ALAN KAY, United States Magistrate Judge.
This matter was referred to the undersigned Magistrate Judge by the Honorable Richard W. Roberts, pursuant to Local Civil Rule 72.2, for resolution of all pending motions in the above-captioned case. (Order of Referral to United States Magistrate Judge, January 19, 2010 Minute Order.) Pending before this Court are the following motions: 1) Third-Parties' Motion to Vacate Writ of Attachment on Judgment with Prejudice [10]; 2) Plaintiff Nilo Jerez's Motion for an Order to Show Cause as to Why a Writ of Attachment Should Not be Issued against Agencies and Instrumentalities of the Republic of Cuba and its Co-Defendants [48]; 3) Camara de Comercio's Proposed Motion to Vacate Plaintiff's Writ of Execution with Respect to the Republic of Cuba's Registration of its Certification Mark for Cuban Cigars [61]
This Memorandum Opinion also addresses supplementation of the Court's record. Since the July 19, 2010 hearing,
Fed. R. Civ. P 15(d) controls supplementation of pleadings, where pleadings are defined by Fed.R.Civ.P. 7(a) to include complaints and third-party complaints; answers to complaints, counterclaims and cross claims; and if ordered, a reply to an answer. Courts also have the discretion to determine whether parties are allowed to supplement the record of a case. Having reviewed the series of "supplements" propounded by Plaintiff, Third-Parties and Camara, the Court finds that the only "supplements" that should be permitted are [84] Supplemental Authority by Plaintiff and [87] Supplemental Authority by Third-Parties and Camara, which involve two legal decisions post-dating the July 2010 hearing. The remaining "supplements" address cases that were decided prior to the July 2010 hearing and issues that were raised in the three motions and at the oral hearing on those motions, or the "supplements" follow up on Supplemental Authority in [84] and [87]. This Court neither requested additional briefing nor authorized any additional briefing and accordingly the documents docketed at [71], [72], [78], [91] and [93] should be stricken from the record.
The pending miscellaneous action involves enforcement of a default judgment issued by the United States District Court for the Southern District of Florida (hereinafter, the "Florida U.S. District Court") in the amount of $200,000,000.00 in damages, plus interest in the amount of $49,424,647.00, in favor of Plaintiff Nilo Jerez ("Jerez") against the named Defendants therein: The Republic of Cuba; Fidel Castro Ruz; Raul Castro Ruz; The Cuban Revolutionary Armed Forces and El Ministerio Del Interior. The Florida U.S. District Court's default judgment gave full faith and credit to an earlier Florida state court judgment awarding Jerez 50 million dollars in compensatory damages and 150 million dollars in punitive damages against the same Defendants. Because the Defendants challenge the jurisdiction of the Florida courts, this Court will provide a detailed description of the judicial proceedings that preceded the filing of the miscellaneous action in this Court.
On September 15, 2005, Jerez filed his Complaint in the Circuit Court of the Eleventh
On that same date, the Florida state court entered its Final Judgment (Motion to Vacate Writ of Attachment [10-2], Exh. B [January 30, 2007 Final Judgment]) finding the Defendants liable under the Torture Victim Protection Act, 28 U.S.C. § 1350. The Florida state court noted that it acquired "jurisdiction over the claims asserted by Mr. Jerez pursuant to the Alien Tort Claim[] Act, 28 U.S.C. [§ 1350] and 28 U.S.C. § 1331...." (January 30, 2007 Final Judgment at 1-2.)
