For opinion see 107 Fed.Appx. 887

United States Court of Appeals,

Eleventh Circuit.

The SOCIETY OF LLOYD'S, Plaintiff-Appellee,

v.

Julius Peek GARLINGTON and Glenn Wayne Manning, Defendants-Appellants.

No. 03-13794.

March 05, 2004.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CASE NUMBER

1-02-CV-1602-GET

Brief of Appellee

David C. Newman, Shannan F. Oliver, Smith, Gambrell & Russell, LLP, Suite 3100, Promenade II, 1230 Peachtree Street, N.E., Atlanta, Georgia 30309-3592, (404) 815-3500, Attorneys for Plaintiff-Appellee, The Society of Lloyd's

*1 STATEMENT REGARDING ORAL ARGUMENT

Appellee, The Society of Lloyd's, does not request oral argument in this matter. Appellee contends that oral argument in this matter is unnecessary as (1) the dispositive issues have been authoritatively decided by a number of courts throughout the United States; and (2) the factual and legal arguments are adequately presented in the briefs of the parties and the record before the Court. In this regard, Appellee does not believe that oral argument will assist the Court.

*i TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT ... C-1

STATEMENT REGARDING ORAL ARGUMENT ... S-1

TABLE OF CONTENTS ... i

TABLE OF CITATIONS ... iii

STATEMENT OF JURISDICTION ... 1

STATEMENT OF THE ISSUES ... 2

STATEMENT OF THE CASE ... 3

I. FACTUAL BACKGROUND OF THE DISPUTE ... 3

II. PROCEDURAL HISTORY OF THE UNDERLYING ACTION ... 8

SUMMARY OF THE ARGUMENT ... 9

ARGUMENT AND CITATION OF AUTHORITY ... 9

I. THE COURT CORRECTLY GRANTED SUMMARY JUDGMENT IN FAVOR OF LLOYD'S AS TO THE ENFORCEABILITY OF THE FOREIGN JUDGMENT AGAINST MANNING ... 10

A. The English Court was an Impartial Tribunal, and Manning was Afforded Due Process ... 12

B. Manning's Due Process Challenges Were Nothing More Than a Collateral Attack on the Substantive Rulings of the English Court ... 14

1. The English Court Did Not Deny Manning Due Process of Law When It Enforced the "Pay Now, Sue Later" Clause ... 16

*ii 2. The English Court Did Not Deny Manning Due Process of Law When It Enforced the "Conclusive Evidence" Clause ... 17

C. The Underlying Contract Is Not Repugnant to the Public Policy of the State of Georgia ... 18

II. THE DISTRICT COURT CORRECTLY DENIED MANNING'S MOTION TO COMPEL DISCOVERY IN THE MATTER ... 19

III. THE DISTRICT COURT CORRECTLY DENIED THE MOTION TO AMEND THE ANSWER ... 20

CONCLUSION ... 24

CERTIFICATE OF COMPLIANCE ... 25

*iii TABLE OF CITATIONS

CASES

Allen v. Lloyd's of London, 94 F. 3d 923 (4th Cir. 1996) ... 5

Arab Monetary Fund v. Hashim, 213 F. 3d 1169, 1172 (9th Cir. 2000) ... 13

Bank of Montreal v. Kough, 612 F.2d 467, 472 (9th Cir. 1980) ... 15

Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1284 (11th Cir. 2000) ... 21

Canadian Imperial Bank of Commerce v. Saxony Carpet Co., 899 F. Supp. 1248, 1254 (S.D.N.Y. 1995) ... 15

Coulborn v. Joseph, 195 Ga. 723, 25 S. E. 2d 576 (1943) ... 12, 14, 22

Fraser & Others v. The Society of Lloyd's at 46 (Court of Appeal, July 31, 1998) ... 17

Haynsworth v. The Corporation, 121 F. 3d 956 (5th Cir. 1997), cert. denied, 523 U.S. 1072 (1998) ... 5, 14, 19, 22

Hilton v. Guyot, 159 U.S. 113, 202 (1895) ... 12, 13

Jaffray & Ors. v. The Society of Lloyd's, (Court of Appeal, July 26, 2002) ... 23

Jones v. Colorcraft Corp., No. CV 182-252, 1983 U.S. Dist. LEXIS 14888, at * 2-3 (S.D. Ga. August 4, 1983) ... 19

*iv Lipcon v. Underwriters at Lloyd's at London, 148 F.3d 1285, 1298-99 (11th Cir. 1998) ... 19, 22

Nelson v. United States, 159 F.R.D. 583, 585 (N.D. Ga. 1995) ... 21

Richards v. Lloyd's of London, 135 F.3d 1289, 1296-97 (9th Cir. 1998) ... 14, 22

Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 958 (10th Cir. 1992) ... 14, 19, 22

