08-2332-cv

Tropp v. Corporation of Lloyd’s



### UNITE D STATES C OURT OF AP PEALS FOR T HE SE COND CIRCU IT



# SUM MARY ORDE R

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY ORDER FILED
ONO RA FTER J

ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL R ULE OF APPELLATE PROCEDURE 3 2 .1 AN D T H I S C OURT ’ S LOCAL R ULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL

.



### 1 At a stated term of the United States Court of Appeals 

### 2 for the Second Circuit, held at the Daniel Patrick Moynihan 

### 3 United States Courthouse, 500 Pearl Street, in the City of 

### 4 New York, on the 19 day of July, two thousand ten. th 

### 5 6 PRESENT: DENNIS JACOBS, 

### 7 Chief Judge, 

### 8 RICHARD C. WESLEY, 

### 9 DENNY CHIN, 

### 10 Circuit Judges. 

### 11 12 - - - - - - - - - - - - - - - - - - - -X Richard A. Tropp, individually, and on 

### 13 14 behalf of all others similarly situated,

Plaintiff-Appellant, 

### 15 16 17 -v.- 08-2332-cv 

### 18 19 Corporation of Lloyd’s, also known as 

### 20 The Society of Lloyd’s, 

### 21 Defendant-Appellee. 

### 22 - - - - - - - - - - - - - - - - - - - -X 

### 23 APPEARING FOR APPELLANT: RICHARD A. TROPP, pro se, New York, 

### 24 25 NY. 

### 26 27 APPEARING FOR APPELLEE: JOHN W. BREWER, Fried, Frank, 

### 28 Harris, Shriver & Jacobson LLP, 

### 29 New York, NY. 

### 302 

### 1 Appeal from a judgment of the United States District 

### 2 Court for the Southern District of New York (Buchwald, J.).



### 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 

### 4 AND DECREED that the judgment of the district court be 

### 5 AFFIRMED

.



