Commissions Import Export S.A. v. Republic of the Congo et al
| 1:2019mc00195 |
| December 23, 2019 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| Other |
| M 94 Other |
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The following documents for this case are available for you to view or download:
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Filing
142
MEMO ENDORSEMENT on 141 terminating 140 Letter Motion for Local Rule 37.2 Conference. ENDORSEMENT: The Court is in receipt of Respondent Ecree's letter (Dkt. #140), and the above response from Petitioner (Dkt. #141). As there has been no material change to the posture of this case since the Court's July 10, 2023 Order, discovery shall continue as to Ecree consistent with the Court's prior orders. (Dkt. #132). Had Ecree taken issue with the July 10, 2023 Order,it should have sought reconsideration pursuant to Local Rule 6.3. The Court agrees with Petitioners that forcing truncated briefing of Ecree's motion to dismiss in the form of letter motions regarding discovery is inappropriate at this juncture, especially gi ven Petitioner has not yet filed its opposition. The Court is considering Ecree's motion to dismiss and will rule on such motion in due course. To alleviate any potential burden associated with the Veiga deposition, Petitioners shall provide a t ranslator for the deposition, as offered in their above letter, and shall consent to conduct the deposition in the setting and location of Ecree's choosing, be it in-person or remote. The Clerk of Court is directed to terminate the motion pending at docket number 140.. (Signed by Judge Katherine Polk Failla on 9/8/2023) (rro)
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Filing
127
OPINION AND ORDER re: 107 MOTION to Dismiss under Rules 12(b)(1), (6) and (7). filed by Ecree LLC, 105 MOTION to Dismiss the Amended Petition. filed by Republic of the Congo., Because the Court finds threshold issues t hat foreclose its ancillary jurisdiction and present execution immunity obstacles under the FSIA, it does not address the remainder of the parties' arguments.17 In its supplemental brief, the Republic argues that the Court should not grant Petit ioner leave to amend. (ROC Supp. Br. 6-7). Yet, as discussed throughout this Opinion, many of the issues identified by Respondents are pleading issues. The Court cannot say at this time that amendment would be futile, though it expects Petitioner to consider carefully the analysis presented in this Opinion. See Fed. R. Civ. P. 15.The Court GRANTS Respondents' motions to dismiss the AP. (Dkt. 105, 107). But because Respondents have not shown that amendment is futile, the Court grants Petitio ner leave to replead and the ability to submit another operative pleading. Petitioner is ORDERED to file an amended petition by June 16, 2023. Petitioner is on notice that the Court will not grant further amendments should threshold issues be present . The parties are further ORDERED to submit a joint letter three weeks following submission of the amended petition - i.e., July 7, 2023 discussing proposed next steps in this case. The Clerk of Court is directed to terminate the pending motions at docket entries 105 and 107. (Amended Pleadings due by 6/16/2023.) (Signed by Judge Katherine Polk Failla on 5/23/2023) (rro) Transmission to Orders and Judgments Clerk for processing.
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Filing
119
ORDER: As of June 3, 2022, the parties' briefing on Respondents' motions to dismiss was complete. (See Dkt. #117-18). Having reviewed the parties' briefing, the Court requests supplemental briefing from Petitioner and Respondent Re public of the Congo. Specifically, the Court requests supplemental briefing on two discrete issues: Whether the alleged actions in the Amended Petition related to embezzlement of funds and use of the Condo may be attributed to Respondent Republic o f the Congo. Attribution of these alleged actions relates to this Court's ancillary jurisdiction over this case, as well as execution immunity under the Foreign Sovereign Immunities Act. The parties should address, at a minimum, the legal impo rt of Republic of Iraq v. ABB AG, 768 F.3d 145 (2d Cir. 2014), First Fidelity Bank, N.A. v. Government of Antigua & Barbuda--Permanent Mission, 877 F.2d 189 (2d Cir. 1989), and Rubin v. Islamic Republic of Iran, 33 F. Supp. 3d 1003 (N.D. Ill. 2014 ), aff'd, 830 F.3d 470 (7th Cir. 2016). Whether Petitioner's first claim for relief under the Declaratory Judgment Act, 28 U.S.C. § 2201, requires that the Court find, applying New York Debtor and Creditor Law (DCL), that Petitioner h as adequately alleged that Respondent Republic of the Congo fraudulently conveyed assets. In so addressing this issue, the parties should address any relevant differences between Petitioner's claim for relief under the Declaratory Judgment Act a nd Petitioner's second and alternative claim for relief brought under DCL 278. The parties' supplemental briefs should not exceed 15 pages double-spaced. Respondent Republic of the Congo shall submit its supplemental brief addressing the above issues by February 24, 2023, and Petitioner shall submit its supplemental brief by March 24, 2023. (Signed by Judge Katherine Polk Failla on 1/20/2023) (rro)