Roby v. Corporation of Lloyd's, 996 F.2d 1353, 1362-63 (2d Cir. 1993) ... 19, 22

Shell v. R.W. Sturge, Ltd., 55 F. 3d 1227 (6th Cir. 1995) ... 5, 19

Society of Lloyd's v. Ashenden, 233 F. 3d 473, 476 (7th Cir. 2000) ... 13, 14, 20, 21

Society of Lloyd's v. Dennis Hugh Fitzgerald Leigh (High Court of Justice, Feb. 20, 1997) ... 7

Society of Lloyd's v. Fraser & Others (High Court of Justice, Dec. 3, 1997) ... 7, 8

Society of Lloyd's v. Grace, 718 N.Y.S.2d 327 (1st Dep't 2000) ... 13

Society of Lloyd's v. Lyons, Leighs & Wilkinson (Court of Appeal, July 31, 1997) ... 7

Society of Lloyd's v. Wilkinson (High Court of Justice, Apr. 23, 1997) ... 7

The Society of Lloyd's v. Webb, 156 F. Supp. 2d 632 (N.D. Tex. 2001) ... 13, 14, 20

Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1280 (11th Cir. 2002) ... 19

*v Washington v. Brown & Williams Tobacco Co., 106 F.R.D. 592, 593-95 (M.D. Ga. 1985) ... 20

STATUTES

O.C.G.A. § 9-12-110 ... 8, 10

O.C.G.A. § 9-12-114 ... 11

O.C.G.A. §§ 9-12-112-113 ... 10

OTHER AUTHORITIES

28 U.S.C. § 1291 ... 1

28 U.S.C. § 1332(a)(2) ... 1

Moore's Federal Practice § 26.41[2][a](3d ed. 2002) ... 20

*1 STATEMENT OF JURISDICTION

The United States District Court for the Northern District of Georgia, Atlanta Division, properly exercised diversity of citizenship jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)(2). Plaintiff-Appellant is a corporation incorporated under the laws of England, with its principal place of business in London, England, and Defendnats-Appellees are all citizens of the State of Georgia. (R:1:1:1-2, 6). In addition, the amount in controversy exceeds $75,000.00. (R: 1:1:6).

Final Judgment was entered by the District Court on June 26, 2003, and a Notice of Appeal was filed on July 25, 2003. (R:4:39; R:4:40).

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1291 as it is an appeal from a final decision of the United States District Court for the Northern District of Georgia, Atlanta Division.

*2 STATEMENT OF THE ISSUES

1. Did the District Court correctly grant Summary Judgment in favor of Appellee, The Society of Lloyd's, recognizing and enforcing against Appellant, Glenn Wayne Manning, the Judgment of the High Court of Justice, Queen's Bench Division, Commercial Court, London, England?

2. Did the District Court correctly deny Appellant Manning's Motion to Compel Discovery?

3. Did the District Court correctly deny Appellant Manning's Motion to Amend his Answer?

*3 STATEMENT OF THE CASE

I. FACTUAL BACKGROUND OF THE DISPUTE.

This action arises out of an individual Judgment entered by the High Court of Justice, Queen's Bench Division, England in favor of The Society of Lloyd's ("Lloyd's") against Glenn Wayne Manning ("Manning"). [FN1] Lloyd's regulates an international insurance market, located in England, comprised of individual and corporate members from all over the world. (R:2:l9:Ex. I, ¶ 5). Members of Lloyd's, known as "Names," underwrite insurance policies in syndicates. (r:2:19:ex. 1, ¶ 6). Manning is a Name in Lloyd's market. (R:2:19:Ex. 1, ¶ 7). Manning conducted his underwriting business at Lloyd's through a duly appointed agent who resided in England (the "Underwriting Agent"). (R:2:19:Ex. 1, ¶ 8).

FN1. Three other Defendants, Arthur William Davies, Alfred Michael Moore and Julius Peek Garlington, were named in the underlying action. Lloyd's voluntary dismissed, without prejudice, the action as against Messrs. Davies and Moore. Judgment was entered in favor of Lloyd's against Mr. Garlington on June 26, 2003, and this Court dismissed his subsequent appeal on January 7, 2004. (See, R:1:1; R:1:9; R:4:38).

As a condition of membership in Lloyd's, Names were required to enter into certain agreements governing his or her membership of and underwriting in Lloyd's market. (R:2:19:Ex. 1, ¶ 9). One such agreement executed by each Name, including Manning, was the General Undertaking, in which the Names agreed as follows:

*4 Throughout the period of his membership of Lloyd's the Member shall comply with the provisions of Lloyd's Acts 1871-1982, any subordinate legislation made or to be made thereunder and any direction given or provision or requirement made or imposed by the Council or any person(s) or body acting on its behalf pursuant to such legislative authority and shall become a party to, and perform and observe all the terms and provisions of, any agreements or other instruments as may be prescribed and notified to the Member or his underwriting agent by or under the authority of the Council.

