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 Decl. Exh. 6
8 of 33 DOCUMENTS
QUISORYS WANDA COLON, Plaintiff, VERSUS COLE BROS. CIRCUS, INC.,
JOSEPH MARCAN, AND ADRIATIC ANIMAL ATTRACTIONS, Defendants.
MAUREEN O'MALLEY, Plaintiff, VERSUS COLE BROS. CIRCUS, INC.,
JOSEPH MARCAN, AND ADRIATIC ANIMAL ATTRACTIONS, Defendants.
SAMUEL ESPINAL, Plaintiff, VERSUS COLE BROS. CIRCUS, INC., JOSEPH
MARCAN, AND ADRIATIC ANIMAL ATTRACTIONS, Defendants.
No 04-CV-3606 (JFB) (JO), No 03-CV-3607 (JFB) (JO), No 03-CV-4305 (JFB) (JO)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW
YORK
2007 U.S. Dist. LEXIS 76473

October 12, 2007, Decided
October 12, 2007, Filed
PRIOR HISTORY: Colon v. Cole Bros. Circus, 2007
U.S. Dist. LEXIS 1403 (E.D.N.Y., Jan. 8, 2007)
COUNSEL: [*1] The attorneys for plaintiffs Quisorys
Wanda Colon and Maureen O'Malley are Ralph J. Drabkin, Esq. and Michael L. Tawil, Esq. of Drabkin and
Margulies, 291 Broadway, New York, New York,
10007.
The attorney for plaintiff Samuel Espinal is John W.
Kondulis, Esq., of Bilello & Walisever, 875 Merrick
Road, Westbury, New York, 115 90. The attorney for
defendant Cole Bros. Circus, Inc. is Paul T. Vink, Esq.,
of The Law Office of Paul T. Vink, 175 Main Street,
Suite 401, White Plains, New York, 10601. The attorney
for defendants Adriatic Animal Attractions and Joseph
Marcan is Kathi Peisner, of Krez & Peisner LLP, 225
Broadway, Suite 2199, New York, New York, 10007.
JUDGES: Joseph F. Bianco, United States District
Judge.
OPINION BY: Joseph F. Bianco
OPINION
MEMORANDUM AND ORDER
October 12, 2007
JOSEPH F. BIANCO, District Judge:
The present consolidated personal injury actions,
filed on August 20, 2004 and September 12, 2005, arose
from several car accidents that took place on July 31,

2004. Trial on these actions is scheduled for February 4,
2008. Plaintiffs Quisorys Wanda Colon and Maureen
O'Malley (collectively, "plaintiffs") move pursuant to
Fed. R. Civ. P. 65 for a preliminary injunction and temporary restraining order [*2] ("TRO") to enjoin defendant Joseph Marcan ("defendant") from selling, transferring, or otherwise secreting his interest in real property
located at 3007 Highway 81S, Ponce De Leon, Florida
(the "property") prior to trial, as well as from selling,
transferring, or secreting any of his tigers (the "tigers"),
one of which allegedly caused the aforementioned car
accident after escaping from defendant Cole Bros. Circus, Inc. Plaintiffs contend that defendant's sale of the
property and tigers would improperly enable defendant
to avoid paying damages if plaintiffs prevail at trial. For
the following reasons, plaintiffs' motion is denied.
I. FACTS
Unless otherwise noted, the following facts are not
in dispute.
Defendant owns the property, where he houses and
trains the tigers during the circus off-season. Defendant
has placed the property for sale for $ 1,980,000 through
Sotheby's International Realty.
Defendant has not placed the tigers, on which defendant has a one million dollar insurance policy, for
sale. However, plaintiffs infer defendant's intention to
sell the tigers from defendant's proposed sale of the
property. For purposes of this motion, the Court assumes
that defendant also intends [*3] to sell the tigers. 1

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2007 U.S. Dist. LEXIS 76473, *

