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EXHIBIT A
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Zhizheng Wang v. Hull, Slip Copy (2020)
© 2021 Thomson Reuters. No claim to original U.S. Government Works.
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2020 WL 3315990
Only the Westlaw citation is currently available.
United States District Court, W.D. Washington,
at Seattle.
ZHIZHENG WANG, Plaintiff,
v.
Bruce HULL, Defendant.
Decathlon Alpha III,
L.P., Intervenor Plaintiff,
v.
Zhizheng Wang, Intervenor Defendant.
NO. C18-1220RSL
|
Signed 06/18/2020
Attorneys and Law Firms
Benjamin Alexander Ellison, Salish Sea Legal PLLC, Seattle,
WA, for Plaintiff.
Farron Danelle Curry, Jennifer Campbell, Schwabe
Williamson & Wyatt, Seattle, WA, Kevin C. Riach, Pro
Hac Vice, Fredrikson & Byron PA, Minneapolis, MN, for
Intervenor Plaintiff.
Derek Allan Bishop, Sarah N. Turner, Gordon Rees Scully
Mansukhani LLP, Seattle, WA, for Defendant.
Benjamin Alexander Ellison, Salish Sea Legal PLLC, Seattle,
WA, for Intervenor Defendant.
ORDER
DENYING
PLAINTIFF'S
MOTION
FOR
SUMMARY JUDGMENT
Robert S. Lasnik, United States District Judge
*1 This matter comes before the Court on plaintiff Zhizheng
Wang's “Motion for Partial Summary Judgment Against
Bruce Hull,” Dkt. # 33, and defendant Bruce Hull's “Motion
to Strike Plaintiff's Declarations,” Dkt. # 89. Wang seeks a
summary determination that Hull lacked authority to sign
a subordination agreement on behalf of an informal group
of individuals known as “the Wang Group.” Hull and/
or intervenor Decathlon Alpha III, L.P., challenge Wang's
standing to pursue claims in the name of “the Wang Group,”
argue that there are disputed issues of fact regarding Hull's
authority to act, and object to consideration of any evidence
obtained from, or declarations signed in, the People's
Republic of China.
Summary judgment is appropriate when, viewing the facts
in the light most favorable to the nonmoving party, there
is no genuine issue of material fact that would preclude
the entry of judgment as a matter of law. The party
seeking summary dismissal of the case “bears the initial
responsibility of informing the district court of the basis
for its motion” (Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986)) and “citing to particular parts of materials in
the record” that show the absence of a genuine issue of
material fact (Fed. R. Civ. P. 56(c)). Once the moving party
has satisfied its burden, it is entitled to summary judgment
if the non-moving party fails to designate “specific facts
showing that there is a genuine issue for trial.” Celotex
Corp., 477 U.S. at 324. The Court will “view the evidence
in the light most favorable to the nonmoving party ... and
draw all reasonable inferences in that party's favor.” Colony
Cove Props., LLC v. City of Carson, 888 F.3d 445, 450 (9th
Cir. 2018). Although the Court must reserve for the trier of
fact genuine issues regarding credibility, the weight of the
evidence, and legitimate inferences, the “mere existence of
a scintilla of evidence in support of the non-moving party's
position will be insufficient” to avoid judgment. City of
Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir.
2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986). Factual disputes whose resolution would not affect
