Midbrook Flowerbulbs Holland B v. v. Holland America Bulb Farms, Inc. , 874 F.3d 604 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIDBROOK FLOWERBULBS HOLLAND No. 14-36085
B.V.,
Plaintiff-Appellee, D.C. No.
3:14-cv-05409-
v. RJB
HOLLAND AMERICA BULB FARMS,
INC., a Washington corporation, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted May 8, 2017
Seattle, Washington
Filed October 25, 2017
Before: Carlos T. Bea and N. Randy Smith, Circuit Judges,
and William Q. Hayes, * District Judge.
Opinion by Judge Bea
*
The Honorable William Q. Hayes, United States District Judge for
the Southern District of California, sitting by designation.
2 MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB
SUMMARY **
Uniform Foreign-Court Money Judgments
Recognition Act
The panel affirmed the district court’s order granting
summary judgment in favor of Midbrook Flowerbulbs
Holland B.V., and denying Holland America Bulb Farms,
Inc.’s discovery request under Fed. R. Civ. P. 56(d), in
Midbrook’s diversity action seeking recognition of an
Amsterdam Court of Appeals judgment under Washington’s
Uniform Foreign-Country Money Judgments Recognition
Act (“UFCMJRA”).
Holland America, a Washington company, purchased
flower bulbs from Midbrook, a Dutch company, and
Midbrook obtained a judgment against Holland America in
Dutch court. On appeal, Holland America alleged that
proceedings in the Dutch courts which led to the Dutch
judgment were “not compatible with the requirements of due
process of law” under section 4(c)(8) of the UFCMJRA.
Concerning the legal standard governing the issue at
hand, the panel held that the commentary and prefatory
notice to the UFCMJRA demonstrated that under section
4(c)(8), courts need ask only whether the party resisting
judgment “was denied fundamental fairness in the particular
proceedings leading to the foreign-country judgment,” not
whether the foreign proceedings literally conformed to the
requirements of due process under the U.S. Constitution.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB 3
The panel held that it was not necessary to decide whether
process accorded to Midbrook also passed muster under
American standards of due process.
The panel held that the Dutch courts’ treatment of
Holland America’s discovery requests were a mere
“procedural difference” that was insufficient to establish that
the Dutch proceedings were fundamentally unfair. The
panel further held that Holland America was not denied due
process when the Amsterdam Court of Appeal overturned
the Alkmaar District Court’s factual finding denying the
existence of the parties’ alleged October 1999 settlement
agreement because the Court of Appeal gave a good reason
for overturning the finding. In addition, the panel held that
Holland America failed to establish that even the more
exacting standards of constitutional due process would have
required a United States appellant court to defer to a trial
court’s factual determination under like circumstances.
Finally, the panel held that the district court did not abuse
its discretion by denying Holland America’s motion for
additional discovery under Fed. R. Civ. P. 56(d).
COUNSEL
Michael E. Haglund (argued) and Shenoa L. Payne, Haglund
Kelley LLP, Portland, Oregon, for Defendant-Appellant.
Steven J. Wells (argued), Dorsey & Whitney LLP,
Minneapolis, Minnesota; Peter S. Ehrlichman and Andrea C.
Yang, Dorsey & Whitney LLP, Seattle, Washington; for
Plaintiff-Appellee.
4 MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB
OPINION
BEA, Circuit Judge:
After the collapse of the Dutch Tulip Bubble of 1637,
we’ve heard little about that flower’s market. But it hasn’t
gone away.
This action grows out of a family business dispute: The
Dutch shipper of tulip bulbs to his brother in America claims
his brother shorted him. The dispute was litigated at three
court levels in Holland. The shipper won. Now he comes to
Seattle to enforce his judgment. Enforce it the district court
did. The American importer-buyer appeals that judgment.
He will lose.
I. Background
A. Factual Background
Holland America Bulb Farms, Inc. (“Holland America”)
is a Washington corporation that grows and sells tulips and
other varieties of cut flowers. Its sole owners, Benno and
Klazina Dobbe, founded Holland America together after
immigrating to the United States from the Netherlands in
1980.
In 1994, Holland America began purchasing flower
bulbs from Midbrook Flowerbulbs Holland, B.V.
(“Midbrook”), a Dutch corporation in which Arie Dobbe,
Benno’s brother, was a manager and part owner. Midbrook
purchased flower bulbs from farms in the Netherlands and
elsewhere, packaged them for shipment, and exported them
to Holland America’s farm in Washington. Though Holland
America and Midbrook never entered into a written
agreement regarding payment, Benno and Arie orally agreed
MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB 5
that Holland America would pay Midbrook its “actual costs
on a one to one basis plus a commission.”
For each shipment, Midbrook sent Holland America an
invoice in Dutch guilders. 1 Instead of paying these invoices
directly to Midbrook in guilders, Holland America deposited
a lump sum of dollars into a Dutch bank account in
Midbrook’s name (the “dollar account”). At “fixed
intervals,” Midbrook withdrew dollars from the dollar
account, exchanged them into guilders, and then deposited
them into a second Dutch bank account (the “guilder
account”), which was also in its name. Then, when the
invoices became due, Midbrook paid itself the invoiced
amount of guilders from the guilder account. Midbrook
regularly sent Holland America statements for the two
accounts, and Holland America was responsible for ensuring
that there were enough dollars in the dollar account to cover
the periodic transfers to the guilder account.
Sometime in 1997, Benno Dobbe noticed that
Midbrook’s costs “appeared to be higher than the bulb
import costs that [his] competitors were obtaining from other
Dutch suppliers.” Benno became suspicious that Midbrook
was overcharging Holland America, and he asked Arie to
provide documentation substantiating Midbrook’s costs.
