DRFP L.L.C. v. República Bolivariana de VenezuelaDRFP L.L.C. v. República Bolivariana de Venezuela
OPINION AND ORDER
This mаtter is before the Court for consideration of the parties’ cross-motions for summary judgment., This is an action for payment on a pair of promissory notes. For the .reasons stated below, Defendants the Republic of Venezuela and the Venezuelan Ministry of Finance's (collectively, “Venezuela”) Motion for Summary Judgment Based on the Statute of Limitations (ECF No. 359) is DENIED. Plaintiffs Motion for Summary Judgment (ECF No. 409) is also DENIED. Defendants’ Motion for Summary Judgment that Plaintiff is Not a Holder in Due Course (ECF No. 413) is DENIED. Additionally, Plaintiffs Motion to File Sur-Reply in Opposition to Defendants’ Motion for Summary Judgment that Plaintiff is Not a Holder in Due Course (ECF No. 459) is DENIED without prejudice.
I. LEGAL STANDARD
Summary judgment is appropriate “if the movant shows thát there is no. genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an esséntial element of its case. Celotex Corp. v. Catrett,
In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party/ Adickes v. S.H. Kress & Co.,
Here, the parties have filed cross-motions for summary judgment. Each party, as a movant for summary judgment; bears the burden of estаblishing that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law. The fact that one party fails to satisfy that burden on its own Rule 56 motion does not automatically indicate that the opposing party or parties has satisfied the burden and should be granted summary judgment on the other motion. In reviewing cross-motions for summary judgment, courts should “evaluate each motion on fts own merits and view all facts and inferences in the light most favorable to the non-moving party.” Wiley v. United States,
II. BACKGROUND
The facts of this-case are copious and complex. A summary of thе relevant- background information is as follows. As required, the Court has construed the facts in the light most favorable to the nonmov-ing party and makes a finding in the, absence of resolving. any factual disputes.
A. The parties and the Promissory Notes
Plairitiff DRFP L.L.C., d/b/a Skye Ventures (“Skye”), an Ohio corporation, entered into an agreement (the “Purchase Agreement”), dated April 8, 2004, with Panamanian entity Gruppo Triad-FCC SPA (“Gruppo Triad”). (ECF No. 358-1.) Skye is a special purpose entity that was formed in August’ 2003. (ECF No. 258-2 ¶¶'12-13.) Gruppo Triad is a collection of companies controlled and managed by President and CEO, Mr. James Paolo Pa-vanelli (“Pavanelli”). (ECF No. 358-1.)
Pursuant to the Purchase Agreement, Skye obtained two Promissory Notes (the “Notes”) with face values of $50 million each to the bearer. (ECF Nos. 360-1, 860-2.) The Notes were purportedly issued
Gruppo Triad Efforts to Collect on the Notes
In 1987, Gruppo Triad retained Venezuelan businessman Jose Nicolas Tovar (“Tovar”) to serve as its representative for the purposes of collecting payment on the Notes. (See ECF No. 415-22 14.) Tovar continued-to serve as Gruppo Triad’s representative at various times between 1987 and 2010. (Id.) Tovar informed Pavanelli that he was “capable of investigating the origin of the Gruppo Triad Bandagro Notes, and that if they were legitimate instruments, [he] would seek payment from the Government of Venezuela (Id. at ¶ 5.) Tovar proceeded to take various steps to confirm the authenticity of the Notes at issue in this case and others held by Gruppo Triad (collectively, the “Gruppo Triad Bandagro Notes”). To that end, To-var wrote to Venezuela Ministry of Finance
Political turmoil following an attempted cou d’etat in Venezuela on February 4, 1992 complicated Tovar’s efforts to seek payment of the Notes. (Id. at ¶ 18.) Tovar states that he “was informed that the Republic of Venezuela would be able .to pay the Gruppo Triad Bandagro .Notes in approximately five years.” (Id. at ¶ 19.) He further states that Pavanelli, on behalf of Gruppo Triad, “did not oppose, but rather assented to, the Republic of Venezuela’s extension.” (Id.)
