FOGADE, FONDO DE GARANTIA DE DEPOSITOS Y PROTECCION BANCARIA (Fogade) an agency of the Republic of Venezuela, CORPOFIN, C.A., AS LIQUIDATOR v. ENB REVOCABLE TRUST, a trust organized under the laws of the British Virgin Islands, JUAN SANTAELLA, JULIO C. LEANEZ, OSCAR L. ZAMORA, MERCORP ADVISORS, INC. a British Virgin Islands Corporation, EASTERN NATIONAL BANK, ADCO ASSOCIATES, INC.
No. 99-12527
United States Court of Appeals, Eleventh Circuit
August 28, 2001
D.C. Docket No. 96-01679 CV-DMM
Plaintiffs-Appellees,
versus
Defendants-Appellants.
Appeal from the United States District Court for the Southern District of Florida
(August 28, 2001)
Before CARNES and MARCUS, Circuit Judges, and HAND*, District Judge.
*Honorable William B. Hand, U.S. District Judge for the Southern District of Alabama, sitting by designation.
The plaintiffs in this lawsuit are the Venezuelan agency, Fondo de Garantia de Depositos y Proteccion Bancaria (FOGADE), and Corpofin, C.A., a Venezuelan company that FOGADE placed in intervention. The individual defendants – Juan Santaella, Julio C. Leanez, and Oscar L. Zamora – were former shareholders and controlling board members of Corpofin. The remaining defendants – the ENB Revocable Trust, Mercorp Advisors, Inc., Eastern National Bank, and ADCO Associates, Inc. – are business entities that are directly or indirectly controlled by the individual defendants.
Plaintiffs filed suit in the United States District Court for the Southern District of Florida, alleging that the individual defendants had misappropriated from Corpofin the stock of Eastern National Bank (ENB), a United States chartered bank in Miami.1 The district court initially dismissed plaintiffs’ complaint (the second amended one) on forum non conveniens grounds, concluding that it involved primarily Venezuelan legal issues between Venezuelan parties, arising from transactions most of which had occurred in Venezuela. The plaintiffs subsequently requested leave to amend the complaint (for a third time) so
The defendants’ appeal brings us issues involving the jurisdiction of the district court over the case when it entered the order granting plaintiffs leave to amend after the court had already dismissed the complaint on forum non conveniens grounds, and the propriety of the court‘s grant of summary judgment to plaintiffs on their conversion and reclamation of shares claims. The defendants also attempt to appeal the dismissal of certain counterclaims they filed, but we lack jurisdiction to review that dismissal.
I. BACKGROUND
A. FACTS
In early 1994, Venezuela suffered a banking crisis engendered by the failure of Venezuela‘s largest bank. Several Venezuelan banks were forced to seek
Between March and June of 1994, Bancor received financial aid from FOGADE equivalent to $300 million at the then-prevailing exchange rates. In June of 1994, on the stated grounds that Bancor had not repaid its debts or increased its capital, FOGADE caused the Superintendency of Banks to “intervene” Bancor, a process similar to placing a company in receivership in the United States. In September of 1994, upon a finding that Corpofin was related to Bancor and that Corpofin had very large unguaranteed debts with Bancor, FOGADE caused the Superintendency of Banks to intervene Corpofin as well. As part of the intervention process, FOGADE removed the individual defendants from the management of both Bancor and Corpofin and replaced them with FOGADE-appointed boards. In October 1995, the Republic of Venezuela, through its Financial Emergency Board, ordered that Bancor be liquidated. Corpofin
Corpofin‘s interventor, Juan Miguel Senior, who is responsible for marshaling the corporation‘s assets for the benefit of creditors, discovered documents detailing a series of transactions between subsidiaries of Corpofin, as well as shell corporations within the exclusive control of the defendants, that had resulted in the transfer of all shares of Eastern National Bank outside of Corpofin‘s ownership and control. Those documents were dated May 9, 1994, exactly one day before the individual defendants had been removed from control of Bancor by resolution of FOGADE.3 In any event, on May 9, 1994, Corpofin owed Bancor approximately $16.5 million.