(R:2:l9:Ex, 1, ¶ 10). Pursuant to the General Undertaking, the Names further agreed that all disputes relating to or arising out of their membership in Lloyd's or underwriting at Lloyd's would be governed by English law and litigated in the courts of England (the "English Court"):

2.1 The rights and obligations of the parties arising out of or relating to the Member's membership of, and/or underwriting of insurance business at, Lloyd's and any other matter referred to in this Undertaking shall be governed by and construed in accordance with the laws of England.

2.2 Each party hereto irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute and/or controversy of whatsoever nature arising out of or relating to the member's membership of, and/or underwriting of insurance business at, Lloyd's and that accordingly any suit, action or proceeding (together in this Clause 2 referred to as "Proceedings") arising out of or relating to such matters shall be brought in such courts and, to this end, each party hereto irrevocably agrees to submit to the jurisdiction of the courts of England and irrevocably waives any objection which it may have now or hereafter to (a) any Proceedings being brought in any such court as is referred to in this Clause 2 and (b) any claim that any such Proceedings have been brought in an inconvenient forum and further irrevocably agrees that a judgment in any Proceedings brought in the English courts shall be conclusive and binding upon each party and may be enforced in the courts of any other jurisdiction.

*5 2.3 The choice of law and jurisdiction referred to in this Clause 2 shall continue in full force and effect in respect of any dispute and/or controversy of whatsoever nature arising out of or relating to any of the matters referred to in this Undertaking notwithstanding that the Member ceases, for any reason, to be a Member of, or to underwrite insurance business at, Lloyd's.

(R:2:19:Ex. 1, ¶ 11). [FN2] (emphasis added.)

FN2. Importantly, the foregoing provisions of the General Undertaking were

reviewedby this Court in Lipcon v. Underwriters at Lloyd's, 148 F. 3d 1285 (11th Cir. 1998). That court held that the provisions were valid and enforceable. At least seven other federal appellate courts have considered the issue. See, e.g., Richards v. Lloyd's of London, 135 F. 3d 1289 (9th Cir.); Haynsworth v. The Corporation, 121 F. 3d 956 (5th Cir. 1997), cert. denied, 523 U.S. 1072 (1998); Allen v. Lloyd's of London, 94 F. 3d 923 (4th Cir. 1996); Bonny v. Society of Lloyd's, 3 F. 3d 156 (7th Cir. 1993), cert. denied, 510 U.S. 1113 (1994); Roby v. Corporation of Lloyd's, 996 F. 2d 1353 (2nd Cir. 1993), cert. denied, 510 U.S. 945 (1993); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F. 2d 953 (10th Cir. 1992), cert. denied, 502 U.S. 1021 (1992); Shell v. R.W. Sturge, Ltd., 55 F. 3d 1227 (6th Cir. 1995).

In 1996, Lloyd's required Names, including Manning, to reinsure certain outstanding liabilities, and Names, including Manning, were obligated to pay a premium known as the "Equitas Premium." (R:2:19:Ex. l, ¶¶ 12-15). Manning, amongst other Names, failed to pay the Equitas Premium, and as such, on various dates beginning in late 1996, Lloyd's commenced separate actions against a number of Names, including each of the defendants in the underlying action, for payment of the Equitas Premium, plus unpaid interest and costs (the "English Action"). (R:2:19:Ex. 1, ¶¶ 19, 21). The English Action was commenced against *6 Manning by the filing of a Writ of Summons [FN3] in the English Court on November 18, 1996, Folio No. 2920. (R:2:19:Ex. 1, ¶ 22).

FN3. A Writ of Summons is analogous to a Complaint in an American proceeding. (R:2:l9:Ex.l, ¶ 22).

The Underwriting Agent for Manning was properly served by Lloyd's with the Writ of Summons in accordance with English law. (R:2:19:Ex. 1, ¶ 23). The Underwriting Agent forwarded the Writ of Summons, as well as an Acknowledgement of Service to Manning and advised him of the proceedings, noting that the Acknowledgement of Service should be submitted to the Court in London to avoid the entry of a default judgment against him. (R:2:19:Ex. 1, ¶ 24). Manning retained an English solicitor to represent him in the English Action, and filed an Acknowledgement of Service of Writ of Summons on May 19, 1997. [FN4] (R:2:19:Ex. 1, ¶ 25).

FN4. An Acknowledgement of Service of Writ of Summons is the equivalent of an appearance in an American proceeding. (R:2:l9:Ex.l, ¶ 25).

