Filed: Sep. 08, 2015
Latest Update: Mar. 02, 2020
Summary: 14-3743-cv(L) Vera v. Republic of Cuba In the United States Court of Appeals For the Second Circuit _ August Term, 2015 (Argued: August 18, 2015 Decided: September 8, 2015) Docket Nos. 14-3743-cv(L); 15-1154-cv(Con) _ ALDO VERA, JR., as Personal Representative of the Estate of Aldo Vera, Sr., Plaintiff-Appellee, —v.— THE REPUBLIC OF CUBA, Defendant, BANCO BILBAO VIZCAYA ARGENTARIA, S.A., Appellant. _ Before: CABRANES, RAGGI, and WESLEY, Circuit Judges. _ 1 On appeal from orders entered in the
Summary: 14-3743-cv(L) Vera v. Republic of Cuba In the United States Court of Appeals For the Second Circuit _ August Term, 2015 (Argued: August 18, 2015 Decided: September 8, 2015) Docket Nos. 14-3743-cv(L); 15-1154-cv(Con) _ ALDO VERA, JR., as Personal Representative of the Estate of Aldo Vera, Sr., Plaintiff-Appellee, —v.— THE REPUBLIC OF CUBA, Defendant, BANCO BILBAO VIZCAYA ARGENTARIA, S.A., Appellant. _ Before: CABRANES, RAGGI, and WESLEY, Circuit Judges. _ 1 On appeal from orders entered in the S..
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14-3743-cv(L)
Vera v. Republic of Cuba
In the
United States Court of Appeals
For the Second Circuit
________________
August Term, 2015
(Argued: August 18, 2015 Decided: September 8, 2015)
Docket Nos. 14‐3743‐cv(L); 15‐1154‐cv(Con)
________________
ALDO VERA, JR.,
as Personal Representative of the Estate of Aldo Vera, Sr.,
Plaintiff‐Appellee,
—v.—
THE REPUBLIC OF CUBA,
Defendant,
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.,
Appellant.
________________
Before:
CABRANES, RAGGI, and WESLEY, Circuit Judges.
________________
1
On appeal from orders entered in the Southern District of New York
(Hellerstein, J.) (1) enforcing an information subpoena against a third‐party
foreign bank in connection with plaintiff’s ongoing efforts to enforce a money
judgment against the Republic of Cuba, and (2) denying reconsideration, the
bank moves for a stay pending appeal. We deny the motion as moot because the
challenged decisions are not appealable final orders, and, therefore, we lack
appellate jurisdiction in this matter.
APPEALS DISMISSED.
________________
KENNETH A. CARUSO (Kelly A. Bonner, Harold W. Williford, on the
brief), White & Case LLP, New York, New York, for Appellant.
JEFFREY E. GLEN, Anderson Kill P.C., New York, New York (Robert
A. Swift, Kohn, Swift & Graf, P.C., Philadelphia,
Pennsylvania, on the brief), for Plaintiff‐Appellee.
________________
REENA RAGGI, Circuit Judge:
Third‐party defendant Banco Bilbao Vizcaya Argentaria, S.A. (“BBVA”), a
Spanish bank, appeals from orders entered in the United States District Court for
the Southern District of New York (Alvin K. Hellerstein, Judge) on September 10,
2014, and March 17, 2015. The first order directs BBVA to comply with an
2
information subpoena issued in connection with plaintiff Aldo Vera, Jr.’s attempt
to enforce a $49 million default judgment against the Republic of Cuba; the
second order denies reconsideration of the first. BBVA now moves this court for
a stay of the district court’s enforcement order pending resolution of these
appeals. Vera, Jr., opposes a stay, arguing, inter alia, that this court is without
jurisdiction because the appealed decisions are not final orders under 28 U.S.C.
§ 1291. We agree and, therefore, dismiss the appeals for lack of jurisdiction and
deny the stay motion as moot.