Prior to the May 9, 1994 transactions (if they did take place on that date), the corporate structure was as follows: Corpofin, the parent company, owned 100% (70,000 shares) of First Bancorporation (“First Bancorp“). First Bancorp in turn owned 95% of the shares of ENB and 100% of the shares of Eastern Overseas
- Corpofin transferred 64,000 shares of First Bancorp, valued at $28.5 million, to Eastern Overseas for the equivalent of $795,000.
- Those 64,000 shares of First Bancorp were then transferred by Eastern Overseas, for approximately $795,000, to Mercorp Advisors (“Mercorp“), a shell corporation allegedly created for the sole purpose of restructuring the ENB ownership.
- Corpofin then transferred, for approximately $75,000, the remaining 6,000 shares of First Bancorp directly to Mercorp, which now owned 100% of the First Bancorp stock, and Bancorp in turn owned 95% of ENB.
- First Bancorp then transferred its 95% ownership of ENB to Mercorp in exchange for a $28.5 million promissory note that was subsequently cancelled and never paid.
- Finally, Mercorp transferred its 95% ownership interest in ENB to the ENB Revocable Trust (“the ENB Trust“), of which the individual defendants are among the trustees and beneficiaries; and Corpofin caused all of the
The final corporate structure was as follows: Corpofin retained no ownership interest in any of the corporations, including ENB. ADCO owned 5% of the ENB stock and 100% of Eastern Overseas. Mercorp owned 100% of First Bancorp and the ENB Revocable Trust owned 95% of the ENB stock. Thus, Corpofin, which owed Bancor $16.5 million, received approximately $870,000 in exchange for its entire ownership interest in ENB, which was valued at $30 million, while various business entities under the control of the individual defendants ended up owning all $30 million worth of those ENB shares.
B. PROCEDURAL HISTORY
In order to prevent the defendants from selling the ENB stock to Union Planters Corporation, in June of 1996 FOGADE and Corpofin4 brought this lawsuit in the district court against the individual defendants, the various business entities
At the same time they filed their complaint, plaintiffs also filed a motion for a temporary restraining order and a preliminary injunction. The district court, observing that, “it appears that the shares of [ENB] were fraudulently conveyed to [the defendants] . . .,” granted a temporary restraining order preventing the defendants from removing the ENB shares from the court‘s jurisdiction. However, after conducting an evidentiary hearing on plaintiffs’ motion for a preliminary injunction, the district court denied that motion on grounds the plaintiffs had an adequate remedy at law for their claims. On appeal, in an unpublished opinion we affirmed the denial of the preliminary injunction. See FOGADE v. Union Planters Corp., No. 96-4915 (11th Cir. June 30, 1997). After that, plaintiffs twice amended their complaint, with the result being a second amended complaint containing claims for reclamation of shares under
1. The Dismissal on Forum Non Conveniens Grounds
The defendants moved to dismiss plaintiffs’ second amended complaint on grounds of forum non conveniens and international comity. On April 21, 1997, the district court granted that motion on forum non conveniens grounds, explaining that otherwise it would have been forced to divine and correctly apply Venezuelan substantive law. The dismissal, however, was conditioned on defendants’ consent to the jurisdiction of the Venezuelan courts. Although ordering dismissal, the court did not direct entry of a final judgment pursuant to
Plaintiffs timely filed a
On August 28, 1997, defendants filed declarations that did not comply with the court‘s order, together with a motion seeking leave to file those declarations. Plaintiffs opposed that motion, and they cross-moved for an order enforcing the August 18th order, specifically that part of it which provided that the defendants’ failure to file by August 28 sworn declarations unequivocally indicating submission to the jurisdiction of the Venezuelan courts would result in denial of their motion to dismiss. At the same time, plaintiffs also requested leave to file a third amended complaint. They contended that their proposed third amended complaint eliminated the claims based on Venezuelan law (such as claims for breach of fiduciary duties to Bancor and misuse of FOGADE funds), and also that, unlike the preceding version of the complaint, this one focused on two events that took place primarily in Miami: the May 9, 1994 transfers of ENB stock, which was largely done in Miami; and the alleged misappropriation of $2.3 million from
On September 23, 1997, the district court denied defendants’ motion to file non-complying affidavits and ordered them to file by October 3, 1997 affidavits that fully complied with the conditions of the August 18, 1997 order. In that same September 23 order, the court denied without prejudice the plaintiffs’ cross-motion to enforce the August 18 order.