Names asserted various defenses to their obligations to pay the Equitas Premium, including, without limitation, assertions that:

(a) Lloyd's lacked the authority under Lloyd's Acts 1871-1982 to mandate that all Names purchase reinsurance coverage from Equitas;

*7 (b) Names were entitled to rescind their membership of Lloyd's as a result of alleged fraud in the inducement of their membership or underwriting at Lloyd's;

(c) Names were entitled to litigate claims of fraud in the inducement of their membership or underwriting at Lloyd's as a set-off to their obligation to pay the Equitas Premium; and

(d) Names were not bound by certain provisions of the Equitas Reinsurance Contract.

(R:2:19:Ex.l, ¶ 26).

In a series of decisions, the defenses, including those raised by Manning, were considered and rejected by the English Court as a matter of law, after extensive briefing and more than thirty-two days of hearings. [FN5] (R:2:19:Ex. 1, *8 ¶ 28). On March 11, 1998, the English Court entered Judgment against Manning in the amount of £72,140.16. (R:2:l9:Ex. 1, ¶ 29). All appeals from the entry of the Judgment were exhausted. (R:2:19:Ex. 1, ¶ 30). As such, the Judgment is final, conclusive and fully enforceable in England. (R:2:19:Ex. 1, ¶¶ 30-31).

FN5. The English trial and appellate courts rejected each of these

defenses as a matter of law. See, e.g., Society of Lloyd's v. Dennis Hugh Fitzgerald Leigh (High Court of Justice, Feb. 20, 1997) (Lloyd's acted within its regulatory authority in requiring the reinsurance and in appointing a substitute agent to bind Names to the reinsurance contract); Society of Lloyd's v. Wilkinson (High Court of Justice, Apr. 23, 1997) (the "pay now, sue later" clause, precluded Names from asserting fraud claims as a defense or set-off to the payment of the Equitas Premium, but such claims could be pursued separately); Society of Lloyd's v. Lyons, Leighs & Wilkinson (Court of Appeal, July 31, 1997) (affirming rulings of lower court that, as a matter of English law, (1) Lloyd's acted within its regulatory authority in requiring reinsurance, and in appointing a substitute agent to bind Name to the reinsurance contract, and (ii) Names could not assert fraud as a defense or set-off to the payment of the Equitas Premium); Society of Lloyd's v. Eraser & Others (High Court of Justice, Dec. 3, 1997) (rejecting defense that Lloyd's included the "pay now, sue later" clause in the reinsurance contract in bad faith); Society of Lloyd's v. Eraser & Others (High Court of Justice, Jan. 22, 1998) (ruling, as a matter of English law, that Lloyd's had produced the records contemplated by the "conclusive evidence clause"); Society of Lloyd's v. Fraser & Others (High Court

II. PROCEDURAL HISTORY OF THE UNDERLYING ACTION.

In this action, Lloyd's sought the recognition and enforcement of the English Judgment pursuant to the Foreign Money Judgments Recognition Act, codified at O.C.G.A. § 9-12-110, et seq. Manning timely filed an Answer to the Complaint, asserting certain affirmative defenses, and shortly thereafter, served written discovery requests on Lloyd's. Lloyd's objected to the discovery requests, and on November 20, 2002, filed its Motion for Summary Judgment. Manning opposed the Motion, and filed his own Motion to Compel Discovery ("Motion to Compel") and a Motion to Amend his Answer and extended discovery ("Motion to Amend.") [FN6]

FN6. As the District Court duly noted, Manning's Motion to Amend was untimely, coming after the expiration of the discovery period and Lloyd's Motion for Summary Judgment.

After considering the briefs of the parties, the District Court entered an Order, granting Lloyd's' Motion for Summary Judgment and denying Manning's of Justice, Mar. 4, 1998) (resolving issues concerning the calculation of the Equitas Premium in Lloyd's favor). *9 outstanding Motions. Final Judgment was subsequently entered by the Court, and Manning appealed.

SUMMARY OF THE ARGUMENT

The District Court correctly granted Summary Judgment in favor of Lloyd's, recognizing and enforcing the English Judgment. The Judgment was final, conclusive, and fully enforceable in England, and these facts remain undisputed. Moreover, the defenses to the enforcement of Judgment, as raised by Manning, failed as a matter of law. First, it is well-settled as a matter of law that the English Court is a fair an impartial tribunal, and Manning was afforded due process of law. Secondly, the underlying cause of action brought by Lloyd's in the English courts is not repugnant to the public policy of the State of Georgia as a matter of law.

In light of these things, the District Court correctly denied Manning's Motion to Compel, as the law will not compel discovery on an issue that will not impact the outcome of a case.

Finally, the District Court correctly denied Manning's Motion to Amend. The defense contained within the proposed amendment failed as a matter of law, and as such an amendment would have been futile.

