John Wiley & Sons, Inc. v. Supap Kirtsaeng et al

Filing 15

BRIEF re: 14 Brief ISRAEL DECLARATION. Document filed by Supap Kirtsaeng. (Attachments: # 1 Exhibit Israel aff exh 1, # 2 Exhibit Israel decl exh 2, # 3 Exhibit ISRAEL DECL EXH 3, # 4 Exhibit ISRAEL DECL EXH 4, # 5 Exhibit ISRAEL DECL EXH 5, # 6 Exhibit ISRAEL DECL EXH. 6, # 7 Exhibit ISRAEL DECL EXH. 7)(Israel, Sam)

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ISRAEL DECLARATION EXHIBIT 5
38 of 223 DOCUMENTS
GENERAL RE FINANCIAL PRODUCTS CORPORATION, Plaintiff, -vSOUTHERN CALIFORNIA EDISON COMPANY, Defendant.
01 Civ. 0348 (RO)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK
2001 U.S. Dist. LEXIS 1117

February 8, 2001, Decided
February 9, 2001, Filed
DISPOSITION:
[*1] Plaintiff's motion to confirm
order of attachment denied and defendant's motion to
vacate granted.

a nondomiciliary residing outside the state. See ITC Entertainment, Ltd. v. Nelson Film Partners, 714 F.2d 217,
220 (2d. Cir. 1983). Confirmation of the January 18,
2001 order would serve neither function.

COUNSEL: For GENERAL RE FINANCIAL
PRODUCTS CORPORATION, plaintiff: Mark G.
Hanchet, Zeichner, Ellman & Krause, L.L.P., New York,
NY.

Jurisdiction is not at issue here because in the swap
agreement at issue the parties consented to jurisdiction in
the Southern District of New York. Where defendant is
subject to the jurisdiction of this Court, attachment is
only justified "upon a showing that the defendant is attempting to dispose of his assets in order to frustrate the
ability of the plaintiff to collect any judgment that might
ultimately be obtained." Ames v. Clifford, 863 F. Supp.
175, 177 (S.D.N.Y. 1994). Plaintiff contends that the current energy crisis in California, and SCE's most recent
financial statements suggest that SCE is on the verge of
bankruptcy, therefore warranting the attachment. 1 Such a
showing is insufficient to support an attachment. Rather,
plaintiff must present evidence that defendant is deliberately trying to remove assets from the state with the purpose of frustrating plaintiff's future judgment. See id. at
178. While GRFPC asserts [*3] that SCE "will likely
remove assets from the State of New York" (Aff. of
Mark Hanchet, Jan. 18, 2001, P 15), it does not have
evidence to support this contention beyond its repeated
assertion that because of the current energy crisis, SCE is
experiencing financial difficulties in timely satisfaction
of various creditors. See Reading & Bates Corp. v. Nat'l
Iranian Oil Co., 478 F. Supp. 724, 727 (S.D.N.Y. 1979)
("When jurisdiction already exists, attachment should
issue only upon a showing that drastic action is required
for security purposes...plaintiffs' contention that there is
no way of saying [certain] events will not happen does
not satisfy their burden pursuant to Section 6223(b)").

For SOUTHERN CALIFORNIA EDISON COMPANY,
defendant: Peter N. Wang, Friedman, Wang & Bleiberg,
P.C., New York, NY.
JUDGES: Richard Owen, United States District Judge.
OPINION BY: Richard Owen
OPINION
MEMORANDUM AND ORDER
OWEN, District Judge:
Plaintiff General Re Financial Products Corporation
("GRFPC") seeks confirmation of an ex parte order of
attachment entered on January 18, 2001. Defendant
Southern California Edison Company ("SCE") appears,
opposes, and moves to vacate.
Article 62 of the New York CPLR governs orders of
attachment. Plaintiff bears the burden of establishing
grounds sufficient for the order; plaintiff also bears the
burden on the motion to confirm it. To determine
whether the order of attachment should be confirmed,
plaintiff must show that such order fulfills one of the
purposes of an order of attachment, i.e., that it allows
plaintiff to obtain jurisdiction over a nonresident defendant, or that it secures a potential judgment against [*2]

1 Disregarded is SCE's assertion that as of February 5, 2001, it has cash reserves of about $ 1.36

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2001 U.S. Dist. LEXIS 1117, *

billion. See Form 8-K, Current Report (Exhibit A
to Aff. of Mark Hanchet, Feb. 7, 2001).
Accordingly, plaintiff's motion to confirm the order
of attachment is denied, and defendant's motion to vacate
is granted.
[*4] Submit order on notice.

Dated: New York, New York
February 8, 2001
Richard Owen
United States District Judge