the outcome of the suit are irrelevant to the consideration of a
motion for summary judgment. S. Cal. Darts Ass'n v. Zaffina,
762 F.3d 921, 925 (9th Cir. 2014). In other words, summary
judgment should be granted where the nonmoving party fails
to offer evidence from which a reasonable fact finder could
return a verdict in its favor. Singh v. Am. Honda Fin. Corp.,
925 F.3d 1053, 1071 (9th Cir. 2019).
Having reviewed the memoranda, declarations, and exhibits
submitted by the parties, including the supplemental
submissions filed after additional discovery was taken, and
taking the evidence in the light most favorable to the non-
moving party, the Court finds as follows:
A. Authority to Sign
There is a triable issue of fact regarding Hull's authority to
sign the subordination agreement. Qiqi “Denny” Wang was
the acknowledged agent of “the Wang Group” when he told
Hull to append his signature to any documents that were
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necessary to close the Decathlon loan. Dkt. # 33-2 at 9 (June
12, 2017, email from Denny1 to Hull stating, “If there is
anything that is important and needs to be signed to close the
Decathlon loan, please sign that for me.”). The actions of an
acknowledged agent are imputed to the principal. Blake Sand
& Gravel, Inc. v. Saxon, 98 Wn. App. 218, 223 (1999) (“When
an agent has actual authority to act on behalf of the principal,
the agent's exercise of the authority binds the principal.”).
Because there is no dispute regarding Denny's authority to
act on behalf of “the Wang Group,” Wang's argument that the
authorization Hull received was ineffective because it did not
come directly from one or all of the individuals who made up
“the Wang Group” is rejected.
*2 With regards to the scope of the authorization Denny
granted to Hull, there is at least an issue of fact whether
it included permission to sign for Denny on behalf of “the
Wang Group.” There is evidence that Denny was aware that
Decathlon would not close the loan unless “the Wang Group”
subordinated its security position, that he had discussed this
requirement with Decathlon and Hull, that he had received
copies of the subordination agreement prior to closing, that he
wanted the loan to close so that his interests in the borrower
would be protected, and that he expressed no surprise and
raised no objection to Hull's use of his signature when he
received a copy of the signed documents after closing. A
reasonable fact finder could conclude that Denny authorized
Hull to sign documents for him personally and on behalf of
“the Wang Group” in order to close the Decathlon loan.
B. Standing
There is evidence in the record that the individuals who
made up “the Wang Group” and the limited liability company
they created to pursue their contractual claim in state court
intended to transfer all rights in the cause of action to
Zhizheng Wang, the named plaintiff in this matter. Hull argues
that the timing of some of the transfers and/or the language
used therein raise issues regarding their effectiveness, but
plaintiff's showing regarding standing is sufficient to forestall
entry of judgment in Hull's favor at this point in the litigation.
This determination is without prejudice to a motion for
summary judgment directed at the issue.
C. Motion to Strike2
In his supplemental response to Wang's motion for summary
judgment, Hull raised objections to the submission of certain
unspecified declarations because the declarants claimed that
they were not subject to jurisdiction in the United States
and were therefore attempting to avoid any penalty for
perjury. Dkt. # 76 at 4. Three months after briefing on the
motion for summary judgment closed, Hull filed a separate
motion to strike evidence obtained from, and declarations
signed in, the People's Republic of China on the ground
that it is “improper” and “ineffective” for anyone other than
the Chinese government to take evidence or issue oaths in
China. Dkt. # 89 at 3. While the perjury objection was
timely raised, the objection based on Chinese law is untimely
and procedurally improper. Nevertheless, because of the
importance of the declarations and evidence at issue, the
Court has considered both objections on their merits.
1. Evidence Collected in Violation of Chinese Law
Hull's objections based on violations of Chinese law conflate
issues of foreign relations law and admissibility. The methods
and scope of discovery in federal court are governed by the
Federal Rules of Civil Procedure, and the admissibility of
discovered evidence is governed by the Federal Rules of
Evidence. Hull is essentially arguing that evidence that was
created or collected according to the Federal Rules of Civil
Procedure is nevertheless inadmissible under the Federal
Rules of Evidence if its creation or collection violated foreign
law. None of the case law cited supports such a proposition.
In some circumstances, the broad discovery authorized by the
Federal Rules of Civil Procedure conflicts in a meaningful
way with sovereign interests, in which case the Court
may require the parties to use Hague Convention or other
treaty procedures to acquire evidence. See Sun Grp. U.S.A.
