Banca Di Credito v. Small

    Banca di Credito v. Small

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 19th day of March, two thousand twenty-one.

                      GERARD E. LYNCH,
                      JOSEPH F. BIANCO,
                            Circuit Judges,
                      PHILIP M. HALPERN,


                      v.                                                                20-285-cv

    CHARLES H. SMALL, ESQ., in his representative
    capacity as Executor of the Estate of Fred Mengoni
    aka Ferruccio Mengoni,

                                Defendant-Appellee. **


    * Judge Philip M. Halpern of the United States District Court for the Southern District of New York, sitting
    by designation.

    ** The Clerk of Court is respectfully direct to amend the official case caption as set forth above.
FOR PLAINTIFF-APPELLANT:                          ANDREW M. MOSKOWITZ , ESQ., Javerbaum Wurgaft
                                                  Hicks Kahn Wikstrom & Sinins, P.C., Springfield,
                                                  New Jersey (Giacomo James Corrado, Esq., New
                                                  York, New York, on the brief).

FOR DEFENDANT-APPELLEE:                           MICHELE L. PAHMER, (James L. Bernard, on the
                                                  brief), Stroock & Stroock & Lavan LLP, New York,
                                                  New York.

        Appeal from a judgment of the United States District Court for the Southern District of

New York (Oetken, J.).


DECREED that the judgment of the district court is AFFIRMED.

        Banca Di Credito Cooperativo di Civitanova Marche e Montecosaro Soc. Cooperativa

(“Banca”), an Italian bank and creditor to the bankruptcy of the Estate of Fred Mengoni aka

Ferruccio Mengoni, appeals from a judgment of the district court (Oetken, J.), holding that Banca

was not entitled to recognition and enforcement of two orders issued by Italian courts and granting

Administrator of Mengoni’s estate Charles H. Small’s motion to dismiss Banca’s breach of

contract and unjust enrichment claims for forum non conveniens.1 On appeal, Banca argues that

the district court erred in failing to recognize and enforce the two Italian court orders, one dated

May 21, 2013 by the Italian bankruptcy court and the other by the civil tribunal dated June 6, 2016,

both recognizing Banca’s claims in the Italian bankruptcy court proceeding (collectively, the

“Italian Bankruptcy Orders”). Banca also contends that the district court erred in holding that

 The district court also dismissed Banca’s claim for declaratory relief with respect to the two Italian court

Banca’s breach of contract claims and alternative claim for unjust enrichment were barred by the

forum selection clauses in the applicable loan and line of credit agreements. We assume the

parties’ familiarity with the underlying facts and prior record of proceedings, to which we refer

only as necessary to explain our decision to affirm.

       We review a grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)

de novo, “accepting as true the factual allegations in the complaint and drawing all inferences in

the plaintiff’s favor.” Scutti Enters., LLC v. Park Place Ent. Corp., 

322 F.3d 211

, 214 (2d Cir.

2003). We also review de novo “a district court’s rulings on questions of foreign law.” Fed.

Treasury Enter. Sojuzplodoimport v. Spirits Int’l B.V., 

809 F.3d 737

, 742 (2d Cir. 2016). With

respect to dismissal based upon forum selection clauses, the Supreme Court has made clear that

“the appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is

through the doctrine of forum non conveniens.” Atl. Marine Constr. Co. v. U.S. Dist. Court for W.

Dist. of Tex., 

571 U.S. 49

, 60 (2013). This Court has yet to decide whether, in light of Atlantic

Marine, dismissal for forum non conveniens based on a forum-selection clause is reviewed de novo

or for abuse of discretion. See Martinez v. Bloomberg LP, 

740 F.3d 211

, 217 (2d Cir. 2014).

However, we need not address that issue here because we conclude that the district court’s

dismissal on this ground was correct even under de novo review.

  I.   Recognition of the Italian Bankruptcy Orders

       Banca argues that the district court erred in failing to recognize the Italian Bankruptcy

Orders. As discussed below, the district court correctly determined that the Italian Bankruptcy

Orders did not satisfy the requirements for recognition of a foreign judgment under New York law

because the judgments at issue are not enforceable where rendered in Italy outside of the

bankruptcy proceeding itself.

