Addressing whether federal courts may go outside the pleadings when ruling on a motion to dismiss premised on foreign law, the US Court of Appeals for the Ninth Circuit clarified that the content of foreign law is a “question of law” that permits judicial reliance on independent research and the parties’ submissions. De Fontbrune v. Wofsy, Case No. 14-15790 (9th Cir., Sept. 26, 2016) (McKeown, J).

Yves Sicre de Fontbrune owns the copyright in Christian Zervos’s almost 16,000 photographs of Pablo Picasso’s artwork. After US art editor Alan Wofsy reproduced some of the photographs and sold them at a Parisian fair, de Fontbrune brought suit in France for copyright infringement. The French court awarded de Fontbrune EUR 2 million for “astreinte”—a French legal remedy with no US counterpart. Invoking the California Uniform Foreign-Court Monetary Judgment Recognition Act (Uniform Recognition Act), de Fontbrune sought to enforce his astreinte award against Wofsy in California state court.

Wofsy removed the case to federal court and filed a motion to dismiss, arguing that astreinte is a type of penalty, rather than a monetary award, and is therefore not enforceable pursuant to the Uniform Recognition Act. Under Fed. R. Civ. P. 44.1 (Determining Foreign Law), both parties provided conflicting expert opinions as to the status of astreinte in French law.

The district court initially refused to rely on the experts’ declarations, calling them “evidence outside the pleadings” that may not be considered on a motion to dismiss. On reconsideration, however, it reversed course, finding that Rule 44.1 authorizes a court’s consideration of any relevant source on the content of foreign law regardless of its admissibility, likening questions of foreign law to questions of domestic law. After evaluating the French legal sources, the district court found that de Fontbrune’s astreinte was a non-cognizable penalty and dismissed the enforcement action. De Fontbrune appealed. 

Recognizing that there was significant confusion over how to treat foreign legal questions under Rule 44.1, the Ninth Circuit took the opportunity to clarify. As the Court explained, subject only to Rule 44.1’s requirement that a party intending to rely on foreign law give notice, questions of foreign law are to be treated the same as questions of domestic law. Because courts have an independent obligation to research legal rules (as opposed to factual issues), courts are permitted to both independently investigate questions of foreign law and review submissions from the parties “outside the pleadings” regarding the content of foreign law.

Implementing its own advice, the Court conducted an independent legal review of the nature of astreinte and considered the parties’ expert submissions. After reviewing the relevant sources, the Court reversed the district court, finding instead that the particular astreinte judgment ordered in the case was in the nature of a monetary award, not a penalty, and was therefore legally cognizable under the Uniform Recognition Act.

Practice Note: Although federal courts have authority to independently research foreign law, source access, language barriers and general unfamiliarity may cause greater reliance on parties’ submissions than a typical domestic legal question. Therefore, litigants should be prepared to submit expert declarations supporting their interpretation of foreign law at the pleading stage.