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Filing
114
ORDER denying 112 Letter Motion for Discovery. The Court is in receipt of Petitioner's pre-motion letter, dated May 4, 2022, concerning the Republic of the Congo's deficient discovery responses. (Dkt. #112). The Court has also received the Republic's letter in opposition, dated May 9, 2022. (Dkt. #113). The Court is sympathetic to the Republic's arguments concerning the propriety of broad-based merits discovery while there are lingering questions about subject matter jur isdiction under the Foreign Sovereign Immunities Act. The Republic's framing of this dispute gave the Court occasion to review the relevant Second Circuit precedent concerning the propriety of letting discovery go forward in such circumstances . Generally speaking, in the FSIA context, "a plaintiff may be allowed limited discovery with respect to the jurisdictional issue; but until she has shown a reasonable basis for assuming jurisdiction, she is not entitled to any other discovery." Filus v. Lot Polish Airlines, 907 F.2d 1328, 1332 (2d Cir. 1990). Further, "in the FSIA context, 'discovery should be ordered circumspectly and only to verify allegations of specific facts crucial to an immunity determination.'&q uot; EM Ltd. v. Republic of Argentina, 473 F.3d 463, 486 (2d Cir. 2007) (quoting First City, TexasHouston, N.A. v. Rafidain Bank, 150 F.3d 172, 176 (2d Cir. 1998)). Prior to a decisive finding of subject matter jurisdiction, the Court's task wit h respect to discovery is to calibrate the "delicate balancing 'between permitting discovery to substantiate exceptions to statutory foreign sovereign immunity and protecting a sovereign's... legitimate claim to immunity from discovery .'" Id. (quoting Rafidain Bank, 150 F.3d at 176). As all of the discovery that Petitioner propounded on the Republic goes to the merits of the dispute, the Court believes it to be premature prior a ruling on the Republic's pending mo tion to dismiss. Accordingly, Petitioner's motion to compel the Republic to provide substantive responses to its discovery requests is DENIED. Furthermore, after considering the Republic's more fully developed arguments concerning subject m atter jurisdiction, the Court believes the appropriate course of action is to stay discovery pending disposition of its motion to dismiss. Accordingly, discovery into the merits of the Petition is hereby STAYED as to the Republic, pending further ord er of the Court. For avoidance of doubt, this Order does not stay discovery as to Respondent Ecree LLC, which has not spoken to this issue and is not a sovereign entity protected by the FSIA. The Clerk of Court is directed to terminate the pending motion at docket entry 112. SO ORDERED. (Signed by Judge Katherine Polk Failla on 5/11/2022) (va)
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Filing
101
ORDER: As discussed on the record on February 16, 2022, Petitioner shall file an amended petition, if any, on or before March 4, 2022. Respondents shall file their respective motions to dismiss on or before April 4, 2022. Petitioner shall file a sin gle opposition brief in response to both of Respondents' motions to dismiss on or before May 18, 2022, which submission shall not exceed 35 pages. Respondents shall file their reply briefs on or before June 3, 2022.Moreover, Respondents' r equest to stay post-judgment discovery during the pendency of their motions to dismiss is hereby DENIED. SO ORDERED., ( Amended Pleadings due by 3/4/2022., Motions due by 4/4/2022., Responses due by 5/18/2022, Replies due by 6/3/2022.) (Signed by Judge Katherine Polk Failla on 2/17/2022) (ama)
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Filing
95
MEMO ENDORSEMENT on 94 Joint Letter addressed to Judge Katherine Polk Failla from Charles R. Jacob III dated December 27, 2021 re: Commissions Import Export S.A. v. Republic of the Congo and Ecree LLC, 1:19-mc-00195 (KPF), granting 34 MOTI ON to Vacate CERTIFICATE OF DEFAULT AND FOR SUMMARY DISMISSAL OF PETITION; granting 56 MOTION to Vacate Certificate of Default. ENDORSEMENT: The Court is in receipt of the parties' joint letter, dated December 27, 2021, outlining the parties' preferred next steps in this case following Respondents' payment of the court-ordered attorneys' fees. (Dkt. #94). The Court wishes to hear from Respondents on their purported bases for dismissal of this case. Ac cordingly, the Court ORDERS Respondents to file pre-motion letters regarding their anticipated motions to dismiss on or before January 10, 2022. Petitioner may file a responsive letter on or before January 17, 2022. After reviewing these submissions, the Court will decide whether to hold a conference to discuss Respondents' anticipated motions and whether to permit discovery during the pendency of these motions. Furthermore, in acknowledgment of Respondents' satisfaction of the Court&# 039;s attorneys' fees order (Dkt. #93), the Court hereby GRANTS both of Respondents' motions to vacate the certificates of default that were entered against them. As such, the Clerk of Court is directed to vacate these certificates of default and to terminate the pending motions at docket entries 34 and 56. SO ORDERED. (Signed by Judge Katherine Polk Failla on 12/28/2021) (mml)
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Filing