        New York law “governs actions brought in New York to enforce foreign judgments.” In

re Union Carbide Corp. Gas Plant Disaster, 

809 F.2d 195

, 204 (2d Cir. 1987). Article 53 of New

York’s Civil Practice Law and Rules (“CPLR”) codified existing New York case law as to the

recognition of foreign money judgments. Section 5302 limits judicial recognition to foreign

country judgments which are “final, conclusive and enforceable where rendered.” CPLR § 5302.

Foreign money judgments that meet the requirements of Section 5302 are “to be recognized in

New York . . . unless a ground for nonrecognition under CPLR 5304 is applicable.” John Galliano,

S.A. v. Stallion, Inc., 

15 N.Y.3d 75

, 80 (2010). The party seeking recognition of a foreign money

judgment must ask for no “new relief against the judgment debtor, but instead merely ask[] the

court to perform its ministerial function of recognizing the foreign country judgment and

converting it into a New York judgment.” CIBC Mellon Tr. Co. v. Mora Hotel Corp., 

100 N.Y.2d


, 222 (2003) (quoting Lenchyshyn v. Pelko Elec., 

723 N.Y.S.2d 285

, 291 (4th Dep’t 2001)).

The parties do not dispute that the Italian Bankruptcy Orders are final and conclusive, but Banca

contends that the district court erred as a matter of Italian law when it determined that those orders

were not enforceable in Italy without further action, and further erred as a matter of New York law

when it required that they be enforceable outside of the context of bankruptcy.

        The parties agree that, in order to determine under New York law whether the foreign

decree is enforceable “where rendered,” we look to the law of the foreign country where the decree

was issued. 2 Here, the Italian Bankruptcy Orders clearly determine the amount “each creditor is

  With respect to Italian law, “[w]e may consider any relevant source, including the affidavits submitted by
the parties.” Euromepa, S.A. v. R. Esmerian, Inc., 

154 F.3d 24

, 28 n.2 (2d Cir. 1998) (internal quotation

entitled to receive from the debtor’s bankruptcy estate within the bankruptcy procedure.” Joint

App’x at 599. However, Italian law, as enunciated by the Italian Supreme Court in Decision No.

892 of 2015, and as cited by both parties’ experts, draws a distinction between a court’s decree

rendering a statement of liabilities enforceable in a bankruptcy proceeding and the enforceability

of that same decree outside of the bankruptcy framework. More specifically, Section 96 of the

Italian Bankruptcy Act expressly declares, and the Italian Supreme Court has also enunciated that

such decrees produce no effect outside of the bankruptcy proceeding without further judicial


          Given the absence of such a ruling by an Italian commercial court in this case, Banca

proposes that “enforceable where rendered” under New York law means the Italian Bankruptcy

Orders need only be enforceable in the bankruptcy context by the court that ordered them, and not,

as the district court held, generally enforceable throughout Italy. Such a reading of that phrase is

inconsistent with our interpretation of New York law in the analogous context of enforcement of

foreign arbitration awards. See, e.g., Seetransport Wiking Trader Schiffahrtsgesellschaft MBH &

Co., Kommanditgesellschaft v. Navimpex Centrala Navala, 

29 F.3d 79

, 82 (2d Cir. 1994)

(“[W]hile we do not believe that New York would recognize the arbitral award-without-exequatur

as a judgment in and of itself, we think that it would recognize as a judgment the decree that confers

exequatur on the arbitral award.”). In other words, New York law does not require one of its courts

marks omitted); see also Fed. R. Civ. P. 44.1 (“[T]he court may consider any relevant material or source,
including testimony, whether or not submitted by a party or admissible under the Federal Rules of
Evidence.”). In doing so, we are not required to take all allegations of Italian law proffered by Banca to be
true because questions of foreign law are questions of law, not fact. See Euromepa, 

S.A., 154 F.3d at 28


to enforce a foreign decree where that decree itself cannot even be enforced in that foreign nation

beyond the walls of the issuing court. As Small points out, to permit Banca’s narrow reading of

“enforceable where rendered” to apply to decrees only enforceable within the walls of the

bankruptcy courts alone in Italy, “would have the incongruous effect of giving a foreign

determination greater force here than it would have in its own country.” Appellee’s Br. at 15; see

generally 11 Jack B. Weinstein et al., New York Civil Practice: CPLR ¶ 5302.01 (2019)

(“Generally, with respect to enforceability, a judgment is not entitled to any greater rights within

the forum state than it would enjoy in its home jurisdiction.”).