Arie assured Benno that Midbrook’s invoices were correct,
but he refused to provide the requested documentation. In
June 1999, the parties agreed that they would “terminate
their relationship” the following year, but that Midbrook
would “still handle the export of the flower bulb harvest [in
the fall] of 1999.” Between January 11 and May 22, 2000,
Midbrook sent Holland America invoices for the 1999
harvest which totaled 3,211,568 guilders. Holland America
1
The Netherlands did not adopt the Euro as its currency until 2002.
6 MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB
never deposited dollars into the dollar account sufficient to
cover these invoices, and Midbrook overdrew the dollar
account to pay itself for them.
B. Procedural Background
1. Proceedings in the Alkmaar District Court
In 2002, Midbrook filed a lawsuit against Holland
America in the Alkmaar District Court in the Netherlands,
seeking payment for the 1999 harvest shipments. Holland
America did not deny that it had not paid Midbrook for the
1999 harvest; rather, it argued that Midbrook had “invoiced
[Holland America] for too high an amount for years,” and
that Holland America had “[over]paid more in total during
the period from 1994 to August 2000 . . . than Midbrook had
invoiced [for the 1999 harvest].” Though Holland America
“provisionally estimated” the amount of the overcharge to
be $4,434,387 (roughly 9 million guilders), it asked the court
to “order Midbrook to provide its bookkeeping records for
the years 1984 up to and including December 2000” so that
Holland America could “more particularly specif[y]” its
damages.
In a series of “judgments,” 2 four of which were
“interlocutory” and one of which was final, the Alkmaar
District Court rejected Holland America’s counterclaim and
entered judgment in Midbrook’s favor. In its first
interlocutory judgment, entered after the court had reviewed
the parties’ pleadings and briefs, the court made several
rulings. First, it noted that Midbrook claimed in its briefing
2
According to the parties, “[t]he Alkmaar District Court and
Amsterdam Court of Appeal refer to interlocutory decisions as
‘judgment[s].’”
MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB 7
“that it [had] agreed with [Holland America] on October 22,
1999 that [Holland America], after receiving a credit note in
the amount of . . . 100,000 [guilders], would have no more
right to compensation for damages from improper invoicing
in the past.” The court ruled that Midbrook would be given
“the opportunity [] to provide evidence for [this]
agreement.”
Second, although the court agreed with Holland America
that “in principle, [it is] Midbrook’s responsibility to specify
and justify its invoice[s]” with documentation, it noted that
“the period for which Midbrook must specify and
substantiate its invoice[s]” would depend on whether
Holland America had settled its claims for the harvests of
1994–1998; if it had, then it would not be entitled to any
discovery with respect to the invoices for that period. Thus,
the court deferred ruling on the parties’ remaining claims
until after it had heard evidence on the alleged settlement
agreement.
The district court entered its second interlocutory
judgment after hearing from witnesses from both parties
regarding the settlement agreement, which allegedly took
place at a meeting between Benno and Arie Dobbe in
October 1999 at Midbrook’s offices in the Netherlands.
Midbrook’s witnesses were Johannes Elling, Midbrook’s tax
advisor; and Elisabeth Dobbe–Ruygrok, Arie Dobbe’s wife
and a secretary at Midbrook. Elling and Dobbe–Ruygrok
both testified that they were present at the meeting when
Benno and Arie agreed to settle Holland America’s claims
for 100,000 guilders. Holland America’s two witnesses,
Benno Dobbe and Hugo Dobbe (another of Benno’s
brothers), testified that no such agreement was reached at the
meeting, and that they had come to the Netherlands only
because Arie had promised them that they could examine
8 MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB
Midbrook’s records, which Arie ultimately did not allow
them to do. The district court found that Midbrook’s
witnesses were not credible 3 and therefore determined that
no settlement agreement had been reached.
Having disposed of the settlement issue, the court
proceeded to address the parties’ claims regarding the
invoices for the harvests of 1994–99. It directed Holland
America to “specify the [] invoices [to which it objected]
concretely, submitting them . . . and indicat[ing] which
amounts Midbrook invoiced unjustifiably to [Holland
America] and why.” Then, the court explained, Midbrook
would “be given the opportunity to respond” by “provid[ing]
insight into the structure of the invoices” identified by
Holland America with “documented evidence.”
After receiving documents and additional briefing from
the parties, the court entered its third interlocutory judgment.
In that judgment, the court concluded that Holland America
“ha[d] not complied with the recommendations of the court
in its second interim judgment” with respect to Midbrook’s
invoices for the harvests of 1994–1998. Although Holland
America had “submitted the invoices whose correctness it
disputes” and had “state[d] the items that, in its opinion,
[were] incorrect” with each invoice, it had “neglect[ed] to
substantiate the basis for the amount of the claimed
damages.” Because of this failure, the district court
3
For example, the court found it “[im]plausible” that Dobbe–
Ruygrok “was in the room where the meeting took place,” collecting the
participants’ coffee cups, “[at] precisely at the moment that Benno
Dobbe [] agreed on behalf of [Holland America] to granting final
discharge.” Likewise, the court found it suspicious that Elling “refused
to submit the [written] report that he had made of the [] meeting,” despite
the fact that “he wished to make use of it when [testifying].”
MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB 9
dismissed Holland America’s counterclaim for the harvests
of 1994–1998.
With respect to the 1999 harvest, the district court noted
that Midbrook had provided only “cost summaries”
explaining “the structure of its invoices.” The court did not
fault Midbrook for “not having submitted at this moment all
the underlying documents concerning costs that it incurred
for the 1999 harvest,” however, because Holland America
had specified which “cost items it disputed” only after the
court had entered its second interlocutory judgment. The
court then summarized Holland America’s objections to
1999 harvest invoices, 4 and stated that Midbrook would be
given “the opportunity to respond to [these objections] with
documentation.”
