In Sik Choi v. Hyung Soo Kim Nancy Soo Lee and Golden Plastics

LEWIS, Circuit Judge,

concurring in the judgment.

I agree with the majority that if one were to reach the issue of whether the laws of South Korea accorded the defendant, Kim, American due process in the circumstances predicating this lawsuit, one would likely reach the conclusion the majority espouses. However, I do not think we should pursue that course. I believe that before we render an opinion which finds the legal system of a foreign sovereign wanting in that it produces judgments that do not comport with our homegrown notions of justice, prudence dictates that we determine whether what we are criticizing is in fact a “judgment” at all. Since the plaintiff, Choi, did not establish his prima facie case for domestication of the ostensible South Korean judgment, I would grant summary judgment on that ground and leave the due process concerns for another day.

A.

A plaintiff has a prima facie burden when he or she asserts that he or she is entitled to enforcement in one state of a court judgment of another. Courts in a variety of jurisdictions have recognized this basic burden: a proffered judgment must at least appear to be a valid judgment before an enforcing court will accord it a presumption of enforceability. E.g., Knighton v. Int’l Business Machines Corp., 856 S.W.2d 206, 209 (Tex. App.—Houston [1 Dist.] 1993) (noting that prima facie case of enforcement is demonstrated upon introduction of “a foreign judgment [that] appears to be a valid, final, and subsisting judgment”); Fischer v. Kipp, 177 Kan. 196, 277 P.2d 598 (1954) (“duly authenticated copies” of foreign judgments suffice to make out prima facie case for enforcement); see generally Fred R. Surface & Assoc., Inc. v. Worozbyt, 151 Ga.App. 638, 260 S.E.2d 762, 764 (1979) (judgment creditor’s mere assertion of indebtedness, without tender of judgment, does not prove its case). Thus, the Full Faith and Credit Act, 28 U.S.C. § 1738, which describes materials that are entitled to full faith and credit, states in pertinent part:

The records and judicial proceedings - of any court of any ... State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.

Although we have previously explained that the mode of authenticating court records described in section 1738 is not exclusive (Unit*251ed States v. Mathies, 350 F.2d 963, 966 n. 4 (3d Cir.1965)), the statute clearly reflects the sense that not just any piece of paper can serve as evidence of a judgment satisfying a plaintiffs prima facie burden.

Of course, the issue of whether a putative judgment is in fact a judgment — that is, “the sentence of the law given by [a] court as the result of proceedings instituted therein for the redress of an injury” (Allegheny County v. Maryland Cas. Co., 132 F.2d 894, 897 (3d Cir.1943) — does not arise very often in the garden variety full faith and credit case. Full faith and credit cases usually involve domestication or enforcement in one state of a judgment of the tribunal of another state. It is ordinarily quite easy to tell whether a plaintiff has a “judgment” entitled to a presumption of validity. Such documents tend to share common characteristics among the states of the Union. Furthermore, practitioners generally recognize that they should present a formal, properly authenticated copy of a judgment to the enforcing court.1

Even when a party is seeking enforcement of a confessed judgment, in the ordinary case the putative judgment would have the appearance of a judicial or quasi-judicial instrument. E.g., N.J.R. 4:45-2 (court issues confessed judgment); Pa.Civ.Pro.R. 2951(a) (prothonotary issues confessed judgment upon filing of instrument with confession of judgment clause). Thus, if a litigant arrived at the courthouse door in New Jersey with a document that looked, to all the world, like a notarized private agreement signed in (for instance) Nevada between himself and another party, the enforcing court would reasonably look upon the ostensible “judgment” with suspicion.

That was precisely the case here. Choi presented a document that appeared to be nothing more than a private contract between himself and Kim, notarized by a South Korean notary. Not surprisingly, the district court noted that it was “skeptical that the Deed and Order” at issue “constitute^] a valid judgment, as if rendered and entered by a Korean court of law.” Song v. Kim, et al., No. Cir.A. 93-19, 1993 WL 526340, *6 (D.N.J. Dec. 16, 1993) (“Op”). In fact, the court ruled that “[biased on the parties’ submissions, the Court finds that no Korean court has entered a judgment against Kim, nor has Choi ever brought the matter before a Korean court.” Id. at *7. The court should have stopped there: Choi had failed to prove his prima facie ease, and his case should have been dismissed with prejudice.2

*252B.

However, although the district court had essentially found that Choi had not made out a prima facie case, the court nevertheless took the matter a step further. The court stated that although the instrument before it had not been proven to be a judgment, that “may be beside the point, as the Court will accept, for purposes of argument, that [sic] Deed and Execution Order do constitute a valid judgment under Korean law.” Op. at *7. Having made this assumption, the district court then addressed whether the South Korean legal system had accorded Kim American-style due process. The district court’s analysis of the “process” provided by South Korean law is brief enough that I quote it in full:

While Kim may have waived his right to notice and hearing prior to execution on the Deed, the Court is unable to ascertain whether Korea provides Kim any opportunity to vacate or challenge this ‘judgment’ once Choi acts upon the Execution Order. As the Court understands Song’s argument, Choi could seize any of Kim’s attachable assets in Korea without ever having a Korean court of law enter a judgment on the Deed and Execution Order. Whether or not this is a correct interpretation of Korean law, and irrespective of the notice, hearing and opportunity to vacate questions, this kind of judgment without judicial oversight is anathema to our concept of due process.