I. Background
A. The Florida Default Judgment
In 2001, Aldo Vera, Jr., acting as representative of his father Aldo Vera,
Sr.’s estate, invoked the terrorism‐exception provision of the Foreign Sovereign
Immunities Act (“FSIA”) to sue the Republic of Cuba in Florida state court for
money damages resulting from his father’s 1976 murder in San Juan, Puerto Rico.
See 28 U.S.C. § 1605(a)(7); Final Judgment at 1–4, Vera v. Republic of Cuba, No.
01‐31216 (Fla. Cir. Ct. May 15, 2008) (construing FSIA terrorism exception to
3
allow money‐damages action against foreign state for extrajudicial killing).1
Vera, Jr., alleged that his father—formerly Havana’s Chief of Police—fled Cuba
after becoming disillusioned with the Communist regime, residing thereafter in
Florida and Puerto Rico, where he participated in counter‐revolutionary
activities. Final Judgment at 5, Vera v. Republic of Cuba, No. 01‐31216 (Fla. Cir.
Ct. May 15, 2008). On October 25, 1976, as Vera, Sr., was emerging from a
political meeting in San Juan, he was shot dead, allegedly by agents acting on
orders of the Cuban government. See id. While BBVA disputes this account,
that issue is not before us.2 Cuba failed to appear in the Florida action, and, in
2008, after holding a bench trial, the state court entered a default judgment in
Vera, Jr.’s favor for $95,579,591.22. See id. at 1–3, 9–10; see also 28 U.S.C.
§ 1608(e) (requiring FSIA plaintiff to “establish[] his claim or right to relief by
1 Section 1605(a)(7) has since been replaced by 28 U.S.C. § 1605A. Applicable
federal law defines an “extrajudicial killing” as “a deliberated killing not
authorized by a previous judgment pronounced by a regularly constituted court
affording all the judicial guarantees which are recognized as indispensable by
civilized peoples. . . .” Torture Victim Protection Act of 1991, Pub. L. No. 102‐
256, § 3(a), 106 Stat. 73, 73 (1992) (codified at 28 U.S.C.A. § 1350 Note); see 28
U.S.C. § 1605(e)(1) (repealed) (incorporating above definition); id. § 1605A(h)(7)
(same).
2 BBVA points to investigative and news reports attributing Vera, Sr.’s death to
criminal rather than political activities. See, e.g., J.A. 324, 332.
4
evidence satisfactory to the court” before entry of default judgment against
foreign state).
B. Entry of the Florida Judgment in the Southern District of New York
and Ensuing Collection Proceedings
In 2012, Vera, Jr., again on behalf of his father’s estate, filed suit against the
Republic of Cuba in the Southern District of New York seeking entry of the
Florida judgment under the Full Faith and Credit Act, 28 U.S.C. § 1738. See Vera
v. Republic of Cuba, No. 12 Civ. 1596 (AKH) (S.D.N.Y.) (hereinafter “Vera v.
Republic of Cuba”). After Cuba failed to appear in this action, the district court,
by default, entered the Florida judgment on August 20, 2012, in the amount of
$49,346,713.22, not recognizing that part of the judgment awarding $50 million in
punitive damages. See 28 U.S.C. § 1606 (prohibiting award of punitive damages
against foreign state); Judgment, Vera v. Republic of Cuba, S.D.N.Y. ECF No. 12.
Two months later, on October 11, 2012, the district court authorized Vera, Jr., to
pursue attachment and execution on the judgment. See 28 U.S.C. § 1610(c)
(requiring “reasonable period of time” after entry of judgment before attachment
of foreign state’s assets permitted).
Toward that end, Vera, Jr., issued subpoenas to the New York branches of
various banks, seeking to discover assets that Cuba held at those banks. See Fed.