### 6 Plaintiff, Richard Tropp, pro se, appeals from an order 

### 7 of the United States District Court for the Southern 

### 8 District of New York (Buchwald, J.) dismissing his action 

### 9 against defendant, the Corporation of Lloyd’s (“Lloyd’s”), 

### 10 on the grounds of improper venue and failure to state a 

### 11 claim. We assume the parties’ familiarity with the 

### 12 underlying facts, the case’s procedural history, and the 

### 13 issues presented for review.



### 14 “Where the district court has relied on pleadings and 

### 15 affidavits to grant a Rule 12(b)(3) motion to dismiss on the 

### 16 basis of a forum selection clause, our review is de novo.” 

### 17 Altvater Gessler-J.A. Baczewski Int’l (USA) Inc. v. Sobieski 

### 18 Destylarnia S.A., 572 F.3d 86, 89 (2d Cir. 2009) (internal 

### 19 quotation marks omitted). The party seeking enforcement of 

### 20 a forum selection clause must demonstrate that: “(1) the 

### 21 clause was reasonably communicated to the party resisting 

### 22 enforcement; (2) the clause was mandatory and not merely 

### 23 permissive; and (3) the claims and parties involved in the 

### 24 suit are subject to the forum selection clause.” Id.



### 25 Once the party seeking enforcement has established 

### 26 these conditions, the burden shifts to the party resisting 

### 27 enforcement to rebut the presumption of enforceability by 

### 28 “making a sufficiently strong showing that ‘enforcement 

### 29 would be unreasonable or unjust, or that the clause was 

### 30 invalid for such reasons as fraud or overreaching.’” 

### 31 Phillips v. Audio Active, Ltd., 494 F.3d 378, 383-84 (2d 

### 32 Cir. 2007) (quoting M/S Bremen v. Zapata Off-Shore Co., 407 

### 33 U.S. 1, 15 (1972)). “The Supreme Court has construed this 

### 34 exception narrowly.” Roby v. Corporation of Lloyd’s, 996 

### 35 F.2d 1353, 1363 (2d Cir. 1993).



### 36 Tropp’s primary challenge to the district court’s Rule 

### 37 12(b)(3) holding is that the forum selection clause is 

### 38 unenforceable because United Kingdom law deprived him of any 

### 39 remedy, See, e.g., Roby v. Soc’y of Lloyd’s, 992 F.2d 1353 

### 40 (2d Cir. 1993) (A forum selection clause is unreasonable “if 

### 41 the fundamental unfairness of the chosen law may deprive the 

### 42 plaintiff of a remedy.”), and that his experiences in UK3 

### 1 courts provide a record of this deprivation that was 

### 2 unavailable to the courts that have previously upheld the 

### 3 forum selection clause contained in Lloyd’s General 

### 4 Undertaking agreement.



### 5 True, at least some claims against Lloyd’s are now 

### 6 precluded by conclusions reached in unrelated UK litigation. 

### 7 See Laws v. Soc’y of Lloyds, [2003] EWCA (Civ) 1887, [65]. 

### 8 However, the UK courts did not dismiss Tropp’s counterclaims 

### 9 on that basis. Moreover, although Tropp was unsuccessful in 

### 10 his attempts to assert defenses and counterclaims against 

### 11 Lloyd’s in the UK courts, his experiences do not cause us to 

### 12 revisit our holding that the Lloyd’s forum selection clauses 

### 13 (of which this is one) are valid because UK remedies are 

### 14 available. See, e.g., Roby, 992 F.2d at 1365-66.



### 15 We review de novo the district court’s dismissal for 

### 16 failure to state a claim pursuant to Federal Rule of Civil 

### 17 Procedure 12(b)(6). See, e.g., Selevan v. N.Y. Thruway 

### 18 Auth., 584 F.3d 82, 88 (2d Cir. 2009). We “assume all 

### 19 ‘well-pleaded factual allegations’ to be true, and 

### 20 ‘determine whether they plausibly give rise to an 

### 21 entitlement to relief.’” Id. (quoting Ashcroft v. Iqbal, 

### 22 129 S. Ct. 1937, 1950 (2009)).



### 23 Whether a foreign judgment is domestically enforceable 

### 24 is a matter of state law. Fed. R. Civ. P. 69(a)(1). New 

### 25 York’s Recognition Act applies to “any foreign country 

### 26 judgment which is final, conclusive and enforceable where 

### 27 rendered.” N.Y. C.P.L.R. 5302. A judgment that 

### 28 satisfies 5302 “is enforceable by an action on the judgment, 

### 29 a motion for summary judgment in lieu of complaint, or in a 

### 30 pending action by counterclaim, cross-claim or affirmative 

### 31 defense.” N.Y. C.P.L.R. 5303. “A foreign country judgment 

### 32 is not conclusive if,” inter alia, “the judgment was 

### 33 rendered under a system which does not provide impartial 

### 34 tribunals or procedures compatible with the requirements of 

### 35 due process of law.” N.Y. C.P.L.R. 5304(a). “A foreign 

### 36 country judgment need not be recognized if,” inter alia, 

### 37 “the cause of action on which the judgment is based is 

### 38 repugnant to the public policy of this state.” N.Y. 

### 39 C.P.L.R. 5304(b).



### 40 Tropp argues that Lloyd’s UK judgment is unenforceable 

### 41 because UK law employs a “sub-system” for claims like his, 

### 42 that denies due process to aggrieved Names. The New York 

### 43 Court of Appeals however, upholding the recognition of a4 

### 1 default English judgment, held that the “relevant inquiry 

### 2 under C.P.L.R. 5304(a)(1) is the overall fairness of 

### 3 England’s legal ‘system,’ which is beyond dispute.” See 

### 4 CIBC Mellon Trust Co. v. Mora Hotel Corp. N.V., 792 N.E.2d 

### 5 155, 160 (N.Y. 2003).



### 6 Tropp contends that recognition of the UK judgment 

### 7 would be repugnant to various elements of New York’s public 

### 8 policy. But Society of Lloyd’s v. Grace, 718 N.Y.S.2d 327 

### 9 (N.Y. App. Div. 2000) involved a litigant in Tropp’s 

### 10 circumstances--in particular, the UK court “entered summary 

### 11 judgment without allowing defendants to present their fraud 

### 12 claim or challenge the amount sought by Lloyd’s”--and the 

### 13 First Department concluded that “since the underlying 

### 14 English judgments are procedurally sound and do not violate 

### 15 any public policy of New York or the United States, they are 

### 16 entitled to comity.” Id. at 328.



### 17 Finally, Tropp argues that, if the UK judgment does not 

### 18 violate the Recognition Act, then the Recognition Act itself 

### 19 violates his federal constitutional due process rights. He 

### 20 contends, as does the brief amicus curiae, that the case is 

### 21 controlled by Tumey v. Ohio, 273 U.S. 510 (1927), which 

### 22 holds that it “certainly violates the Fourteenth Amendment 

### 23 and deprives a defendant in a criminal case of due process 

### 24 of law to subject his liberty or property to the judgment of 

### 25 a court, the judge of which has a direct, personal, 

### 26 substantial pecuniary interest in reaching a conclusion 

### 27 against him in his case.” Id. at 523. In this case 

### 28 however, Tropp is not facing criminal charges, but rather a 

### 29 civil judgment for breach of contract relating to his 

### 30 voluntary relationship with Lloyd’s. More importantly, 

### 31 although the UK courts gave conclusive effect to Lloyd’s 

### 32 calculation of Tropp’s liability, the UK courts themselves 

### 33 had no financial interest in the outcome of Tropp’s case.



### 34 Finding no merit in Tropp’s remaining arguments, we 

### 35 hereby AFFIRM the district court’s judgment.



### 36 FOR THE COURT: 

### 37 CATHERINE O’HAGAN WOLFE, CLERK 

### 38 39 40 41