        Banca’s attempt to rely upon Seetransport to support this strained interpretation of New

York law is entirely misplaced. In Seetransport, we held that the arbitral award could be enforced

because the Paris Court of Appeals had conferred exequatur – a device by which French courts

“make a decision of an outside tribunal enforceable in France” – on the award, which was the

“functional equivalent of a French judgment awarding the sums specified in the award.”

Seetransport, 29 F.3d at 81

. Here, in contrast, Banca has not brought the requisite proceeding

before an Italian commercial court that would thereby create an enforceable judicial decision with

the same status as a judicial judgment like the one in Seetransport. Italian law requires the

conversion of the Italian Bankruptcy Orders into enforceable judgments, and an additional judicial

determination is still necessary under Italian law for such a conversion to occur in this case. 3

 Although Banca also relies upon V. Corp. Ltd. v. Redi Corp., No. 04 Civ. 1683(MBM), 

2004 WL 2290491

(S.D.N.Y. Oct. 9, 2004), that case is similarly distinguishable. In particular, in V. Corp., after obtaining the
arbitral award, “plaintiff obtained an order of the English High Court of Justice permitting it to enforce the
arbitral award ‘in the same manner as a Judgment or order’ and authorizing it ‘to enter judgment in terms
of the said award.’” V. Corp., 

2004 WL 2290491

, at *3. However, plaintiff had not also sought the requisite
formal judgment from the High Court under English law.

Id. The district court

in V. Corp. endorsed a
“functional, as opposed to formalistic, approach,”

id. at *10–11

(citing, inter alia, Island Territory of

        Banca’s reliance on New York cases interpreting CPLR § 5302 is similarly unavailing. In

both of the cases cited by Banca, the New York court addressed a foreign judgment that was

already enforceable in that foreign jurisdiction. See Hill Dickinson LLP v. Il Sole Ltd., 

49 N.Y.S.3d


, 889 (1st Dep’t 2017) (observing in dicta that the British money judgment was final,

conclusive, and enforceable, but affirming dismissal for lack of proper service); Sea Trade Mar.

Corp. v. Coutsodontis, 

21 N.Y.S.3d 887

(1st Dep’t 2016) (finding the order enforceable where the

Spanish clerk had certified that it had “the necessary definitiveness and enforceability” (internal

quotation marks omitted)). We also note that Banca’s argument that we have recognized an order

of a foreign court designating a bankruptcy trustee, under the doctrine of comity, has no bearing

on the recognition of a foreign money judgment under Section 5302. See Clarkson Co. v. Shaheen,

544 F.2d 624

(2d Cir. 1976). Finally, Banca cannot invoke Article 53’s savings clause, CPLR §

5307, to bypass the clear requirements under Section 5302 for money judgments and to recognize

these Italian Bankruptcy Orders that would not be enforced as judgments in Italy. Such a reading

of the savings clause has no support under New York law.

        Accordingly, we conclude that the district court did not err in refusing to recognize, and

afford full faith and credit to, the Italian Bankruptcy Orders under New York law.

 II.    Breach of Contract Claims

        Banca also challenges the district court’s dismissal of its breach of contract claims. The

Curacao v. Solitron Devices, Inc., 

489 F.2d 1313

, 1317, 1323 (2d Cir. 1973)), and did not refuse to
recognize the arbitral award due to plaintiff’s failure to obtain the High Court’s formal judgment that would
merely echo that same High Court’s prior order permitting enforcement and authorizing judgment. Thus,
even in V Corp., there was a foreign order that was the “functional equivalent” of an enforceable judgment.
Here, as noted above, no Italian court has issued any order that would render the Italian Bankruptcy Orders
enforceable outside of the Italian bankruptcy court, and thereby make them the “functional equivalent” of
a judgment.

district court granted Small’s motion to dismiss because the contracts at issue – the Loan

Agreement, the Credit Line Agreement, and the Personal Guarantee between Mengoni and Banca

(the “Agreements”) – each contain a forum selection clause specifying that all disputes shall be

subject to the jurisdiction of Italy, or the locale with jurisdiction over Banca (which is also Italy).

As set forth below, we agree with the thorough and well-reasoned analysis of the district court.

