Tag Archives: Dubai

Case of the Day: Carson v. Griffin

The case of the day is Carson v. Griffin (N.D. Cal. 2013). Fletcher Carson sued several defendants, including Walsh Griffin, Walsh Capital Group, Ivan Ahmed Azziz, Daniel Okwudili Nwankwo, Cisse Abdoulaye, and Ben Aka, on a variety of claims. I don’t attempt to summarize the claims of the pro se complaint. Griffin and Walsh Capital Group were located in Ireland. The others were in Dubai. Carson attempted to serve each of these defendants via email using RPost’s service. You may remember RPost from the case of the day of February 7, 2012, in which RPost was the plaintiff and used its own email technology to effect service. As in the earlier case, Carson did not know the addresses of the foreign defendants, and so the Hague Service Convention did not apply to his attempts at service in Ireland (the UAE is not a party to the Convention in any case).

Carson first sought leave to serve Azziz by email using an email address that he had previously used in corresponding with Azziz. Apparently he sought leave after sending the email—long-time readers know that I think motions for leave to make service by alternate means should come before you effect the service. In any case, the judge rejected his first attempt on the grounds that Carson had not “explicitly state[d]” that he had previously corresponded with Azziz at that address and on theg rounds that the “receipt authentication document” had a field labeled “opened,” but that field was blank. On his second attempt, Carson explained that he had corresponded with Azziz hundreds of times at the address in question, which satisfied the judge. He also provided some additional details about RPost’s service:

There is a delay after the email is sent and before the receipt authentication is sent back to the sender. If the email is opened within that delay period, the “opened” column will indicate that the email has been opened. Otherwise, the “opened” column will be be blank. The system does not continue to query the recipient to determine whether the email is later opened.

The judge was satisfied with this explanation, too, though I’m not sure why. It obviously was important to the judge to know whether the email had been opened (it’s not obvious that the judge’s concern was well-founded, since there’s a case to be made that what should matter is receipt of the email, not whether the defendant actually opens the email). But Carson’s explanation doesn’t show that the email ever was opened. In any event, the judge deemed that Azziz had been served.

The judge rejected Carson’s attempts at service on Nwankwo, Abdoulaye, and Aka, whom he attempted to serve at Azziz’s email address, on the grounds that he had not shown that he had ever communicated with them at that address and it was unclear that they would receive notice of the proceedings.

Finally, the judge granted Carson’s motion with respect to service on Griffin and Walsh Capital. Carson explained that he had corresponded with Griffin many times using the relevant email address, and that the address he used for Walsh Capital was listed on the firm’s website. Interestingly, the judge did not seem concerned about whether Griffin or Walsh Capital had actually opened the emails, noting that “it is reasonable to assume that a business checks, or ought to check, an email address that is listed on its website.”

Case of the Day: Injazat Technology Fund v. Najafi

The case of the day is Injazat Technology Fund v. Najafi (N.D. Cal. 2012). Injazat and Hamid Najafi, an American, were both parties to an investment agreement with Broadlink Research FZ, LLC, a Dubai company. Najafi was Broadlink’s CEO. Under the agreement, Injazat agreed to buy 35% of Broadlink’s stock for $3 million. The agreement had an arbitration clause requiring arbitration of disputes arising under the agreement in London, under English law and the ICC rules.

Injazat alleged that Najafi had made misrepresentations about Broadlink’s liabilities in the course of the negotiations leading up to the deal, and it initiated an arbitration. Following the hearing, the arbitrator awarded Injazat damages in the full amount of its investment, plus interest, costs, and fees.

Injazat sought recognition and enforcement of the award. According to the judge, Najafi, who owned real property in the district, conceded that none of the grounds for non-recognition under the New York Convention existed. But Najafi, who initiated a second arbitration in London against Injazat on the same day that he opposed recognition of the award, sought a stay, arguing that the risk of inconsistent outcomes and the possibility of a set-off justified it. Najafi pointed to two special circumstances: Injazat was winding up its business and Najafi feared it would have no way to collect an eventual award in the second arbitration; and Najafi was unable to bring the claims in a more timely way because the government of Dubai had issued a travel ban—at Injazat’s instance—that forbade him from leaving the country. But these arguments were not enough, in the judge’s view, to suggest that he should use his discretion to stay the proceedings.

Case of the Day: Shehadeh v. Alexander

The case of the day is Shehadeh v. Alexander (Ga. Ct. App. 2012). Abdel Karim Shehadeh, Mark Alexander, and others were parties to an operating agreement for Hydrajet Technology, LLC, a Georgia limited liability company. Shahadeh and Alexander entered into a separate agreement under which Shehadeh was to purchase Alexander’s interest in Hydrajet. Litigation over this second agreement resulted in a judgment of the Dubai Court of Appeals in favor of Alexander and against Shehadeh in the amount of $500,000. The Dubai judgment was later affirmed by the Dubai Court of Cassation.

Alexander sought recognition and enforcement of the judgment in Georgia. Shehadeh opposed recognition and enforcement on the grounds that the courts of Dubai did not recognize or enforce United States judgments. The trial court granted recognition and enforcement, but on appeal the court reversed.

Georgia has enacted the Uniform Foreign Money Judgments Recognition Act, but it adds one mandatory ground for non-recognition not found in the uniform statute. Under Georgia’s enactment of the statute, the judgment cannot be recognized if

The party seeking to enforce the judgment fails to demonstrate that judgments of courts of the United States and of states thereof of the same type and based on substantially similar jurisdictional grounds are recognized and enforced in the courts of the foreign state.

The court of appeals noted that Alexander had not given any evidence showing that the Dubai courts recognize US judgments. Evidence of impartiality, noted the court, was not enough: Alexander had to make an “affirmative evidentiary showing[] that the judgment is a product of a legal system that both recognizes and enforces the judgments of the federal and state courts of the United States.”

The statute says what it says, although I think courts should, if they can, read such statutes to require only evidence that the foreign court would recognize and enforce a US judgment in an appropriate case, not that the foreign court has recognized and enforced US judgments. Otherwise, the first judgment from a particular foreign court brought to the United States will necessarily fail to obtain recognition and enforcement, and that hardly sets the two states involved off on a road of comity and mutual respect! The statute itself is also subject to criticism and in my view should be amended or repealed. At most, it seems to me that reciprocity should be a discretionary ground for non-recognition. Prior to enactment of the UFMJRA, courts relied on the doctrine of comity, which was highly discretionary and which was flexible enough to avoid unfortunate outcomes like the outcome here, which, if I can make assumptions from the names of the party, harms only the US citizen who litigated a case abroad rather than trying to force his foreign opponent to litigate the merits in the United States.