Case of the Day: Jenner v. Ecoplus

The case of the day is Jenner v. Ecoplus, Inc. (N.C. Ct. App. 2012). Matthew Jenner and Julia Markson, both UK nationals, lent money to Ecoplus, Inc., a Wisconsin corporation doing business in North Carolina. Ecoplus defaulted on the loans, and Jenner and Markson sued in the Western District of North Carolina. But Ecoplus moved to dismiss, citing an exclusive choice of court clause in the loan agreements, and the parties agreed to dismiss the action voluntarily without prejudice. Jenner and Markson then sued Ecoplus in the High Court in London. They served Ecoplus with the complaint and “an informational leaflet from the English court system stating that Defendant had 22 days to either respond to the claims or request an extension of up to 36 days.” Ecoplus failed to answer the complaint, and Jenner and Markson obtained a default judgment.

They then sought recognition and enforcement of the judgment in the Mecklenburg County Superior Court. There was some initial procedural sparring, and then the judge, on his own motion, found that “because the informational leaflet from the English court system appeared to give Defendant 36 days to respond to the complaint, and only 28 days had elapsed between service of the complaint on Defendant and entry of the default judgment,” the default judgment was premature. He accordingly denied the motion for recognition and enforcement, and Jenner and Markson appealed.

On appeal, the court began with an unusual procedural ruling, one that I haven’t seen before: it held that when a judgment creditor is seeking mere recognition of a foreign judgment, but not enforcement, it is unnecessary to bring a civil action; the judgment creditor can instead proceed by motion. I am not sure this is right, but I don’t want to comment on it now. I will plan to write a post on this separately.

On the substance, the court reversed and remanded. It was Ecoplus’s burden, under the UFCMJRA, to prove a ground for nonrecognition, and Ecoplus had offered no evidence or argument against recognition at the hearing; the judge truly acted sua sponte. Moreover, the court thought it highly likely that Ecoplus could not have prevailed even if it had tried. Even if the English court had made a procedural error under English law (it does not appear that it did), the error was not one that rendered the foreign judgment fundamentally unfair, and fundamental unfairness was the only category under the statute to which Ecoplus could point in its arguments. There must be limits to this principle, of course; but given the description of the notice that was provided to Ecoplus in this case, it seems clear there was no fundamental unfairness and indeed, no mistake of law.

4 responses to “Case of the Day: Jenner v. Ecoplus”

  1. P Smith

    The informational leaflet is either misleading or has been misunderstood. What CPR Practice Direction 6B actually says about responding to claims served outside the jurisdiction is this:

    “6.3 The period for filing an acknowledgment of service under Part 10 or for filing or serving an admission under Part 14 is the number of days listed in the Table after service of the particulars of claim. [The Table lists 22 days for the US.]

    “6.4 The period for filing a defence under Part 15 is –

    “(1) the number of days listed in the Table after service of the particulars of claim; or

    “(2) where the defendant has filed an acknowledgment of service, the number of days listed in the Table plus an additional 14 days after the service of the particulars of claim.”

    In the absence of any response after 28 days the claimants were entitled to request default judgment under CPR 12.3(1).

    1. Thanks as always, P Smith.

  2. P Smith

    I was going to suggest that the claim form should have been served together with a copy of the High Court’s order permitting service of the claim form out of jurisdiction and setting the period for filing a response in accordance with CPR 6.36 and 6.37(5), but on reflection it appears that the High Court’s jurisdiction could have been founded on Article 23 of Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, and therefore no permission was required to serve the claim form out of the jurisdiction (CPR 6.33(2)).

    I have tracked down what I believe to be the court service leaflet in question. It is N1C(CC) which must be read with form N9(CC).

    These forms are however intended for claims started in the Commercial Court (a specialist court within the Queen’s Bench Division), which is not stated to be the case here but seems reasonable in view of the subject matter (CPR 58.1). Otherwise the defendant should have been supplied with form N1D, which simply refers the defendant to the CPR in order to work out the period in which he is required to respond.

    1. To me the overriding point is that the US court should not be in the business of deciphering the procedural arcana of foreign service of process laws, particularly when the foreign court in question is one whose procedures are presumptively fair and whose impartiality is not in question, particularly where the parties had a choice of court agreement.

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