       To determine whether the district court properly dismissed a claim based on a forum

selection clause, we employ a four-part test: (1) “whether the clause was reasonably communicated

to the party resisting enforcement”; (2) whether the clause is “mandatory or permissive, i.e., . . .

whether the parties are required to bring any dispute to the designated forum or simply permitted

to do so”; (3) “whether the claims and parties involved in the suit are subject to the forum selection

clause”; and (4) whether the resisting party made “a sufficiently strong showing that enforcement

would be unreasonable or unjust, or that the clause was invalid for such reasons as fraud or

overreaching.” Phillips v. Audio Active Ltd., 

494 F.3d 378

, 383–84 (2d Cir. 2007) (internal

quotation marks omitted). “If the forum clause was communicated to the resisting party, has

mandatory force and covers the claims and parties involved in the dispute, it is presumptively


Martinez, 740 F.3d at 217


Phillips, 494 F.3d at 383

). On appeal, Banca

only disputes the district court’s findings as to the second and fourth prongs under Phillips. We

apply Italian law to the second prong, and federal law to the fourth prong.

Id. at 217–18.

        With respect to the second Phillips prong, “[a] forum selection clause is viewed as

mandatory when it confers exclusive jurisdiction on the designated forum or incorporates

obligatory venue language,” 

Phillips, 494 F.3d at 386

; in contrast, “[a] so-called permissive forum

clause only confers jurisdiction in the designated forum, but does not deny plaintiff his choice of

forum, if jurisdiction there is otherwise appropriate,”

id. The forum selection

clauses in the

Agreements, by utilizing the terminology of exclusivity in addressing jurisdiction (e.g., “shall,”

“sole,” and “solely), are clearly mandatory. See Joint App’x at 173 (“[A]ny disputes derived from

this act shall be subject to the sole jurisdiction of the place where the Bank’s offices are located.”

(emphasis added));

id. at 218

(“Any disputes that might arise shall be subject to the Judicial

authority with geographical jurisdiction over the Bank’s registered office, unless otherwise

required by law.” (emphasis added));

id. at 234

(“The Court that is solely competent to settle any

dispute arising from or in connection with this contract is the one with jurisdiction over the Bank’s

headquarters.” (emphasis added)).

       Banca argues that the district court erred in concluding that the forum selection clause is

mandatory under Italian law. We disagree. According to Banca’s expert, pursuant to Article 26

of the Italian Code of Civil Procedure, “a creditor may commence execution predicated on a Titolo

Esecutivo . . . [in] the court where the assets (personal or real) are located [which] has exclusive

jurisdiction, and such a forum may not be changed arbitrarily by the parties to the contract.” Joint

App’x at 611. That provision indicates that the execution of a judgment regarding New York

assets must occur in New York, not that the litigation of the merits as to the breach of contract

claims must occur in New York. Thus, Italian law presents no barrier to concluding, based upon

the plain terms of the Agreements, that the forum selection clause is mandatory, and the breach of

contract claims are subject to them.

       With respect to the fourth prong of the Phillips framework, Banca contends that the district

court erred in finding that it would not be unreasonable to enforce the forum selection clause. In

particular, Banca asserts that it would be categorically denied its right to any recovery if it cannot

bring suit in New York. Banca carries the high burden to show that enforcing the clause “would

be unreasonable and unjust.” M/S Bremen v. Zapata Off-Shore Co., 

407 U.S. 1

, 15 (1972); accord

Martinez, 740 F.3d at 219

; Roby v. Corp. of Lloyd’s, 

996 F.2d 1353

, 1363 (2d Cir. 1993). “[F]orum

selection and choice of law clauses are unreasonable” if, inter alia “the fundamental unfairness of

the chosen law may deprive the plaintiff of a remedy.” 

Roby, 996 F.2d at 1363

(internal quotation

marks omitted). It is not enough, however, to show that a potential award might be smaller. See

Piper Aircraft Co. v. Reyo, 

454 U.S. 235

, 254–55 (1981); see also 

Roby, 996 F.2d at 1363

(“[I]t is

not enough that the foreign law or procedure merely be different or less favorable than that of the

United States.”).

       Construing the facts most favorably to Banca, Banca cannot make the requisite showing.