93
OPINION AND ORDER re: 66 MOTION for Attorney Fees . filed by Commissions Import Export S.A.. For the foregoing reasons, the Court awards attorneys' fees to G&S in the amount of $31,687, allocated equally between the Repub lic and Ecree. If either or both Respondents reimburse Petitioner for their share of the attorneys' fees award within sixty (60) days of the date of this Order, the parties shall promptly notify the Court and the certificate of default agains t that Respondent will be vacated. The Court further directs the parties to file a joint letter concerning next steps in this matter on or before December 27, 2021. The Clerk of Court is directed to terminate the motion at docket entry 66. (Signed by Judge Katherine Polk Failla on 10/27/2021) (rro)
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Filing
89
ORDER denying 81 Motion for Preliminary Injunction. With counsel's reassurance in mind, Petitioner's motion for a preliminary injunction is DENIED. The Court intends to hold Respondent's counsel to his word, and Respondents are adv ised that any sale of the Condominium or disposition of the proceeds of the sale of the Condominium in contravention of counsels representations to the Court shall be viewed through the lens of the Courts contempt powers. SO ORDERED. (Signed by Judge Katherine Polk Failla on 7/22/2020) (kv)
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Filing
84
ORDER: The Court is in receipt of Petitioner's July 2, 2020 motion for a preliminary injunction enjoining Respondents from disposing of or transferring proceeds from any sale of the Condominium and directing that such proceeds be deposited with the Court or otherwise held in escrow pending the outcome of this proceeding. (Dkt. #81-83). Respondents are hereby ORDERED to file a response to Petitioner's motion on or before July 16, 2020. Respondents are advised that any dispositio n of the proceeds of the sale of the Condominium before Petitioner's motion for a preliminary injunction is resolved shall be viewed through the lens of the Court's contempt powers. Set Deadlines/Hearing as to 81 MOTION for Preliminary Injunction . :( Responses due by 7/16/2020) (Signed by Judge Katherine Polk Failla on 7/6/2020) (rro)
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Filing
80
MEMO ENDORSEMENT on 79 withdrawing 75 Motion for Preliminary Injunction; granting 79 Motion to Withdraw. ENDORSEMENT: Application GRANTED. The Clerk of Court is directed to terminate the motions pending at docket entries 75 and 79. (Signed by Judge Katherine Polk Failla on 7/2/2020) (rro)
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Filing
78
ORDER: The Court is in receipt of Petitioner's motion for a preliminary injunction enjoining Respondents from disposing of or transferring proceeds from any sale of the Condominium and directing that such proceeds be deposited with the Court o r otherwise held in escrow pending the outcome of this proceeding. (Dkt. #75-77). Respondents are hereby ORDERED to file a response to Petitioner's motion on or before July 15, 2020. Respondents are advised that any disposition of the proceeds o f the sale of the Condominium before Petitioner's motion for a preliminary injunction is resolved shall be viewed through the lens of the Court's contempt powers. Set Deadlines/Hearing as to 75 MOTION for Preliminary Injunction . :( Responses due by 7/15/2020) (Signed by Judge Katherine Polk Failla on 7/1/2020) (rro)
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Filing
49
ORDER: Petitioner is hereby ORDERED to show cause why its requests should not be filed in the District of Columbia, before the courts in which the 2013 Judgment and the 2015 Judgment were originally entered. Petitioner shall file a letter, not to exceed five pages in length, on or before February 11, 2020, in support of its position that this Court, not the District of Columbia, should grant the relief sought. Respondent may file a letter in opposition, not to exceed five pages in length, on or before February 18, 2020. (Signed by Judge Katherine Polk Failla on 1/28/2020) (mro)
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Filing
33
ORDER: Accordingly, the Court will set a schedule for the filing of Respondent Republic of the Congo's anticipated motion to vacate the certificate of default entered against it. Respondent shall file its motion on or before January 3, 2020. Petitioner shall file its opposition papers on or before January 17, 2020. Respondent shall then file its reply papers, if any, on or before January 24, 2020. The Court will not permit Respondent Republic of the Congo to extend this briefing sche dule, but it will permit Petitioner to extend for good cause shown. Given the schedule set forth in the preceding paragraph, and the Court's desire to know ex ante whether this matter will involve two defaulting parties or one, the Court will refrain from issuing an order to show cause for default judgment against Respondent Ecree LLC, until Respondent Republic of the Congo's motion to vacate has been resolved. SO ORDERED. (Motions due by 1/3/2020, Responses due by 1/17/2020, Replies due by 1/24/2020.) (Signed by Judge Katherine Polk Failla on 12/20/2019) (jca)
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