ARGUMENT AND CITATION OF AUTHORITY

Lloyd's agrees with Manning's assessment of the applicable standard of review, as outlined in his initial Brief to this Court. Lloyd's maintains that a proper *10 application of this standard to the Order and Final Judgment of the District Court will result in a confirmation thereof.

I. THE COURT CORRECTLY GRANTED SUMMARY JUDGMENT IN FAVOR OF LLOYD'S AS TO THE EN FORCE ABILITY OF THE FOREIGN JUDGMENT AGAINST MANNING.

Before addressing Manning's additional objections to the District Court's Order and Final Judgment, it is important to understand the legal and factual context in which the District Court granted Lloyd's Motion for Summary Judgment, as the issues raised by Manning are effectively barred by the well-settled authority of this and other United States courts.

Courts in Georgia are authorized to recognize and enforce foreign judgments pursuant to the Foreign Money Judgments Recognition Act, codified at O.C.G.A. § 9-12-110, et seq. (the "Act"). Specifically, the Act provides that a foreign judgment is "enforceable in the same manner as the judgment of a sister state" where the judgment is "final, conclusive, and enforceable where rendered." See O.C.G.A. §§ 9-12-112-113. Only limited circumstances exist in which a foreign judgment should not be recognized, and those exceptions are explicitly set forth in the Act:

A foreign judgment shall not be recognized if:

(1) The judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law;

*11 (2) The foreign court did not have personal jurisdiction over the defendant;

(3) The foreign court did not have jurisdiction over the subject matter;

(4) The defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend;

(5) The judgment was obtained by fraud;

(6) The cause of action on which the judgment is based is repugnant to the public policy of this state;

(7) The judgment conflicts with another final and conclusive judgment;

(8) The proceedings in the foreign court were contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court;

(9) In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action; or

(10) The party seeking to enforce the judgment fails to demonstrate that judgments of courts of the United States and of states there of the same type and based on substantially similar jurisdictional grounds are recognized and enforced in the courts of the foreign state.

O.C.G.A. § 9-12-114.

Initially, Manning raised only two of the foregoing exceptions as issues in this case. First, Manning claimed that the English Court violated settled principles of due process when it enforced certain contractual provisions. (R: 1:8:21). *12 Secondly, Manning asserted that the underlying cause of action was repugnant to the public policy of the State of Georgia. (R:1:8:22). Both defenses were briefed extensively by the parties for the District court's consideration.

A. The English Court was an Impartial Tribunal, and Manning was Afforded Due Process.

Manning claimed in the District Court that the English Court was not an impartial tribunal, and further claimed that certain rulings by the Court violated his right to due process of law. (R:1:8). As a preliminary matter, it is well-settled that the English Court is part of a judicial system which provides "impartial tribunals" and "procedures compatible with the requirements of due process." See generally, Hilton v. Guyot, 159 U.S. 113, 202 (1895); Coulborn v. Joseph, 195 Ga. 723, 25 S. E. 2d 576 (1943)(the "laws and judicial system [of England] are not only not inconsistent with, but in harmony with, those fundamental concepts of justice under the law to which we in this country are accustomed."). As the very model for our own system, the English courts have long been acknowledged to be part of a judicial system that has procedures compatible with American standards of due process and impartial tribunals:

The English system has procedures and goals which closely parallel our own. Surely it could not be claimed that the English system is any other than one whose "system of jurisprudence [is] likely to secure an. impartial administration of justice."

*13 Arab Monetary Fund v. Hashim, 213 F. 3d 1169, 1172 (9th Cir. 2000) (quoting Hilton v. Guyot, 159 U.S. at 202).

Not only do American courts universally accept this proposition, but numerous courts have held that the English Court afforded due process to Names such as Manning. As the Seventh Circuit Court of Appeals aptly stated:

Any suggestion that [the English] system of courts "does not provide impartial tribunals or procedures compatible with the requirements of due process of law" borders on the risible.

Society of Lloyd's v. Ashenden, 233 F. 3d 473, 476 (7th Cir. 2000) (aftirming recognition of judgments against Illinois Names); see also, The Society of Lloyd's v. Webb, 156 F. Supp. 2d 632 (N.D. Tex. 200l)(recognizing judgments against Texas Names and stating that "[g]iven the structure of the English system, which is substantially similar to our own, [defendant's] suggestion that the English court system does not provide tribunals compatible with due process is not tenable."); Society of Lloyd's v. Grace, 718 N.Y.S.2d 327 (1st Dep't 2000)(recognizing judgments against New York Names and holding that Names "were afforded notice and an opportunity to be heard in the underlying English action and... the basic requisites of due process were met.").

