The case of the day is Midbrook Flowerbulbs Holland B.V. v. Holland America Bulb Farms, Inc. (9th Cir. 2017). Holland America, a Washington corporation, had a business relationship with Midbrook, a Dutch company, under which Holland America purchased flower bulbs from Midbrook. A dispute arose. Midbrook claimed Holland America had failed to pay an invoice; Holland America claimed it had been overcaharged. The dispute was litigated in the Alkmaar District Court and the Amsterdam Court of Appeal, resulting in a judgment in favor of Midbrook. Midbrook sought recognition of the judgment in the Western District of Washington, and Holland America opposed recognition on the grounds that the Dutch proceedings did not provide him with due process. The District Court entered a judgment in Midbrook’s favor, and Holland America appealed.
The point I want to discuss is the claim that the Dutch courts’ refusal to allow Holland America discovery of Midbrook’s business records was a denial of due process. What does the UFCMJRA mean when it makes denial of due process a ground for non-recognition? Is it talking about the ordinary standard of due process that would apply in an American court? Or is it talking about another, presumably lower, international standard of due process? The Ninth Circuit quoted the commentary to UFCMJRA § 4:
Subsection 4(c)(8) … allows the forum court to deny recognition to the foreign-country judgment if the court finds that the specific proceeding in the foreign court was not compatible with the requirements of fundamental fairness. … [I]t can be contrasted with subsection 4(b)(1), which requires the forum court to deny recognition to the foreign-country judgment if the forum court finds that the entire judicial system in the foreign country where the foreign-country judgment was rendered does not provide procedures compatible with the requirements of fundamental fairness. While the focus of subsection 4(b)(1) is on the foreign country’s judicial system as a whole, the focus of subsection 4(c)(8) is on the particular proceeding that resulted in the specific foreign-country judgment under consideration. Thus, the difference is that between showing, for example, that there has been such a breakdown of law and order in the particular foreign country that judgments are rendered on the basis of political decisions rather than the rule of law throughout the judicial system versus a showing that for political reasons the particular party against whom the foreign-country judgment was entered was denied fundamental fairness in the particular proceedings leading to the foreign-country judgment.
In light of the commentary, the court held that the standard to be applied is fundamental fairness. And it is hard to argue that fundamental fairness requires pretrial discovery. Indeed, the court cited precedent for the proposition that even ordinary US due process does not require pretrial discovery, which raises the question why the court decided to reach the question of the correct interpretation of the phrase “due process” in the UFCMJRA.
The case is rightly decided. It would be hard to talk about comity if a foreign judgment could not be recognized in the US unless the foreign proceeding incorporated all of the niceties of our procedural law, including pretrial discovery. Note, however, that the court’s formulation of the standard is slightly different than we’ve seen before. Instead of “fundamental fairness,” the Seventh Circuit in 233 F.3d 473, 477 (7th Cir. 2000), has “international due process.”