At that point, Pavanelli requested that Tovar attempt to sell some of the Gruppo Triad Bandagro Notes. In furtherance of this goal, Tovar traveled to Lugáno, Switzerland to meet with á bank named Crédi-to Subalpino regarding the sale of one or all of the Gruppo Triad Bandagro Notes. (Id. at ¶ 20-21.) In conducting diligence towards verification of the Gruppo Triad Bandagro Notes, the then-manager of Cré-dito Subalpino, Luigi Plinio Piffaretti (“Pif-faretti”), inquired to and received correspondence from Bandagro and Venezuela. (ECF No. 415-36 ¶¶ 10-16.) Specifically, in July '2013, Piffaretti received a letter confirming the existence of ICC-322 promissory notes issued by Bandagro and, in August 2013, a telex stating that the maturity date on said notes had been extended to December 8, 1996. (Id. at ¶¶ 16-25, Exs. B, C, D.) • ’
In late 1995 or early 1996, Pavanelli again requested Tovar’s, assistance with obtaining payment-on the Gruppo Triad Bandagro Notes from Venezuela. (ECF No. 415-22 ¶23.) At that time, Bandagro
Following receipt of the Urgelles Letter, Tovar had a conversation with Pavanelli, in which the latter indicated “if Venezuela officially recognized the Gruppo Triad Bandagro Notes and that the notes would be paid on December 8, 1999, [Tovar] was to assent to the extension and not -dispute it.” (Id. at ¶ 24(c);) Tovar states that he thereafter “personally asked the Ministry of Finance to provide such confirmation” and received in response a certified copy of a document entitled “Acknowledgement of External Debt,” dated September 13,1996 (the . “Acknowledgement of External Debt”). (Id. at-¶ 24(d), Ex. I.) The-Acknowledgment of External Debt explicitly states “we оwe and will pay” Bandagro’s ICC-322 series promissory notes with serial numbers ranging from 1/12 to 12/12 “to their legal holders on December 8th, 1999.....” (Id. at Ex. I.) It is signed by the General Sector Director of Public. Finance at the Ministry of Finance. (Id.) Tovar authenticated the documents by legalizing the Urgelles Letter
In the early 2000s, Gruppo Triad tasked Venezuelan attorney Miguel Jacir (“Jacir”) with pursuing collection of the Gruppo Triad Bandagro Notes. (ECF Nos. 559-32, at 63:25-64:12; 415-22 ¶27.) Jacir then wrote to the President of Venezuela regarding payment. The President’s secretary instructed the Venezuelan Minister of Finance to review Jaeir’s letter and the claim for payment. (ECF No. 559-32, at 63:25-64:12, 68:9-22.)
Ministry of Finance Action on the Notes
The Ministry of Finance assigned the investigation into the claim for payment to Oscar Guzman Cova (“Guzman”), its legal counsel. (See ECF No. 415-43 ¶ 18.) On August 8, 2003, Guzman issuеd a report (ECF No. 415-45; the “August 2003 Ministry of Finance Report”), which supported Gruppo. Triad’s claim for payment. The August 2003 Ministry of Finance Report was given to the Venezuelan Attorney General for review. On October 3, 2003, the Venezuelan Attorney General issued an opinion favoring the claims for payment on the Gruppo Triad Bandagro Notes. (ECF No. 415-50; the “October 2003 Attorney General Report”.) At this point, the
Skye maintains that Venezuela’s National Assembly formed a commission in response to the October 2003 Attorney General Report. (ECF No. 443-11 ¶21.) According to Skye, not long thereafter, the 'Ministry of Finance came under political pressure to change its report. The Attorney General, however, refused to change her conclusion on the validity., of the Gruppo Triad Bandagro Notes. (Id.) Skye learned of this legal opinion sometime in mid-to late-October 2003. (Id. ¶ 8; see also ECF No. 417-9.) During the first half of 2004, Skye conducted diligence on the Gruppo Triad Bandagro Notes. As part ■ of its due diligence, Skye soliсited legal opinions from Venezuelan attorneys, which indicated that the October 2003 Attorney General Report was final and binding under Venezuelan law. (Id. ¶ 22.)