The district court entered its fourth interlocutory
judgment after receiving Midbrook’s responses. In that
judgment, the district court addressed each of Holland
America’s objections to the 1999 harvest invoices in detail,
rejecting some but granting others. 5 In total, the district court
4
The disputed costs included, inter alia: (1) a charge for iris bulbs
that were delivered to a third party before being passed on to Holland
America, for which Holland America directly paid the third party;
(2) charges for certain temperature recording equipment that Midbrook
had purchased; (3) a tariff on bulbs imported from outside the
Netherlands, which were allegedly not subject to Dutch tariffs; (4) a
failure to credit Holland America for certain shipping discounts
Midbrook received when it shipped multiple containers of bulbs together
in one shipment; (5) an incorrect daily cost of keeping bulbs cool during
storage; and (6) charges for loading the containers and completing
paperwork.
5
Specifically, the court found, inter alia, that: (1) “Midbrook . . .
issued a complete credit to the guilder account for the bulbs that it had []
initially charged [Holland America] that came from [the third party];
10 MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB
concluded that Midbrook had wrongly charged Holland
America 40,403 guilders for the 1999 harvest.
The court then explained how it would calculate
Midbrook’s damages. Because Midbrook had paid itself for
the 1999 harvest by overdrawing the dollar account,
Midbrook’s damages were equal to “the overdraft position
of the dollar account” in March 2004 (when Midbrook
closed that account and converted the deficit into euros), less
the amount that Midbrook had “wrongfully charged” to
Holland America. In October 2006, after receiving some
additional information from Midbrook regarding its bank
statements, the district court entered its fifth and final
judgment, in which it awarded Midbrook €1,033,291 (at the
time, the equivalent of $1,250,592), plus any interest that
had accrued since Midbrook converted the dollar account
balance into euros in March 2004.
2. Proceedings in the Amsterdam Court of
Appeal
Holland America then appealed the Alkmaar District
Court’s judgment to the Amsterdam Court of Appeal. On
appeal, Holland America reiterated its argument that its
overpayments for the harvests of 1994–1998 had more than
(2) Midbrook had not provided documentation of the cost of the
temperature equipment, so the court “presume[d]” that Midbrook had
overcharged Holland America for that equipment by 2,000 guilders;
(3) Midbrook wrongfully charged Holland America for tariffs that were
“not owed for bulbs that do not come from the Netherlands”;
(4) Midbrook owed Holland America 2,593 guilders in shipping
discounts, which it had failed to pass on to Holland America; (5) Holland
America had failed to substantiate its claims that Midbrook had
misrepresented cooling costs; and (6) Midbrook had overcharged
Holland America 18,880 guilders in loading and paperwork costs.
MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB 11
compensated Midbrook for its shipments following the 1999
harvest. It also reiterated its discovery requests for
documentation of the costs underlying Midbrook’s invoices
from 1994 through 2000, and it requested bank statements
for the dollar and guilder accounts. Midbrook cross-
appealed, arguing that the Alkmaar District Court had
erroneously rejected its contention that the parties had settled
Holland America’s claims for the harvests of 1994–1998.
Like the Alkmaar District Court, the Amsterdam Court
of Appeal entered a series of judgments, two of which were
interlocutory and one of which was final. In its first
interlocutory judgment, the Amsterdam Court of Appeal
reversed the district court’s determination that Holland
America had not agreed to settle its claims for the harvests
of 1994–1998. The court noted that “[i]t is an established
fact that a credit was issued by Midbrook for an amount of
[] 100,000 [guilders],” and that “[c]onsidering the
relationship between the parties . . . , it is unlikely that
Midbrook would not have demanded [] consideration ‘in
exchange’ for this credit.” Thus, “[unlike] the District
Court,” the court of appeal “consider[ed] [it] proven that the
parties concluded [a] [settlement] agreement.” In light of this
finding, the court denied Holland America’s requests for
documentation substantiating the invoices for the harvests of
1994–1998.
The court of appeal also denied Holland America’s
discovery requests with respect to the 1999 harvest. The
court explained that Holland America had been given a
chance to “identify in concrete terms the specific costs that
it had been invoiced against which its objections were []
directed”; that Midbrook had then “complied with its
obligation to provide insights into the costs that it had
[]charged”; and that Holland America’s “objections [were]
12 MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB
discussed one by one by the District Court.” Thus, the court
concluded, Holland America had already been given an
opportunity to contest the correctness of the invoices for the
1999 harvest, and it was entitled to no further discovery on
the issue.
As to the bank statements for the dollar and guilder
accounts, the Amsterdam Court of Appeal agreed with
Holland America that “in principle,” it was “entitled to the
full details of the dollar account and the [guilder] account
relationship.” Though the court noted that there was some
evidence that Holland America had “regularly requested a
‘dollar and guilder balance sheet’ [from Midbrook]” and that
Holland America therefore likely possessed these
documents already, it nonetheless ordered Midbrook to
produce the statements for two accounts for the period
running from January 1994 to January 2000.
After Midbrook submitted the bank statements, the court
of appeal entered its second interlocutory judgment. In that
judgment, the court of appeal addressed several objections
that Holland America had made to the bank account
statements 6 and ordered Midbrook to submit corrected
versions. It also denied Holland America’s request that the
court order Midbrook to produce “bank statements of the
contra accounts to which the amounts in guilders were
credited that arose as a result of the conversion of dollars in
6
These included: that on two occasions, Midbrook had converted
dollars to guilders at a higher exchange rate than the parties had agreed
upon; that from October 1997, Midbrook had overcharged Holland
America for interest by an average of 2%; and that Midbrook had omitted
certain credits it owed to Holland America from the statement of the
guilder account.
MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB 13
the dollar account into guilders.” 7 “As Midbrook rightly
brings forward,” the court explained, “the [guilder] account
statements currently submitted in the proceedings show
exactly which amounts were entered into the [guilder]
account in favor of [Holland America].”
