Tianzhu Coal Company LTD. v. Ju

Upon the foregoing papers, Plaintiff TIANZHU COAL COMPANY LTD. under YAOJIE COAL AND ELECTRICITY GROUP’S motion for an order 1) pursuant to Civil Practice Law and Rules (“CPLR”) §3213 and CPLR Art. 53, granting it summary judgment in lieu of a complaint based upon this court’s recognition of the foreign judgment referenced herein; and, 2) directing the clerk to enter judgment in Plaintiff’s favor against Defendant MA JU in the amount of $12,497,607, together with applicable post-judgment interest, costs, and disbursements is determined as set forth hereinafter. Factual and Procedural Background Plaintiff TIANZHU COAL COMPANY LTD. under YAOJIE COAL AND ELECTRICITY GROUP (“Tianzhu Coal Company”) moves, among other things, for an order granting it summary judgment in lieu of a complaint. Specifically, Tianzhu Coal Company seeks to have this court recognize a foreign money judgment issued against Defendant MA JU by the Gansu Province Lanzhou Intermediate People’s Court (“the Intermediate Court”) and affirmed by the High People’s Court of Gansu (“the High Court”) held in and for the People’s Republic of China (“China”). The Transfer Agreement Non-party Wujan An and Ma Ju were shareholders in Shangai Xunhui Network Technology, Development Co., Ltd. (“the Xunhui Company”), which owned a coal mine (NYSCEF Doc. No. 22, 10). On November 25, 2008,¹ Tianzhu Coal Company entered into an equity transfer agreement (“the Transfer Agreement”) with Wujan An and Ma Ju, whereby it was agreed that Wujan An’s 80 percent equity interest (including, without limitation, rights to mineral exploration) in the Xunhui Company would be transferred to Tianzhu Coal Company for the transfer price of 190 million yuan (NYSCEF Doc. No. 8, p. 24-25). The transfer price was to be paid in installments (NYSCEF Doc. No. 8, p. 24-25). On December 11, 2008, it was confirmed that the Xunhui Company had changed its name to “Tianzhu Huasheng Coal Industry Company” (“the Huasheng Company”) (NYSCEF Doc. No. 8, p. 25). On December 17, 2008, Tianzhu Coal Company remitted the first installment payment in the amount of 80 million yuan to Wujan An; however, Tianzhu Coal Company failed to remit the remaining installment payments (NYSCEF Doc. No. 8, p. 25-26). The Termination Agreement In March 2011, Wujan An commenced a lawsuit against Tianzhu Coal Company in the High Court to enforce the Transfer Agreement (NYSCEF Doc. No. 8, p. 26). The High Court issued a judgment directing Tianzhu Coal Company to pay the remainder of the transfer price and Tianzhu Coal Company appealed (NYSCEF Doc. No. 8, 26). In the interim, on April 17, 2012, Wujan An executed a power of attorney authorizing Ma Ju to deal with all procedures necessary to “cancel the original contract” on his behalf (NYSCEF Doc. No. 8, p. 26). On June 7, 2012, Tianzhu Coal Company and Ma Ju, both in his capacity and on behalf of Wujan An, entered into a termination agreement (“the Termination Agreement”) whereby they agreed to terminate the Transfer Agreement (NYSCEF Doc. No. 8, p. 26). According to the Termination Agreement, Ma Ju was to return the 80 million yuan previously remitted to Wujan An, along with 6.7428 million yuan that had been borrowed by the Huasheng Company from the Tianzhu Coal Company, totaling 86.7428 million yuan (NYSCEF Doc. No. 8, p. 27). The Termination Agreement provides that within three days of its execution, Ma Ju was to remit 20 million yuan and that the remaining 66.7428 million yuan would be remitted following the provincial State-owned Assets Supervision and Administration Commission of the State Council’s (“SASAC”)² approval of the Termination Agreement (NYSCEF Doc. No. 8, p. 27-28). On November 8, 2013, the High Court issued a judgment that, among other things, approved the Termination Agreement as binding (NYSCEF Doc. No. 8, p. 28-29). Yet, Ma Ju failed to remit payments in accordance with the Termination Agreement (NYSCEF Doc. No. 7, p. 50). The Judgments On January 4, 2016, Tianzhu Coal Company commenced a lawsuit against Ma Ju, Wujan An, and Gansu Tuanzhu Guasheng Coal Industry Co., Ltd.³ in the Intermediate Court to enforce the Termination Agreement (NYSCEF Doc. No. 7, p. 28).