Case Information
*1 14-3743-cv(L) Vera v. Republic of Cuba
In the
United States Court of Appeals
For the Second Circuit ________________
August Term, (Argued: August Decided: September Docket Nos. ‐ cv(L); ‐ ‐ cv(Con) ________________
A LDO V ERA , J R ., Personal Representative Estate Aldo Sr.,
Plaintiff Appellee , — v.—
T HE R EPUBLIC OF C UBA ,
Defendant , B ANCO B ILBAO V IZCAYA A RGENTARIA , S.A., Appellant.
________________
Before:
C ABRANES , R AGGI , W ESLEY , Circuit Judges.
________________
On appeal from orders entered Southern District New York (Hellerstein, J. ) enforcing an information against a third ‐ party bank connection with plaintiff’s ongoing efforts enforce money Cuba, denying reconsideration, bank moves for stay appeal. We deny motion moot challenged decisions appealable orders, and, therefore, we lack appellate matter.
A PPEALS D ISMISSED .
________________ K ENNETH A. C ARUSO (Kelly A. Bonner, Harold W. Williford, on brief ), White & Case LLP, New York, New York, Appellant . J EFFREY E. G LEN , Anderson Kill P.C., New York, New York (Robert A. Swift, Kohn, Swift & Graf, P.C., Philadelphia, Pennsylvania, on brief ), Plaintiff Appellee. ________________
R EENA R AGGI , Circuit Judge :
Third party defendant Banco Bilbao Vizcaya Argentaria, S.A. (“BBVA”), Spanish bank, appeals from entered United States District Court Southern District (Alvin K. Hellerstein, Judge ) September March first directs comply *3 information connection plaintiff Aldo Vera, Jr.’s attempt enforce $49 million default Republic of Cuba; second denies reconsideration of first. now moves this court stay court’s resolution these appeals. Vera, Jr., opposes stay, arguing, inter alia, without jurisdiction appealed decisions U.S.C. We agree and, therefore, dismiss appeals lack deny stay motion moot.
I. Background
A. Florida Default Judgment
Aldo acting representative his father Aldo Vera, Sr.’s estate, invoked terrorism exception provision Foreign Sovereign Immunities Act (“FSIA”) sue Republic Cuba Florida state money damages resulting from his father’s murder San Juan, Puerto Rico. 1605(a)(7); Final Judgment 1–4, Vera Cuba, No. (Fla. Ct. May (construing FSIA terrorism exception *4 allow money ‐ damages action state extrajudicial killing). [1] Vera, alleged his father—formerly Havana’s Chief Police—fled Cuba after becoming disillusioned Communist regime, residing thereafter in Florida Puerto Rico, where he participated in counter revolutionary activities. Final Judgment at 5, Vera Cuba, No. 01 31216 (Fla. Ct. May 15, 2008). On October 25, 1976, as Vera, Sr., was emerging from a political meeting San Juan, he shot dead, allegedly by agents acting Cuban government. See id. While disputes account, issue before us. [2] Cuba failed appear Florida action, and, 2008, after holding bench trial, state entered a default judgment Vera, Jr.’s favor $95,579,591.22. id. 1–3, 9–10; see also 28 U.S.C. § 1608(e) (requiring FSIA plaintiff “establish[] his claim or right relief by *5 evidence satisfactory the court” before entry of default judgment against foreign state).
B. Entry of the Florida Judgment in the Southern District of New York Ensuing Collection Proceedings 2012, Vera, Jr., again on behalf of his father’s estate, filed suit against the
Republic of Cuba Southern District of New York seeking entry of Florida judgment Full Faith Credit Act, U.S.C. § 1738. See Vera Republic of Cuba, No. Civ. (AKH) (S.D.N.Y.) (hereinafter “Vera Republic of Cuba”). After Cuba failed appear action, court, default, entered Florida judgment on August amount of $49,346,713.22, recognizing part judgment awarding $50 million punitive damages. See U.S.C. (prohibiting award punitive damages foreign state); Judgment, Vera Cuba, S.D.N.Y. ECF No. Two months later, on October authorized Vera, Jr., pursue attachment execution judgment. See 1610(c) (requiring “reasonable period time” after entry before attachment state’s assets permitted).