Harmony City, Inc. v. CRRC Corp. Ltd., 2019 WL 6134958,
at *1 (N.D. Cal. Nov. 19, 2019); St. Jude Med. S.C., Inc.
v. Janssen-Counotte, 104 F. Supp. 3d 1150, 1160 (D. Or.
2015).3 The obligation to do so is not mandatory, however.
The Supreme Court has expressly rejected Hull's implicit
argument that the Hague Convention automatically compels a
U.S. court to “change its own evidence-gathering procedures”
whenever evidence located abroad is needed for use in U.S.
litigation. Societe Nationale Industrielle Aérospatiale v. U.S.
Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 534 (1987).
The Court found that interpreting the Hague Convention as
the exclusive means for obtaining evidence located abroad
“would effectively subject every American court hearing a
case involving a national of a contracting state to the internal
laws of that state. Interrogatories and document requests are
staples of international commercial litigation, no less than of
other suits, yet a rule of exclusivity would subordinate the
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court's supervision of even the most routine of these pretrial
proceedings to the actions or, equally, to the inactions of
foreign judicial authorities.” Aérospatiale, 482 U.S. at 539.
While acknowledging that “the process of obtaining evidence
in a civil-law jurisdiction is normally conducted by a judicial
officer rather than by private attorneys,” the Court declined
to impose a duty on U.S. courts to employ such procedures,
instead recognizing that “the concept of international comity
requires in this context a more particularized analysis of the
respective interests of the foreign nation and the requesting
nation.... We therefore decline to hold as a blanket matter
that comity requires resort to Hague Evidence Convention
procedures without prior scrutiny in each case of the
particular facts, sovereign interests, and likelihood that resort
to those procedures will prove effective.” Aérospatiale, 482
U.S. at 543-44 (footnotes omitted).
*3 Thus, a district court's determination of whether to
require a party seeking discovery to comply with the Hague
Convention procedures involves a two-step inquiry. First,
the resisting party must prove that Chinese law bars it
from producing the discovery sought. EFG Bank AG v.
AXA Equitable Life Ins. Co., 2018 WL 1918627, at *1
(S.D.N.Y. Apr. 20, 2018). Hull has made that showing. He
has not, however, addressed the second step of the inquiry,
namely whether the particular facts of this case, including the
sovereign interests at stake, warrant requiring the application
of the Hague Convention. Sun Grp. U.S.A. Harmony City,
2019 WL 6134958, at *1 (citing Aérospatiale, 482 U.S. at
544).
At issue in the motion to strike are discovery responses,
declarations, and exhibits produced by Wang and his
witnesses while in China. In this context, Wang has not
attempted to use a Chinese law designed to protect its citizens
from abusive or harassing litigation as a shield. Rather, Hull
is attempting to use the law as a sword to strike down
evidence Wang has, without objection, voluntarily produced.
As the Supreme Court noted, “[s]ome discovery procedures
are much more ‘intrusive’ than others.... [and t]he exact line
between reasonableness and unreasonableness in each case
must be drawn by the trial court, based on its knowledge of
the case and of the claims and interests of the parties and
the governments whose statutes and policies they invoke.”
Aérospatiale, 482 U.S. at 545. Absent some showing that the
evidence produced is only marginally relevant to the issues
in this case, threatens the sovereign interests of China, and/
or would likely be obtainable through the Hague Convention
procedures, the Court declines to require resort to those
procedures.4
2. “Under Penalty of Perjury”
Hull has also challenged the admissibility of four declarations
submitted by the individual members of “the Wang Group”
as Exhibit 9 to attorney Ellison's supplemental declaration,
Dkt. # 81-9. When a matter may be supported by a sworn
declaration in writing, an individual may instead submit an
unsworn statement that is signed as true under penalty of
perjury pursuant to 28 U.S.C. § 1746. To be admissible, the
statute requires that the declaration be made “substantially” in
the following language: “I declare (or certify, verify, or state)
under penalty of perjury that the foregoing is true and correct.