Jerez subsequently moved to enforce his Florida state court Final Judgment by filing a Complaint, on December 9, 2008, in Florida U.S. District Court, in a case captioned Jerez v. Republic of Cuba, Case No. 08-23405-CIV-Hoveler (S.D.Fla.). The Florida U.S. District Court Clerk's Office entered a default against the Defendants after they failed to respond to the Complaint and that default was followed by entry of a Final Default Judgment Granting Full Faith & Credit to State Judgment ("Final Default Judgment") (attached to Registration of Foreign Judgment [1] at [1-1]) on May 6, 2009. In its Final Default Judgment, the Florida U.S. District Court did not address the Florida state court's subject matter jurisdiction to enter a final judgment nor did it undertake any independent examination of Plaintiff's case. The Final Default Judgment was granted pursuant to 28 U.S.C. § 1738, giving full faith and credit and federal recognition to the Florida state court's Final Judgment
On September 1, 2009, Jerez registered his Final Default Judgment ([1]) in this
On November 4, 2009, Plaintiff filed a Notice of Service of Writ of Attachment on Judgment [7] indicating that he had, through a private process server, served the Writ of Attachment on Judgment on the United States Department of Commerce ("Commerce").
The instant case was assigned to the Honorable Richard W. Roberts in January 2010, and thereafter referred to this Magistrate Judge for resolution of all motions. On April 14, 2010, after considering the record in this case, this Court issued a Memorandum Order quashing the Writ of Attachment issued by the Clerk's Office on grounds that the Writ was inconsistent with the Florida U.S. District Court's Final Default Judgment because it was not limited to the Defendants named therein. (April 14, 2010 Memorandum Order [43].) The Court permitted Plaintiff to apply for a Writ of Attachment consistent with the original Final Default Judgment, which would list only the named Defendants. Jerez filed a corrected Application for Writ of Attachment on April 15, 2010. (Application for Writ of Attachment by Nilo Jerez [44].)
On May 6, 2010, the Court convened a status conference to ascertain the nature of the asset(s) Plaintiff intended to attach because the proposed Writ of Attachment on Judgment [44] did not specify what "personal property, goods and chattels" Plaintiff sought to attach. (See Transcript of Proceedings from May 6, 2010[54].) During the status conference, Plaintiff's counsel identified the only "asset" at issue as the trademark (Serial No. 72153423) registered in the United States for the National Warranty Seal ("the Seal" or "the Mark") on Cuban Cigars, which is assigned to the Republic of Cuba.
The named entities, the alleged agencies and instrumentalities, filed their response on May 20, 2010. (Opposition to Motion for Order to Show Cause [52].) In that response, seventeen of the entities appeared to have conceded that for purposes of the proceeding in this Court they were, in fact, agencies and instrumentalities of the Republic of Cuba; however, five of the entities filed a separate opposition to the Motion for Order to Show Cause indicating that they did not concede and should not be considered agencies and instrumentalities of the Republic of Cuba. ([Second] Opposition to Motion for Order to Show Cause [53].)
On June 4, 2010, the Clerk of the Court issued a Writ of Attachment on Judgment for the personal property, goods and chattels of the Defendants named in the default judgment that was obtained in the Florida state court and certified by the Florida U.S. District Court. (Writ of Attachment on Judgment [58].) On June 18, 2010, this Court issued a Memorandum Order granting Camara's motion to intervene.
A telephone status conference was held on June 25, 2010, during which the seventeen entities affirmed their status as agencies and/or instrumentalities of the named Defendants (these entities are hereinafter referred to as "the Agencies/Instrumentalities") and five entities continued to dispute that they were agencies and/or instrumentalities of Cuba. This Court subsequently issued a Memorandum Order (June 30, 2010 Memorandum Order [64]) listing the entities and identifying their status, and setting a July 19, 2010 hearing on the Third-Parties' Motion to Vacate the Writ [10]; Plaintiff's Motion for Order to Show Cause as to Why a Writ of Attachment Should Not be Issued ([48]); and Camara's Motion to Vacate Plaintiff's Writ ([61]).