Venezuela asserts that shortly after the October 2003 Attorney General Report, Ministry officials alerted the Attorney General that the evidentiary record on which the report relied was incomplete or fraudulent. (ECF No. 555-40.) The Minis-' try of-Finance reviewed the evidence and ordered'a new report prepared as to the validity of Gruppo Triad’s claim. (Id. -¶ 5.) On November 3, 2003, the Minister of Finance removed Guzman by accepting his resignation. (ECF ‘No. 555-32, at VZ034986.) On November 17,' 2003,- the Ministry of Finance provided the Attorney General with the new report (the “November 2003 Report”), concluding that the Gruppo Triad Bandagro Notes were counterfeit. (ECF No. 555-41.) On December '8, 2003, the Attorney General revoked the October 2003 Attorney General Report and recommended that the Ministry of Finance not accept the Gruppo-Triad Band-agrо Notes for payment (the “December 2003 Report”). (ECF No. 555-46.) The December 2003 Report stated that the October 2003 Attorney General Report relied on fraudulent documents and was neither binding nor conferred any rights on private persons. (Id.) Venezuela maintains that both the November and December 2003 Reports received significant news coverage. Venezuela also maintains that Jacir told Gruppo Triad and Skye representatives about the November 2003 Report, prior to Skye’s purchase of the Notes. (ECF No. 559-32, 277:5-20.) Skye vehemently denies 'any knowledge of the November and December 2003 Reports prior to purchasing the Notes. In mid-2004, Skye purchased the Notes and subsequently brought this action to compel payment.
The Instant Lawsuit
The procedural history of this case is long and not relevant to the motions at issue. Skye filed suit for payment on the Notes against Venezuela on August 23, 2004. (ECF No. i.) ■
III. STATUTE OF LIMITATIONS
Venezuela argues .that the statute of limitations has run on Skye’s claim for payment of the. Nоtes. Skye makes the following five arguments in response: First, the date of maturation on. the Notes was- extended to 1999. Second, if the date of maturation of the Notes was not extended to 1999, the applicable statute of limitations under Ohio law is fifteen years, rather than six. Third, the statute of limitations was renewed by Venezuela acknowledging the debt. Fourth, and fifth, estoppel and waiver prevent Venezuela from availing itself of a statute of limitations defense. The Court addresses each argument ad seriatum below. -
A. The Applicable Law
. “[I]n FSIA' cases, [the Court] use[s] the forum state’s choice of law rules
It is true that the limitations periods under Swiss and Venezuelan laws are potentially shorter than that under Ohio law. The Court has previously determined that Ohio’s statute of limitations applies to Skye’s claim and it declines to find differently now.
The "Ohio Supreme Court "has formally adopted the 1971 version of the Restatement as the governing law for conflict issues. Frisch v. Nationwide Mut. Ins. Co., No. 2:12-cv-415,2012 WL 5595207 , at *9 (S.D.Ohio Nov. 15, 2012). Under this standard, [w]hen there is a conflict between two states’ statute of limitations, the Restatement provides that [a]n action will be maintained if it is not barred by the statute of limitations of the ' forum, even though it would be barred by the statute of limitations" of another state.’ Matrix Acquisitions, LLC v. Hooks, NO. 10CA1112,2011 WL 2464183 , at *2 (Ohio Ct.App. June 15, 2011)). " •
ECF No. 298, pp. 34-35. "While the'Court finds that the law is clear as to the application of the Ohio statute of limitations, it is also necessary to resolve whether an extension took place after the maturity date of the Notes. This requires application of substantive contract law. The" Court again notes that neither party" has taken the position that the substantive contract law of another jurisdiction should apply; and, therefore; also applies Ohio law‘ to the question of maturity date extension. See Asp,
B. Maturity Date Extension
Venezuela first argues that, as a matter of law, the maturity -date on the Notes could not be “unilaterally extended” by one party absent the other’s consent.