5
R. Civ. P. 69(a)(2); N.Y. C.P.L.R. § 5224(a). The subpoena challenged on this
appeal was directed to BBVA’s New York branch and sought disclosure of all of
Cuba’s sovereign assets held by BBVA worldwide. BBVA responded by
identifying Cuba’s sovereign assets at its New York branch, but it provided no
information about any of Cuba’s assets that the bank may hold abroad.
On November 13, 2013, Vera, Jr., moved to compel BBVA’s compliance
with the subpoena’s request for disclosure of Cuba’s worldwide assets. On
December 6, 2013, BBVA cross‐moved to quash the subpoena, arguing that
(1) the subpoena was void ab initio because the FSIA did not support jurisdiction
for Vera, Jr.’s actions against Cuba; and (2) under Daimler AG v. Bauman, 134 S.
Ct. 746 (2014), BBVA was not subject to personal jurisdiction in New York with
respect to assets held abroad.
Meanwhile, starting in February 2013 and for some time thereafter, Vera,
Jr., filed motions in the district court for orders directing various banks to turn
over identified Cuban sovereign assets held at the banks’ New York branches. A
number of banks objected, maintaining that Vera, Jr., had to proceed against
them by “special proceeding” pursuant to N.Y. C.P.L.R. § 5225(b) rather than by
motion. See Fed. R. Civ. P. 69(a)(1) (requiring judgment enforcement
6
proceedings to comport with “procedure of the state where the court is
located”).3 On June 25, 2013, the district court orally directed Vera, Jr., to file and
serve a formal pleading for turnover naming the banks as defendants. The court
explained that this action (1) ensured its jurisdiction to order 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 (2009) (explaining that use of special proceeding
ensures jurisdiction to order third party to turn over assets); and (2) allowed the
3 The requirement that execution procedures comport with those of the state
where the district court is located yields when a federal statute or the Federal
Rules of 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 court has not
spoken in a published opinion to how a party in federal court in New York
satisfies the “special proceeding” requirements of N.Y. C.P.L.R. § 5225(b) given
that the Federal Rules of Civil Procedure recognize only “one form of action—the
civil action.” Fed. R. Civ. P. 2; see generally Saregama India, Ltd. v. Mosley,
Nos. 12‐MC‐45‐P1, 11‐MC‐84‐P1 (LAK), 2012 WL 955520, at *1 (S.D.N.Y. Mar. 20,
2012) (citing Rule 2 in observing that “special proceedings in the sense used in
the CPLR are unknown in federal courts”). We need not do so on this appeal.
We note, however, that we have summarily indicated that the filing
requirements of a “special proceeding” under New York law need not be strictly
adhered to as long as there is no prejudice to the opposing party in giving notice
of the claims and framing the issues. See Cordius Trust v. Kummerfeld, 153 F.
App’x 761, 763 (2d Cir. 2005) (summary order) (excusing failure to denominate
document a “petition” as required in New York special proceedings). Moreover,
we have noted that the standards governing N.Y. C.P.L.R. § 5225(b) special
proceedings are similar to those applicable to summary judgment motion
practice in federal courts. See HBE Leasing Corp. v. Frank, 48 F.3d 623, 633 & n.7
(2d Cir. 1995).
7
banks to interplead other potential claimants to the assets at issue. See Tr. of
June 25, 2013, at 29–38, Vera v. Republic of Cuba, S.D.N.Y. ECF No. 274; see also
Order Terminating Mots. and Regulating Status, Vera v. Republic of Cuba,
S.D.N.Y. ECF No. 323.
Consistent with the court’s directive, on September 20, 2013, Vera, Jr., filed
with the court, and thereafter served on BBVA and other banks, an omnibus
petition for the turnover of Cuban sovereign assets in New York against which
writs of execution had been levied under the Southern‐District‐recognized
Florida judgment. See Pet. for Turnover Order ¶¶ 48–49, Vera v. Republic of
Cuba, S.D.N.Y. ECF No. 298.4
On September 10, 2014, while this turnover petition was pending, the
district court rejected BBVA’s challenges to jurisdiction and ordered BBVA to
“provide full and complete answers with respect to the Republic of Cuba’s assets
located in [BBVA’s] branches outside of, as well as inside, the United States.”