The court entered its third and final judgment in
September 2011, after Midbrook submitted corrected
versions of the two bank account statements. The court
found that, as a result of the corrections, the surplus in the
guilder account on January 1, 2000 was 460,862 guilders—
not 312,642 guilders as the district court had found—and it
adjusted the amount of damages calculated by the district
court to €959,324 plus interest and costs on appeal.
Finally, the court of appeal again addressed Holland
America’s requests for discovery:
In its motion following the second
interlocutory judgment, [Holland America]
has argued that it is litigating with one hand
tied to its back. It claims having no access to
the evidence that Midbrook . . . [has] with
regard to the dollar transactions, the dollar
forward exchange contracts . . . , the costs of
the forward exchange contracts, and bank
statements of the contra accounts to which
the amounts in guilders were credited that
[were] conver[ted] [from] dollars in the
dollar account into guilders. In short,
7
Apparently, Holland America requested these statements so that it
could verify that all of the dollars that Midbrook withdrew from the
dollar account were converted into guilders and deposited into the
guilder account.
14 MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB
[Holland America] wishes to have Midbrook
demonstrate that all cost items recorded by
Midbrook in the [guilder] account have
actually been incurred.
Because Holland America “fail[ed] to specify which items
in the current account . . . should be substantiated with
supporting evidence,” however, the court concluded that its
discovery request was “too general and must be denied.”
3. Proceedings in the Supreme Court of the
Netherlands
Holland America appealed the Amsterdam Court of
Appeal’s decision to the Supreme Court of the Netherlands.
In December 2012, the supreme court summarily dismissed
the appeal and ordered Holland America to pay the costs and
fees of the appeal. Because Midbrook does not seek to
enforce the supreme court’s judgment in this action, these
costs and fees are not at issue here.
4. Proceedings in the U.S. District Court for the
Western District of Washington
In May 2014, Midbrook filed a diversity action against
Holland America in the U.S. District Court for the Western
District of Washington, seeking recognition of the
Amsterdam Court of Appeal’s October 2006 judgment (the
“Dutch judgment”) under Washington’s Uniform Foreign-
Country Money Judgments Recognition Act
(“UFCMJRA”). See Wash. Rev. Code §§ 6.40A.010–
6.40A.902. After Midbrook filed its complaint, Holland
America served Midbrook with several discovery requests.
“For the period of January 1, 1994 through December 31,
2000,” Holland America requested copies of:
MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB 15
1. [] all of the underlying cost records with regard to the
purchase, processing and export of the flower bulbs
delivered by plaintiff to defendant.
2. [] the detailed dollar account transaction data, dollar
forward exchange contracts, bank statements of the
contra account in guilders, and the costs of forward
exchange contracts related to the dollar account
involving transactions by plaintiff and/or defendant.
3. [] the detailed bank statements of the guilder account
regarding all dollar exchange transactions performed
by plaintiff and/or defendant.
Midbrook served Holland America with objections to all
three requests and then moved for summary judgment.
Holland America opposed the motion, arguing that under
section 4(c)(8) of the UFCMJRA, the district court “need
not” recognize the Dutch judgment, because “[t]he specific
proceeding in the [Dutch] court leading to the judgment was
not compatible with the requirements of due process of law.”
Holland America also requested additional “time . . . to take
discovery” under Federal Rule of Civil Procedure 56(d),
asking again for discovery of Midbrook’s “underlying costs
records” and “banking records.”
The district court granted Midbrook’s motion for
summary judgment and denied Holland America’s request
for additional discovery. Holland America then filed a
motion for reconsideration, which the district court denied.
In December 2014, the district court entered a final judgment
in Midbrook’s favor for €2,200,513 (the amount of the
Dutch judgment plus interest for the period leading up to
16 MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB
December 2014). 8 Holland America then timely filed this
appeal.
II. Standard of Review
We review de novo a district court’s determination that a
foreign-court money judgment does not qualify for
nonrecognition under one of the UFCMJRA’s discretionary
exceptions. See Naoko Ohno v. Yuko Yasuma, 723 F.3d 984,
1001–02 (9th Cir. 2013). We review for abuse of discretion
a district court’s denial of a request under Rule 56(d) for
additional time to take discovery to oppose a motion for
summary judgment. See Morton v. Hall, 599 F.3d 942, 945
(9th Cir. 2010).
III. Discussion
A. The District Court Did Not Err by Granting
Midbrook’s Motion for Summary Judgment.
In 1962, the National Conference of Commissioners on
Uniform State Laws (“NCCUSL”) promulgated the Uniform
Foreign Money-Judgment Recognition Act (“UFMJRA”) to
codify the states’ rules regarding the recognition of foreign
money judgments. See UFMJRA, Prefatory Note. The aim
of this codification was to “make it more likely that
judgments rendered in [the] state[s] [will] be recognized
8
In August 2014, Holland America filed an action for “preliminary
relief” in the Noord Holland District Court (formerly the Alkmaar
District Court), in which it sought, inter alia, “the underlying documents
for drawing up the invoices” for the 1999 harvest. The Noord Holland
District Court noted that this same request had been repeatedly denied in
the earlier Dutch-court proceedings, and it denied Holland America’s
request.
MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB 17
abroad.” Id. In 2005, NCCUSL promulgated the Uniform
Foreign-Court Money Judgments Recognition Act
(“UFCMJRA”) to update the 1962 act. See UFCMJRA,
Prefatory Note. Washington adopted the updated
UFCMJRA in 2009. See Wash. Rev. Code §§ 6.40A.010–
6.40A.902.