Because the district court‘s September 23, 1997 order did not address the plaintiffs’ request to file a third amended complaint, the plaintiffs on September 24 filed a motion for clarification about that. The defendants say that they filed declarations on September 25 and on September 30 that fully complied with the conditions set out in the August 18 order. Whether that is true or not, the district court did not acknowledge receipt of those declarations, much less find that they fully satisfied the condition set out in the August 18 order. Neither did the court enter a Rule 58 final judgment subsequent to the receipt of the affidavits. Instead, on September 26, 1997, the court granted plaintiffs’ motion for clarification, stating that if the plaintiffs wished to proceed under a third amended complaint,
After the April 21, 1997 order granting the motion to dismiss had been issued, and while the plaintiffs’ motion to reconsider or amend that order of dismissal was pending, the case was reassigned from Judge Moreno to Judge Middlebrooks, but with the proviso that Judge Moreno would decide all previously filed motions, and that Judge Middlebrooks would decide the matters arising thereafter. All the orders we have discussed to this point were entered by Judge Moreno, while all those discussed hereafter were entered by Judge Middlebrooks.
2. Granting of Leave to Amend
On October 2, 1997, plaintiffs filed their separate motion for permission to file a third amended complaint. The plaintiffs argued that the third amended complaint, by concentrating on conduct that occurred in Miami, cured the deficiencies that had led the court to dismiss the earlier version of the complaint on forum non conveniens grounds. The court granted the motion for leave to amend the complaint. The third amended complaint contained claims under civil RICO
3. Dismissal of the Counterclaims Pursuant to the Act of State Doctrine
Unable to convince the district court to reinstate its previous order of dismissal, the defendants filed their answer and counterclaims to the third amended complaint. Their affirmative defenses asserted that FOGADE lacked standing to sue on behalf of Corpofin because FOGADE‘s intervention of that corporation was unlawful. Their counterclaims alleged that FOGADE and others had conspired to illegally confiscate in Venezuela and the United States assets of the defendants, including Bancor, Corpofin and ENB. Plaintiffs moved to dismiss the counterclaims on grounds that they were immune from suit under the foreign sovereign immunity doctrine and the act of state doctrine. On September 18, 1998, the district court granted plaintiffs’ motion to dismiss as it applied to thirteen of the fifteen counterclaims on grounds of the act of state doctrine. On October 21, 1998,
4. Granting of Partial Summary Judgment on the Claims
Thereafter, plaintiffs and defendants cross-moved for partial summary judgment. Corpofin argued three theories in support of its motion for partial summary judgment: that defendants had converted Corpofin‘s ownership interest in First Bancorp, Eastern Overseas, and ENB; that defendants had wrongfully transferred the stock of those corporations in violation of
The district court granted summary judgement in favor of Corpofin on its conversion and reclamation of shares claims.6 In doing so it concluded that there was no genuine issue of material fact about the defendants’ liability to Corpofin for
II. DISCUSSION
A. THE DISTRICT COURT‘S JURISDICTION OVER THE CASE WHEN IT GRANTED THE LEAVE TO AMEND
Defendants contend that the district court lacked jurisdiction over the case when it entered the order granting the plaintiffs’ motion to file the third amended complaint and therefore did not have jurisdiction to enter any subsequent orders either, including the one granting summary judgment to plaintiffs on two of the
As a general matter, a dismissal based on the doctrine of forum non conveniens usually “puts an end to the action,” and is therefore a final appealable order if the other prerequisites for finality are met. Norwood v. Kirkpatrick, 349 U.S. 29, 31 (1955) (quotation omitted); see also Sigalas v. Lido Mar., Inc., 776 F.2d 1512, 1516 (11th Cir. 1985) (“Disposition of a case on forum non conveniens grounds per se is a final order subject to appeal.“). The core of the defendants’ position is that the district court‘s April 21, 1997 forum non conveniens dismissal order was final and did end the case in the district court with the result that the court lacked jurisdiction to grant the plaintiffs’ motion for leave to file a third amended complaint as it purported to do on October 15, 1997. Defendants contend that, because the forum non conveniens dismissal order constituted a final appealable order, once the time period for filing a notice of appeal from that order expired, that was the end of this lawsuit in federal court.
