Commonwealth of the Northern Mariana Islands v. Canadian Imperial Bank of
717 F.3d 266
| 2d Cir. | 2013Background
- CNMI sought a turnover order under Rule 69 and CPLR §5225(b) targeting the Millards' CFIB accounts.
- The District Court denied turnover, ruling CIBC had no possession or custody of the assets.
- CNMI argued that CIBC’s control of CFIB and close personnel overlaps showed possession/custody in practice.
- The District Court issued an injunction pending appeal.
- This court certified two questions to the New York Court of Appeals concerning possession by an entity and subsidiary possibilities.
- New York Court of Appeals answered the first question in the negative and declined the second; the circuit affirmed and vacated the injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can turnover be issued against an entity with no possession but a subsidiary may? | CNMI argues the entity’s control permits turnover. | CIBC argues possession, not control, is required. | No; actual possession required. |
| If affirmative, what factual considerations govern permissibility? | CNMI seeks guidance on factors to weigh. | No settled factors asserted beyond possession requirement. | Not addressed; question deemed moot. |
Key Cases Cited
- N. Mar. I. v. Canadian Imperial Bank of Commerce, 693 F.3d 274 (2d Cir. 2012) (post-judgment turnover requires actual possession, not mere control by subsidiary)
- N. Mar. I. v. Canadian Imperial Bank of Commerce, 19 N.Y.3d 1040 (N.Y. 2012) (CPLR 5225(b) requires actual possession; absence of 'possession or custody' is dispositive)