⁴ The case was put on the record with all parties represented by counsel (NYSCEF Doc. No. 7, p. 28-29). On January 22, 2017,⁵ the Intermediate Court issued a judgment (“the Original Judgment”) whereby Ma Ju was directed, within 10 days of the Original Judgment becoming effective, to remit to Tianzhu Coal Company the first installment payment in the amount of 80 million yuan and the Huasheng Company’s borrowings in the amount of 6.7428 million yuan, plus interest in the amount of 4.2238 million yuan (aggregating RMB 90,966,600) (NYSCEF Doc. No. 7, p. 49, 51). According to the Original Judgment, Ma Ju was also directed to pay 530,337 yuan in costs and fees (NYSCEF Doc. No. 7, p. 51). On April 14, 2017, Tianzhu Coal Company and Ma Ju appealed the Original Judgment (NYSCEF Doc. No. 8, p. 21). On May 18, 2017, the case was heard publicly, with Ma Ju represented by counsel (NYSCEF Doc. No. 8, p. 21-22). By judgment dated June 20, 2017 (“the Final Judgment”), the High Court affirmed the Original Judgment (NYSCEF Doc. No. 8, p. 36). The Enforcement Ruling Ma Ju failed to remit payment; accordingly, Tianzhu Coal Company commenced an enforcement proceeding in the Intermediate Court (NYSCEF Doc. No. 9, p. 8). On May 7, 2018, the Intermediate Court issued a ruling (“the Execution Order”) whereby Ma Ju’s bank deposit was frozen and allocated to satisfy the first installment payment of 80 million yuan, the Huasheng Company’s borrowings in the amount of 6.7428 million yuan, interest in the amount of 4.2238 million yuan, fees in the amount of 525,337 yuan, preservation costs in the amount of 5,000 yuan, and an application execution charge in the amount of 158,897 yuan (aggregating RMB 91,655,834) (NYSCEF Doc. No. 9, p. 8). According to the Execution Order, in the event of a shortfall, “it shall seal up, detain, auction and sell off the equivalent property between the person subject to enforcement and the subject matter of enforcement” (NYSCEF Doc. No. 9, p. 8). Collectively, the Original Judgment, the Final Judgment, and the Enforcement Order are referred to hereinafter as “the Foreign Judgments.” The Instant Action Tianzhu Coal Company commenced this action on December 19, 2023 by filing a summons with notice of motion for summary judgment in lieu of a complaint. Initially, Tianzhu Coal Company seeks to have this court recognize the Foreign Judgments issued against Ma Ju. Upon this court’s recognition of the Foreign Judgments, Tianzhu Coal Company moves for an order directing entry of judgment in the amount of $12,497,607,⁶ together with applicable post-judgment interest, costs, and disbursements. In support of its motion, Tianzhu Coal Company submits copies of the Foreign Judgments, along with their English translations, notarial certificates, and final certifications (NYSCEF Doc. Nos. 7-9). Tianzhu Coal Company also submits the affidavit of Timothy Hallett, a professional Chinese interpreter, who prepared the English translations and certifies to the accuracy thereof (NYSCEF Doc. No. 5, 5-6). Tianzhu Coal Company asserts that the Foreign Judgments satisfy all criteria necessary for them to be recognized in the State of New York. In opposition, Ma Ju argues that summary judgment should be denied, and this matter converted into a plenary proceeding. Central to Ma Ju’s argument is the claim that the Foreign Judgments were issued as a form of political retaliation against him due to his prominence in the Hui Muslim community and his public criticism of the Chinese Communist Party (“the Party”) and the government.⁷ According to Ma Ju,⁸ he is a Hui Muslim whose family leads Jahriyya, a Sufi Islam community that is active in the Gansu Province of China (NYSCEF Doc. No. 22,

2-3). Ma Ju is also a successful businessman, whose career is centered in the Gansu Province, where he has “a significant network” (NYSCEF Doc. No. 22, 4). Due to his religious and business affiliations, Ma Ju has “an unusual amount of influence with the Chinese Muslim community” (NYSCEF Doc. No. 22, 5). This influence has drawn the attention of the Party, who has made repeated attempts to recruit Ma Ju to work for the government (NYSCEF Doc. No. 22,