Casa Express Corp v. Bolivarian Republic of Venezuela
Filing
105
ORDER ON PLAINTIFF AND JUDGMENT CREDITOR'S MOTION FOR PARTIAL MODIFICATION, AND CLARIFICATION: ORDER granting in part and denying in part 77 Motion for Clarification. Signed by Judge Beth Bloom on 11/29/2022. See attached document for full details. (nan)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-23103-BLOOM/Otazo-Reyes
CASA EXPRESS CORP, as Trustee
of Casa Express Trust,
Judgement Creditor,
v.
BOLIVARIAN REPUBLIC OF VENEZUELA,
Judgment Debtor.
________________________________________/
ORDER ON PLAINTIFF AND JUDGMENT CREDITOR’S
MOTION FOR PARTIAL MODIFICATION, AND CLARIFICATION
THIS CAUSE is before the Court upon Plaintiff and Judgment Creditor Casa Express
Corp’s (“Plaintiff”) Motion for Partial Modification and Clarification of Order Granting Amended
Motion to Commence Proceedings Supplementary, ECF No. [77], (“Motion”). Respondents RIM
Group Investments Corp., RIM Group Investments I Corp., RIM Group Investments II Corp., RIM
Group Investments III Corp., Posh 8 Dynamic Inc., and Planet 2 Reaching Inc. (“Respondents”)
filed a Response, ECF No. [82], (“Response”), to which Plaintiff filed a Reply, ECF No. [100],
(“Reply”). The Court has carefully considered the Motion, Response, Reply, the record in this
case, the applicable law, and is otherwise fully advised.
I.
BACKGROUND
Plaintiff registered a judgment issued by the Southern District of New York with this Court
on August 27, 2021. See ECF No. [1]. On September 10, 2021, Plaintiff filed its Ex Parte
Expedited Motion to Commence Proceedings Supplementary, to Implead Defendants, and for
Issuance of Statutory Notices to Appear (“Ex Parte Motion”). ECF No. [3]. The Court granted the
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Case No. 21-cv-23103-BLOOM/Otazo-Reyes
Ex Parte Motion and permitted Plaintiff to implead Alejandro Andrade Cedeno (“Cedeno”), Raul
Gorrin Belisario (“Belisario”), RIM Group Investments Corp., RIM Group Investments I Corp.,
RIM Group Investments II Corp., RIM Group Investments III Corp., Posh 8 Dynamic Inc., and
Planet 2 Reaching Inc., ECF No. [4], and issued statutory notices to appear for each of the
impleaded defendants, see ECF Nos. [6]-[13].
On June 7, 2022, Plaintiff filed its Motion for Leave to Amend by Interlineation the Ex
Parte Expedited Motion to Commence Proceedings Supplementary, to Implead Defendants, and
for Issuance of Statutory Notices to Appear (“Motion for Leave to Amend”). ECF No. [42].
Specifically, through its proposed amendments, Plaintiff sought to: (1) incorporate certain
jurisdictional allegations necessary to effect service of process on impleaded defendant Belisario;
(2) implead former National Treasurer of Venezuela, Claudia Patricia Diaz Guillen (“Guillen”);
and (3) incorporate allegations that explain how the parties that participated in the foreign currency
exchange scheme were unjustly enriched at the expense of Venezuela. Id. Respondents filed their
Response in opposition to the Motion for Leave to Amend, ECF No. [45], to which Plaintiff filed
its Reply, ECF No. [50]. The Court referred the Motion for Leave to Amend to Magistrate Judge
Alicia Otazo-Reyes for a Report and Recommendations (“Referral Order”). See ECF No. [46].
The Court subsequently amended its Referral Order to reflect that the Motion for Leave to Amend
was referred to Magistrate Judge Alicia M. Otazo-Reyes for disposition. ECF No. [58]. Judge
Otazo-Reyes granted the Motion for Leave to Amend. ECF No. [59].
Plaintiff then filed its Amended Ex Parte Motion. ECF No. [60]. The Court Granted the
Amended Ex Parte Motion, ECF No. [62] and issued Statutory Notices to Appear attached to the
Amended Ex Parte Motion, ECF No. [60-29], to Guillen, Cedeno, Belisario, RIM Group
Investments Corp., RIM Group Investments I Corp., RIM Group Investments II Corp., RIM Group
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Investments III Corp., Posh 8 Dynamic Inc., and Planet 2 Reaching Inc. ECF Nos. [63]-[73], [76].