Under section 4(a) of the UFCMJRA, when a party files
an action seeking recognition 9 of a “foreign-country
judgment,” the court “shall recognize” that judgment if it
“[g]rants or denies recovery of a sum of money; and . . .
under the law of the foreign country where rendered, is final,
conclusive, and enforceable.” See Wash. Rev. Code
§§ 6.40A.010–.030 (emphasis added). Once the party
seeking recognition demonstrates that the foreign-country
judgment satisfies these prima facie requirements, see id.§ 6.40A.020(3), the burden shifts to the party resisting
recognition to prove that a ground for nonrecognition
applies. See id. § 6.40A.030(4).
Sections 4(b) and (c) of the UFCMJRA provide eleven
grounds—three mandatory and eight discretionary—for a
court to refuse to recognize a foreign-country judgment. See
Rev. Code Wash. §§ 6.40A.030(2)–(3). Two of these
grounds are relevant to this appeal: Section 4(b)(1) provides
that “[a] court . . . may not recognize a foreign-country
judgment if . . . the judgment was rendered under a judicial
system that does not provide impartial tribunals or
9
“Recognition of a judgment means that the forum court accepts the
determination of legal rights and obligations made by the rendering court
in the foreign country. Recognition of a foreign-country judgment must
be distinguished from enforcement of that judgment. Enforcement of the
foreign-country judgment involves the application of the legal
procedures of the state to ensure that the judgment debtor obeys the
foreign-country judgment.” UFCMJRA § 4 cmt. 2.
18 MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB
procedures compatible with the requirements of due process
of law.” See Wash. Rev. Code § 6.40A.030(2)(a) (emphasis
added). Section 4(c)(8), by contrast, provides that “a court
need not recognize a foreign-country judgment if . . . [t]he
specific proceeding in the foreign court leading to the
judgment was not compatible with the requirements of due
process of law.” See id. § 6.40A.030(3)(h).
On appeal, Holland America does not argue that
Midbrook has failed to make its prima facie showing that the
Dutch judgment “[g]rants or denies recovery of a sum of
money” and “is final, conclusive, and enforceable” under
Dutch law. Nor does Holland America argue that the Dutch
judicial system as a whole “does not provide . . . procedures
compatible with the requirements of due process of law.”
Rather, it argues only that the “specific proceeding[s]” in the
Dutch courts which led to the Dutch judgment were “not
compatible with the requirements of due process of law”
under section 4(c)(8). This is so, Holland America argues,
for two reasons: first, the Alkmaar District Court and the
Amsterdam Court of Appeal “denied [Holland America]
access to a majority of Midbrook’s cost records and
therefore deprived it of the opportunity to provide any
defense in the contract action”; and second, the Amsterdam
Court of Appeal “arbitrarily and without basis overturned the
Alkmaar District Court’s credibility rulings regarding
whether the parties had reached a settlement.”
1. Legal Standard
As an initial matter, we must identify the legal standard
that governs whether specific proceedings in a foreign court
were “compatible with the requirements of due process of
law” under section 4(c)(8). Holland America urges us to
apply “American due process principles”—that is, to
interpret the phrase “due process of law” as incorporating by
MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB 19
reference the requirements of the Due Process Clauses of the
Fifth and Fourteenth Amendments. Midbrook, by contrast,
argues for a more permissive, “international” standard of due
process. 10 Because the parties ask us to interpret a provision
of a Washington statute, we begin by looking to the
decisions of the Washington courts. If those decisions are
unavailing and the question is one of first impression, we
must identify the result we think the Washington Supreme
Court would reach if it were presented with the same
question. See Brunozzi v. Cable Commc’ns, Inc., 851 F.3d
990, 998 (9th Cir. 2017).
Washington’s UFCMJRA does not define the phrase
“due process of law,” see Rev. Code Wash. § 6.40A.010
(defining certain terms used in the statute), and the
Washington courts have not yet addressed the meaning of
the phrase as used in section 4(c)(8). Nor has any state
supreme court or any federal court of appeals addressed the
phrase’s meaning in section 4(c)(8) of any other state’s
version of the UFCMJRA. See Rev. Code Wash.
§ 6.40A.900 (“In applying and construing this uniform act,
consideration must be given to the need to promote
10
To be clear, Midbrook does not claim that any primary source of
international law—such as a treaty or rule of customary international
law—governs the process to which Holland America was entitled in the
Dutch courts. Rather, Midbrook urges us to apply the “international
concept of due process” formulated by the Seventh Circuit in interpreting
the phrase “due process of law” in a similar provision of Illinois’s
UFMJRA. See Society of Lloyd’s v. Ashenden, 233 F.3d 473, 477 (7th
Cir. 2000). Though we find the reasoning of that case persuasive, we
adopt the phrase “fundamental fairness” because that phrase—unlike the
phrase “international due process”—appears in the commentary to the
UFCMJRA.
20 MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB
uniformity of the law with respect to its subject matter
among states that enact it.”).
In the absence of any binding authority on point, the
commentary to section 4 of the UFCMJRA is instructive:
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
MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB 21
fundamental fairness in the particular
proceedings leading to the foreign-country
judgment.
UFCMJRA § 4 cmt. 12 (emphasis added). This comment
states that section 4(c)(8) allows for nonrecognition of a
foreign money judgment if “the specific proceeding in the
foreign court was not compatible with the requirements of
fundamental fairness.” As an example, it gives a foreign
proceeding in which judgment was entered against a
“particular party” for “political reasons”; elsewhere, the
comment states that “evidence of corruption” may also
render a proceeding fundamentally unfair. See id. Nowhere
does the comment cite our Constitution’s Due Process
Clauses or otherwise intimate that the phrase “due process
of law” was intended literally to incorporate their
requirements.
