GORDON J. QUIST, District Judge.
I. BACKGROUND........................................................672 A. The National League Proceedings...............................672 B. The Criminal Proceedings......................................673 C. The Criminal Appeals .........................................673 D. The Civil Case................................................674 II. DISCUSSION........................................................675 A. Repugnant to Public Policy....................................676 B. Compatibility with Due Process................................679 III. CONCLUSION .......................................................680
Plaintiff, Allianz Suisse Versicherungs-Gesellschaft, a Swiss insurance company, as subrogee of Andrew McKim, has sued Defendant, Kevin Miller, seeking recognition and enforcement of a foreign country judgment pursuant to the Uniform Foreign-Country Judgments Recognition Act, M.C.L.A. § 691.1131 et seq. In particular, Allianz seeks to enforce a Judgment it obtained against Miller in the District Court of Zurich, Switzerland on March 29, 2010. Zurich has filed a motion for summary judgment requesting entry of an order recognizing the Judgment as conclusive between the parties and enforceable in Michigan. In response, Miller has filed his own motion for summary judgment, arguing that the Court should decline to recognize the Judgment because it is contrary to the public policy of the State of Michigan and violative of the requirements of due process of law.
For the reasons stated in this Opinion, the Court will grant Allianz's motion, deny Miller's motion, and enter an order recognizing the Judgment as valid and enforceable under Michigan law.
Miller, a citizen of the United States and the State of Michigan, is and a former professional hockey player. During the 2000-01 season, Miller played for HC Davos in the Switzerland National Hockey League. On October 31, 2000, during a game with the ZSC Lions, Miller "checked" Lions player McKim from behind after McKim took a shot, hitting McKim in the head and neck. (Dkt. #40-2 at Page ID 397.) As a result, McKim fell and hit his head on the ice. McKim suffered a non-localized concussion and other injuries, and was hospitalized for several weeks. Miller received a five-minute penalty and a playing-time disciplinary penalty. (Dkt. #1-3 at Page ID 9-10.)
Following the incident, at the request of the ZSC Lions, the National League Tribunal commenced proceedings to review whether further disciplinary action should be imposed against Miller. (Id. at Page ID 10.) On November 15, 2000, the single judge assigned to review the incident determined that Miller violated IIHF Regulation 603 (intentional or potentially malicious injury or attempted injury) and imposed an eight game suspension and a fine. HC Davos appealed the ruling, but the appeal was rejected by the Appeals Chamber of the National League on December 16, 2000. (Id.) Miller was not a party to the National League Tribunal proceedings, and the Tribunal did not interview him or ask him questions. (Dkt. #45-2 at Page ID 585, ¶ 9.) HC Davos essentially controlled the proceedings, and its primary concern was concluding them in an expeditious manner so that Miller could resume playing before the playoffs.
On December 10, 2004, the Public Prosecutor's Office Division IV of the Canton of Zurich charged Miller criminally with malicious simple bodily injury and grievous bodily injury. The Zurich court invited Miller and his attorney to review the video recordings of the October 31, 2000 incident. (Dkt. #41-1 at Page ID 491.) Prior to trial, Miller's counsel viewed the recordings and furnished slow motion images to the court. (Id.) The trial was held August 29, 2005. Miller attended the trial and was permitted to testify. Miller admitted that he checked McKim, injuring him "at least lightly," but denied that his actions resulted in the serious injuries that McKim sustained when he hit his head on the ice. (Id. at Page ID 493.) The court requested expert opinions from two independent sources, Gerhard Müller, who evaluated the video, and Dr. med. R. Agosti, a medical expert who opined on the injuries that McKim sustained and the causal relationship of the "check" to the injuries. Both of the independent experts submitted reports to the court. Although Miller's counsel was not permitted to examine the independent experts, the court rules permitted Miller's counsel to submit written questions to Gerhard Müller and Dr. Agosti requesting clarification of their opinions. (Dkt. #41 at Page ID 477.) Miller's counsel sent written questions to Dr. Agosti. (Id.) It is unclear whether Miller's counsel also sent written questions to Gerhard Müller.
