Firefighters' Retirement System et al v. Citco Group Limited et al

Filing 437

RULING denying 365 MOTION to Dismiss Citco Fund Services (Suisse) S.A. Signed by Judge Shelly D. Dick on 8/14/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

FIREFIGHTERS’ RETIRMENT
SYSTEM, ET AL.

CIVIL ACTION

VERSUS

13-373-SDD-EWD

CITCO GROUP LIMITED, ET. AL.
RULING
The matter before the Court is the Motion to Dismiss Citco Fund Services (Suisse)
S.A.1 filed by co-defendant, Citco Fund Services (Cayman Islands) Ltd. (“CFS Cayman
Islands”) purportedly on behalf of Citco Fund Services (Suisse) S.A. (“CFS Suisse”). The
Plaintiffs, Firefighters’ Retirement System, et al. (“Plaintiffs”) have filed an Opposition2 to
this motion, to which CFS Cayman Islands, again purportedly on behalf of CFS Suisse,
has filed a Reply.3 For the following reasons, the Court finds that CFS Cayman Islands
lacks standing to proceed representationally on behalf of CFS Suisse and, accordingly,
the Motion is DENIED.
I.

FACTUAL BACKGROUND4
The Motion, filed by CFS Cayman, seeks relief on behalf of a co-defendant CFS

Suisse. CFS Suisse was named as a Defendant in the present case in Paragraph 2(C)

1

Rec. Doc. 365.
Rec. Doc. 366.
3
Rec. Doc. 370.
4
The Court adopts the factual background, as it applies to the Citco Defendants, by reference to its factual
background in Ruling at Rec. Docs. 325 and 327.
2

40555 
Page 1 of 4 

of Plaintiffs’ Petition.5 CFS Cayman Islands moves for dismissal of co-defendant CFS
Suisse on the grounds of insufficient service of process.6 The Plaintiffs have opposed
this motion.7 The Motion is not properly before the Court and as such shall be DENIED.
CFS Cayman Islands lacks the procedural capacity to move this Court for relief as to a
co-defendant, in this case, CFS Suisse.
II.

LAW AND ANALYSIS - CFS Cayman Islands’ Representative Capacity to
Seek Relief on Behalf of CFS Suisse
The Southern District of Texas examined a factually similar situation in Lopez v.

Countrywide Mortgage.8 In Lopez, Countrywide, a defendant, moved to dismiss a codefendant, Barrett Burke (“Burke”), “because Plaintiff failed to serve Burke with 120 days,
as required by [FRCP] 4(m).”9 The court in Lopez dismissed Countrywide’s motion to
challenge service on behalf of Burke stating, “Countrywide has cited no authority, and the
Court has found none, to support Countrywide’s standing to challenge service on behalf
of another defendant.”10 Similarly, in this case, CFS Cayman Islands is challenging
service on behalf of CFS Suisse, a co-defendant. The only authority that CFS Cayman
cites for its representational capacity to proceed on behalf of CFS Suisse is found in
Footnote 1 of its Memo which reads: “The Court’s Scheduling Conference Report and
Order dated December 14, 2016 sets a deadline for ‘any party to file a motion to dismiss

5

Rec. Doc. 1-3, p. 3.
CFS Cayman Islands moves for dismissal of co-defendant CFS Suisse pursuant to FRCP 12(b)(5)
asserting that service of process was insufficient because CFS Suisse was not a legal entity capable of
being served when Plaintiffs attempted service under the Hague Convention in June 2013. Rec. Doc. 370,
p. 2.
7
Rec. Doc. 366.
8
06-cv-116, 2008 WL 910073 at *1 (S.D. Tx. Apr. 2, 2008).
9
Id. at *3.
10
Id. The Lopez court also stated: “Further, at this time, the issue has become moot because [Burke] has
been served and answered in this action.”
6

40555 
Page 2 of 4 

these entities.’ (ECF No. 356 at 3)(emphasis added). Citco Fund Services (Cayman
Islands) Ltd. has relevant information and is therefore filing this motion to dismiss.”11 CFS
Cayman Islands’ reliance on this order does not confer capacity to act on behalf of a codefendant.
The United States District Court for the Southern District of Mississippi in Spillers
v. Tillman examined whether a party may move for relief on behalf of a co-defendant.12
In Spillers an attorney for Tillman, a defendant, filed a notice of removal on behalf of both
Tillman and the co-defendant Hospital.13 The Notice of Removal pleading was signed by
counsel for Tillman, and the court noted that “the Notice [of Removal] does not state that
[the attorney] is authorized to act for the [co-defendant] Hospital.”14 The plaintiffs in
Spillers filed a motion to remand alleging that the Hospital failed to join in the consent to
removal within the 30 day period required by law.15 In granting the plaintiffs’ motion to
remand, the Spillers court held: “[Federal Rule of Civil Procedure] 11 does not authorize
one party to make representations or file pleadings on behalf of another. Rather, Rule 11
requires that each pleading, motion or other paper submitted to the court be signed by
the party or its attorney of record, if represented.”16
In the present case, CFS Suisse has made no appearance and has no counsel of
record. Counsel for CFS Cayman Islands does not purport to represent CFS Suisse.
“[T]he meaning of Rule 11 is clear: ‘one attorney of record’ refers to each individual

11

Rec. Doc. 365, p. 1.
Spillers v.Tillman, 96-cv-157, 959 F.Supp. 364, 367 (S.D. Miss. Mar. 17, 1997).
13
Id.
14
Id.
15
Id.
16
Id. at 370 (citing Creekmore v. Food Lion, Inc., 797 F.Supp. 505, 508 (E.D. Va. Jul. 23, 1992)).
12

40555 
Page 3 of 4 

defendant and not to the defendants collectively.”17 Counsel who filed the present motion
represents CFS Cayman Islands, not CFS Suisse.
CFS Cayman lacks capacity to move for relief on behalf of co-defendant CFS
Suisse. There is no motion before the Court, submitted by CFS Suisse, in conformance
with Rule 11 of the Federal Rules of Civil Procedure. Accordingly the Motion of CFS
Cayman, is DENIED with prejudice.
III.

CONCLUSION
For the above reasons, CFS Cayman Islands’ Motion to Dismiss Citco Fund

Services (Suisse) S.A. is DENIED.18
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on August 14, 2017.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

17
18

Id. at 370.
Rec. Doc. 338.

40555 
Page 4 of 4