Moreover, by contrasting section 4(c)(8) with section
4(b)(1), the comment suggests that the phrase “compatible
with the requirements of due process of law” has the same
meaning in both provisions. 11 And as another comment to
section 4 states, section 4(b)(1) uses the standard “stated
11
Indeed, this reading is consistent with the presumption of
consistent usage, a fundamental canon of statutory construction. See,
e.g., Util. Air Reg. Group v. E.P.A., 134 S. Ct. 2427, 2441 (2014) (“One
ordinarily assumes that identical words used in different parts of the
same act are intended to have the same meaning.” (citations and internal
quotation marks omitted)); Antonin Scalia and Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 170–73 (West 2012).
22 MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB
authoritatively by the Supreme Court . . . in Hilton v. Guyot,
159 U.S. 113, 205 (1895)”: 12
As indicated in [Hilton], a mere difference in
the procedural system is not a sufficient basis
for nonrecognition. . . . The focus of inquiry
12
In Hilton, the Supreme Court first addressed the recognition of
foreign judgments as a matter of “general” federal common law. See
Hilton, 159 U.S. at 163 (“[W]hen, as is the case here, there is no written
law upon the subject, the duty still rests upon the judicial tribunals of
ascertaining and declaring what the law is . . . to determine the rights of
parties to suits regularly broght [sic] before them.”). Rejecting the
argument that a French judgment should be denied recognition simply
because French law provided for neither testimony under oath nor cross-
examination of witnesses, see id. at 117, the Court explained:
When an action is brought in a court of this country,
by a citizen of a foreign country against one of our own
citizens, to recover a sum of money adjudged by a
court of that country to be due from the defendant to
the plaintiff, and the foreign judgment appears to have
been rendered by a competent court, having
jurisdiction of the cause and of the parties, and upon
due allegations and proofs, and opportunity to defend
against them, and its proceedings are according to the
course of a civilized jurisprudence, and are stated in a
clear and formal record, the judgment . . . should be
held conclusive upon the merits tried in the foreign
court, unless some special ground is shown for
impeaching the judgment, as by showing that it was
affected by fraud or prejudice, or that by the principles
of international law, and by the comity of our own
country, it should not be given full credit and effect.
Id. at 205–06. After Erie v. Tompkins, 304 U.S. 64 (1938), state law—
not Hilton—controls the recognition of foreign judgments in federal
diversity cases like this one. See Naoko Ohno v. Yuko Yasuma, 723 F.3d
984, 990 (9th Cir. 2013); Restatement (Third) of the Foreign Relations
Law of the United States § 481 cmt. a (1987).
MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB 23
is not whether the procedure in the rendering
country is similar to U.S. procedure, but
rather on the basic fairness of the foreign-
country procedure. Procedural differences,
such as absence of jury trial or different
evidentiary rules are not sufficient to justify
denying recognition under subsection (b)(1),
so long as the essential elements of impartial
administration and basic procedural fairness
have been provided in the foreign
proceeding.
UFCMJRA § 4 cmt. 5 (citations and internal quotation
marks omitted); see also Tonga Air Services, Ltd. v. Fowler,
826 P.2d 204, 209 (Wash. 1992) (finding that “due process
of law” was satisfied under the predecessor to section 4(b)(1)
of Washington’s UFCMJRA where, inter alia, foreign law
“impose[d] more onerous standards for the introduction of
documentary evidence on foreigners” and there was no
verbatim transcript of the foreign proceedings). Taken
together, these two comments demonstrate that section
4(c)(8)—like section 4(b)(1)—requires only “basic” or
“fundamental” fairness for a specific foreign proceeding to
be “compatible with the requirements of due process of law.”
Our conclusion that section 4(c)(8) requires only
“fundamental fairness” is buttressed by the prefatory note to
the UFCMJRA, which states that the act’s purpose is to
“make it more likely that money judgments rendered in that
state would be recognized in other countries.” Certainly, it
would undermine this purpose to enforce only those foreign
judgments which resulted from proceedings that conformed
to our own notions of constitutional due process. See
Ashenden, 233 F.3d at 476 (rejecting the argument that
foreign courts should have to follow “the latest twist and turn
24 MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB
of our courts regarding, for example, the circumstances
under which due process requires an opportunity for a
hearing in advance of the deprivation of a substantive right
rather than afterwards”). Such a high bar would encourage
foreign powers to condition the enforcement of our
judgments on the satisfaction of their procedural
requirements, which could be just as onerous as our own.
We are unpersuaded by Holland America’s analogy to
the U.N. Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517 (the
“New York Convention”). Article V, section 1(b) of that
treaty states that recognition of a foreign arbitral award “may
be refused” if, inter alia, “[t]he party against whom the
award is invoked was not given proper notice of the . . .
arbitration proceedings or was otherwise unable to present
his case.” As Holland America points out, at least two of our
sister circuits have held that this language “essentially
sanctions the application of the forum state’s standards of
due process.” Iran Aircraft Industries v. Avco Corp.,
980 F.2d 141, 145 (2d Cir. 1992) (citing Parsons &
Whittemore Overseas Co. v. Societe Generale de L'Industrie
du Papier (RAKTA), 508 F.2d 969, 975–76 (2d Cir. 1974));
see also Generica Ltd. v. Pharm. Basics, Inc., 125 F.3d 1123,
1129–30 (7th Cir. 1997). According to Holland America,
these cases demonstrate that “it is possible to apply an
American due process analysis in individual proceedings
just like this one.”
Though it may be “possible” to apply American
constitutional due-process standards here, we nonetheless
decline to do so, because we think the New York Convention
cases are distinguishable. Unlike the UFCMJRA, the New
York Convention provides no guidance—in commentary or
elsewhere—regarding the standards to apply in interpreting
MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB 25
section 1(b) of article V. Indeed, in Parsons & Whittemore
Overseas, the seminal case on which Holland America’s
cited authority relies, the Second Circuit relied exclusively
on a footnote in a law review article which highlights this
fact:
It should be noted that there is no
specification of the standards for judging the
propriety of the notice or the adequacy of the
opportunity to be heard [under section 1(b) of
article V]. . . . [I]t can be argued that the law
chosen by the parties or the law of the
rendering State should govern. On the other
hand, the concept of due process is closely
linked with the public policy of the forum,
and it can be expected that the enforcing State
will apply its own standards of due process.”