On September 20, 2005, the criminal court issued a 36-page decision finding Miller guilty of simple bodily harm, intentional bodily harm, and gross negligence. The court also found Miller 100 percent responsible for McKim's injuries. (Dkt. #41 at Page ID 475, ¶ 21.) In explaining its decision, the criminal court accepted expert Gerhard Müller's testimony as consistent with the video evidence and concluded that Miller could and should have avoided the collision but instead intended to deliver the blow to McKim. (Dkt. #41-1 at Page ID 499-500.) The court rejected Miller's account as not credible and disregarded the testimony of Miller's witnesses, including his experts, as biased or irrelevant.
Miller appealed the guilty verdict to the Court of Appeals for the Canton of Zurich, which accepted Miller's legal analysis and interpretation of the evidence and found Miller not guilty. McKim then appealed
Allianz, which insured McKim, filed a separate civil action against Miller in the District Court of Zurich to establish monetary damages for payments it had made to McKim for past, present and future medical expenses, wage loss, and other amounts Allianz was required to pay under Swiss law.
The civil court issued the 69-page Judgment at issue in this case on March 17, 2010. The judge
In a diversity action for recognition of a foreign country judgment, the court must apply state law. See Success Motivation Inst. of Japan Ltd. v. Success Motivation Inst., Inc., 966 F.2d 1007, 1009 (5th Cir.1992); Ingersoll Milling Mach. Co. v. Granger, 833 F.2d 680, 686 (7th Cir.1987) (noting that the question of recognition and enforcement of a Belgian judgment was to be resolved under Illinois law). In this case, the Court applies the Uniform Foreign-Country Money Judgments Recognition Act (FCMJRA), which Michigan has adopted. The FCMJRA applies to foreign-country judgments that grant or deny recovery of a sum of money and that are final, conclusive, and enforceable under the law of the foreign country.
Section 4 of the FCMJRA, which sets forth the grounds for recognition and non-recognition, provides in pertinent part:
M.C.L.A. § 691.1134. The grounds set forth in subsection (2) mandate nonrecognition, while the grounds set forth in subsection
Allianz has met its burden of showing that the FCMJRA applies to the Judgment because it is undisputed that the Judgment awards a sum of money to Allianz and is final, conclusive, and enforceable under Swiss law. See M.C.L.A. § 691.1133(3) (a party seeking recognition of a foreign judgment has the burden of showing that the FCMJRA applies to the judgment). Miller does not dispute that the FCMJRA applies to the Judgment, nor does he assert that he was not subject to personal jurisdiction in the Swiss courts or that the Swiss courts lacked subject matter jurisdiction. Finally, Miller does not argue that Switzerland's judicial system "does not provide impartial tribunals or procedures compatible with the requirements of due process of law."
Establishing the public policy ground for nonrecognition of a foreign judgment is a difficult task. This doctrine is "rarely relied upon." Tahan v. Hodgson, 662 F.2d 862, 866 n. 17 (D.C.Cir.1981). "[F]ew judgments fall in the category of judgments that need not be recognized because they violate the public policy of the forum." Naoko Ohio v. Yuko Yasuma, 723 F.3d 984, 1003 (9th Cir.2013) (internal quotation marks omitted). "It has long been the law that unless a foreign country's judgments are the result of outrageous departures from our own [n]otions of civilized jurisprudence, comity should not be refused." Id. (internal quotation marks omitted). "The standard is high, and infrequently met.... In the classic formulation, a judgment that `tends clearly' to undermine the public interest, the public confidence in the administration of the law, or security for individual rights of personal liberty or of private property is against public policy." Ackermann v. Levine, 788 F.2d 830, 841 (2d Cir.1986) (quoting Somportex v. Philadelphia Chewing Gum, 453 F.2d 435, 443 (3d Cir.1971)); see also Soc'y of Lloyd's v. Turner, 303 F.3d 325, 331-32 (5th Cir.2002) (noting the requirement of a high level of contravention of Texas law to justify application of the public policy ground for nonrecognition). According to the commentary to the Uniform Act, the test is "stringent." Uniform Foreign-Country Money Judgments Recognition Act § 4, cmt. 8 at 12 (2005). A difference in law, "even a marked one," is not enough. Id. Instead,
Id. (quoting Hunt v. BP Exploration Co. (Libya) Ltd., 492 F.Supp. 885, 901 (N.D.Tex.1980)).