“There is no support in Ohio case law for the argument that an .extension of the time for repayment of a note after the note has matured and,the debtоr has defaulted on the loan is a material alteration of the .terms of the note.” Schachner v. B Bar B, Inc., Court of Appeals No. L-94-176,
As an initial matter, the cases cited by Venezuela in support of its unilateral argument hold that the lender may not unilaterally extend the life of a loan without a borrower’s knowledge or consent. See e.g. Matter of Whitehead,
As Venezuela correctly asserts, there is no written memorialization of the extension on the record prior to the original 1991 maturity date. A memorialization in writing need not take place at the precise mоment of the original maturation date of the note. Here, Skye asserts that an oral agreement was made to extend the maturation, later reinforced by several writings, albeit none signed by both parties.
“ ‘The general rule is that a written contract may be orally amended if the oral amendment has the essential elements of a binding contract.’ ” Ayad v. Radio One, Inc., No. 88031,
Both consideration and a meeting of the minds are, therefore, essential for an extension to have been formed. Venezuela argues that no consideration .was given from Skye in exchange for the exten
Skye nevertheless-maintains that an extension may be enforced without consideration where “the parties have acted upon the [extension] and continued their performance over several years.” Software Clearing House Inc. v. Intrak Inc.,
Fatal to Skye’s argument is the fact that even where no consideration or writing may have been. necessary to modify an agreement, mutual consent, or a meeting of the minds is always needed. Bayer v. Nachtrab, No. L-13-1209,
Under Ohio law, three types of contracts exist:' express, implied-in-fact, and implied in law. Percio v. Smith, No. 2013-CA-56, -
Here, the record is deficient of such evidence. Construing the facts in the light most-favorable to Skye, Venezuela communicated to Skye in late 1991 that it was unable to pay on the Notes, and, in early 1992, communicated that it would do so in five years. (ECF 415-22 ¶¶ 17-19.) However, Skye fails to set forth evidence that it responded with its assent to such an extension. Tovar states that Pavanelli “assented” on behalf of Gruppo Triad, but does not indicate that the> assent was ever communicated to Venezuela..'(Id at ¶19.) Similarly, Pavanelli never communicated Gruppo Triads intent to forbear, -and Gruppo Triad could have brought suit for non-payment at that time. In 1996, Venezuela purportedly sent the Urgelles Letter. (Id. at ¶ 24(a), Ex. H.) Once again, however, there is an absence of evidence that Skye communicated agreement to an extension on the Notes in response. See Delta Fuels, Inc.,
Skye’s silence in response to Venezuela’s verbal and written communications regarding the extension does not constitute assent. “If is axiomatic that the formation of. a< ¡contract is dependent upon both offer and acceptance and that silence in response to an offer does not generally indicate assent.” Univ. Hosps. Of Cleveland, Inc. v. Lynch,
C. Applicable Statute of Limitations
In 1991, at the time of the original maturation of the notes, former Ohio Revised Code § 2305.06 applied a fifteen-year statute- of limitations for written contract claims. In 1994, Ohio Revised . Code § 1303.16(A) was enacted, applying a . six-year statute of limitations to any “action to enforce the obligation of a party to pay a notе payable at a definite time.” O.R.C. § 1303.16 (1994). Skye asserts that, absent any extensions on the notes, the fifteen-year statute of limitations, in effect at the time of the accrual, applies to its claims.
Venezuela initially argues that Skye belatedly asserts the alternative applicability of the fifteen-year statute of limitations. Skye brings its alternative argument before the Court for the first time in its Memorandum in Opposition, once discovery on the statute of limitations issue was complete, a practice discouraged by this Court. Nonetheless, Skye’s somewhat belated raising of the issue-is without consequences, as the Court considers the merits of this argument.' ■ - .
Skye asserts that § 1303.16 may not be applied retrospectively. It is well established under Ohio law, that, “[a] statute is presumed to be prospective' in its operation unless expressly made restros-pective.” O.R.C. § 1.48; accord State v. LaSalle,
Venezuela contends that Ohio law defines retroactivity “with respect to the .time at which the action was filed, not with respect to the time at which the underlying offenses occurred.” Evans v. Toys R Us Inc.,
Skye cites to Novak in support of its contention that O.R.C. § 1303.16(A) may not be applied retroactively to bring the statute of limitations down from fifteen years to six on a promissory note that matured in 1991.