file a third amended complaint; (8) September 26, 1997, the court grants the plaintiffs’ motion for clarification and instructs them that a separate motion must be filed regarding the third amended complaint, and the court reaffirms its September 23 order; and (9) October 15, 1997, the court grants leave to file Third Amended Complaint.
It is undisputed that the district court‘s April 21, 1997 order dismissing the case on forum grounds was never entered as a separate judgment in compliance with Rule 58. As a result, the time for filing of a notice of appeal from that dismissal order never started to run. See Fed. R. App. P. 4(a)(1)(A) (“[T]he notice of appeal . . . must be filed . . . after the judgment or order appealed from is entered.“) (emphasis added); Fed. R. App. P. 4(a)(7) (“A judgment or order is entered for purposes of this Rule 4(a) when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure.“); see also Reynolds v. Golden Corral
B. THE MERITS OF THE PARTIAL SUMMARY JUDGMENT
We review a grant of summary judgment de novo, using the same legal standard as the district court. See Diaz v. United States, 165 F.3d 1337, 1339 (11th Cir. 1999). Summary judgment is appropriate if the record shows no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Id.
1. The Disposition Below
On January 15, 1999, plaintiffs moved for partial summary judgment on their claims for conversion, reclamation of shares, and fraudulent transfer. The theory behind those claims is that the individual defendants, in their capacity as controlling board members and directors, had caused Corpofin to wrongfully transfer its ownership interest in ENB for inadequate consideration.
(a) The Conversion Claim
The district court rejected defendants’ standing argument, finding that because Corpofin owned 100% of First Bancorp, and First Bancorp owned nearly 100% of ENB, Corpofin had standing to maintain its action for conversion as the “equitable owner” of ENB. As to the merits of the conversion claim the court observed that it was undisputed the individual defendants had caused the various corporations under their control to transfer property rights for inadequate consideration. The court also determined that the defendants’ admission that they engaged in the suspect transactions in order to protect “their” assets (including the shares of ENB) from appropriation (or as they put it, “misappropriation“) by the Venezuelan government established that they possessed the requisite intent to deprive Corpofin of its property interest in ENB. Specifically, the court held that
(b) The Reclamation of Shares Claim
The district court next turned to the claim plaintiffs brought pursuant to Florida‘s reclamation of shares statute. See
(1) Any person against whom the transfer of a security is wrongful for any reason ..., as against anyone except a bona fide purchaser, may:
....
(a) Reclaim possession of the certificated security wrongfully transferred....
(c) The Relief
In attempting to fashion a remedy for the plaintiffs’ reclamation of shares claim, the district court ran into a conceptual problem. The court recognized that: “[Because] some of the transfers were made through corporations that were only recently brought into this lawsuit, First Bancorporation and Eastern Overseas Bank, it is not apparent at first how the equitable relief can be administered.” The court reasoned that it could not simply order the defendants to “return” the ENB shares to Corpofin, because Corpofin never directly owned those shares.
In a previous order, the court had determined that First Bancorp and Eastern Overseas were indispensable parties to the lawsuit because they were the record owners of the ENB shares prior to the May 9 transactions. In that earlier order, the
While Corpofin was the equitable owner of the shares of ENB stock at the time of the transfers, it was not the actual owner of the shares. The actual owners of the shares were Eastern Overseas Bank and First Bancorporation, two corporations of which Corpofin was a shareholder. It is settled in this jurisdiction that a corporation is an indispensable party in a derivative action brought by one of its shareholders. (footnote omitted)
For that reason, the district court ordered plaintiffs to file a fourth amended complaint reflecting the addition of First Bancorp and Eastern Overseas as defendants. They did so.
