Appeal from the United States District Court for the District of New Jersey. D.C. Civil Action No. 93-19.
Before: Scirica, Lewis and Seitz, Circuit Judges.
This is an appeal from a final order of the New Jersey district court in a diversity action. The order granted defendant Kim's motion for summary judgment, denied a similar motion by plaintiff, Choi, and dismissed with prejudice the complaint against the other two defendants. Our review is plenary.
Choi, a South Korean native, entered into an agreement with Kim, also a South Korean, under which Choi agreed to export cash boxes to Kim. Choi shipped the boxes to Kim for sale in the United States, but Kim failed to pay for them.
In an effort to secure payment, Choi persuaded Kim to give him a promissory note for the amount due. The note, executed in Korea, was accompanied by a "notarial deed" ("deed"). The deed included a "compulsory execution" clause, which provided, as translated, that "if the promissor delay a payment of the promissory note to the creditor, the promissor acknowledged and stated that the promissor would be taken a compulsory execution immediately, he has no objection to make about it." Appendix at 45.
Kim allegedly defaulted on the note, and Choi obtained an Order of Execution in Korea to enforce his rights to compulsory execution under the deed (the alleged Korean "judgment").*fn1 Thereafter, Kim allegedly fled to the United States and conveyed all, or a substantial portion, of his property to Nancy Soo Lee ("Lee") and Golden Plastics Corporation, a New Jersey corporation ("Golden Plastics"). See Complaint PP 4-5.
Choi, by his attorney in fact Song, commenced this action in the United States District Court for the District of New Jersey against Kim, Lee, and Golden Plastics (collectively "defendants") seeking enforcement of his Korean "judgment."
In granting defendant Kim's motion for summary judgment, the district court first expressed skepticism that the deed and order of execution, prepared in Korea, amounted to a judgment under Korean law. See Song v. Kim, et al., No. Civ. A. 93-19, *14, 1993 WL 526340, * 6- * 7 (D.N.J. Dec. 16, 1993) ("Mem. Op.").*fn2 The court found that, even if the deed and order of execution constituted a judgment, it would not be recognized under controlling New Jersey law, because it was entered without according Kim minimal due process protections. Id. at * 8. Therefore, the district court refused to recognize the Korean "judgment." This appeal followed.
A. Subject Matter Jurisdiction
Before addressing the merits, the district court considered whether diversity jurisdiction existed. In doing so, it was required to decide who was the real party in interest under Rule 17(a) of the Federal Rules of Civil Procedure.*fn3 See Mem. Op. at 2; see also Bumberger v. Insurance Co. of North America, 952 F.2d 764, 768 (3d Cir. 1991); Field V. Volkswagenwerk AG, 626 F.2d 293, 302 (3d Cir. 1980). In its summary judgment opinion, the court concluded that the caption of the complaint showed that Song was the only named "plaintiff" in the action. Mem. Op. at * 8 n.2. It then held that because Choi, not Song, was the real party in interest, it was inclined to dismiss the action under Rule 17(a) of the Federal Rules of Civil Procedure. Id. at * 3. The district court, nevertheless, proceeded to address the merits of plaintiff's claim for what it said were reasons of judicial economy. Id. at * 4. It concluded that it was free to do so because 1) Rule 17(a) was procedural in nature; 2) the case could have been continued or the complaint refiled with Choi as the named plaintiff; and 3) Choi's inclusion in the action would not destroy diversity jurisdiction. Id.
We need not determine whether the district court was free to proceed to the merits. We so conclude because of our disagreement with the district court's ruling that Song was the only named plaintiff in the complaint. We turn to that issue.
On January 18, 1992, Choi executed a Power of Attorney that gave Song the express power to bring suit. See Appendix at 56, P 1.*fn4 Thereupon, as Choi's attorney in fact or agent, Song instituted the present action in the district ...