Toward end, subpoenas branches various banks, seeking discover Cuba held those banks. Fed. *6 R. Civ. P. 69(a)(2); N.Y. C.P.L.R. 5224(a). subpoena challenged appeal was directed to BBVA’s New York branch sought disclosure all Cuba’s sovereign assets held by BBVA worldwide. BBVA responded by identifying Cuba’s sovereign assets New York branch, but provided no information about any Cuba’s assets bank may hold abroad.
On November Vera, Jr., moved to compel BBVA’s compliance with subpoena’s request for disclosure Cuba’s worldwide assets. On December cross moved quash subpoena, arguing was void ab initio FSIA did support jurisdiction Vera, Jr.’s actions against Cuba; Daimler AG Bauman, S. Ct. (2014), subject personal New York respect assets held abroad.
Meanwhile, starting February some time thereafter, Vera, Jr., filed motions directing various banks turn over identified Cuban sovereign held banks’ branches. A number banks objected, maintaining had proceed them “special proceeding” pursuant N.Y. C.P.L.R. 5225(b) rather than by motion. Fed. R. Civ. P. 69(a)(1) (requiring *7 proceedings to comport with “procedure of the state where the court is located”). [3] On June 25, 2013, the court orally directed to file serve a formal pleading turnover naming the banks as defendants. The court explained that this action (1) ensured jurisdiction to the banks to turn over Cuba’s assets, see Koehler v. Bank of Bermuda Ltd., 12 N.Y.3d 533, 540–41, 883 N.Y.S.2d 763, 768–69 (explaining that use of special proceeding ensures to third party to turn over assets); allowed the *8 banks interplead other potential claimants assets at issue. See Tr. of June 25, 2013, 29–38, Vera v. Republic of Cuba, S.D.N.Y. ECF No. 274; see also Order Terminating Mots. and Regulating Status, Vera Republic of Cuba, S.D.N.Y. ECF No. 323.
Consistent with court’s directive, on September 2013, filed with court, thereafter served BBVA and other banks, omnibus petition turnover Cuban sovereign assets against which writs execution had been levied Southern District recognized Florida judgment. Pet. Turnover Order ¶¶ 48–49, Vera Republic Cuba, S.D.N.Y. ECF No. 298.
On September while turnover petition pending, rejected BBVA’s challenges ordered “provide full complete answers respect Republic Cuba’s located [BBVA’s] branches outside of, well inside, United States.” Order Vera Republic Cuba, S.D.N.Y. ECF No. both timely *9 appealed and moved reconsideration, arguing this court’s intervening decision Gucci America, Inc. Weixing Li, 768 122 2014), compelled conclusion BBVA subject general personal jurisdiction New York. In single written opinion March district court both denied reconsideration September 2014 enforcement order, and granted omnibus turnover petition Cuba’s sovereign held BBVA’s branch. 2015 WL 1244050 (S.D.N.Y. Mar. 2015). timely appealed both orders. [5] now moves stay district court’s enforcement order resolution these appeals, arguing district court lacked jurisdiction worldwide discovery. opposing stay, argues, inter alia, this without appealed decisions are 28
II. Discussion
This court has jurisdiction to review “final decisions” of district court, 28 U.S.C. § 1291, as well as those interlocutory orders specified 28 U.S.C. § 1292. Because asserts only § 1291, and under § 1292, [6] we here consider only whether the appealed enforcing the and denying reconsideration are “final decisions” within the meaning of 1291. [7]
A final decision one “ends the litigation on the merits leaves nothing court do but execute the judgment.” Coopers & Lybrand Livesay, U.S. 463, 467 (internal quotation marks omitted); accord Cox United States, 2015). Under collateral order doctrine, an interlocutory order can also be deemed final immediately *11 appealable under § if “(1) conclusively determines a disputed question; resolves an important issue completely separate from merits action; and is effectively unreviewable appeal from final judgment.” EM Ltd. Argentina, F.3d 205–06 (2d Cir. 2012); see Cohen Beneficial Indus. Loan Corp., U.S. 545–47 (1949). here issue do not qualify as final decisions either these respects.
