Tag Archives: Germany

Case of the Day: Derr v. Swarek

The case of the day is Derr v. Swarek (5th Cir. 2014). This was the appeal of the case of the day from Sept. 12, 2013. The basic facts: Thomas L. Swarek and Thomas A. Swarek sued Herman Derr in the Issqquena County, Mississippi chancery court seeking specific performance of a purchase and sale agreement and damages. Derr, who resided in Germany, moved to dismiss for lack of personal jurisdiction. He died while the case was pending, and his estate was substituted as defendant. The case was stayed while the parties fought about whether it belonged in the chancery court or in the circuit court. While the litigation was stayed, Derr’s heirs filed a lawsuit in a German court seeking a declaratory judgment on the contract claim. Swarek sought to substitute the heirs for the estate as parties in the Mississippi action, but the Swareks then voluntarily dismissed their claims with prejudice before the substitution. Ultimately the German courts decided that the Derr heirs were entitled to their declaratory judgment even though the Swareks (it would seem) had mooted the suit by dismissing their own claims with prejudice. (According to the German court, the dismissal was a “unilateral statement” that did not extinguish the Derr’s claims under German law). The German court awarded costs in the amount of $300,000 (!), and the Derrs sought recognition of the judgment for costs in Mississippi. As we saw in the earlier case, the district court refused recognition of the judgment, and the Derrs appealed.
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