The essence of the three motions require the Court to rule on two issues—the jurisdiction of this Court to enforce the default judgment entered by the Florida state and federal court and execution of the Writ of Attachment. Because the relief requested and the arguments asserted by the Plaintiff, Camara and the Agencies/Instrumentalities overlap, this Court's ruling will initially address the Florida courts' jurisdiction to enter the default judgment, a prerequisite for this Court's jurisdiction to enforce the default judgment and then address whether this Court can enforce the Writ of Attachment.
Although Camara and the Agencies/Instrumentalities (collectively referred to as "Movants") and the Plaintiff focus on enforceability of the judgment, relying on the Terrorism Risk Insurance Act of 2002, ("TRIA"), Pub.L. No. 107-297, 116 Stat. 2322 (Nov. 26, 2002), codified at 28 U.S.C. § 1610 note,
If the Florida state court's reliance on statutes prevented it from acquiring subject matter jurisdiction, then its Final Judgment would not be enforceable and its lack of jurisdiction cannot be cured by a
Underwriters Nat. Assur. Co. v. N.C. Life and Acc. and Health Ins. Guaranty Ass'n, 455 U.S. 691, 704, 102 S.Ct. 1357, 71 L.Ed.2d 558 (1982).
Preliminarily, it should be noted that subject matter jurisdiction may be raised at any time, even by the court sua sponte.
A case relied upon by both Plaintiff and Movants, which discusses jurisdictional issues, and which is factually similar to the case at bar, is Weininger v. Castro, 462 F.Supp.2d 457 (S.D.N.Y.2006). In Weininger, plaintiff Weininger received a default judgment against the Republic of Cuba, Fidel Castro, Raul Castro and the Army of the Republic of Cuba, and the plaintiff McCarthy received a default judgment against the Republic of Cuba. These judgments resulted in an award of compensatory damages by the Circuit Court for the Eleventh Judicial Circuit in and for Miami-Dade County.
McCarthy brought an action on her Florida state court judgment in the Florida U.S. District Court, and a final default judgment was entered in her favor. McCarthy subsequently registered that federal judgment with the United States District Court for the Southern District of New York, which authorized issuance of a writ of execution for McCarthy to levy upon the Republic of Cuba's property in New York in order to satisfy her judgment. The property Plaintiffs sought to levy included JPM Chase bank accounts "represent[ing] deposit debts owed to `agencies and instrumentalities' of the Republic of Cuba." Id. at 464.
The Weininger court acknowledged that while it needed to determine whether any statutory exception to immunity from execution applied before permitting execution; i.e., whether TRIA was applicable, the court would first consider the question raised by Chase [and the Cuban Electric Company, which filed an amicus submission] relating to enforcement of the Florida state court judgment, based on allegations of lack of subject matter and personal jurisdiction under the FSIA. The Weininger court noted that:
Id. at 468.
In Weininger, the U.S. District Court for the Southern District of New York (the "New York U.S. District Court") noted that while a defaulting party's collateral attacks on a prior court's jurisdiction are routine, in this case, the jurisdictional question was raised by a third party amicus and a garnishee [Chase] seeking to obtain interpleader relief. 462 F.Supp.2d at 468-69. The New York U.S. District Court then observed that there had already been two levels of review, first by the Florida state courts, which "held hearings, took evidence, satisfied themselves of their jurisdiction and expressly so ruled [and] ... in the McCarthy case, [by] a Florida federal district court h[olding] that the state court judgment was entitled to full faith and credit." 462 F.Supp.2d at 469. In plaintiff McCarthy's case, the Florida U.S. District Court "made an implicit determination of jurisdiction—both its own and the state court's—and found the judgment entitled to be enforced." Id. The New York U.S. District Court further noted that in plaintiff Weininger's case, it had "granted summary judgment in lieu of complaint recognizing the Florida judgment [and] finding it entitled to full faith and credit...." 462 F.Supp.2d at 469. The Weininger court concluded that "[u]nder these circumstances, the policies and principles underlying res judicata doctrine would make it manifestly inequitable for this Court to reopen the judgments so as to permit a challenge to the underlying adjudication at the request of parties not affected by judgments, ...." Id. at 469.