As the holdings in these cases demonstrate, the requirements of due process do not require that the procedural and substantive law of the foreign court be identical to those in the United States. On the contrary, all that is required is that *14 the rendering court operate under procedures "compatible with the requirements of due process and... that the foreign procedures are 'fundamentally fair' and do not offend against 'basic fairness.' "Ashenden, 233 F. 3d at 477 (emphasis in original); Webb, 156 F. Supp. at 640 ("American jurisprudence does not require that the procedures used in the courts of a foreign country be identical to those used in the courts of the United States.")(internal citations omitted). Appellate courts have consistently found the English court system to be fair and impartial. See. e.g., Coulborn, 195 Ga. at 733, 25 S.E. 2d at 581; Riley, 969 F.2d at 958; Richards, 135 F.3d at 1296; Havnsworth, 135 F.3d at 967; Roby at 1363.

B. Manning's Due Process Challenges Were Nothing More than a Collateral Attack on the Substantive Rulings of the English Court.

Manning's so-called "due process" challenges were, in reality, nothing more than an attack on the substantive rulings of the English Court. Specifically, Manning complained that the English Court enforced two provisions of a written agreement between the parties. (See generally, R:1:8). The first provision, known as the "pay now, sue later" clause, prohibited Names from asserting fraud or other claims as a defense or set-off; the English Court held that any such claims were required to be asserted separately. (R:2:19:Ex. 1, ¶ 27). The other provision, the "conclusive evidence" clause, required Names to prove "manifest error" in Lloyd's calculation of the Equitas Premium. (R:2:19:Ex. 1, ¶ 27). Based upon these two clauses, Names were not allowed to assert fraud as a defense or set-off to the *15 Equitas Premium, and Names did not show any "manifest error" in the calculation of the Equitas Premium. (R:2:19:Ex. 1,¶ 27).

Stated simply, Manning sought to re-litigate these moot issues in the District Court. Nevertheless, a reconsideration of the substantive merits of the case was absolutely impermissible, and the District court recognized as much: [FN7]

FN7. The District Court was not alone in this assessment. At least three other federal courts have rejected identical arguments from other Names, and held such defenses insufficient to prevent the recognition and enforcement of English judgments obtained by Lloyd's under similar circumstances. See, e.g., Ashenden, 233 F. 3d at 478-81 (English court's ruling on the validity of the "pay now, sue later" and "conclusive evidence" clauses did not violate due process); see also, Webb, 156 F. Supp. 2d at 639-42. As the court held in Grace, "the underlying English judgments are procedurally sound." Grace, 718 N.Y.S. 2d at 328.

No one who has been, or could have been heard upon a disputed claim, in a cause to which he was duly made a party, pending before a competent judicial tribunal having jurisdiction over him, proceeding in due course of justice, and not misled by the fraud of the other party, should be allowed, after a final judgment has been pronounced, to renew the contest in another country. The object of courts is hardly less to put an end to controversies than to decide them justly.

Coulborn, 195 Ga. at 732, 25 S.E. 2d at 581; see also, Bank of Montreal v. Kough, 612 F. 2d 467, 472 (9th Cir. 1980); Canadian Imperial Bank of Commerce v. Saxony Carpet Co., 899 F. Supp. 1248, 1.254 (S.D.N.Y. 1995) ("Defendant may not now raise an affirmative defense involving the merits of the original action."), aff'd, 104 F. 3d 352 (2d Cir. 1996).

*16 1. The English Court did not deny Manning due process of law when it enforced the "Pay Now, Sue Later" clause.

In the English actions, Names asserted that any right of recovery by Lloyd's was offset by its alleged fraudulent conduct. In other words, Names claimed that they were entitled to litigate their own claim against Lloyd's before Lloyd's could obtain a judgment against them. The contract between the parties provided, however, that Names were not entitled to assert this defense as a means to avoid payments of the Equitas Premium. (R:2:19:Ex. 1, ¶ 27).

The enforceability of the "pay now, sue later" clause was presented to the English Court, and counsel for Manning (and other Names) had ample opportunity to present their arguments in that regard. The English Court, without deciding the merits of the fraud claims, held simply that the "pay now, sue later" clause was fully enforceable under English law. Importantly, the Court did not reject the fraud claims outright. Instead, the Court merely held that the fraud claims must be pursued separately. [FN8]

FN8. It is important to note that the English Court ultimately considered the Names' allegations of fraud, and the Court of Appeals affirmed the lower court's finding that Lloyd's had not acted fraudulently. Jaffray & Ors. v. The Society of Lloyd's (Court of Appeal, July 26, 2002).

As numerous courts have held, and the District Court agreed, the English Court's enforcement of a contractual provision does not rise to the level of a denial of due process of law. Manning was not denied the opportunity to pursue his fraud *17 claim; in fact, the English Court explicitly recognized his right to pursue that claim. The English Court merely held that in light of the "pay now, sue later" clause, fraud was a legally insufficient defense or set-off to Lloyd's claim for the Equitas Premium. Such a ruling, after being argued extensively by the parties, is hardly a denial of due process.