Thereafter, the parties disagreed about whether First Bancorp and Eastern Overseas should be aligned as plaintiffs or defendants. Plaintiffs argued that, although First Bancorp and Eastern Overseas had been added as “nominal” defendants, they should be realigned as plaintiffs in order to reflect their “true interests.” Plaintiffs were, they said, seeking “to protect the interests of First Bancorporation and Eastern Overseas Bank by recreating the stock structure in place prior to the wrongful transfers.” The defendants responded that they, as the management of First Bancorporation and Eastern Overseas, represented the true interests of those corporations, interests antagonistic to plaintiffs’ claims.
2. The Beneficial Ownership Issues
(a) Defendants’ Arguments
From this conclusion, defendants argue, it also follows that Corpofin did not have standing to bring its conversion claim. The district court‘s analysis on this point was essentially the same as on the reclamation of shares claim, concluding that Corpofin had standing as the “equitable owner” of the ENB shares, because: “[I]t is undisputed that First Bancoporation, at the time of the allegedly wrongful acts, either directly or indirectly owned nearly 100% of the outstanding shares of
(b) Our Analysis
Defendants’ beneficial and equitable ownership arguments are premised on their assertion that they “owned” Corpofin at the time of the May 9, 1994 transactions, but that assertion is not supported by the record. Instead, the record reveals that the individual defendants owned only 44.87% of Corpofin. Thus, they could not have been the beneficial or equitable owners of Corpofin because collectively they held only a minority interest in Corpofin. Defendants do not contest the premise that they could not be the beneficial or equitable owners of Corpofin if they owned only a minority interest in it.
Instead, the defendants accept that premise but attack the district court‘s reasoning in another way. They contend that “while the individual defendants own 44.87% of Corpofin, the beneficiaries of ENB Trust, another defendant/appellant, owns [sic] the remaining 55.13% of Corpofin.... Thus, together, the defendants (the individual defendants and all other beneficiaries of ENB Trust) own both the minority and majority shares of Corpofin.” (emphasis in original). The problem
3. The Wrongful Transfer Issues
The defendants contend that the district court erred in concluding that the May 9, 1994 transfers were “wrongful” under Florida‘s reclamation of shares statute, because the court based that conclusion on its earlier erroneous determination that the defendants were liable for conversion. Thus their challenge to the district court‘s application of the “wrongful” component of the reclamation statute is actually an attack on the merits of the district court‘s conversion analysis.
On the question of whether such transfers constituted “unauthorized acts,” it is a well-established rule of corporate law that a corporation cannot authorize illegal conduct. See Flight Equip. & Eng‘g Corp. v. Shelton, 103 So.2d 615, 621 (Fla. 1958) (“It cannot be disputed that a board of directors of a corporation is without power to ratify that which it cannot do directly or that which it could not
The district court was correct in concluding that the defendants were liable for conversion because the stock transfers were unauthorized acts that deprived Corpofin and its subsidiaries of their property. Accordingly, because the sole basis of the defendants’ challenge to the court‘s finding of wrongfulness under the reclamation statute is that no conversion occurred, that challenge must fail.16
4. The Act of State Issues
The act of state doctrine limits “the courts in this country from inquiring into the validity of a recognized foreign sovereign‘s public acts committed within its own territory.” Honduras Aircraft Registry, Ltd. v. Honduras, 129 F.3d 543, 550 (11th Cir. 1997). The doctrine requires that “the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid.” W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400, 409, 110 S. Ct. 701, 707 (1990).
The district court agreed with plaintiffs that under the act of state doctrine the intervention of Corpofin must be deemed valid and cannot be subject to review in a United States court.18 Relying on Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428, 84 S. Ct. 923, 940 (1964), the district court concluded that:
[w]hether FOGADE and others violated Venezuelan law in committing the alleged acts is irrelevant; “the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government ... even if the complaint alleges that the taking violates customary international law.”