As precedent makes clear, “[u]nder traditional finality principles, a court’s decision compel compliance a subpoena or deny a motion quash generally ‘final decision’ therefore is immediately appealable.” re Air Crash Belle Harbor, (internal quotation marks omitted). To obtain immediate appellate review such absent § 1292(b) certification, subpoenaed party must typically “defy court’s enforcement order, be held contempt, then appeal contempt order, which regarded final 1291.” Id. (internal quotation marks omitted). This process, recognizes only contempt judgment, underlying order, decision subject appeal, “promotes strong congressional policy—embodied 1291—against piecemeal reviews, obstructing or impeding ongoing judicial proceeding interlocutory appeals.” Id. at (internal quotation marks omitted). The availability review upon contempt also precludes application collateral order doctrine, does not invoke any event. Gross v. Rell, F.3d (stating that arguments raised appeal are deemed waived). Compare Gucci Am., Inc. Weixing Li, F.3d at 141–42 (reviewing validity third ‐ party bank where bank defied order was cited contempt), EM Ltd. Republic Argentina, F.3d 206–07 (holding collateral doctrine afforded Argentina immediate review requiring bank disclose Argentina’s worldwide subsequent appellate review was unavailable Argentina, judgment debtor rather than party whom disclosure was directed, could obtain review through disobedience contempt). fact challenged part post judgment litigation
warrants no different conclusion. such circumstances, relevant “‘final decision’ underlying judgment,” i.e., Florida judgment “attempting enforce, but subsequent concludes collection proceedings.” EM Ltd. Argentina, *13 Absent defiance contempt, appellate review order enforcing subpoena—even one directed third party—is generally unavailable until collection proceedings terminate, point will merge into final judgment effecting termination. See id. 205–06 (holding discovery directed third party bank not “final decision” does terminate creditors’ collection proceedings against Argentina); accord United States Fried, F.2d 693–95 (2d Cir. 1967) (Friendly, J.) (holding decision enforce subpoena third party post collection proceedings appealable final order).
In urging otherwise, cites cases recognizing some ‐ enforcement orders final decisions. those cases, however, orders were benefit proceedings before other authorities. Because orders granted all relief sought thus concluded work issuing courts, were akin judgments, even if denominated such. United States Constr. Prods. Research, Inc., F.3d (2d (holding directing witness testify before administrative agency could be appealed immediately without defiance contempt); Dynegy Midstream Servs., LP Trammochem, 92–94 *14 Cir. (holding same order directing compliance with arbitrator’s subpoena). such circumstances, “[t]he litigation to enforce subpoena an entirely self contained court proceeding, court’s order compelling compliance completely dispose[s] case, leaving nothing more to do but enforce judgment.” Midstream Servs., LP Trammochem, 451 F.3d 94; see Cobbledick United States, U.S. 330 (holding that, once ordered witness testify before commission, “there remain[ed] nothing do”). That case. The Southern District compelling BBVA’s compliance challenged was in furtherance collection proceedings Cuba were, remain, court, some other tribunal. same reasoning defeats BBVA’s reliance
establish finality challenged orders. Section 1782(a) allows United States courts discovery “for use proceeding or international tribunal.” Because issuance such concludes all proceedings before issuing court, we have recognized decisions subject immediate appeal. Chevron Corp. Berlinger, 2011). But here subpoenaed provide *15 discovery use in foreign tribunal; it subpoenaed provide information in collection proceeding in the Southern District—the same court that discovery order in question. BBVA nevertheless maintains analogy apt because only subpoenaed information it has withheld pertains Cuba’s assets outside United States, cannot turnover BBVA’s extraterritorial assets New York’s “separate entity rule.” Motorola Credit Corp. Standard Chartered Bank, N.Y.3d
158–59, N.Y.S.2d 597–98 (holding held bank’s
foreign branches beyond reach New York post collection proceedings bank’s branch). Thus, argues, because compliance with enforcement can provide discovery use only foreign proceedings, it should be deemed equivalent decision subject immediate appeal. argument unpersuasive it requires judicial speculation
identify finality. Although maintains compliance will yield information can support collection efforts only courts, until actually reviews such compliance, it cannot determine what authority may have—whether personam or rem, *16 whether over BBVA or other parties, whether directly or through requests judicial assistance—to take actions collect additional identified satisfaction the entered judgment. We express no view on this matter here. We conclude only that, these circumstances, BBVA cannot demonstrate the enforcement order, or the denying reconsideration, “end[ed] the litigation the merits le[ft] nothing [more] the do.” Coopers & Lybrand Livesay, U.S. (internal quotation marks omitted).