Order at 2, Vera v. Republic of Cuba, S.D.N.Y. ECF No. 677. BBVA both timely
4 The omnibus petition includes claims by two other sets of plaintiffs seeking to
collect unrelated judgments against the Republic of Cuba, which were
consolidated before Judge Hellerstein for administrative purposes.
8
appealed and moved for reconsideration, arguing that this court’s intervening
decision in Gucci America, Inc. v. Weixing Li, 768 F.3d 122 (2d Cir. 2014),
compelled the conclusion that BBVA was not subject to general personal
jurisdiction in New York. In a single written opinion issued on March 17, 2015,
the district court both (1) denied reconsideration of its September 20, 2014
enforcement order, and (2) granted the omnibus turnover petition as to Cuba’s
sovereign assets held at BBVA’s New York branch. See 2015 WL 1244050
(S.D.N.Y. Mar. 17, 2015). BBVA timely appealed both orders.5
BBVA now moves for a stay of the district court’s enforcement order
pending resolution of these appeals, arguing that the district court lacked
jurisdiction to order worldwide discovery. In opposing a stay, Vera, Jr., argues,
inter alia, that this court is without jurisdiction because the appealed decisions
are not final orders under 28 U.S.C. § 1291.
5 BBVA’s appeals from the district court’s subpoena‐enforcement order and
denial of reconsideration, Nos. 14‐2743‐cv(L) and 15‐1154‐cv(Con), were
consolidated by this court and underlie the stay motion presented to this panel.
BBVA’s appeals from the district court’s turnover order and subsequent denial of
reconsideration, Nos. 15‐1147‐cv(L) and 15‐1796‐cv(Con), have also been
consolidated but are not at issue in the stay motion before this panel.
9
II. Discussion
This court has jurisdiction to review “final decisions” of a district court, 28
U.S.C. § 1291, as well as those interlocutory orders specified in 28 U.S.C. § 1292.
Because BBVA asserts jurisdiction only under § 1291, and not under § 1292,6
we here consider only whether the appealed orders enforcing the subpoena and
denying reconsideration are “final decisions” within the meaning of § 1291.7
A final decision is one that “ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” Coopers & Lybrand v.
Livesay, 437 U.S. 463, 467 (1978) (internal quotation marks omitted); accord Cox
v. United States, 783 F.3d 145, 147 (2d Cir. 2015). Under the collateral order
doctrine, an interlocutory order can also be deemed final and immediately
6 Notably, the district court did not here certify its enforcement order for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b) (allowing Court of Appeals,
in its discretion, to hear interlocutory appeal from non‐final order where district
court certifies that order “involves a controlling question of law as to which there
is substantial ground for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate termination of the
litigation”).
7 Because we determine the finality of an appealed order in the first instance, we
need not attempt to decide what the district court was referencing when, in
denying a stay of discovery pending appeal, the district court stated on June 4,
2015, that “the proceedings leading to this decision are as final as can be.” Order
at 6, Vera v. Republic of Cuba, S.D.N.Y. ECF No. 789.
10
appealable under § 1291 if it “(1) conclusively determines a disputed question;
(2) resolves an important issue completely separate from the merits of the action;
and (3) is effectively unreviewable on appeal from final judgment.” EM Ltd. v.
Republic of Argentina, 695 F.3d 201, 205–06 (2d Cir. 2012); see Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 545–47 (1949). The orders here at
issue do not qualify as final decisions in either of these respects.
As precedent makes clear, “[u]nder traditional finality principles, a district
court’s decision to compel compliance with a subpoena or to deny a motion to
quash a subpoena is generally not a ‘final decision’ and therefore is not
immediately appealable.” In re Air Crash at Belle Harbor, 490 F.3d 99, 104 (2d
Cir. 2007) (internal quotation marks omitted). To obtain immediate appellate
review of such an order absent § 1292(b) certification, the subpoenaed party must
typically “defy the district court’s enforcement order, be held in contempt, and
then appeal the contempt order, which is regarded as final under § 1291.” Id.