After making those observations, the Weininger court engaged in an analysis of
"[A] judgment is entitled to full faith and credit—even as to questions of jurisdiction—when the second court's inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment." Durfee v. Duke, 375 U.S. 106, 111, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963). In contrast, a court need not give "preclusive effect to the state judgment on issues of subject matter jurisdiction" where "neither the judgment nor the [remainder of the] state [court] record indicates that the state court decided or even considered any questions of subject matter jurisdiction." A.L.T. Corporation v. Small Business Administration, 801 F.2d 1451, 1460 n. 17 (5th Cir.1986).
This Court is confronted with the same dilemma as the Weininger court. Plaintiff told this Court that the Florida "state court Complaint referenced 16[05(a)](7) as an exception [to sovereign immunity]," (See Transcript of July 19, 2010 motions hearing [82] ("Hearing Transcript") at 28:18-20); however, this was not correct and Plaintiff later clarified that the court "did not specifically mention ... 1605(a)(7) but it did find facts and its finding of facts supports jurisdiction under 1605(a)(5) or 1605(a)(7)." (Hearing Transcript at 28, lines 22-25; 29, lines 1-2.) Plaintiff further acknowledged that the state court "did rely and did cite to the Alien Tort Act" but "it would be error to say that is the foundation for its jurisdiction, because you need an exception to sovereign immunity to find jurisdiction, ....") (Hearing Transcript at 33, lines 11-16.)
In reviewing the record, this Court concludes that the instant case is distinguishable from Weininger in that the Florida state court in the instant case did not look to the Foreign Sovereign Immunities Act as a preliminary basis for its acquiring jurisdiction nor was there any discussion of applying an exception to that Act to waive immunity even though this is an essential prerequisite when a plaintiff sues a foreign sovereign. Furthermore, the Florida U.S. District Court did not examine the Florida state court's basis for jurisdiction or make any independent determination of its jurisdiction, instead it relied solely on the Full Faith and Credit doctrine.
Plaintiff's Complaint in the Florida state court alleged violations of The Torture Victim Protection Act of 1991 ("TVPA"), Pub.L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350, note), which allows lawsuits seeking redress for acts of torture.
In a suit involving a foreign state, a plaintiff must satisfy the court's subject matter jurisdiction under the Foreign Sovereign Immunities Act, ("FSIA"), 28 U.S.C. §§ 1330, 1602, et seq., before the court can reach claims under the Alien Tort Claims Act, 28 U.S.C. § 1350. See, e.g., Gutch v. Federal Republic of Germany, 444 F.Supp.2d 1, 7 (D.D.C.2006), cert. denied, 555 U.S. 821, 129 S.Ct. 114, 172 L.Ed.2d 35 (2008); Soudavar v. Islamic Republic of Iran, 67 Fed.Appx. 618, 619-20 (D.C.Cir.2003); Saltany v. Reagan, 886 F.2d 438, 440-41 (D.C.Cir.1989), cert. denied, 495 U.S. 932, 110 S.Ct. 2172, 109 L.Ed.2d 501 (1990). See also Nikbin v. Islamic Republic of Iran, 471 F.Supp.2d 53, 58-59 (D.D.C.2007) (The Foreign Sovereign Immunities Act "provides the sole basis for obtaining jurisdiction over a foreign state in a United States court.") (citing 28 U.S.C. § 1330; Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989)); Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993) (citation omitted). Relying on the Alien Tort Claims Act as grounds for jurisdiction does not waive sovereign immunity; rather, an exception under the FSIA must be applied in every action involving a foreign sovereign defendant. "There is no authority for the proposition that the TVPA or the ATCA or any other statute trumps or preempts the FSIA." Belhas v. Ya'Alon, 466 F.Supp.2d 127, 132 (D.D.C. 2006).