Miller contends that the Judgment is repugnant to the public policy of Michigan and the United States because he was denied the right of confrontation in the Swiss proceedings and because the Judgment relies on the decision rendered in the National League hockey proceeding, to which Miller was not a party.
Miller contends that he was denied the right of confrontation because he was not permitted to confront the independent expert, Gerhard Müller, who opined about Miller's intent at the time of the incident. Miller contends that denial of the opportunity to cross-examine Gerhard Müller was detrimental to his defense because Gerhard Müller's report, which concluded that Miller acted with the intent to injure McKim, provided the basis for both criminal and civil liability. As Miller's counsel conceded at oral argument, however, the right of confrontation is a right that applies only in criminal cases. See Austin v. United States, 509 U.S. 602, 608 & n. 4, 113 S.Ct. 2801, 2804 & n. 4, 125 L.Ed.2d 488 (1993). Miller argues, however, that the right of confrontation pertains to the specific circumstances of this case because Miller's civil liability was determined in a criminal proceeding — in which the right of confrontation would be available in a United States court — and there is no way to extricate his civil from his criminal liability.
The simple answer is that Allianz is not asking the Court to recognize a criminal judgment. Instead, the Judgment is a civil judgment, rendered at the conclusion of a separate civil proceeding, that does not impose a fine or penalty that may be considered criminal in nature. Although the judge in the civil proceeding acknowledged and considered the Swiss criminal proceedings, the Swiss civil proceeding displayed all of the hallmarks of fundamental fairness. Miller was represented by counsel and was permitted to present evidence and make arguments to the court. Moreover, the civil judge's exhaustive Judgment reveals that the civil judge considered all of the evidence, including the video evidence of the hit, addressed the arguments that Miller raised, and gave cogent reasons for his decision.
As noted above, Miller was not totally deprived of the opportunity to flesh out the basis for Gerhard Müller's opinion. Miller had the opportunity to submit written questions to Gerhard Müller regarding his opinion. While Miller, no doubt, would have preferred to cross-examine Gerhard Müller, "the [FCMJRA] does not require that the procedures employed by the foreign tribunal be identical to those employed in American courts." Ingersoll Milling Mach. Co., 833 F.2d at 687 (italics in original); see also Soc'y of Lloyd's v. Reinhart, 402 F.3d 982, 994 (10th Cir.2005) ("The procedures the English courts afford need not be identical to ours, they must only be compatible in that they do not offend the notion of basic fairness."). "[A] mere difference in the procedural system is not a sufficient basis for nonrecognition." Uniform Foreign-Country Money Judgments Recognition Act § 4, cmt. 5 at 10. In Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895) — the seminal case in the area of foreign judgments — the
Bachchan v. India Abroad Publications, Inc., 154 Misc.2d 228, 585 N.Y.S.2d 661 (1992), which Miller cites as supporting his argument, is inapposite to this case. The plaintiff in Bachchan sought recognition of an English libel judgment. The court refused to enforce the judgment because English law lacks the protections afforded by the First Amendment. In particular, the court noted that English law requires the defendant to prove the truth of the allegedly defamatory statements, does not distinguish between matters of public and private concern, and requires no showing of fault in any degree. 154 Misc.2d at 234, 585 N.Y.S.2d at 664-65. The court observed that "[t]he protection of free speech and the press embodied in [the First Amendment] would be seriously jeopardized by the entry of foreign libel judgments granted pursuant to standards deemed appropriate in England but considered antithetical to the protections afforded the press by the U.S. Constitution." Id. at 235, 585 N.Y.S.2d at 665. The same cannot be said here. There is no indication that the substantive Swiss law, including burdens of proof, was so at odds with domestic legal principals that it was "antithetical to the protections afforded ... by the U.S. Constitution." In fact, having read the Swiss civil court's analysis of the facts and law, the Court notes that it is substantially similar to what would occur in a bench trial in the United States.
