Doe v. Ejercito De Liberacion Nacional et al
Filing
64
DECISION AND ORDER granting in part 62 Motion to Vacate re 52 Memorandum-Decision and Order on Motion to Transfer Case: The Court hereby ORDERS that this Court's January 8, 2016 Memorandum-Decision and Order (Dkt. No.52), requiring BNY Mel lon to deposit the Blocked Funds, is hereby modified such that BNY Mellon may satisfy the requirements of the January 8, 2016 Memorandum-Decision and Order by posting an unsecured bond in the form annexed hereto as Exhibit A, in the amount of 6;1,000 (the "Bond") with the Clerk of the Court, which shall be posted by March 25, 2016; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 3/10/16. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JOHN DOE,
Plaintiff,
vs.
1:15-mc-0023
(MAD/CFH)
EJERCITO DE LIBERACION NACIONAL, a/k/a
National Liberation Army, a/k/a ELN, and FUERZAS
ARMADAS REVOLUCIONARIOS DE COLOMBIA
a/k/a FARC, a/k/a Revolutionary Armed Forces of
Columbia,
Defendants,
vs.
BANK OF NEW YORK MELLON,
Garnishee,
vs.
GRUPO AROSFRAN EMPREENDIMENTOS E
PARTICIPACOES SARL, a/k/a Grupo Arposfran
Emre Particacoe, and OVLAS TRADING, S.A.,
Claimants.
____________________________________________
BANK OF NEW YORK MELLON
Third Party Plaintiff,
vs.
BANCO AFRICANO DE INVESTIMENTOS,
ANGOLA; ANTONIO CABALLERO; GRUPO
AROSFRAN EMPREENDIMENTOS E
PARTICIPACOES SARL, a/k/a Grupo Arposfran
Emre Particacoe; and OVLAS TRADING, S.A.,
Third Party Defendants.
____________________________________________
BANK OF NEW YORK MELLON
Counter Claimant,
vs.
JOHN DOE,
Counter Defendant.
____________________________________________
APPEARANCES:
OF COUNSEL:
GROSSMAN ROTH, P.A.
2525 Ponce de Leon
Suite 1150
Coral Gables, Florida 33134
Attorneys for Plaintiff and Counter Defendant
BRETT E. VON BORKE, ESQ.
DO CAMPO & THORNTON, P.A.
100 SE 2d Street
Suite 2700
Miami, Florida 33131
Attorneys for Plaintiff and Counter Defendant
JOHN A. THORNTON, ESQ.
LEVI LUBARSKY FEIGENBAUM &
WEISS LLP
655 Third Avenue
27th Floor
New York, New York 10017
Attorneys for Garnishee, Third Party Plaintiff,
and Counter Claimant
STEVEN B. FEIGENBAUM, ESQ.
WALTER E. SWEARINGEN, ESQ.
WILMER CUTLER PICKERING HALE
& DORR LLP - D.C. OFFICE
1875 Pennsylvania Avenue N.W.
Washington, District of Columbia 20006
Attorneys for Claimants
DAVID W. BOWKER, ESQ.
Mae A. D'Agostino, U.S. District Judge:
DECISION AND ORDER
Currently before the Court is a letter motion dated March 1, 2016 (Dkt. No. 62), by ThirdParty Plaintiff Bank of New York Mellon ("BNY Mellon"), requesting vacatur or modification of
this Court's prior Memorandum-Decisions and Order, dated January 8, 2016, requiring the deposit
of the money held in the blocked accounts identified in BNY Mellon's interpleader petition (the
"Blocked Funds").
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BNY Mellon has invoked 28 U.S.C. § 1335 to establish this Court's jurisdiction of its
interpleader petition. See Dkt. No. 18 at 8. That statute provides, in relevant part, that a district
court "shall have original jurisdiction of any civil action of interpleader . . . if . . . the plaintiff has
deposited such money or property . . . into the registry of the court . . . or has given bond payable
to the clerk of the court in such amount and with such surety as the court or judge may deem
proper, conditioned upon the compliance by the plaintiff with the future order or judgment of the
court with respect to the subject matter of the controversy." 28 U.S.C. § 1335(a)(1)-(2).
BNY Mellon's request that this Court permit the interpleader action to proceed in the
absence of a deposit of funds or other mechanism for compliance with the interpleader statute
cannot be squared with the plain meaning of Section 1335. See Metal Transp. Corp. v. Pac.