To avoid conclusion, attempts distinguish various proceedings: (1) the Southern District turnover proceeding, which it is named defendant; the Southern District action register collect the Florida judgment, not party; original Florida state action FSIA. endeavor need not detain us because, even if these proceedings are distinct actions—a question we do not decide, particularly first two proceedings—that does help demonstrate challenged decisions. We have already explained finality underlying Florida does determine finality court. EM Ltd. Argentina, Whether or court’s turnover *17 final decision assets already identified and subject writs execution, that plainly does encompass the unidentified extraterritorial that are subject challenged orders. As for registration and collection action, we have above determined is yet concluded, an enforcing action a final decision. re Air Crash Belle Harbor, 490 104–05.
III. Conclusion
To summarize, has failed demonstrate challenged on appeal enforcing an information subpoena, and denying reconsideration order, are decisions ended collection litigation they were issued. Thus, we lack under review these orders.
Accordingly, while BBVA’s motion file an oversized reply brief support motion stay pending appeal GRANTED, appeals docketed Nos. cv(L) and ‐ ‐ cv(Con) are DISMISSED lack jurisdiction, BBVA’s motion stay appeal motion Institute International Bankers European Banking Federation file amicus curiae brief appeal DENIED AS MOOT.
[1] Section 1605(a)(7) has since been replaced by 28 U.S.C. § 1605A. Applicable federal law defines “extrajudicial killing” “a deliberated killing authorized by previous pronounced by regularly constituted affording all judicial guarantees recognized indispensable civilized peoples. . . .” Torture Victim Protection Act Pub. L. No. 102 ‐ § 3(a), Stat. (codified U.S.C.A. § Note); see 1605(e)(1) (repealed) (incorporating above definition); id. 1605A(h)(7) (same).
[2] points investigative news reports attributing Sr.’s death criminal rather than political activities. See, e.g., J.A.
[3] requirement that execution procedures comport those the state where court located yields when a federal statute or the Federal Rules Civil Procedure otherwise govern. See Fed. R. Civ. P. 69(a)(1); Schneider v. Nat’l R.R. Passenger Corp., 72 F.3d 17, 19–20 (2d Cir. 1995). This has spoken in published opinion how a party in federal in New York satisfies “special proceeding” requirements N.Y. C.P.L.R. 5225(b) given that Federal Rules Civil Procedure recognize only “one form action—the civil action.” Fed. R. Civ. P. 2; see generally Saregama India, Ltd. Mosley, Nos. MC 45 ‐ P1, 11 ‐ MC ‐ 84 ‐ P1 (LAK), 2012 WL *1 (S.D.N.Y. Mar. 2012) (citing Rule in observing “special proceedings in sense used in CPLR are unknown federal courts”). We need do so appeal. We note, however, we have summarily indicated filing requirements “special proceeding” New York law need be strictly adhered long as there no prejudice opposing party giving notice claims framing issues. See Cordius Trust Kummerfeld, F. App’x (2d Cir. (summary order) (excusing failure denominate document “petition” required special proceedings). Moreover, we have noted standards governing N.Y. C.P.L.R. 5225(b) special proceedings similar those applicable summary motion practice federal courts. HBE Leasing Corp. Frank, & n.7 1995).
[4] omnibus petition includes claims two other sets plaintiffs seeking collect unrelated judgments Cuba, were consolidated before Judge Hellerstein administrative purposes.
[5] BBVA’s appeals from court’s ‐ and denial reconsideration, Nos. ‐ ‐ cv(L) and 15 ‐ 1154 ‐ cv(Con), were consolidated this underlie stay motion presented this panel. BBVA’s appeals from court’s turnover subsequent denial reconsideration, Nos. cv(L) ‐ ‐ cv(Con), have also been consolidated but issue stay motion before panel.
[6] Notably, district court did here certify its order interlocutory appeal pursuant 1292(b) (allowing Court Appeals, discretion, hear interlocutory appeal from non final order where district court certifies “involves controlling question law as there substantial ground difference opinion an immediate appeal from may materially advance ultimate termination litigation”).
[7] Because we determine finality appealed first instance, we need attempt decide what referencing when, denying stay discovery appeal, stated June “the proceedings leading decision can be.” Order Vera Cuba, S.D.N.Y. ECF No.