There is no evidence that some feature of the Italian bankruptcy court will effectively, and unfairly,

deprive Banca of a remedy. In fact, Banca’s own evidence shows that the bankruptcy estate,

initially valued at over €20,000,000, contains substantial real estate assets yet to be sold, and that

it enjoys status as a certified unsecured creditor. Moreover, as pointed out by Banca’s own expert,

Italian law provides for the right to commence a separate action if it is unsatisfied with the result

of the bankruptcy proceeding. Banca argues that there is a disputed issue of fact as to whether it

will be able to obtain any recovery at all, because (1) the Bankruptcy Trustee has stated that it

could not predict the timeline for the liquidation of the estate or the amount of expected proceeds,

and (2) the Italian proceeding has already been pending for twelve years. We disagree. These

arguments at most suggest that Banca’s recovery may be delayed or reduced, and it is well settled

that Banca cannot overcome the presumption in favor of enforcing a mandatory forum selection

clause based on the possibility of a delayed or reduced recovery. See 

Roby, 996 F.2d at 1365

(“[T]he available remedies are adequate and the potential recoveries substantial.” (emphasis

added)); see also Alcoa Steamship Co., Inc. v. M/V Nordic Regent, 

654 F.2d 147

, 159 (2d Cir.1980)

(en banc) (“It is abundantly clear . . . that the prospect of a lesser recovery does not justify refusing

to dismiss on the ground of forum non conveniens.”). To the extent that Banca further suggests

that any additional recovery outside the bankruptcy proceeding is illusory because that proceeding

will never end, Banca provides no support under Italian law, through its expert or otherwise, for

that conclusory and speculative assertion.4

        In sum, the district properly dismissed the breach of contract claims on forum non

conveniens grounds based upon the mandatory forum selection clauses in the Agreements that

cover those claims and require such disputes to be brought in Italy.

III.    Unjust Enrichment Claim

        The district court also properly determined that Banca’s unjust enrichment claim should be

dismissed on forum non conveniens grounds because that claim, as alleged by Banca, arises from

an enforceable contract and is thus bound by the forum selection clause.

        Under this Court’s law, forum selection clauses apply to unjust enrichment claims where

the claims “relate[] to the rights and duties set out in the [agreements]” and “cannot be properly

  Banca also argues for the first time on appeal that the district court improperly made this adverse finding
without the benefit of an evidentiary hearing or discovery. See New Moon Shipping Co. v. MAN B&W
Diesel AG, 

121 F.3d 24

, 29 (2d Cir. 1997). However, that right is waived when, as here, a party fails to
seek such a hearing below. See United States ex rel. Drake v. Norden Sys., Inc., 

375 F.3d 248

, 256 (2d Cir.
2004) (observing that plaintiff waived his right to an evidentiary hearing by failing to request it until after
the court ruled against him). In any event, we note that a hearing would not have changed the outcome here
because, as noted above, Banca cannot show that the enforcement of the forum selection clauses would be
unreasonable or unjust even when the record is viewed most favorably to Banca. See New 

Moon, 121 F.3d
at 29

(holding that, prior to any evidentiary hearing, “a party seeking to avoid enforcement of such a
contractual clause is also entitled to have the facts viewed in the light most favorable to it”).

adjudicated without determining whether the parties were in compliance with the [agreements].”

Magi XXI, Inc. v. State della Citta del Vaticano, 

714 F.3d 714

, 725 (2d Cir. 2013). In its Second

Amended Complaint, Banca’s allegations regarding its unjust enrichment claim – in addition to

citing directly to the Agreements – are directly related to the loans made by Banca under those

Agreements.5 In short, the crux of Banca’s unjust enrichment claim is that Mengoni’s estate would

be unjustly enriched if permitted to retain the monies loaned under the Agreements. As such, the

cause of action “undoubtedly arises directly or indirectly from the agreement[s],” and the forum

selection clause applies to that claim. Bense v. Interstate Battery Sys. of Am., Inc., 

683 F.2d 718


720, 722 (2d Cir. 1982) (holding that the forum selection clause was enforceable) (internal

quotation marks omitted). Accordingly, the unjust enrichment claim was properly dismissed.

                           *                       *                       *

        We have considered Banca’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk of Court

  The Second Amended Complaint provides, in pertinent part, as follows: “The Partnership and Deceased
received from Plaintiff loans in the amount of €3,500,000.00 and €200,000.00 respectively. See Loan
Agreement; Credit Line Agreement (Exhibits 2-B, 2-C). The Partnership and Deceased failed to repay to
Plaintiff the amounts they borrowed. . . . The Deceased’s estate and its beneficiaries and distributes,
including Defendant, were unjustly enriched at Plaintiff’s expense in the amount the Partnership and
Deceased borrowed from but failed to repay to Plaintiff, which is the Claim that Defendant has refused to
honor.” Joint App’x at 75–76.


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