(internal quotation marks omitted). This process, which recognizes only the
contempt judgment, not the underlying enforcement order, as a final decision
subject to appeal, “promotes the strong congressional policy—embodied in 28
U.S.C. § 1291—against piecemeal reviews, and against obstructing or impeding
11
an ongoing judicial proceeding by interlocutory appeals.” Id. at 105 (internal
quotation marks omitted). The availability to BBVA of review upon contempt
also precludes application of the collateral order doctrine, which BBVA does not
invoke in any event. See Gross v. Rell, 585 F.3d 72, 95 (2d Cir. 2009) (stating that
arguments not raised on appeal are deemed waived). Compare Gucci Am., Inc.
v. Weixing Li, 768 F.3d at 141–42 (reviewing validity of subpoena issued to third‐
party bank where bank defied enforcement order and was cited for contempt),
with EM Ltd. v. Republic of Argentina, 695 F.3d at 206–07 (holding that collateral
order doctrine afforded Argentina immediate review of order requiring foreign
bank to disclose Argentina’s worldwide assets because subsequent appellate
review was unavailable and Argentina, as judgment debtor rather than party to
whom disclosure order was directed, could not obtain review through
disobedience and contempt).
The fact that the challenged orders are part of post‐judgment litigation
warrants no different conclusion. In such circumstances, the relevant “‘final
decision’ is not the underlying judgment,” i.e., the Florida judgment that Vera,
Jr., was “attempting to enforce, but the subsequent judgment that concludes the
collection proceedings.” EM Ltd. v. Republic of Argentina, 695 F.3d at 205.
12
Absent defiance and contempt, appellate review of an order enforcing a
subpoena—even one directed to a third party—is generally unavailable until the
collection proceedings terminate, at which point the order will merge into the
final judgment effecting that termination. See id. at 205–06 (holding that
discovery order directed to third‐party bank is not “final decision” because it
does not terminate creditors’ collection proceedings against Argentina); accord
United States v. Fried, 386 F.2d 691, 693–95 (2d Cir. 1967) (Friendly, J.) (holding
that decision to enforce subpoena against third party in post‐judgment collection
proceedings was not appealable final order).
In urging otherwise, BBVA cites cases recognizing some subpoena‐
enforcement orders as § 1291 final decisions. In those cases, however, the orders
were issued to benefit proceedings pending before other authorities. Because the
enforcement orders granted all relief sought and thus concluded the work of the
issuing district courts, the orders were akin to final judgments, even if not
denominated as such. See United States v. Constr. Prods. Research, Inc., 73 F.3d
464, 469 (2d Cir. 1996) (holding that order directing witness to testify before
administrative agency could be appealed immediately without defiance and
contempt); Dynegy Midstream Servs., LP v. Trammochem, 451 F.3d 89, 92–94 (2d
13
Cir. 2006) (holding same for order directing compliance with arbitrator’s
subpoena). In such circumstances, “[t]he litigation to enforce the subpoena is an
entirely self‐contained court proceeding, and the court’s order compelling
compliance completely dispose[s] of the case, leaving nothing more for the court
to do but enforce the judgment.” Midstream Servs., LP v. Trammochem, 451
F.3d at 94; see Cobbledick v. United States, 309 U.S. 323, 330 (1940) (holding that,
once court ordered witness to testify before commission, “there remain[ed]
nothing for it to do”). That is not this case. The Southern District order
compelling BBVA’s compliance with the challenged subpoena was in furtherance
of collection proceedings against Cuba that were, and remain, pending in that
court, not in some other tribunal.