Venezuela’s argument is well taken. The Ohio Supreme Court has stated that statutes of limitation are remedial and applied to all proceedings after their enactment. Schoenrade,
D. Acknowledgment of the Debt
Skye argues that in August and October of 2003, Venezuela acknowledged the debt, thereby extending the statute of limitations. Under an Ohio statute, “[a] payment ... made upon any demand founded on a contract, or an acknowledgment thereof, or a promise to pay it ,,. signed by the party to be charged,” will remove the bar of the statute . of limitations. O.R.C. ■ § 2305.08, Venezuela argues .that § 2305.08 is not applicable to negotiable instruments, such as the Notes, which are a subset of contracts governed by ¿ separate statute of limitations in Ohio ’ Revised Code § 1303.16.
The Court finds Skye’s argument well taken. In In re Storey, the court denied a summary judgment motion where the creditor proffered sworn testimony of an oral acknowledgment of debt
The acknowledgment of a debt rule had an established common law history prior to its codification in the Ohio Revised Code. See e.g. In re Butler’s Estate,
Here, Venezuela’s Ministry of Finance issued a signed document, the August 2003 Ministry of Finance Report, stating that “the claimants of the Promissory Notes submitted to the present inquiry have the legitimate right to have them processed to cash them in accordance with the rules and procedures governing this activity.” (ECF No. 415-50, p. 15.) Shortly thereafter, the Attorney General of Venezuela issued the signed October 2003 Attorney General Report, agreeing with the foregoing opinion, and finding for the “admissibility of the aforesaid claim.” (Id. at 37.) Under Ohio law, no particular form of acknowledgment is required, other than a direct admission of a previous debt. See In re Butler’s Estate,
E. Estoppel
Skye posits that Venezuela is estopped from arguing that the statute of limitations has run. There is no question that Ohio courts recognize and will apply principles of equitable estoppel in a proper case. See Doe v. Archdiocese of Cincinnati,
... •. Furthermore, in the context of ¿ statute-of-limitations defense, a plaintiff must show either “an affirmative- statement that the statutory period to bring an action was larger than it actually was” or “promises to make a better settlement of the claim if plaintiff did not bring the threatened suit” or “similar representations or conduct” on defendant’s part. Cerney v. Norfolk & W. Ry. Co.,104 Ohio App.3d 482 , 488,662 N.E.2d 827 (Ohio [Ct.App.]1995); see also Walworth v. BP Oil Co.,112 Ohio App.3d 340 ,678 N.E.2d 959 (Ohio [Ct. App.]1996).
Helman at 246,
Here, the alleged misrepresentations are the 2003 Reports. Skye, however, fails' to make an evidentiary showing that the 2003 Reports were intended to induce Gruppo Triad or subsequent holders of the
F. Waiver
Skye additionally argues that Venezuela has waived its statute of limitations defense. “A waiver is an intentional relinquishment of a known right.” State v. Blackburn,
Applying these principles to the instant case, and construing the evidence in the light most favorable to Skye as the nonmoving party, the Court does not find genuine issues of material fact as to whether Venezuela waived its statute of limitations defense. Nothing in the 2003 Reports or Venezuela’s conduct suggested an intentional relinquishment оf Venezuela’s statute of limitations defense; The Court also notes that Skye did not change its position as a result of a purported waiver, but rather filed suit shortly after acquiring the Notes.
