08-2332-cv

Tropp v. Corporation of Lloyd’s

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 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.

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13 Richard A. Tropp, individually, and on 

14 behalf of all others similarly situated,

15 Plaintiff-Appellant,

16

17 -v.- 08-2332-cv

18

19 Corporation of Lloyd’s, also known as 

20 The Society of Lloyd’s,

21 Defendant-Appellee.

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23

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

25 NY.

26

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

28 Harris, Shriver & Jacobson LLP,

29 New York, NY.

30
2

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 UK
3

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 a
4

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

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