Notwithstanding any other provision of law, no court in the United States shall decline on the ground of the federal act of state doctrine to make a determination on the merits ... in a case in which a claim of title or other right to property is asserted ... based upon (or traced through) a confiscation or other taking after January 1, 1959, by an act of [] state in violation of the principles of international law....
The Second Hickenlooper Amendment did overrule, at least with respect to confiscations of property, the Sabbatino decision to the extent that it held that the act of state doctrine would apply without regard to whether a foreign state‘s actions violated international law. Compare Sabbatino, 376 U.S. at 428, 84 S. Ct. at 940 (“[T]he Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government . . . even if . . . the taking violates customary international law.“), with
The Second Hickenlooper Amendment has three requirements that must be met before it applies. The Amendment requires: (1) a claim of title or other right to property; (2) based upon or traced through a confiscation or other taking; (3) in violation of international law.
Even assuming that FOGADE‘s intervention of Corpofin constituted a “confiscation or other taking” (the second requirement), we are not persuaded that it was carried out in violation of international law (the third requirement). As a rule, when a foreign nation confiscates the property of its own nationals, it does not implicate principles of international law. See, e.g., Bank Tejarat v. Varsho-Saz, 723 F. Supp. 516, 520 (C.D. Cal. 1989) (declining to apply the Second Hickenlooper Amendment because “the taking by a government of the property of one of its citizens, located within its territory, does not constitute a violation of international law“); F. Palicio y Compania, S.A. v. Brush, 256 F. Supp. 481, 487 (S.D.N.Y. 1966) (declining to apply the Second Hickenlooper Amendment because “confiscations by a state of the property of its own nationals, no matter how flagrant and regardless of whether compensation has been provided, do not constitute violations of international law“); cf. De Sanchez v. Banco Central De Nicaragua, 770 F.2d 1385, 1396 (5th Cir. 1985) (noting that
None of the decisions that the defendants rely upon are to the contrary. They involve misappropriations by foreign governments of property that belonged to citizens of other countries. See, e.g., Banco Nacional de Cuba v. Farr, 383 F.2d 166, 185 (2d Cir. 1967) (involving the expropriation by the Cuban government of a corporation that “was largely owned by ‘nationals of the United States of North America‘“); Banco Nacional de Cuba v. Chase Manhattan Bank, 658 F.2d 875 (2d Cir. 1981) (involving the expropriation by the Cuban government of American-owned banks). Because Venezuela‘s act of intervening Corpofin, a Venezuelan corporation owned entirely by Venezuelan nationals, does not violate international law, the Second Hickenlooper Amendment does not preclude application of the act of state doctrine.
Seeking to avoid this result, defendants attempt to shift the focus away from the plaintiffs’ act of intervening Corpofin to their alleged “extraterritorial confiscation” of ENB, which, defendants stress, was at all times located in the
Confiscations by a foreign state of property located in the United States, even if the property belongs to one of the foreign state‘s own nationals, implicates principles of international law. Republic of Iraq v. First Nat‘l City Bank, 353 F.2d 47, 51 (2d Cir. 1965). Moreover, a foreign state‘s expropriations occur in the jurisdiction in which they are perfected. See Tabacalera Severiano Jorge, S.A. v. Standard Cigar Co., 392 F.2d 706 (5th Cir. 1968); Maltina Corp. v. Cawy Bottling Co., 462 F.2d 1021 (5th Cir. 1972). Defendants’ position is that the plaintiffs’ actions about which they complain were not perfected in Venezuela with the intervention of Corpofin, but in this country when the ENB shares were “confiscated” by means of this lawsuit. That confiscation, the defendants argue, constituted a violation of international law, thereby precluding application of the act of state doctrine.
