On September 26, 2016, in DeFontbrune v. Wofsy, the US Court of Appeals for the Ninth Circuit held under Federal Rule of Civil Procedure (FRCP) 44.1 courts may consider relevant foreign legal materials beyond the pleadings in deciding a motion to dismiss under FRCP 12(b)(6) ( (9th Cir. Sept. 26, 2016)).

Plaintiff Yves Sicre de Fontbrune sued Defendants Alan Wofsy and Alan Wofsy and Associates in French court to protect his copyright in photographs of Pablo Picasso’s artworks. The French court awarded de Fontbrune two million euros in astreinte. De Fontbrune then brought an action in California state court seeking to enforce the astreinte award under the California Uniform Foreign-Court Monetary Judgment Recognition Act (Uniform Recognition Act) (Cal. Civ. Proc. Code §§ 1713 et seq).

Wofsy removed the case to federal court based on diversity jurisdiction and filed a motion to dismiss under FRCP 12(b)(6), arguing that the astreinte is a penalty, not an award of damages, and therefore is not subject to the Uniform Recognition Act. Each party submitted expert declarations in support of its interpretation of the nature of astreinte. De Fontbrune also argued that the district court should exclude Wofsy's expert's declaration as evidence outside of the pleadings, impermissibly filed in support of a motion to dismiss. The district court held that FRCP 44.1 allowed it to interpret foreign law when ruling on a motion to dismiss, agreed with Wofsy's characterization of astreinte, and dismissed the case. De Fontbrune appealed.

On appeal, the Ninth Circuit first considered a threshold question of whether FRCP 44.1 allows the district courts to consider foreign legal materials outside of the pleadings at the motion to dismiss stage. The panel noted that following the adoption of FRCP 44.1 in 1966, foreign law is no longer treated as a question of fact, freeing the courts and parties from the evidentiary and procedural requirements that apply to factual determinations. Instead, FRCP 44.1 treats foreign law determinations as questions of law, equating them with the process of ascertaining domestic law. District courts have an independent obligation to resolve the relevant issues under foreign law, even if the parties' submissions are lacking, including by doing independent research and considering any relevant materials, such as testimony of foreign legal experts.

The Ninth Circuit held that FRCP 44.1 allows district courts to consider foreign legal materials beyond the pleadings in deciding a motion to dismiss, when the claim depends on a determination of foreign law. The court warned that in cases where factual matters underlie the legal determinations, summary judgment may be the appropriate mechanism for resolution of a matter under foreign law.

Having reached this decision, the Ninth Circuit found that the district erred in its determination that astreinte constituted a fine or penalty. Reversing the district court, the Ninth Circuit held that the French court's award of astreinte to de Fontbrune was a money judgment under the Uniform Recognition Act.

The Ninth Circuit is the first circuit to directly address whether FRCP 44.1 permits district courts to consider foreign materials from outside the pleadings in ruling on a motion to dismiss. For additional information about applying foreign law in US litigation, see Practice Note, Applying Foreign (Non-US) Law in US Litigation.