2. The English Court did not deny Manning due process of [aw when it enforced the "Conclusive Evidence" clause.

In order to avoid payment of the Equitas Premium, the "conclusive evidence" clause required Names to demonstrate "manifest error" in the calculation thereof. (R:2:19:Ex. 1, ¶ 27). The English Court held that this provision was both valid and enforceable as a matter of law. See, Ashenden, 233 F. 3d at 478-81 (refusing to find a violation of due process because Defendants' complaints about the "conclusive evidence" clause were substantive and not procedural).

Names challenged the "conclusive evidence" clause and argued that "they were entitled to inspect and check the accuracy of the records in the possession of [Lloyd's] and the figures derived from them." Fraser & Others v. The Society of Lloyd's at 46 (Court of Appeal, July 31, 1998) On appeal, the English appellate *18 court rejected this argument as it "involved a contradiction of both the express wording and clear intention of [the clause.]" Id. at 46. The court went on to note:

It is understandable that those who already have a deep mistrust and suspicion of [Lloyd's] and its various agencies should be suspicious and ready to find fault with the figures which have been produced pursuant to clause 5.10. But such matters do not provide arguable defense. The 0.14 summonses having been properly supported by affidavits sworn on behalf of [Lloyd's], it was incumbent upon the Defendants to show by affidavit that there was some ground for giving leave to defend on quantum and ordering a trial of some issue of quantum. No issue has been raised which is sufficient to justify going behind the figures produced under clause 5.10 nor have the Applicants succeeded in making out a case of manifest error in those figures.

Id. at 48. Like the other challenged clause, enforcement thereof is not a denial of due process of law.

C. The Underlying Contract Is Not Repugnant to the Public Policy of the State of Georgia.

Manning also claimed that the underlying contractual agreement with Lloyd's was repugnant to the public policy of the State of Georgia. (See, R:1:8). Specifically, Manning claimed that the Judgment against him was "derived from a scheme to defraud [him]." (See R:1:8). This argument, however, ignored well-settled law, which the District Court recognized and upheld. See Ashenden, 233 F.3d at 480; Webb, 156 F. Supp. 2d at 643-44; Grace, 718 N.Y.S. 2d at 328. Indeed, at least eight federal appellate courts, including this Court, have held that the forum selection clause which bound Manning is fully enforceable against him *19 and does not violate public policy. See, Lipcon, 148 F.3d at 1285; Richards, 135 F.3d at 1289; Haynsworth, 121 F.3d at 956; Alien, 94 F.3d at 923; Bonny, 3 F.3d at 156; Roby, 996 F.2d at 1353; Riley, 969 F.2d at 953; Shell, 55 F.3d at 1227.

In light of the foregoing, then, it is clear that Summary Judgment in favor of Lloyd's recognizing and enforcing the English Judgment against Manning was proper as a matter of law.

II. THE DISTRICT COURT CORRECTLY DENIED MANNING'S MOTION TO COMPEL DISCOVERY IN THE MATTER.

Despite the inadequacy of his defenses as a matter of law, Manning sought discovery in the underlying action, and when Lloyd's objected to the discovery requests, Manning sought the intervention of the District Court and filed his Motion to Compel. (See R:3:21). The District Court correctly denied the request.

Parties may not obtain discovery of information that is not relevant to their claims or defenses. See Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1280 (11th Cir. 2002). "[E]ven though the rules of discovery are to be given a liberal application, they are not a license to become foraging expeditions.... Relevancy thus equates to whether the material sought will have a substantial effect on the case's outcome." Jones v. Colorcraft Corp., No. CV 182-252, 1983 U.S. Dist. LEXIS 14888, at *2-3 (S.D. Ga. August 4, 1983). Accordingly, a request for discovery on an issue that will not impact a case's outcome must be denied. See *20Washington v. Brown & Williams Tobacco Co., 106 F.R.D. 592, 593-95 (M.D. Ga. 1985) (denying plaintiffs' motion to compel discovery because the information plaintiffs sought for the purposes of class certification was not relevant where the plaintiffs had not shown that class certification was feasible). See also 6 James Wm. Moore et al., Moore's Federal Practice § 26.41 [2][a] (3d ed. 2002).

Manning's discovery requests were aimed at information and documents to support his affirmative defenses, including his claims regarding due process and public policy, as well as his late defense of fraud. Nevertheless, as the District court recognized, these defenses all failed as a matter of law and thus, could not possibly have an impact on the enforcement of the Judgment. At any rate, "the right to discovery is not a part of the American concept of due process, or international due process." Webb, 156 F. Supp. 2d at 642 (citing Ashenden, 233 F, 3d at 480). As such, the District Court did not abuse its discretion when it correctly denied the Motion to Compel.

