Unicredit S.P.A v. Han

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-AUG-2024
07:55 AM
Dkt. 53 SO

NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI

UNICREDIT S.P.A., SHANGHAI BRANCH, Plaintiff-Appellee, v.
JINNA HAN, GUIFANG FU, BIN RUAN, Defendants-Appellants,
and SHANGHAI GANAYU COMMERCIAL LTD.;
SHANGHAI YIYU COMMERCIAL CONSULTATION LTD.;
Defendants-Appellees, and DOE DEFENDANTS 1-20,
Defendants-Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC181001939)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)

Defendants-Appellants Jinna Han, Guifang Fu, and Bin

Ruan (together Defendants) appeal from the Circuit Court of the

First Circuit's 1 (1) October 6, 2020 "Order Granting in Part and

Denying in Part Plaintiff's Motion for Default Judgment Against

Defendants Jinna Han, Guifang Fu, Bin Ruan, Shanghai Ganayu

Commercial Ltd., and Shanghai Yiyu Commercial Consultation

Ltd[.] Filed on May 6, 2020" (Default Judgment Order) and

1 The Honorable Lisa W. Cataldo presided.
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(2) December 11, 2020 "Final Damages Judgment Against Defendants

Jinna Han and Guifang Fu" (Damages Judgment). 2

In this appeal, we address Plaintiff-Appellee

UniCredit S.p.A., Shanghai Branch's assertion that (1) this

court lacks jurisdiction over Ruan, and we also address

Defendants' challenges to (2) the service of the complaint and

(3) the lack of an evidentiary hearing. 3

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve the

appeal as discussed below, and affirm.

UniCredit filed a complaint in circuit court asserting

conversion, conspiracy to defraud, fraudulent transfer,

conspiracy to engage in fraudulent transfer, and unjust

enrichment, but later moved for entry of default when Defendants

failed to respond to the complaint.

According to the complaint, Han worked for UniCredit

(a commercial bank), Fu is Han's mother, and Ruan is Han's

2 Defendants initiated two appellate cases, one from the Default
Judgment Order (CAAP-XX-XXXXXXX) and one from the Damages Judgment (CAAP-21-
0000003). This court consolidated the cases under CAAP-XX-XXXXXXX.

3 Although Defendants raise a total of 14 points of error, they do not
provide corresponding arguments for each point. Hawai‘i Rules of Appellate
Procedure (HRAP) Rule 28(b)(7). We construe Defendants' points of error as
primarily challenging the service of the complaint and the lack of an
evidentiary hearing. We note that none of the 14 points of error expressly
challenge the $11,495,940 award; thus, any argument as to that award is
waived. HRAP Rule 28(b)(4). Also waived is Defendants' challenge to the
admission of evidence because their points of error fail to identify where in
the record they preserved the issue for appeal. HRAP Rule 28(b)(4)(iii) and
(b)(4)(A).

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husband. In 2019, a court in China convicted Han of embezzling

over $16 million and sentenced her to 13 years in prison. Of

that amount, nearly $11.5 million was from five UniCredit

clients. Han transferred money from the clients' accounts into

Fu's account, and then purchased real estate around the world,

including two apartments in Honolulu.

(1) Addressing UniCredit's contention first,

UniCredit asserts this court lacks jurisdiction over Ruan

because "the Final Judgment does not purport to affect Ruan's

rights in any way[.]" Defendants make no responsive argument in

their reply brief.

UniCredit is correct. The Default Judgment Order and

Damages Judgment expressly stated they did not apply to Ruan,

and no exception to the final judgment rule applies here. Thus,

there is no final judgment from which Ruan may appeal. As such,

we dismiss Ruan's appeal for lack of appellate jurisdiction.

(2) Next, Han and Fu challenge the Default Judgment

Order and Damages Judgment based on improper service. They

argue that they "are not answerable in a state of [Hawaiʻi] court

without [UniCredit] serving process in compliance with all

requirements of the Hague Convention[.]" Han and Fu mainly

challenge UniCredit's compliance with a portion of Article 15 of

the "Hague Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters" (Hague

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Convention on Service Abroad) that requires "reasonable

efforts." Contrary to Han and Fu's assertion, UniCredit

demonstrated reasonable efforts, complying with Article 15.

Article 15 explains a judgment may be entered six

months after a document was transmitted even when no certificate

of service was received if reasonable efforts were made to

obtain a certificate:

Each Contracting State shall be free to declare that
the judge, notwithstanding the provisions of the first
paragraph of this Article, may give judgment even if no
certificate of service or delivery has been received, if
all the following conditions are fulfilled –

a) the document was transmitted by one of the methods
provided for in this Convention,

b) a period of time of not less than six months,
considered adequate by the judge in the particular
case, has elapsed since the date of the
transmission of the document,

c) no certificate of any kind has been received, even
though every reasonable effort has been made to
obtain it through the competent authorities of the
State addressed.