The same reasoning defeats BBVA’s reliance on 28 U.S.C. § 1782 to
establish the finality of the challenged orders. Section 1782(a) allows United
States courts to order discovery “for use in a proceeding in a foreign or
international tribunal.” Because the issuance of such an order concludes all
proceedings before the issuing district court, we have recognized § 1782 orders
as final decisions subject to immediate appeal. See Chevron Corp. v. Berlinger,
629 F.3d 297, 306 (2d Cir. 2011). But BBVA was not here subpoenaed to provide
14
discovery for use in a foreign tribunal; it was subpoenaed to provide information
in a collection proceeding pending in the Southern District—the same court that
issued the discovery order in question. BBVA nevertheless maintains that the
§ 1782 analogy is apt because the only subpoenaed information it has withheld
pertains to Cuba’s assets outside the United States, and the district court cannot
order the turnover of BBVA’s extraterritorial assets under New York’s “separate
entity rule.” See Motorola Credit Corp. v. Standard Chartered Bank, 24 N.Y.3d
149, 158–59, 996 N.Y.S.2d 594, 597–98 (2014) (holding that assets held at bank’s
foreign branches are beyond reach of New York post‐judgment collection
proceedings against bank’s New York branch). Thus, BBVA argues, because
compliance with the enforcement order can provide discovery of use only in
foreign proceedings, it should be deemed the equivalent of a § 1782 final decision
subject to immediate appeal.
The argument is unpersuasive because it requires judicial speculation to
identify finality. Although BBVA maintains that its compliance with the
enforcement order will yield information that can support collection efforts only
in foreign courts, until the district court actually reviews such compliance, it
cannot determine what authority it may have—whether in personam or in rem,
15
whether over BBVA or other parties, whether directly or through requests for
foreign judicial assistance—to take actions to collect additional identified assets
in satisfaction of the entered judgment. We express no view on this matter here.
We conclude only that, in these circumstances, BBVA cannot demonstrate that
the enforcement order, or the order denying its reconsideration, “end[ed] the
litigation on the merits and le[ft] nothing [more] for the court to do.” Coopers &
Lybrand v. Livesay, 437 U.S. at 467 (internal quotation marks omitted).
To avoid this conclusion, BBVA attempts to distinguish various
proceedings: (1) the Southern District turnover proceeding, in which it is named
as a defendant; (2) the Southern District action to register and collect the Florida
judgment, to which it is not a party; and (3) the original Florida state‐court action
under the FSIA. The endeavor need not detain us because, even if these
proceedings are distinct actions—a question we do not decide, particularly as to
the first two proceedings—that does not help BBVA demonstrate that the
challenged orders are final decisions. We have already explained that the finality
of the underlying Florida judgment does not determine the finality of the
enforcement order issued by the district court. See EM Ltd. v. Republic of
Argentina, 695 F.3d at 205. Whether or not the district court’s turnover order is a
16
final decision as to assets already identified and subject to writs of execution, that
order plainly does not encompass the unidentified extraterritorial assets that are
the subject of the challenged orders. As for the registration and collection action,
because we have above determined that it is not yet concluded, an order
enforcing a subpoena issued in that action is not a final decision. See In re Air
Crash at Belle Harbor, 490 F.3d at 104–05.
III. Conclusion
To summarize, BBVA has failed to demonstrate that the orders challenged
on this appeal (1) enforcing an information subpoena, and (2) denying
reconsideration of the enforcement order, are final decisions that ended the
collection litigation in which they were issued. Thus, we lack jurisdiction under
28 U.S.C. § 1291 to review these orders.
Accordingly, while BBVA’s motion to file an oversized reply brief in
support of its motion for a stay pending appeal is GRANTED, the appeals
docketed under Nos. 14‐3743‐cv(L) and 15‐1154‐cv(Con) are DISMISSED for lack
of jurisdiction, and BBVA’s motion for a stay pending appeal and the motion of
the Institute of International Bankers and the European Banking Federation to
file an amicus curiae brief on appeal are DENIED AS MOOT.
17