Shortly thereafter, on September 16, 2022, Plaintiff filed the Instant Motion seeking partial
modification and clarification. ECF No. [77].
In the Motion, Plaintiff requests that the Court: (1) reconsider and partially modify its Order
to only require service of the Impleaded Defendants who have not yet been served with process;
and (2) modify the Order to provide the other Impleaded Defendants and the Judgment Debtor an
opportunity to respond to the allegations incorporated via interlineation within 7 business days of
a partially modified Order. See ECF No. [77]. In the alternative, Plaintiff requests clarification as
to whether the Bolivarian Republic of Venezuela (“Venezuela”) must be re-served with the
Amended Pleading. Id. Respondents oppose Plaintiff’s request for modification and argue that
Plaintiff must comply with foreign service requirements and serve Venezuela and that
Respondents are entitled to serve full and fair answers to the amended pleading. ECF No. [82] at
3.
II. DISCUSSION
The Court addresses Plaintiff’s requests that the Court partially modify its Order on the
Amended Ex Parte Motion: (1) to only require service of the Impleaded Defendants who have not
yet been served with process; and (2) to provide the other Impleaded Defendants and the Judgment
Debtor a limited opportunity to respond to the allegations incorporated via interlineation 1. See ECF
No. [77].
Although Plaintiff requests that the Order indicate that attorney’s fees and costs shall be taxed to the Judgment
Debtor, the Court declines to address that request because it was not supported by a memorandum of law as required
by Local Rule 7.1(a)(1).
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A. Required Service
Plaintiff argues that in an ordinary civil action, a plaintiff who amends its operative
pleading would not be required to re-serve a defendant who had already been served with the
original pleading. ECF No. [77] at 2-3. Plaintiff asserts that re-service should not be required on
the Judgment Debtor or Impleaded Defendants who have already been served, including defaulted
Defendant Cedeno, because all Defendants who have already been served have actual notice of
this proceeding. Id. at 4-6. With regard to Cedeno in particular, Plaintiff specifies that the Amended
Ex Parte Motion did not assert a new claim for relief against the defaulted party. Id. at 5 (citing
Fed. R. Civ. P. 5(a)(2)). Respondents counter that the Court must require service of the amended
pleading on Judgment Debtor, Venezuela, pursuant to the requirements of the Foreign Sovereign
Immunities Act (“FSIA”) and the Hague Service Convention. ECF No. [82] at 8-10.
i.
Defendant Cedeno
Plaintiff argues that it need not re-serve defaulted Defendant Cedeno. ECF No. [77] at 46. Respondents do not address service of Defendant Cedeno. See ECF No. [82]. In support of
Plaintiff’s position, Plaintiff argues that “Rule 5 of the Federal Rules of Civil Procedure plainly
provides that there is no obligation to re-serve a party in default with an amended pleading unless
it ‘asserts a new claim for relief against such a party[.]’” ECF No. [77] at 5 (quoting Fed. R. Civ.
P. 5(a)(2)). Plaintiff asserts that the Amended Ex Parte Motion does not assert a new claim for
relief against Cedeno and therefore service of the Amended Ex Parte Motion is not necessary. Id.
(citing HostLogic Zrt. v. GH Int'l, Inc., 613CV982ORL36KRS, 2013 WL 12394254, at *2 (M.D.
Fla. Dec. 17, 2013)(holding that Plaintiff did not have to serve the amended pleading on certain
defaulted Defendants because it did “not include any new claims for relief against Defendants [but]
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merely clarifie[d] the allegations set forth in the original [pleading]”)). The Court agrees that
Plaintiff does not need to re-serve Defendant Cedeno.
ii.
Venezuela
On November 17, 2021, the Court issued an Order authorizing Plaintiff to serve Venezuela
through diplomatic channels pursuant to 28 U.S.C. § 1608(a)(4). ECF No. [38]. In that Order, the
Court specified that the Motion to Commence Proceedings Supplementary, ECF No. [3], would
be considered the equivalent of a complaint for purposes of effecting service on Venezuela through
diplomatic channels. Id. at 3. A U.S. Department of State diplomatic note, the Summons, and
Motion to Commence Proceedings Supplementary were delivered to the Embassy of the
Bolivarian Republic of Venezuela in Washington, DC on May 5, 2022. See ECF No. [41].
