgment that is final and conclusive and

enforceable where rendered.” 3 Under the Texas Recognition Act, a

foreign country judgment “is not conclusive if

. . . th e foreign

country court did not have personal jurisdiction over the

defendant.” 4

Cohen’s challenge to service of process is a challenge to

personal jurisdiction. 5 The Society of Lloyd’s served process on6 “Names” are the entities like Cohen who underwrite insurance,

constituting the Society of Lloyd’s. They accept an amount of the

premium and undertake unlimited liability for the share of the risk

assigned to them.

7 Cohen does not challenge the power to appoint AUA9 to sign the

Equitas contract and bind Cohen to liability.

8 R. 204 at ¶ 25.2 (emphasis added).

3 an entity in London called Additional Underwriting Agencies [No.

9], Ltd., or AUA9, as “substitute agent” rather than on Mr. Cohen

personally.

As part of a Reconstruction and Renewal Plan established to

settle un derwriting losses arising from toxic tort litigation,

English legislation granted Lloyd’s the authority to appoint AUA9

to sign a reinsurance contract on behalf of Cohen and other Names,

binding them without their consent. 6 AUA9 did enter into the

reinsurance contract, called the Equitas contract, under which

Cohen owes premiums.

Cohen challenges Lloyd’s appointment of AUA9 as agent

specifically for service of process. 7 The Equitas contract itself

and not the enabling legislation is the purported source of Lloyd’s

right to appoint AUA9 as agent for se rvice of process. That

contract provided that each Name not domiciled in England

irrevocably appoints [AUA9] as agent to accept service of

any proceedings in the English courts on his behalf. If

for any reason such agent shall cease to act as agent for

service of process of any Name, that Name . . . shall

forthwith appoint a replacement agent, approved by ERL,

in London. 8

Cohen wrote Lloyd’s, however, advising that no person in9 R. 26.

10 R. 266 ¶ 2.2. That agreement “to submit to the jurisdiction”

of the courts is in addition to a forum-selection clause, providing

that the courts of England shall have exclusive jurisdiction. I d.

Similarly, the Equitas contract under which Cohen was found to owe

premiums provides that each Na me irrevocably agrees to submit to

the jurisdiction of the High Court of England. R.205.

11 Tex. Civ. Prac. & Rem. Code Ann. § 36.006(a)(3) (emphasis

added).

4 England had authority to accept service of process on his behalf. 9

Cohen thus maintains that he terminat ed AUA9's authority as

substitute agent for service.

When Cohen signed a General Undertaking to become a Name, he

“irrevocably agree[d] to submit to the jurisdiction of the courts

of England.” 10 That agreement defeats his challenge to the foreign

judgment based on a service-of-process objection to personal

jurisdiction. The Texas Recognition Act states expressly, “A court

may not refuse to recognize a foreign country judgment for lack of

personal jurisdiction if

. . . the defendant prior to the

commencement of the proceedings had agreed to submit to the

jurisdiction of the foreign country court with resp ect to the

subject matter involved.” 11 Since Cohen entered such an agreement

before Lloyd’s began the proceedings against him, t he district

court simply could not sustain Cohen’s ch allenge to personal

jurisdiction.

II.

Cohen also challenges t he notice provided him of the suit.12 Id . § 36.005(b)(1).

13 Noting that the agency was created not for the benefit of the

principle, Cohen, but for the benefit of another, Lloyd’s, the

court deemed the authority granted to th e agent to be a “power

given a s security.” Applying common law (Restatement of Agency)

the court then noted that the revocability of an agency differs for

the two: while an agency created for the benefit of the principle

is revocable by the principle, the power given as security (not

created for the benefit of the principle) is revocable only in

accordance with the agreement by the which the power was created.

The court held that the Equitas contract was the agreement by which

the power was created and looked to that contract for the rights of

revocation.

5 The Texas Recognition Act provides the court discretion not to

recognize a foreign country judgment if the defendant “did not

receive notice of the proceedings in sufficient time to defend.” 12

The district court determined that Cohen received adequate notice

through the service of the agent because his attempted revocation

of the agency was ineffective.

Relying on the Equitas contract prov ision quoted above, the

court held that it was the agent AUA9 and not Cohen who had the

right to revoke the agent’s authority and that from Cohen’s

perspective, the appointment was irrevocable. 13 Accordingly, AUA9

remained Cohen’s ag ent and through the agent, Cohen received

sufficient notice of the proceedings. We discern no error in this

holding and affirm.

III.

Finding no error in the court’s analysis on either point, we

AFFIRM.