Section 1608 of the Foreign Sovereign Immunities Act provides in relevant part that "[n]o judgment by default shall be entered by a court of the United States or of a State against a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state, unless the claimant establishes his claim or
The Florida state court set out the factual background for its Final Judgment by discussing the torts and acts of torture that were inflicted upon Jerez during the 1970's
Plaintiff's Complaint in the Florida state court stated that his civil action involving claims for tort and torture was "made by an alien" (Complaint [37-12] ¶ 4) and that [at the time of the Complaint] he was a "resident alien" residing in Miami-Dade County, Florida. (Complaint ¶ 7). The Florida state court affirmatively stated that it relied upon the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350 and 28 U.S.C. § 1331 (federal question) as grounds for jurisdiction over the claims asserted by Mr. Jerez; thus, the court accepted as true Plaintiff's representation that he was an alien when the acts of torture occurred. (Final Judgment at 2.)
Reliance on the ATCA for jurisdiction is misplaced when a waiver of sovereign immunity is a prerequisite. Under section 1604 of the FSIA, unless a FSIA statutory exception to immunity applies, a foreign state is immune from the jurisdiction of federal or state courts.
In the matter pending before this Court, Plaintiff Jerez alleges that he relied
Assuming arguendo that Plaintiff could get past the hurdles of having relied on the ATCA for jurisdiction in the Florida state court when Plaintiff was not an alien but instead was a United States national (July 19, 2010 Hearing Transcript [82] at 31, lines 2-14); and assuming further the Florida state court's failure to reference the FSIA in its determination of jurisdiction was not fatal to the Florida state court acquiring jurisdiction, Plaintiff's status as a national would only satisfy one of the requirements of 1605(a)(7), if he was a national of the United States when the act upon which the claim is based occurred.
The Florida state court's Final Judgment found as a fact that Plaintiff suffered personal injury as a result of acts of torture that occurred in Cuba. Plaintiff acknowledges that many of the acts of torture alleged in his Florida state court Complaint occurred in Cuba, when he was a Cuban citizen. Plaintiff asserts however that a waiver of sovereign immunity under [former] Section 1605(a)(7) applied to his Florida state court action because a "terrorist act occurred in th[e] [Dade County] courtroom as it did in this courtroom, which is the replication of this disease [Hepatitis], and the destruction of cells every single day, in his body." (Hearing
Plaintiff alleges that he was "purposely subject[ed] . . . to Hepatitis C infection[,]" which arose from forced drug injections [in Cuba] and resulted in cirrhosis of the liver [in the United States.] (Hearing Transcript at 34, lines 10-25; 35, lines 1-25; 36, lines 1-7.) Plaintiff further asserts that: "It's an identifiable event. Cirrhosis of the liver, which [I'm] now suffering from, is an identifiable injury, separate from the initial injection or subjection to hepatitis C, in the same way that lung cancer is a separate and distinct injury from addiction to smoking." (Hearing Transcript at 47, lines 2-7.)
Plaintiff relies upon a medical opinion by Lennox Jeffers, M.D. ("Dr. Jeffers"), his physician since February 1999.
According to the Plaintiff, because that "entire tort occurr[ed] here [in the United States]" and "the entire injury occurr[ed] here[,]" Cuba's sovereign immunity was waived pursuant to Section 1605(a)(5) as well as (a)(7).