Miller also argues that the Judgment is repugnant to the public policy of Michigan because it relies on the National League hockey proceeding to which Miller was not granted status as a party. Specifically, Miller contends that use of the National League proceeding to establish his liability is contrary to notions of fundamental fairness embodied in preclusion doctrines, such as collateral estoppel, that preclude use of determinations made in prior proceedings against a person who was not a party in the prior proceeding. This Court disagrees because the Swiss civil court did not accord preclusive effect to the National League proceeding that determined that Miller intentionally injured McKim. Rather, the Swiss court considered the hockey tribunal's determination along with the other evidence presented, including the video evidence, and drew its own conclusions. Moreover, Miller admits that he waived his appeal of the hockey tribunal's decision, and nothing prevented him from obtaining counsel for advice on the consequences of waiving the appeal or whether he should intervene in
Subsection 4(c)(8) of the FCMJRA focuses on due process in "[t]he specific proceeding."
Uniform Foreign-Country Money Judgments Recognition Act § 4, cmt. 12 at 13.
The Seventh Circuit has described due process under the FCMJRA as an "`international concept of due process' to distinguish it from the complex concept that has emerged from American case law." Soc'y of Lloyd's v. Ashenden, 233 F.3d 473, 477 (7th Cir.2000). The court explained,
Id. at 476-77; see also Reinhart, 402 F.3d at 994 ("The procedures the English courts afford need not be identical to ours, they must only be compatible in that they do not offend the notion of basic fairness.").
Miller's due process arguments fare no better than his public policy arguments. Miller again points to the hockey tribunal proceeding, arguing that it was fundamentally unfair for the Swiss courts to use that decision against him, both in the criminal proceeding — which determined Miller's civil liability — and in the civil proceeding, which produced the Judgment. As shown above, use of the hockey tribunal decision against Miller was not fundamentally unfair. The hockey tribunal decision was not given preclusive effect in any of the court proceedings, but was simply one piece of evidence that the courts considered. Moreover, Miller could have appealed the hockey tribunal decision, but elected not to do so. Thus, use of that decision as evidence was not contrary to due process.
Miller also complains that he was denied due process in the criminal proceedings, not only because he was denied the opportunity to cross-examine Gerhard Müller, the court-appointed expert, but also because the court rejected Miller's expert opinions out of hand, refusing to accord them the evidentiary status of Gerhard Müller's opinion. Miller's complaints do not concern the specific Swiss proceeding,
Finally, Miller contends that he was not afforded due process in the civil proceeding because the judge endorsed the prior criminal decision, which determined Miller's civil liability, relied on the hockey tribunal decision, and cited Gerhard Müller's expert opinion as the primary basis for his finding of liability. As has already been pointed out, these items were only part of the body of evidence submitted to the civil court judge, which included evidence that Miller himself submitted. In addition, the civil court judge specifically noted that he was not bound by the criminal court decision, but was permitted to consider the evidence anew. A review of the Judgment shows that he did so and considered Miller's evidence and arguments. In sum, the Court cannot say that the Judgment presents a serious injustice or lacks basic fairness, such that nonrecognition is appropriate.
For the foregoing reasons, the Court will grant Allianz's Motion for Summary Judgment, deny Miller's Motion for Summary Judgment, and enter an order recognizing the Judgment.
A separate order and judgment will enter.
