De Fontbrune v. Wofsy

When a motion to dismiss raises a question of foreign law, the court may consider declarations or other “evidentiary” material regarding the content of relevant foreign law without converting the motion into a summary judgment motion; here, the Court of Appeal held that a French “astreinte” award was an enforceable foreign damage judgment, not an unenforceable penalty.  In Federal Rule of Civil Procedure 44.1, the federal courts rejected the notion that foreign law was a question of fact to be proven like other facts.  The rule provides instead that determinations of foreign law are questions of law and states that in deciding a foreign law question, a court may consider any relevant material or source including testimony, whether or not submitted by a party or admissible under the Federal Rule of Evidence.  This decision holds that when a question of foreign law is raised on a motion to dismiss, the court may consider declarations or other “evidentiary” material regarding the content of relevant foreign law without converting the motion into a summary judgment motion.  This decision enforces a French copyright infringement judgment awarding a 2 million euro “astreinte” for the defendant’s violation of a prior French judgment prohibiting him from using photos of Picasso’s works to which plaintiff held the copyright.  California’s Recognition of Foreign Money Judgments Act does not permit enforcement of foreign judgments for a fine or penalty.  According to this decision, an “astreinte” partakes of some elements of both a penalty and a damage award, but at least in this case it is more similar to a damage award for defendant’s continued infringement than a criminal penalty exacted for violation of any public right.

Ninth Circuit Court of Appeals (McKeown, J.); September 26, 2016; 2016 WL 5349749

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