We disagree. As previously noted, the Second Hickenlooper Amendment provides that a federal court must not decline on act of state grounds to address the merits in a case when a party asserts a claim of right “based upon ... a confiscation
Here the plaintiffs’ claim of right to the ENB shares is “based upon” FOGADE‘s intervention of Corpofin and the defendants’ contention that the plaintiffs obtained the ENB shares illegally is also “based upon” FOGADE‘s intervention of Corpofin. If the plaintiffs legitimately controlled FOGADE, the defendants would have no argument that plaintiffs acted illegally in taking control of ENB. The premise of defendants’ position that FOGADE would not have standing to sue on behalf of Corpofin is that FOGADE unlawfully intervened it. So, everything turns on FOGADE‘s intervention of Corpofin. Thus, the defendants must show that the alleged confiscation of Corpofin was in violation of international law, not that the plaintiffs’ subsequent and successful attempt to recapture the ENB shares through Corpofin was. As we have already explained, however, the intervention of Corpofin was purely domestic (to Venezuela) in nature, and does not violate international law. Therefore, because FOGADE‘s intervention of Corpofin, upon which Corpofin‘s claim to ENB is based, was not in violation of international law, the Second Hickenlooper Amendment does not
Defendants’ final argument about the act of state doctrine is that it should not be applied where, as here, it is raised only as a response or bar to affirmative defenses. That argument is inconsistent with the decision of the Supreme Court in Sabbatino, 376 U.S. at 438-39, 84 S. Ct. at 945-46, upholding application of the act of state doctrine as the basis for dismissing the defendants’ counterclaims against a foreign state, Cuba. The counterclaims challenged the legitimacy of Cuba‘s claim of right to the disputed property. Id. at 439, 84 S. Ct. at 946 (“Since the act of state doctrine proscribes a challenge to the validity of the Cuban expropriation decree in this case, any counterclaim based on asserted invalidity must fail.“); see also Empresa Cubana Exportadora de Azucar v. Lamborn & Co., 652 F.2d 231, 239 (2d. Cir. 1981) (“Depriving a sovereign plaintiff of its act of
C. THE COUNTERCLAIMS
The defendants ask us to reverse the district court‘s September 18, 1998 order dismissing 13 of their 15 counterclaims, but we lack jurisdiction to consider that order. See United States v. Taylor, 632 F.2d 530, 531 (5th Cir. 1980) (order dismissing counterclaim is interlocutory and appeal cannot be taken until judgment makes dismissal final). We do have jurisdiction over the order granting summary judgment to the plaintiffs on two of their claims, because a proper
The district court has never directed entry of final judgment as to all the claims and counterclaims in the case, nor has it ever decided all of the claims. The partial final judgment the district court entered on July 23, 1999, does state that, while the court retains jurisdiction to decide certain issues relating to costs and damages under temporary restraining order bonds, “[a]ll other motions are DENIED as moot.” But claims are not motions, and most of the plaintiffs’ claims against the defendants are still outstanding. Indeed, the fact that the district court felt compelled to proceed under
III. CONCLUSION
We AFFIRM the district court‘s orders granting leave to amend and its order granting partial summary judgment for plaintiffs. We lack jurisdiction to decide any issues arising from the district court‘s orders relating to the counterclaims.
Notes
- April 21, 1997, the district court grants Defendants’ January 24, 1997 motion to dismiss on forum non conveniens grounds;
- May 5, 1997, plaintiffs timely file a Rule 59(e) motion to reconsider, vacate, alter or amend the April 21, 1997 order;
- August 18, 1997, the court denies plaintiffs’ Rule 59(e) motion, but amends its April 21, 1997 order to specify that defendants must file written declarations by August 29, 1997;
- August 28, 1997, defendants file non-complying affidavits plus an emergency motion for clarification as to the August 18 order requiring written declarations;
- September 10, 1997, plaintiffs file a response to defendants’ motion for clarification as well as a cross-motion for denial of the defendants’ January 24, 1997 motion to dismiss and to vacate pursuant to Rule 59(e) or 60(b), and they request leave to file a third amended complaint;
- September 23, 1997, the court denies both parties’ motions, and extends time for defendants to file the requisite declarations;
- September 24, 1997, plaintiffs file a motion for clarification as to the status of their request to
In Bankers Trust, the issue was whether an order could ever be a “final decision” for purposes of