For the aforementioned reasons, Venezuela’s Motion for ¡ Summary Judgment Based on the Statute of Limitations (ECF No. 359) is DENIED. w
IV. EQUITABLE ESTOPPEL AGAINST VENEZUELA
Skye moves for summary judgment on the grounds that Venezuela is equitably estopped from nonpayment on the Notes. At the outset, the parties disagree on whether Venezuela should -be treated as a government actor' or a private party, for the purposes of Ohio’s equitable estoppel law. Skye asserts that the Foreign Sovereign Immunities Act (“FSIA”) provides that once the Court has jurisdiction over a case involving a foreign sovereign, “[a]s to any claim ... the foreign state shall be liable in the same manner and to’the same extent as a private individual under like circumstances.” 28 U.S:C. § 1606. Venezuela argues that the FSIA. does not alter substantive .state- laws with respect .tо causes of action and that equitable estop-pel is not a rule of liability. See First Nat'l City Bank v. Banco Pgira El Comercio Exterior de Cuba,
Skye argues that, even if the Ohio estop-pel analysis for government actors is applied, immunity from equitable estoppel is only available to governments “in the exercise of a governmental function.” Hortman v. Miamisburg,
“In Ohio, as well as other jurisdictions, ‘[i]t is well-settled - that, as a general rule, the .principle of estoppel doеs not apply against a state or its agencies in the exercise of governmental function/ ” Hortman v. Miamisburg,110 Ohio St.3d 194 , 199 [852 N.E.2d 716 ] (Ohio 2006)(internal quotations omitted); see also Premo v. United States, 599 F.3d 540 , 547 (6th Cir.2010) (“A party attempting to estop the government bears a very heavy burden.”).
# $ *1*
Plaintiff attempts to estop Defendants from arguing that the Notes are invalid based on the Venezuelan Attorney General’s October 2003 opinion that concluded Venezuela was obligated to make payments on the Notes. This type of administrative determination is clearly a governmental function within the meaning of Ohio law.
(EOF No. 298, pp, 24-26.) In any case, the Court does not find it necessary to re-resolve the functionality question because, should the Court treat Venezuela as a government actor for the purposes of the equitable estoppel analysis,- “at a minimum, Plaintiff must show some affirmative misconduct by the government in addition to establishing the other elements of'estop-pel.” Premo,
In an abundance of caution, the Court has also considered the equitable estoppel analysis applicable to private actors under Ohio law. As the Court stated in its previous Opinion and Order, “[e]qui-table estoppel ‘is a device by'which courts bind parties to presentments made upon which an opposing party relies to his ... detriment....’ Smith v. Safe Auto Ins. Co.,
The purpose of equitable estoppel is to prevent actual or constructive fraud and to promote the ends of justice. Doe v. Archdiocese of Cincinnati,109 Ohio St.3d 491 [849 N.E.2d 268 ], A party may invoke the doctrine of equitable estoppel where it has “relied on conduct of an adversary in such a manner as to change his position for the worse and that reliance [was] reasonable in that the party claiming estoppel did not know and could not have known that its adversary’s conduct was misleading.” Ohio State Bd. Of Pharmacy v. Frantz,51 Ohio St.3d 143 , 145,555 N.E.2d 630 (Ohio 1990).
Cristina [Cristino ] v. Bur. of Workers’ Comp.,
Skye asserts that it reasonably relied upon the August and October 2003 Reports to its detriment- in purchasing the Notes. Venezuela argues: (1) that the August and October 2003 Reports were not fraudulent, and therefore neither misleading nor misrepresentative; and (2) that any reliance on the part of Skye thereon was not reasonable, due to the issuance of the November and December 2003 Reports, which contradicted the earlier reports. Skye argues that “a knowingly false representation or concealment of material fact” is not an “essential element of estoppel.”
The Court finds the parties’ arguments reconcilable under Ohio law, which states, “[t]he purpose of equitable estoppel is to prevent actual or constructive fraud.” Ohio State Bd. of Pharmacy v. Frantz,
tions. But, such intent is not required here. Riather, both, parties agree that the August 2003 Ministry of Finance Report and the October 2003 Attorney General Report were supplemented with new opinions, dated months later,
The Court next turns to whether Skye reasonable relied on the 2003 Reports in pprchas,ing. the Notes. Venezuela argues that any reliance was not reasonable, as the November 2003 and December 2003 Reports were issued prior to Skye’s purchase of the Notes in the spring of 2004. Venezuela also argues that Skye had reason to doubt the veracity of the Gruppo Triad representatives and the authenticity of the Notes. Skye: asserts that Venezuela did not publicly release the November 2003 and the. December 2003 Reports and, as a result,. Skye was not aware of their existence — and could not have discovered it through reasonable diligence — before purchasing the Notes. Venezuela responds that. Skye knew, of the November 2003 Report prior to purchasing the Notes. In support of its contention, Venezuela submits the Jacir Deposition, in which he states that he told Skye representatives about the November 2003 Report. (ECF No. 559-32, at 277:5-20.) That evidence is sufficient to create a question of fact as to whether Skye reasonably relied on’ the 2003 Reports when purchasing the Notes. See Walworth v. BP Oil Co.,
For the aforementioned reasons, Skye’s Motion for Summary Judgment (ECF No. 415) is DENIED.