Id. (emphasis added). As the italicized portions of the district court opinion demonstrate, the district court did not ascertain what the law of South Korea was, but rather determined that what might be the law of South Korea did not accord Kim American due process.

On appeal, the majority takes the same path. The majority first assumes that a valid judgment was before the district court (Maj.Op. at 248), then approves the district court’s conclusion that what might be the South Korean law implicated here did not afford Kim American due process (Maj.Op. at 248-49 (noting that majority “assume[d], without deciding, that the parties have correctly stated the Korean law”), 248-50 (determining that according to what the parties say South Korean law was, “the Korean procedure does not comport with due process”)).

I believe that the district court erred in assuming that Choi had presented a valid judgment to the district court. That is because, having made this assumption, the court was forced to decide whether the laws of South Korea pertaining to instruments analogous to American confessions of judgment accord American due process. There having been a less intrusive manner in which this case could be resolved (the finding that Choi had failed to make out a prima facie case for enforcement), comity counsels that American courts avoid subjecting the laws of a foreign sovereign to evaluations based on American notions of due process.

I do not mean to suggest that comity prevents us from subjecting the laws of South Korea to a due process evaluation in all cases, or even many cases. Rather, I would invoke comity in the prudential sense that we should avoid disparaging the law of a foreign sovereign which, though certainly not intended, I believe both the district court opinion and the majority opinion have the effect of doing. As we have observed recently, comity, though difficult to define, is in one respect “a version of the golden rule: a ‘concept of doing to others as you would have them do to you_’” Republic of the Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 75 (3d Cir.1994), quoting Lafontant v. Aristide, 844 F.Supp. 128, 132 (S.D.N.Y.1994). I would not want a tribunal in South Korea, which could resolve on narrow grounds a case involving a putative American judgment, to reach out and judge our own procedures as unjust based on South Korean notions of what process is due a litigant.

*253For the foregoing reasons, I am unable to join in the majority’s analysis although I do concur in the judgment.

. By contrast, this case is obviously more awkward than the usual full faith and credit case because it is only as a result of a treaty that South Korean judgments are accorded full faith and credit treatment. See Maj.Op. at 248-49. Thus, because of the treaty, courts in the United States are forced to credit and enforce legal instruments that may be unfamiliar to us — both in language and in appearance. Absent the treaty, the South Korean "judgment” at issue here would have been scrutinized under the less deferential standards used to determine the validity and enforceability of foreign-country judgments. See generally Restatement (Third) of the Foreign Relations Law of the United States §§ 481, 482 (1987).

. Choi argues that supplemental materials submitted to us during this appeal establish that he has a valid judgment entitled to full faith and credit. Because I believe that the district court should have ended its inquiry with a finding that Choi had not established his prima facie case in the district court, I would not make any determinations of South Korean law here. However, from the parties' submissions and my independent research, it seems apparent that Choi did not strictly follow South Korean procedures for obtaining a valid confessed judgment. First, Ar-tide 522 of the South Korean Civil Code states that "[a]n execution clause of a deed drawn up by a notary public shall be issued by the notary public who is preserving the deed.” Art. 522(1). Although the same law and notary office — Dong Wha Law & Notary Office Inc. — issued both the notarial deed and the order of execution in this case, different people at different branches of Dong Wha actually performed the notarizing. See App. 45 (notarial deed executed by Choong Won Kim of Dong Wha office at 58-7 Seosomun-dong, Joong-ku Seoul, Korea); id. 46 (execution order signed by Ho Yang Shin of Üong Wha office at 814-6 Yoksam-dong, Kangnam-ku Seoul, Korea). Second, Article 522(1) of the South Korean Civil Code also states that the notary "who is preserving the deed” must issue the execution clause. Similarly, Article 56-2(3) of the South Korean Notary Public Act states with respect to notarial deeds that

When a notary public prepares a [notarial] deed ... he shall make a script of the deed in adherence to the original of [sic] bill or check, and an original and a transcript of [sic] deed in adherence to a copy of [sic] bill or check, and deliver then the script to the creditor as specified on the bill or check, and the transcript, to the debtor thereon. The original of the deed shall be preserved by the notary public. *252(Emphasis added.) There is no indication that any notary office is "preserving” the deed in this case. To the contraiy, the notarial deed itself states that “this original of the deed and its copy are made according to the request of the creditor and the debtor and the original is gave [sic] to the creditor, In Sik Choi and the copy is gave [sic] to the debtor, Hyung Soo Kim.” App. 45. Therefore, it does not appear from the record before us that there was a copy or original left to be "preserved” at Dong Wha.