Leonard V. Quigley, Accession by the United States to the
United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, 70 Yale L.J. 1049,
1082 n.81 (1961) (emphasis added). Here, we need not rely
on “public policy” to determine the standard governing
section 4(c)(8), because the text of the UFCMJRA’s
commentary provides the answer: “fundamental fairness.”
In sum, both the commentary and prefatory note to the
UFCMJRA demonstrate that under section 4(c)(8), courts
ask only whether the party resisting judgment “was denied
fundamental fairness in the particular proceedings leading to
the foreign-country judgment,” not whether the foreign
proceedings literally conformed to the requirements of due
process under our own Constitution. UFCMJRA § 4 cmt. 12.
To demonstrate a lack of “fundamental fairness,” the party
resisting the judgment must point to more than mere
26 MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB
“procedural differences”—like a lack of trial by jury or
“different evidentiary rules”—between the process that the
party received in the foreign proceeding and the process to
which it would have been entitled here. UFCMJRA § 4 cmt.
5. Rather, the party must establish a deprivation of “basic
procedural fairness” by, for example, proffering evidence of
“corruption” or that the foreign judgment was entered for
“political reasons.” See UFCMJRA § 4 cmt. 12. We proceed
to consider whether Holland America has satisfied this
standard with respect to the Dutch proceedings. Thus, it is
not necessary for us to decide whether process accorded to
Midbrook also passed muster under American standards of
due process. 13
2. Holland America’s Discovery Requests
First, Holland America argues that it was denied due
process in the Dutch proceedings because the Alkmaar
District Court and the Amsterdam Court of Appeal “denied
[Holland America] access to a majority of Midbrook’s cost
records.” Holland America cites no authority for the
proposition that “fundamental fairness” requires that a
litigant be afforded an opportunity for pretrial discovery, and
we are aware of none. See, e.g., Ashenden, 233 F.3d at 479–
80 (“[T]he right to pretrial discovery is not a part of the U.S.
concept of due process, let alone of international due
process.”) (internal citations omitted).
In any case, we need not decide whether it would violate
fundamental fairness to deny a party the opportunity to take
13
The “cardinal principle of judicial restraint” is that “if it is not
necessary to decide more, it is necessary not to decide more.” PDK Labs.
Inc. v. U.S. D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,
concurring in part and concurring in judgment).
MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB 27
any pretrial discovery, because here, Holland America was
afforded some pretrial discovery. Instead of ordering
Midbrook to produce all of its cost and banking records, as
one of our federal district courts might have done, the Dutch
courts ordered Holland America to identify specific records
that it wished to discover and to explain why it needed them.
Then, in each case where Holland America complied, the
Dutch courts ordered Midbrook to produce documentation.
For example, although the Dutch courts repeatedly
denied Holland America’s requests for documentation
substantiating all of the costs underlying Midbrook’s
invoices, the Alkmaar District Court afforded Holland
America the opportunity to identify and explain “[the]
amounts [that] Midbrook invoiced unjustifiably to [Holland
America] and why.” The court then ordered Midbrook to
respond to Holland America’s arguments with supporting
documentation, and, after it received Midbrook’s responses,
it addressed Holland America’s objections one by one.
Likewise, although the Dutch courts did not grant
Holland America access to all of Midbrook’s records related
to the dollar and guilder accounts, the Amsterdam Court of
Appeal did order Midbrook to produce the statements of
those accounts. Then, it gave Holland America an
opportunity to challenge the accuracy of those statements,
addressed Holland America’s objections one by one, granted
several of them, and adjusted Midbrook’s damages award
accordingly. Far from comparing to “corruption” or the entry
of judgment against Holland America for “political reasons,”
UFCMJRA § 4 cmt. 12, the Dutch courts’ treatment of
Holland America’s discovery requests was a mere
“procedural difference” that is insufficient to establish that
the Dutch proceedings were fundamentally unfair.
28 MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB
Our conclusion is buttressed by the fact that not even
constitutional due process—a standard which our sister
circuits have recognized as being more demanding than
“fundamental fairness” 14—requires full pretrial discovery.
See, e.g., N.L.R.B. v. Valley Mold Co., 530 F.2d 693, 695
(6th Cir. 1976) (“It is well settled that parties to judicial or
quasi-judicial proceedings are not entitled to discovery as a
matter of constitutional right.”); see also Weatherford v.
Bursey, 429 U.S. 545, 559 (1977) (“There is no general
constitutional right to discovery in a criminal case.”);
Thomas v. Bible, 896 F.2d 555 (9th Cir. 1990) (unpublished)
(“There is . . . no constitutional right to pretrial discovery in
administrative proceedings.”). Indeed, there was no
statutory right to full pretrial discovery in federal cases
before the Federal Rules of Civil Procedure were enacted in
1938. See, e.g., Hickman v. Taylor, 329 U.S. 495, 500 (1947)
(describing “[t]he pre-trial deposition-discovery mechanism
established by Rules 26 to 37” as “one of the most significant
innovations of the Federal Rules of Civil Procedure”). Thus,
given that Holland America would not have been entitled to
full pretrial discovery even under our own constitutional
14
In applying the “fundamental fairness” standard to evaluate
foreign judicial systems under section 4(b)(1), our sister circuits have
consistently recognized that constitutional due-process standards are
more demanding. See Society of Lloyd’s v. Ashenden, 233 F.3d 473, 477
(7th Cir. 2000) (interpreting the predecessor to section 4(b)(1) of
Illinois’s UFCMJRA as employing an “international concept of due
process” that was “less demanding” than “the complex concept that has
emerged from American case law”); DeJoria v. Maghreb Petroleum
Expl., S.A., 804 F.3d 373, 380 (5th Cir. 2015) (recognizing that under the
predecessor to section 4(b)(1) of Texas’s UFCMJRA, “the foreign
judicial system must only be fundamentally fair” and “need not comply
with the traditional rigors of American due process” (citations,
alterations, and internal quotation marks omitted)); Society of Lloyd’s v.