Movants contend that Plaintiff's theories regarding disease replication and biological warfare were neither presented to nor considered by the Florida state court. This Court agrees. The record in this case reflects that the Plaintiff, through his Complaint and testimony at trial, indicated that he was subjected to forced drug injections and contracted Hepatitis C, which resulted in cirrhosis of the liver. See Florida state court Complaint ¶ 29 ("Regular torture sessions included forced drug injections and electro-shock . . ."); ¶ 31 ("As a result of the physical and mental torture NILO JEREZ suffered at the hands of the Castro regime, Jerez has been left with numerous long term injuries and illnesses, including Hepatitis C . . ."). While the Florida state court made a single reference to "forced drug injections" in its Final Judgment, (Final Judgment at 6), and mentioned "Hepatitis C which has progressed to cirrhosis of the liver" when it identified a laundry list of psychiatric and physical injuries that Mr. Jerez suffered (id. at 4), the court did not engage in any discussion about torts or acts of torture that occurred while Plaintiff was a national of the United States. Accordingly, this Court finds that Plaintiff's theories relating to acts of torture occurring while Plaintiff was a U.S. national resulting from replication of hepatitis or "biological warfare" are too speculative to rely on 1605(a)(7), which requires the victim to be a national of the United States at the time the acts of torture occurred.
Plaintiff's Complaint in the Florida state court focused on inhumane and torturous acts that occurred in Cuba, while Jerez was a Cuban citizen, and these acts supported Plaintiff's TVPA claims and ATCA jurisdiction, which the Florida state court relied upon in its Final Judgment to support a finding of liability.
While it is accurate to say that 28 U.S.C. § 1605(a)(7) was referenced by Plaintiff in his Florida Complaints, neither the Florida state court nor the Florida U.S. District Court made any reference to FSIA and the waiver of sovereign immunity in their judgments. Instead, the state court focused on the acts of torture and tortious acts that occurred in Cuba while Jerez was a citizen of Cuba, without determining whether Plaintiff, when he filed suit, was a U.S. national or an alien. If the Florida state court had found as a fact Plaintiff was an alien, it could have satisfied the standard for ATCA jurisdiction. The Florida U.S. District Court appears to have adopted the state court's conclusions ostensibly without any independent inquiry.
Assuming arguendo that the Florida state court had subject matter jurisdiction to enter its Final Judgment and that Final Judgment was thus entitled to full faith and credit by the Florida U.S. District Court, this Court would still have to determine the enforceability of the Writ of Attachment, which is the subject of the pending motions. In the instant case, the Movants argue that the Writ of Attachment is not enforceable because the Cuban Assets Control Regulations ("CACR")
The CACR thus requires denial of enforcement of the Plaintiff's Writ unless there is a applicable statutory exception to the prohibition against transactions involving unlicensed attachments. The FSIA provides that "the property in the United States of a foreign state shall be immune from attachment arrest and execution except as provided in sections 1610 and 1611 of this chapter." 28 U.S.C. § 1609. The Plaintiff relies upon the Terrorism Risk Insurance Act of 2002 ("TRIA"), Pub. L. No. 107-297, § 201, 116 Stat. 2322, 2337 (2002) ("TRIA") (codified as a note to 28 U.S.C. § 1610) to provide an exception to the CACR's prohibition against enforcement of the Writ of Attachment.
TRIA, Section 201(a), provides as follows:
Movants argue however that Plaintiff's judgment is not the type of judgment that comes within TRIA's scope. Under TRIA, a person has to: 1) obtain a judgment against a terrorist party; 2) on a claim based upon an act of terrorism or for which the terrorist party is not immune under FSIA, Section 1605(a)(7) of Title 28, United States Code;
The parties agree that Cuba has been designated a terrorist party for purposes
462 F.Supp.2d at 480.
The Court need only determine the scope of the "act of terrorism" prong of TRIA if the Court finds that the tortious and torturous acts experienced by the Plaintiff in this matter fall within the definition of an "act of terrorism." An "act of terrorism" is alternatively defined to mean "(A) any act or event certified under section 102(1); or (B) to the extent not covered by subparagraph (A), any terrorist activity (as defined in section 212(a)(3)(B)(iii) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(iii)))." TRIA, supra., Section 201(d). TRIA, Section 102 (Definitions) states in relevant part that the term "act of terrorism" means:
TRIA, Pub. L. 107-297, § 102 (codified as a note to 15 U.S.C. § 6701).