Venture S.S. Corp., 288 F.2d 363, 365 (2d Cir. 1961). The sole decision cited by BNY Mellon in
support of its argument that deposit is a prudential, rather than jurisdictional, requirement under
Section 1335 is Price & Pierce Int’l, Inc. v. Spicers Int’l Paper Sales, Inc., No. 84 Civ. 3728,
1984 WL 635, *2-3 (S.D.N.Y. July 16, 1984). The Court’s research has disclosed no decision
citing Price favorably for this proposition; rather, multiple courts in the Second Circuit have
repeatedly characterized Section 1335's requirements as jurisdictional and have suggested that
Price is not good law. See, e.g., Fed. Ins. Co. v. Tyco Int’l Ltd., 422 F. Supp. 2d 357, 395-96
(S.D.N.Y. 2006) (“The deposit of [interpleader] funds is a jurisdictional requirement. . . . To the
extent that Price stands for the proposition that the deposit requirement is not jurisdictional, this
does not appear to find support in the case law”); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v.
Ambassador Grp., Inc., 691 F. Supp. 618, 621 (E.D.N.Y. 1998) (holding that the requirements of
Section 1335 are jurisdictional). The relief requested by BNY Mellon is, therefore, inconsistent
with the jurisdictional requirements of the interpleader statute.
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However, given BNY Mellon's representations regarding applicable federal regulations
prohibiting the transfer of the Blocked Funds, coupled with the safety and security of the Blocked
Funds during the pendency of this litigation, the motion for modification of the Court’s order is
granted, to the extent that BNY Mellon will be permitted to post an unsecured bond with the
Clerk of this Court, as contemplated by the second clause of Section 1335(a)(2).
Accordingly, after considering BNY Mellon's submissions and the applicable law, the
Court hereby
ORDERS that this Court's January 8, 2016 Memorandum-Decision and Order (Dkt. No.
52), requiring BNY Mellon to deposit the Blocked Funds, is hereby modified such that BNY
Mellon may satisfy the requirements of the January 8, 2016 Memorandum-Decision and Order by
posting an unsecured bond in the form annexed hereto as Exhibit A, in the amount of $1,000 (the
"Bond") with the Clerk of the Court, which shall be posted by March 25, 2016; and the Court
further
ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 10, 2016
Albany, New York
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EXHIBIT A
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BANK OF NEW YORK MELLON
Third Party Plaintiff,
vs.
1:15-mc-0023
(MAD/CFH)
BANCO AFRICANO DE INVESTIMENTOS,
ANGOLA; ANTONIO CABALLERO; GRUPO
AROSFRAN EMPREENDIMENTOS E
PARTICIPACOES SARL, a/k/a Grupo Arposfran
Emre Particacoe; and OVLAS TRADING, S.A.,
Third Party Defendants.
____________________________________________
INTERPLEADER ACTION BOND
Bank of New York Mellon ("BNY Mellon"), by and through its undersigned authorized
representative, hereby agrees to comply with the orders and judgments entered by the Court,
including but not limited to any order to transfer or deposit the hereinafter identified funds, which
shall be done in accordance with all applicable regulations set in place by the Office of Foreign
Assets Control ("OFAC") for the transfer of such blocked funds, with respect to the disposition of
the funds at issue in the above-captioned interpleader proceeding, namely:
(1)
Funds totaling $2,506,421.00 on deposit with BNY Mellon in Oriskany,
New York in an account ending in -8400 and identified by BNY Mellon in
its interpleader petition.
AMOUNT OF BOND
This is an unsecured bond in the amount of $1,000.
FORFEITURE
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This bond may be forfeited if BNY Mellon does not comply with the above agreement.
The Court may enter a judgment of forfeiture against BNY Mellon for the entire amount of the
bond, including interest and costs, if BNY Mellon does not comply with the agreement.
RELEASE
The Court may terminate this bond at any time. The bond will be satisfied and the
obligation released when either: (1) this action is dismissed; or (2) BNY Mellon complies with a
dispositive judgment of this Court.
ACCEPTANCE
The undersigned declares under penalty of perjury that he/she has read this bond and
agrees to its terms and conditions.
Date: _________________
By: ____________________
Bank of New York Mellon
Clerk of Court
Date: _________________
By: ____________________
Signature of Clerk or Deputy Clerk of Court
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