V. HOLDER IN DUE COURSE
Venezuela additionally moves for summary judgment on the basis that Skye is not a holder in due course of the Notes. Skye argues that Venezuela’s motion is not proper at this time, because, under Ohio law, an inquiry into holder in due course status is not available until a defendant has proven a defense. The Court finds Skye’s argument well taken. The Supreme Court of Ohio has enumerated: “Whether One is a holder in due course is an issue which does not arise unless it is shown a defense exists. Once it is established a defense exists, the holder has the full burden of proving holder in due course status in all respects.” Arcanum Nat. Bank v. Hessler,
Venezuela argues that the issue is ripe for adjudication because it presents a timely controversy that will streamline the claims and defenses moving forward and the Court set a scheduling order for briefing on the issue. (See ECF No. 357.) “A court has the inherent power to manage its own docket,” including the right to set motion deadlines. In re Prevot, 59' F.3d 556, 566 (6th Cir.1995). The Court is hot persuaded that by issuing a scheduling order on summary judgment motions, it has adjudicated whether a particular claim is procedurally ripe. Here, Venezuela must first establish a defense before the burden shifts to Skye to prove holder in. due course. Therefore, Venezuela’s Motion for Summary Judgment that Plaintiff is Not a Holder in Due Course (ECF No. 413) is DENIED. Because this claim is not procedurally ripe, Plaintiffs Motion to file a Sur-Reply in Opposition to the same (ECF No. 459) is DENIED without prejudice.
VI. CONCLUSION
For the aforementioned reasons, Defendants’ Motion for Summary Judgment Based on the Statute of Limitations (ECF No. 359) is DENIED. Plaintiffs Motion for Summary Judgment (ECF No. 409) is also DENIED. Defendants’ Motion for Summary Judgment that Plaintiff is Not a Holder in Due Course (ECF No. 413) is DENIED. Additionally, Plaintiffs Motion to File Sur-Reply in Opposition to Defendants’ Motion for Summary Judgment that Plaintiff is Not a Holder in Due Course (ECF No. 459) is DENIED without prejudice.
IT IS SO ORDERED.
Notes
. Venezuela disputes that the. Notes were issued by Bandagro, maintaining instead that the documents sold by Gruppo Triad to Skye are forgeries.
. "Ministerio de Hacienda.”
. The original Spanish text of the letter is "A tales fines, el Ministerio de Hacienda ha con-siderado extender el plazo de vencimiento por ocho (8) anos mas....” (ECF No. 415-22, Ex. H (emphasis added).) Venezuela maintains the literal translation is: “For these purposes, the Ministry of Finance has considered extending the maturity term by an additional eight (8) years----” (ECF No. 360-10.) Skye maintains an alternate translation is “To this end, the Ministry of Finance has decided to extend the maturity for eight (8) years more....”
. . This is a process in which an official from the Ministry of Foreign Affairs certifies that the letter is legitimate.
. A promissory note is a negotiable instrument within the Ohio Revised Code. O.R.C, § 1303.03.
. O.R.C. § 2305.08 governs general contract actions, as do the statutes of limitations referenced therein.
. The Court notes that an oral acknowledgment of the debt does not satisfy the statutory requirements that the acknowledgment be in writing. See Catz Ent., Inc. v. Valdes, No. 07 MA 201, 07 MA 202, 08 MA 68,
. Skye maintains that the December 2003 Report was not created at that time, but rather created much later, or • as a result of the litigation in this case, and backdated.