In the instant case, the torture and/or tortious acts experienced by Plaintiff were not acts that "resulted in damage within the United States" and they were not committed to coerce the United States population
8 U.S.C. § 1182(a)(3)(B)(iii). Accordingly, this Court finds that the acts perpetrated against Plaintiff, albeit egregious, do not constitute "acts of terrorism" for purposes of TRIA and thus, whether or not these acts were committed by a state actor or non-state actor is not a critical inquiry because the Court has found that Plaintiff did not have a judgment on a claim based on an "act of terrorism" as that term is defined in TRIA.
To be eligible for a TRIA exception, the Plaintiff's judgment may alternatively be based upon a claim for which the terrorist party is not immune under FSIA 1605(a)(7), but in this case, the Court has already determined that 1605(a)(7) is not applicable to Plaintiff's claim to provide an exception to sovereign immunity. As previously discussed, Section 1605(a)(7) states that (i) a foreign state shall not be immune from jurisdiction of courts of the United States if the foreign state was designated as a state sponsor of terrorism at the time the act occurred, or was so designated as a result of such act, and (ii) the claimant or the victim was, at the time the act occurred, a national of the United States; and (iii) in a case in which the act occurred in the foreign state against which the claim has been brought, the claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration. As noted earlier, Cuba was not designated a "state sponsor of terrorism" until 1982, which is well after the acts sued upon herein occurred. Nor was Plaintiff a United States citizen at the time of the acts sued upon. Finally, § 1605(a)(7) is inapplicable because the state court's default judgment made no finding that Jerez complied with the arbitration requirement.
In addition to the aforementioned challenges regarding jurisdiction and TRIA, Movants also contest Plaintiff's ability to attach trademarks (such as the Mark for Cuban cigars) on grounds that the transfer of a trademark would be impermissible in gross because it would transfer the trademark without the goodwill. Marshak v. Green, 746 F.2d 927, 929 (2d Cir.1984). In Marshak, the appellate court reversed an order authorizing the United States Marshal to attach and auction the judgment debtor's registered trademark because there was no transfer of goodwill with the auction. See also Matter of GE Commercial Fin. Bus. Prop. Corp. v. Hakakian, 13 Misc.3d 413, 417, 821 N.Y.S.2d 391, 394 (N.Y.Sup.2006) (finding that a trademark cannot be assigned "in gross" apart from the business or goodwill with which the mark has been established and concluding that it would be improper to award the trademark outright) (citing Marshak, 746 F.2d 927); Rogers v. Ercona Camera Corporation, 277 F.2d 94, 101 (D.C.Cir.1960) (with a seizure of a trademark in gross, there is no acquisition of property rights permitting exclusive use).
There are no rights in a trademark apart from the business with which the mark has been associated; thus, they are essentially inseparable. Marshak v. Green, 746 F.2d 927, 929; see also 15 U.S.C. § 1060(a)(1) (stating that "[a] registered mark or a mark for which an application to register has been filed shall be assignable with the good will of the business in which the mark is used, or with that part of the good will of the business connected with the use of and symbolized by the mark.")
Movants argue that an execution upon the certification marks would constitute fraud on consumers and would violate international agreements. More specifically, they contend that:
(Third-Parties' Motion to Vacate [10] at 33.)
In the instant case, Plaintiff acknowledged during the July 19, 2010 hearing that he has not asked for attachment or transfer of the Cuban government warranty seal on Cuban cigars but instead he has requested that this Court impose an equitable lien on the trademark. (Hearing Transcript [82] at 60, lines 10-22.) See Adams Apple Distrib. Co. v. Papeleras Reunidas, S.A., 773 F.2d 925, 931 (7th Cir.1985) (A court may place an equitable lien upon a trademark to secure a judgment because an equitable lien "does not seek to give the lienholder an in gross property right to the trademark itself.")