III. THE DISTRICT COURT CORRECTLY DENIED THE MOTION TO AMEND THE ANSWER.

This same reasoning led the District Court to a similar conclusion with regards to Manning's Motion to Amend. Manning, in response to Lloyd's Motion for Summary Judgment, thought to assert an additional defense to the enforcement of the Judgment. (See R:3:22). Specifically, Manning sought permission to assert as a defense allegations that Lloyd's defrauded American courts when it represented that Names had adequate remedies and protection under English law. *21 (See R:3:22). Like the previous defenses asserted by Manning, this defense was nothing more than an attack upon the English legal system and its findings.

Faced with a motion to amend the pleadings, the District Court has the clear authority to deny the amendment on a number of grounds, including the futility of the proposed amendment. Brewer-Giorgio v. Producers Video, Inc., 216 F.3d 1281, 1284 (11th Cir. 2000) If a defense proposed by an amendment would inevitably be defeated, the amendment is futile and should be denied. See Nelson v. United States, 159 F.R.D. 583, 585 (N.D. Ga. 1995) (denying the plaintiffs motion to amend because "plaintiff will not be able to prove his claims").

Manning based his newly asserted fraud defense on Lloyd's alleged misrepresentations that Names "would have adequate remedies and a fair day in court in England." (R:3:22:6). Thus, to successfully defend on this basis, Manning would have to show that the English Courts did not provide him with adequate remedies or a fair day in court. In other words, Manning would have to show that the law of England, from which the American common law was derived, is inadequate, and that English civil procedure, which has long been recognized as compatible with American standards of due process and impartial tribunals, was unfair. As Judge Posner stated "borders on the risible." Society of Lloyd's v. Ashenden, 233 F.3d 473, 476 (7th Cir. 2000) (affirming the district court's recognition of English judgments against Illinois Names).

*22 Multiple courts, including the Eleventh Circuit, as the District Court noted, have held that the very forum selection clause in the contract at issue in the English judgment is enforceable. See Lipcon v. Underwriters at Lloyd's at London, 148 F.3d 1285, 1298-99 (11th Cir. 1998); Richards v. Lloyd's of London, 135 F.3d 1289, 1296-97 (9th Cir. 1998); Haynsworth v. The Corporation of Lloyd's, 121 F.3d 956, 969-70 (5th Cir. 1997); Alien v. Lloyd's of London 94 F.3d 923, 928 (4th Cir. 1996); Bonny v. Society of Lloyd's, 3 F.3d 156, 160-62 (7th Cir. 1993); Roby v. Corporation of Lloyd'. 996 F.2d 1353, 1362-63 (2d Cir. 1993). If it is acceptable to require Names to be bound by English law and to litigate in English Courts, it follows that the remedies available to Names under English law were not inadequate.

Moreover, it is well settled that the English court system is fair and impartial. Coulborn v. Joseph, 195 Ga. 723, 732-33, 25 S.E.2d 576, 580-81 (1943) (affirming the trial court's overruling of the defendants' general demurrer to the plaintiff's petition, in which the plaintiff sought to enforce an English judgment against the defendants); Roby v. Corporation of Lloyd's, 996 F.2d 1353, 1362-63 (2d Cir. 1993) ("United States courts consistently have found [the English Courts] to be neutral and just forums."); Riley v. Kingsley Underwriting Agencies, Ltd. 969 F.2d 953, 958 (10th Cir. 1992) ("[O]ur courts have long recognized that the *23 courts of England are fair and neutral forums."). Manning simply cannot argue that he was deprived of his "fair day in court" in England.

Even more importantly, Manning was not at all precluded from asserting his fraud defense, as he claims. On the contrary, the English Court merely held that such claims had to be pursued separately. In other words, Manning was only precluded from asserting fraud as a defense or set-off to the amounts claimed. Indeed, many Names went on to litigate the fraud issues, and the English Court affirmed the lower court's finding that Lloyd's had not acted fraudulently. See Jaffray & Ors. v. The Society of Lloyd's, (Court of Appeal, July 26, 2002). As the District Court succinctly stated, "[Manning was] were not prevented from having a 'real contest' of the suit." (R:4:37:4).

Under these factual circumstances and this well-settled authority, it is clear that the District Court did not abuse its discretion in denying the Motion to Amend.

*24 CONCLUSION

In light of the foregoing, this Court should affirm the well-reasoned rulings of the District Court in this matter.

The SOCIETY OF LLOYD'S, Plaintiff-Appellee, v. Julius Peek GARLINGTON and Glenn Wayne Manning, Defendants-Appellants.