Hague Convention on the Service Abroad of Judicial and

Extrajudicial Documents in Civil or Commercial Matters, art. 15,

opened for signature Nov. 15, 1965, 20 U.S.T. 361, 364, 658

U.N.T.S. 163, 171, 173 (emphases added and formatting altered).

UniCredit represented to the circuit court that it

sent the requisite documents to the Chinese Central Authority in

March 2019, and the Chinese Central Authority confirmed via e-

mail in April 2019 that it received the documents and forwarded

them to the court system which effectuates service.

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Three months later, in July 2019, UniCredit followed

up with the Chinese Central Authority and asked if there was an

update or if there was somebody in the court system who could

answer the question. UniCredit was told the court system does

not provide information, but the Chinese Central Authority would

send an update if the court provided any information.

Also in July 2019, UniCredit sent the complaint via

United States Postal Services registered mail to Defendants'

attorney in China. 4 Tracking information confirmed the complaint

was delivered.

In November 2019, Defendants' Hawai‘i attorney filed a

memorandum in opposition to UniCredit's motion for entry of

default, claiming Defendants had "not been properly served in

compliance with" the Hague Convention on Service Abroad.

Defendants acknowledged UniCredit went through the Chinese

Central Authority, but insisted UniCredit simply had to wait

until the documents were properly served.

Contrary to Defendants' argument below, UniCredit

needed to wait at least six months, which it did. UniCredit

also needed to show reasonable efforts, which it did. And it is

reasonable to infer that the appearance of Hawai‘i counsel to

4 We note China has opposed serving foreign judicial documents directly
to the recipient by mail from abroad. See Chinese Ministry of Justice, China
– Central Authority & practical information, The Most Frequently Asked
Questions and Answers 1 (2023), https://assets.hcch.net/docs/5bbc302d-532b-
40b1-9379-a2ccbd7479d6.pdf [https://perma.cc/L4UT-LACS].

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defend the motion for entry of default suggests Han and Fu had

actual notice of the complaint. See generally, In re S. Afr.

Apartheid Litig., 643 F.Supp.2d 423, 432 (S.D.N.Y. 2009)

(quoting Burda Media, Inc. v. Viertel, 417 F.3d 292, 301-02 (2nd

Cir. 2005)) ("Where a plaintiff 'attempted in good faith to

comply with the Hague Convention' and the defendant does 'not

dispute having received the complaint in this action . . . there

is no prejudice to him [or her]'").

Thus, the circuit court did not abuse its discretion

in granting UniCredit's motion for entry of default.

(3) Finally, Han and Fu contend in a conclusory

manner that the circuit court erred when it failed to conduct an

evidentiary hearing under Hawai‘i Rules of Civil Procedure (HRCP)

Rule 55(b)(2), and point to "DKT #49 at p.3 para. 1" of the

circuit court record. "DKT #49" is Defendants' memorandum in

opposition to UniCredit's motion for a default judgment. And on

"p.3 para. 1," Defendants' stated UniCredit "has not been

forthright in disclosing facts regarding their purported

damages ,and [sic] have engaged in conduct amounting to

misrepresentation to the court." Han and Fu provide no further

argument on appeal demonstrating the circuit court abused its

discretion in not holding an evidentiary hearing pursuant to

HRCP Rule 55(b)(2).

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HRCP Rule 55(b)(2) governs when the circuit court may

enter a judgment by default, and gives the circuit court

discretion to hold hearings when "it is necessary to take an

account or to determine the amount of damages or to establish

the truth of any averment by evidence or to make an

investigation of any other matter[.]"

With its motion for a default judgment, UniCredit

submitted (among other things) a translation of the criminal

judgment from the "Pudong New Area People's Court, Shanghai"

reciting the amount Han stole from UniCredit. Han does not

explain why the criminal judgment was insufficient or how

UniCredit misrepresented the amount stolen. Without more, we

cannot say the circuit court abused its discretion in not

holding an evidentiary hearing.

Based on the foregoing, we affirm the Default Judgment

Order and the Damages Judgment, and we dismiss Ruan's appeal for

lack of jurisdiction.

DATED: Honolulu, Hawai‘i, August 19, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Scot Stuart Brower,
for Defendants-Appellants. /s/ Karen T. Nakasone
Associate Judge
Kristin L. Holland,
Pamela W. Bunn, /s/ Sonja M.P. McCullen
(Dentons), Associate Judge
for Plaintiff-Appellee.

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