In response to the Court's question about how equitable liens are effected, (Hearing Transcript [82] at 60, lines 23-25; 61, line 1), Plaintiff's counsel elaborated that "[i]f there were to be value derived from that equitable lien, consistent with the status of the diplomatic relations between the countries and between the status of the embargo, there would be nothing at that point to preclude us from being able to capitalize on that." (Hearing Transcript [82] at 61, lines 2-12.) Jerez argued that he intends to derive benefit from the Seal through "the sale of the Warranty Seal Trademark to a free Cuba, the licensing of the mark to a free Cuba, and/or securing deeming authority from a free Cuba to distribute the Warranty Seal in the United States in the same manner as private parties. . . ." (Plaintiff's Reply in Support of Motion to Show Cause [63] at 16.)
Further, Jerez stated that the USPTO has a form, PTO-1594, which permits the holder of a security interest on a trademark to file a record of that interest. (See Plaintiff's Opposition to Camara's Motion to Vacate [65] at [65-1], Exh. A [copy of PTO form].) Counsel for Plaintiff indicated that this Court is being asked to "issue an order that says Mr. Jerez has a lien on the attached list of trademarks [and] [t]hat would then be filed with the Patent & Trademark Office, with the Department of Commerce, and so to the extent that there was any kind of transaction involving that trademark in the future, . . ., [the PTO] would have notice of [Plaintiff's] prior equitable interest in it." (Hearing Transcript [82] at 64, lines 10-21.)
In response to Plaintiff's argument that an equitable lien is an appropriate remedy, Movants argue that the "grant of an `equitable lien' would be both meaningless and futile, and hence improper." (Camara's Reply in support of Motion to Vacate [68] at 25); see Realty Income Trust v. Eckerd, 564 F.2d 447, 458 (D.C.Cir.1977) (courts will not grant equitable relief that is "vain or useless"). Movants assert that:
([68] at 26) (emphasis in original) (citation omitted). This Court agrees that it cannot transfer the registration of the Mark under CACR.
In contrast to the equitable lien on trademarks, Plaintiff asserts that "with respect to patents, [Plaintiff is] essentially asking for a foreclosure . . . for those patents to be attached, and the ownership interest transferred to Mr. Jerez now, because you don't have any goodwill from any business as part of that." (Hearing Transcript [82] at 65, lines 1-19.) Plaintiff further argued that "there are also decisions saying that patents can be attached and used as security interests for loan, and transferred without respect to the rest of a business being transferred." (Hearing Transcript [82] at 66, lines 1-4.) Movants do not contest that patents may be attached. The Court, however, declines to enter a foreclosure of patents where such foreclosure requires the existence of a valid default judgment against the named Defendants and a finding that the writ of attachment is enforceable against the named Defendants as prerequisites to enforcement of a writ against the agencies and instrumentalities of such named Defendants, in order to attach intellectual property assigned to them.
For the reasons set forth above, the Court finds that the Florida state court and the U.S. District Court for the Southern District of Florida lacked subject matter jurisdiction to issue their respective
28 U.S.C. § 1603(b). Defendants Fidel and Raul Castro Ruz were sued individually and in their capacity as political figures. "[A]n individual can qualify as an agency or instrumentality of a foreign state." Belhas v. Ya'alon, 515 F.3d 1279, 1283 (D.C.Cir.2008), citing El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 671 (D.C.Cir.1996) (internal quotations omitted); Chuidian v. Philippine National Bank, 912 F.2d 1095, 1101-03 (9th Cir. 1990). An agency or instrumentality of a foreign state includes "[i]ndividuals acting in their official capacities[;]" however, such official is not entitled to immunity under the FSIA for acts which are not committed in an official capacity. Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1027 (D.C.Cir.1997).
15 U.S.C. § 1119.
Jerez contends that "Camara has not cited any cases that impose that limitation on the power of the Court under section 1119." (Plaintiff's Opposition to Camara's Motion to Vacate [65] at 13.)