Reinhart, 402 F.3d 982, 994–95 (10th Cir. 2005) (similar, regarding the
predecessor to section 4(b)(1) of New Mexico’s UFCMJRA).
MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB 29
standards, we have no difficulty holding that Holland
America was not denied fundamental fairness in the Dutch
proceedings.
3. Reversal of the Alkmaar District Court’s
Factual Finding and Credibility
Determination
Next, Holland America argues that it was denied due
process when the Amsterdam Court of Appeal overturned
the Alkmaar District Court’s factual finding denying the
existence of the parties’ alleged October 1999 settlement
agreement without deferring to the district court’s
determination that the testimony of two of Midbrook’s
witnesses was not credible and thus vitiated any such
settlement agreement.
Again, the authorities cited by Holland America fall far
short of establishing that “fundamental fairness” requires a
foreign appellate court to defer to a foreign trial court’s
factual findings. We also hesitate to insert our own rule of
decision regarding the deference owed to trial court factual
findings. See United States v. Hinkson, 585 F.3d 1247 (9th
Cir. 2009).
In any case, we are convinced that Holland America was
afforded fundamental fairness here, because the Amsterdam
Court of Appeal gave a good reason for overturning the
Alkmaar District Court’s finding that the parties had reached
no settlement agreement in October 1999. As the court of
appeal explained:
It is an established fact that a credit was
issued by Midbrook for an amount of []
100,000 [guilders]. [Holland America] does
not declare in any way what consideration on
30 MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB
its part stood against this credit. Considering
the relationship between the parties . . . it is
unlikely that Midbrook would not have
demanded a certain consideration ‘in
exchange’ for this credit. On the other hand,
it is plausible that the parties would have
wanted to clear up the past before working
together for one final year.
Thus, the court of appeal’s reversal of the district court’s
factual finding was based not only on its own evaluation of
the credibility of Midbrook’s witnesses, but also on the
unexplained 100,000 guilder payment, which the court of
appeal interpreted as a settlement of past accounts between
the parties. Especially in light of this additional ground for
reversal, the court of appeal’s reversal reflects at most a mere
“procedural difference” between U.S. and Dutch law,
UFCMJRA § 4 cmt. 5, and was therefore fundamentally fair.
We are further persuaded of this conclusion because
again, Holland America has failed to establish that even the
more exacting standards of constitutional due process would
have required a United States appellate court to defer to a
trial court’s factual determination under like circumstances.
Most of the American cases cited by Holland America refer
either expressly or impliedly to Federal Rule of Civil
Procedure 52(a)(6), which provides that a district court’s
“[f]indings of fact . . . must not be set aside unless clearly
erroneous, and the reviewing court must give due regard to
the trial court’s opportunity to judge the witnesses’
credibility.” See, e.g., Anderson v. City of Bessemer, 470
U.S. 564, 573 (1985) (“[T]he standard governing appellate
review of a district court's finding of discrimination is that
set forth in Federal Rule of Civil Procedure 52(a) . . . .”)).
Rule 52 is a statutory rule, however, and none of Holland
MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB 31
America’s cited authority establishes that the Constitution
independently requires appellate courts to defer to trial-court
factual findings. Thus, Holland America could claim no
constitutional violation had an American appellate court
taken the same action as the Amsterdam Court of Appeal,
and this too suggests that the Dutch proceedings were
fundamentally fair.
B. The District Court Did Not Abuse Its Discretion
by Denying Holland America’s Motion for
Additional Discovery Under Federal Rule of Civil
Procedure 56(d).
Finally, Holland America argues that the district court
abused its discretion by denying Holland America’s request
for additional discovery under Federal Rule of Civil
Procedure 56(d). Rule 56(d) provides that “[i]f a nonmovant
shows by affidavit or declaration that, for specified reasons,
it cannot present facts essential to justify its opposition, the
court may . . . allow time to obtain affidavits or declarations
or to take discovery.” To prevail on a request for additional
discovery under Rule 56(d), a party must show that “(1) it
has set forth in affidavit form the specific facts it hopes to
elicit from further discovery; (2) the facts sought exist; and
(3) the sought-after facts are essential to oppose summary
judgment.” Family Home & Fin. Ctr., Inc. v. Fed. Home
Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 2008).
Here, the additional discovery that Holland America
sought in its opposition to Midbrook’s summary judgment
motion was the same discovery that it sought in the Dutch
proceedings: “Midbrook’s underlying cost records and
banking records[.]”As the district court noted, however, this
discovery would not “preclude summary judgment,”
because it had no bearing on whether the proceedings in the
Dutch courts were “compatible with the requirements of due
32 MIDBROOK FLOWERBULBS V. HOLLAND AM. BULB
process of law” under section 4(c)(8) of Washington’s
UFCMJRA. Rather, Holland America sought this discovery
because it would “conclusively determine whether
Midbrook was in fact entitled to any judgment whatsoever
in the Dutch proceedings.” Because this fact was not
relevant—let alone “essential”—to the issues raised by
Midbrook’s motion for summary judgment, the district court
did not abuse its discretion by denying Holland America’s
request for additional discovery.
IV. Conclusion
We AFFIRM the district court’s order granting
summary judgment for Midbrook and denying Holland
America’s discovery request under Rule 56(d).