Update: I don’t often do this, but I forgot that I wrote about this case in 2014! I suppose that’s what happens when you reach 1,550 posts.

The case of the day is de Fontbrune v. Wofsy (9th Cir. 2016). From 1932 to 1970, Christian Zervos took thousands of photographs of Picasso’s art, which Cahiers d’Art published as a 22-volume catalogue raisonné of Picasso’s work. Yves Sicre de Fontbrune purchased Cahiers d’Art’s catalog and thus owned the copyright in the Zervos catalogue.

Wofsy published some of the Zervos photos, and de Fontrbune sued in France for breach of copyright. In 2001, the Paris Court of Appeal held that Wofsy had infringed, awarded damages of 800,000 francs, and prohibited Wofsy “from the use in any manner whatsoever” of the photos “under penalty of [astreinte] 10,000 francs by proven infraction.”

In 2011, de Fontbrune brought an enforcement action in the Tribunal de Grande Instance de Paris, seeking € 2 million for liquidation d’astreinte, i.e., to enforce the penalty. In 2012, the court ruled in de Fontrbrune’s favor and awarded € 2 million.

De Fontbrune then brought an action in Superior Court in California for recognition and enforcement of the € 2 million judgment. Wofsy removed the case to the District Court and moved to dismiss for failure to state a claim.

The question was whether the liquidation d’astreinte was “damages” for purposes of California’s recognition statute. The parties submitted dueling declarations from French lawyers. De Fontbrune asked the court to strike Wofsy’s expert declaration on the grounds that it constituted matter outside the pleadings and could not be considered on a motion to dismiss for failure to state a claim.

The judge denied the motion to dismiss on the grounds that determining whether astreinte is damages or instead a penalty would be “premature at [the] pleadings stage,” and he declined to consider Wofsy’s declaration on the grounds that it was outside the pleadings. But on a motion for reconsideration, the judge reversed course entirely, holding that the question of French law was a question of law, not fact, and thus that any materials, whether or not admissible, could be considered. The judge agreed with Wofsy’s expert and dismissed the case with prejudice, finding that the astreinte was not intended to compensate de Fontbrune but to ensure Wofsy’s compliance with the French court’s order.

On appeal, the court affirmed. Surprisingly, no other circuit had ruled on the power of a court to consider declarations and other matters outside the pleadings on a motion to dismiss involving a question of foreign law. The court correctly held that it is proper to look to such materials, just as it is proper for the court to consider cases, treatises, and other materials to figure out domestic law in order to decide a motion to dismiss. Here is FRCP 44.1, which settles most such questions:

A party who intends to raise an issue about a foreign country’s law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination must be treated as a ruling on a question of law.