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Otos Tech Co., Ltd v. Ogk America

December 16, 2010

OTOS TECH CO., LTD., PLAINTIFF,
v.
OGK AMERICA, INC., AND YALE KIM AKA YOUNGIL KIM,
DEFENDANTS.



The opinion of the court was delivered by: Walls, Senior District Judge

NOT FOR PUBLICATION

OPINION

Plaintiff Otos Tech Co., Ltd. ("Otos") requests an order enforcing the judgment of the Supreme Court of South Korea so that it is equalized with the American judgment. The motion is denied.

FACTUAL AND PROCEDURAL BACKGROUND

Otos brought suit against OGK America, Inc. ("OGK") and Yale Kim for breach of contract and conversion in 2003 in the District of New Jersey. The defendants counterclaimed for breach of contract, breach of a settlement agreement and breach of the covenant of good faith and fair dealing. Before this action was completed, Otos brought an action against Kim asserting identical claims in South Korea. In the Korean action, Otos obtained a provisional attachment of some of Kim's assets. Otos' claims in this Court and in Korea concerned the conversion of the same three checks worth $587,755.05.

On December 16, 2005, the Korean court awarded Otos 607,156,665KRW. This amount, in Korean Currency, was later reduced to 544,920,318KRW.*fn1 This award was equivalent to $587,755.05 in U.S. Dollars. The award in Korean currency was calculated using a fixed exchange rate proscribed by Korean law as "the foreign currency exchange rate of the date closest to the date of the oral proceeding." (December 16, 2005 Korean Judgment, 17.) The award was subject to five percent post-judgment interest from April 1, 2005, through February 6, 2007, and twenty percent post-judgment interest from February 7, 2007, until the judgment was satisfied. Kim appealed and the Supreme Court of Korea affirmed the judgment in December 2008.

In this country, this Court entered judgment in August 2006. Otos was awarded $587,755.05 and defendants were awarded $910,000 on their counterclaim. The Third Circuit affirmed the judgment and defendants were awarded post-judgment interest on $322,244.95, the difference between the two awards. Otos Tech Co., Ltd. v. OGK Am., Inc., Nos. 07-3627 & 07-3775, 2008 WL 4531968 (3d Cir. Oct. 11, 2008). The defendants have been paid the full amount of the American judgment.

As to the Korean judgment, Kim made a series of payments either directly to Otos or by depositing funds with the Korean court. In November 2006, Otos was paid 53,474,992KRW. Between October 2008 and February 2009, Kim made four deposits with the Korean court for Otos amounting to 754,144,142KRW.*fn2 In total, Kim has paid 807,619,134KRW under the Korean judgment.*fn3 When Otos attempted to obtain additional funds from Kim the Korean court found that the Korean judgment had been fully satisfied. That court held that "it is clear that, as [Otos] accepted the allocated amount and payments and [Kim] placed the reimbursement deposition for [Otos], the payment of the principal and interest on late payment which the above irrevocable judgment ordered [Kim] to make was fully carried out." (February 16, 2009 Korean Order.) Otos now attempts to recover additional funds from the defendants in the United States claiming that fluctuations in the exchange rate have resulted in the Korean judgment being worth less than the American judgment.

LEGAL STANDARD

New Jersey courts are required to give the judgments of sister states full faith and credit pursuant to the United States Constitution. U.S. Const. art. IV, § 1; Peju Province Winery v. Eibert, 2007 WL 1468635, at *2 (N.J. Super. App. Div. May 23, 2007). "The Treaty of Friendship, Commerce and Navigation Between the United States of America and The Republic of Korea, 8 U.S.T. 2217, elevates a Korean judgment to the status of a sister state judgment." Choi v. Kim, 50 F.2d 244, 248 (3d Cir. 1995).

This is a diversity action. New Jersey law will govern whether the judgment is recognized in this Court. Id. New Jersey courts will enforce foreign judgments when the rendering jurisdiction (1) had personal jurisdiction over the defendant, (2) had subject matter jurisdiction over the action, and (3) provided the judgment debtor with adequate notice and an opportunity to be heard. Damonte v. Martucci, 2008 WL 150061, at *3 (N.J. Super. App. Div. Jan. 17, 2008). Without any of these due process defenses, "litigation pursued to judgment in a sister state is conclusive of the rights of the parties in the courts of every state as though adjudicated therein." Sonntag Reporting Serv., Ltd. v. Ciccarelli, 865 A.2d 747, 750 (N.J. Super. App. Div. 2005).

DISCUSSION

Validity of Korean Judgment

Defendants state that the Korean judgment is valid and final. They also argue that, in the alternative, Otos has not established the Korean judgment's validity. Defendants do not contest personal or subject matter jurisdiction and Kim had notice of, and was an active participant in, the Korean proceeding. Instead, defendants claim that the ...


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