In support of their argument that re-service on Venezuela is necessary, Respondents rely
on Lindsayca USA, Inc. v. de Venezuela, 4:21-CV-00037, 2022 WL 3588041 (S.D. Tex. Aug. 22,
2022), report and recommendation adopted sub nom. Lindsayca USA, Inc. v. Petroleos de
Venzuela, S.A., 4:21-CV-00037, 2022 WL 4588588 (S.D. Tex. Sept. 29, 2022). There, the Court
noted that plaintiff attempted to serve both the complaint and first amended complaint with
summons on Venezuela. Id. at *1. Plaintiff contends that Lindsayca is distinguishable where
service of process was governed by 1608(b) since service was to an agency or instrumentality of
a foreign state. Here, however, service is to a foreign state or political subdivision of a foreign state
and governed by 1608(a). ECF No. [100] at 6. Plaintiff points out that due process is satisfied
because Venezuela has actual notice of this proceeding and will be given an opportunity to respond
to the allegations that have been incorporated via interlineation in the Amended Ex Parte Motion.
Id. at 7. Plaintiff relies upon the Eleventh Circuit’s decision that a district court’s failure to issue a
notice to appear did not violate due process where the third party had notice of the proceedings
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supplementary and an opportunity to contest the Court’s findings. Stansell v. Lopez Bello, 802 F.
App'x 445, 449 (11th Cir. 2020).
The Court agrees with Plaintiff. Since Venezuela was served via diplomatic channels
pursuant to this Court’s Order, Venezuela has notice of the current proceedings. Just as an amended
complaint need not be served after an initial complaint is served, service of the Amended Ex Parte
Motion on Venezuela is not necessary.
Accordingly, the Court finds that Plaintiff need only serve previously unserved Impleaded
Defendants, Belisario and Guillen.
B. Opportunity to Respond
Plaintiff requests that the Court partially modify its Order to afford Respondents Cedeno
and Venezuela an opportunity to file a response limited to the allegations incorporated in the
Amended Ex Parte Motion by interlineation within seven business days of the Court’s partially
modified Order. ECF No. [77] at 7. Respondents counter that all Respondent entities should be
permitted to fully respond and contend that the Court should not anticipatorily preclude
Respondents from “serving fulsome answers and responses on a motion for ‘clarification’ and
“modification.’” Moreover, the proper procedure would be to allow Respondents to serve amended
answers and responses and only then should Plaintiff argue to the Court that a certain response
raised by Respondents has been waived. Id. at 7-8. Plaintiff replies that Respondents’ proposed
procedure conflicts with federal court policy disfavoring duplicative litigation. ECF No. [100] at
4.
The Court agrees with Respondents. Plaintiff has not cited any case law where, in a similar
procedural posture, a Court preemptively precluded or dictated the proper contents of a response
to an amended pleading. Pursuant to Fed. R. Civ. P. 15(a)(3), the Court therefore orders Venezuela,
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Cedeno, and Respondents, to respond to the Amended Ex Parte Motion within 14 days of the
issuance of this order. Pursuant to Fed. R. Civ. P. 12(a)(1)(A)(i), Impleaded Defendants Belisario
and Guillen shall respond to the Amended Ex Parte Motion within 21 days of service of the
statutory notices to appear and the Amended Ex Parte Motion.
III. CONCLUSION
Accordingly, it is ORDERED and ADJUDGED that:
1. Plaintiff’s Motion, ECF No. [77], is GRANTED IN PART AND DENIED IN PART.
2. Plaintiff shall serve previously issued Notices to Appear to Impleaded Defendants
Belisario and Guillen in compliance with Chapter 48, Florida Statutes.
3. Venezuela, Cedeno, and Respondents shall respond to the Amended Ex Parte Motion
by December 13, 2022.
4. Impleaded Defendants Belisario and Guillen shall respond to the Amended Ex Parte
Motion within 21 days of service of the of the statutory notices to appear and the
Amended Ex Parte Motion.
DONE AND ORDERED in Chambers at Miami, Florida, on November 29, 2022.
_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
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