Executed on (date).” 28 U.S.C. § 1746(2). The purpose of
this affirmation is to be certain “the declarant understands
the legal significance of the declarant's statements and the
potential for punishment if the declarant lies.” U.S. v. Bueno-
Vargas, 383 F.3d 1104, 1111 (9th Cir. 2004). See also In
re World Trade Center Disaster Litigation, 722 F.3d 483,
488 (2nd Cir. 2013) (omission of statement that declaration
was made under penalty of perjury fatal; “[i]nclusion of the
language ‘under penalty of perjury’ is an integral requirement
of the statute for the very reason that it impresses upon
the declarant the specific punishment to which he or she is
subjected for certifying to false statements”); Nissho–Iwai
American Corp. v. Kline, 845 F.2d 1300, 1306-07 (5th Cir.
1988) (purported affidavit omitting statement that it was
made under penalty of perjury and that the contents were
true and correct insufficient under section 1746; as drafted,
the purported affidavit “allows the affiant to circumvent the
penalties for perjury”); Kersting v. U.S., 865 F.Supp. 669, 676
(D. Haw. 1994) (declaration is sufficient under section 1746
if it “contains the phrase ‘under penalty of perjury’ and states
that the document is true”). The four declarations at issue
contain the appropriate language acknowledging penalties for
perjury, but they specifically assert that the declarant does
“not intend to submit to the personal jurisdiction of the Courts
of the United States.” See, e.g., Dkt. #81-9 at 1. Hull argues,
without citation to case law, that the declarations must be
stricken.
*4 Whether a person has subjected themselves to the
jurisdiction of the Court is not for the declarant to decide.
Where a witness voluntarily inserts him- or herself into a
jurisdiction to provide testimony in a pending matter and
makes false statements under penalty of perjury, minimum
contacts sufficient to hale the witness into Court to face
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penalties for those false statements likely exist. The Court
therefore finds that the declarations of the four individual
members of “the Wang Group” are not inadmissible simply
because the declarants include an ineffective statement
denying the Court's jurisdiction over their persons.
For all of the foregoing reasons, Wang's motion for summary
judgment (Dkt. # 33) and Hull's motion to strike (Dkt. # 89)
are DENIED.
All Citations
Slip Copy, 2020 WL 3315990
Footnotes
1
Qiqi “Denny” Wang is the son of plaintiff Zhizheng Wang. In order to avoid confusion, plaintiff is referred to as “Wang”
and his son in referred to as “Denny.”
2
The Court has not reviewed Hull's pending motion to compel Wang's deposition (Dkt. # 87) and has confined its analysis
and ruling to the motion to strike existing declarations, exhibits, and discovery responses.
3
The Chinese law cited by Hull provides that “[t]he request for a provision of judicial assistance shall be conducted through
the channels stipulated in the international treaties concluded or acceded to by the People's Republic of China,” which
interprets as a reference to the Hague Evidence Convention. See Civil Procedure Law of the People's Republic of China,
Article 277 (rev. 2017); Melaleuca, Inc. v. Kot Nam Shan, 2018 WL 1952523, at *7 (D. Idaho Apr. 24, 2018) (finding
that “China has indicated that taking depositions, whether voluntary or compelled ... may, as a general matter, only be
accomplished through requests to its Central Authority under the Hague Evidence Convention”).
4
The district judge in Ji v. Jling, Inc., 2019 WL 1441130, at *6 (E.D.N.Y. Mar. 31, 2019), identified another issue to be
considered when determining the reasonableness of U.S. discovery procedures used abroad. Where the production
of evidence or testimony places only the party seeking to use the American judicial system to enforce its rights in
jeopardy under Chinese law, use of the federal discovery procedures without recourse to the Hague Convention may be
reasonable. If, however, discovery will expose a non-consenting party to sanctions in the foreign jurisdiction, that factor
will weigh in favor of invoking the more cumbersome Convention procedures.
End of Document
© 2021 Thomson Reuters. No claim to original U.S.
Government Works.
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