1 The Court notes that sale of the tigers would
not serve as an obstacle to trial in this case, since
the tigers' ownership -- similar to that of the
property -- is not at issue. In other words, this is a
personal injury action, and not an action related
to issues regarding ownership of the property or
the tigers.
Plaintiffs allege that, if they prevail at trial, defendant will be liable for damages in excess of one million
dollars. (Pl.'s Aff. at 4.)
II. PROCEDURAL HISTORY
Plaintiffs filed the instant motion on August 17,
2007. Defendant responded to the motion on October 2,
2007. Plaintiffs replied on October 9, 2007.
On August 20, 2007, the Court denied the request
for a TRO for the reasons set forth on the record. On
September 4, 2007, in order to accommodate defendant's
request for additional time to oppose the request for a
preliminary injunction, the Court approved a stipulation
between the parties containing a condition that defendant
notify plaintiffs if he accepts an offer for the property
(the "stipulation"). It was agreed that such stipulation
would remain in effect until such time as the Court decided the motion for a preliminary injunction, so that
plaintiffs [*4] could renew their request for a TRO if a
sale was imminent and the motion was about to be rendered moot.
III. DISCUSSION
A. PRELIMINARY INJUNCTION UNDER RULE 65
Plaintiffs ask the court to issue a preliminary injunction under Rule 65 enjoining defendant from selling the
property and tigers prior to trial, so that defendant may
not avoid paying a potential judgment in plaintiffs' favor.
However, the Supreme Court has held that district courts
have "no authority to issue a preliminary injunction preventing [defendants] from disposing of their assets pending adjudication," unless plaintiff claims a "lien or equitable interest" in the assets. Grupo Mexicano De Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308,
310, 333, 119 S. Ct. 1961, 144 L. Ed. 2d 319 (1999); see
also Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, No. 07-0065CV, 500 F.3d 111, 2007 U.S. App. LEXIS 21458, at *17
n.8 (2d Cir. Sept. 7, 2007) (noting that under Grupo,
"federal courts lack power to issue . . [i]njunctions that
prohibit a party from transferring assets pending resolution of an action"); Pandora Select Partners, LP v. Strategy Int'l Ins. Group, Inc., 06 Civ. 938, 2006 U.S. Dist.
LEXIS 85238, at *6-*7 (S.D.N.Y. Aug. 11, 2006) [*5]
("[A] preliminary injunction designed to freeze a defen-

dant's assets, so as to preserve the defendant's funds for a
future judgment, is beyond the court's equitable powers.") (citing Grupo, 527 U.S. at 330-33). Here, where
plaintiffs claim neither a lien nor an equitable interest in
the property and tigers, the Court lacks the authority to
grant a preliminary injunction under Fed. R. Civ. P. 65 -a virtual "nuclear weapon of the law," see Grupo, 527
U.S. at 332 (quotation marks omitted) -- to enjoin defendant's sale of these assets pending trial. Plaintiffs' motion
for such an injunction is denied.
B. ATTACHMENT UNDER RULE 64
Although injunctive relief is unavailable to preserve
assets for judgment under Fed. R. Civ. P. 65 except in
the limited circumstances discussed supra, Fed. R. Civ.
P. 64 "authorizes use of state prejudgment remedies,"
such as attachment. Grupo, 527 U. S. at 330-31. Even
though plaintiffs did not move for attachment under Rule
64, "[i]t has been noted that the distinction between an
attachment issued under Rule 64 and an injunction issued
under Rule 65 is 'blurry at best.'" Brook Drugs, Inc. v.
Repice, No. 99-CV-2074, 2001 U.S. Dist. LEXIS 889, at
*13 (N.D.N.Y. Jan. 29, 2001). [*6] The Court has thus
considered whether plaintiffs are entitled to relief under
this alternate rule and, for the reasons set forth below,
has concluded that they are not.
Fed. R. Civ. P. 64 provides for the "seizure of person
or property for the purpose of securing satisfaction ultimately to be entered in the action . . . under the circumstances and in the manner provided by the law of the
state in which the district court is held. . . ." Fed. R. Civ.
P. 64. Under New York law, attachment is available if:
(1) the defendant is a nondomiciliary residing without the state, or is a foreign
corporation not qualified to do business in
the state; or
(2) the defendant resides or is domiciled in the state and cannot be personally
served despite diligent efforts to do so; or
(3) the defendant, with intent to defraud his creditors or frustrate the enforcement of a judgment that might be
rendered in plaintiff's favor, has assigned,
disposed of, encumbered or secreted
property, or removed it from the state or is
about to do any of these acts; or
(4) the action is brought by the victim
or the representative of the victim of a
crime . . . . or
(5) the cause of action is based on a
judgment, decree or order [*7] of a court

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2007 U.S. Dist. LEXIS 76473, *

of the United States or of any other court
which is entitled to full faith and credit . .
..

N.Y.C.P.L.R. § 6201. Here, the only potentially applicable provision of § 6201 is § 6201(3). However, in order
to invoke this provision, "it is incumbent upon [the plaintiff] to demonstrate that the defendant is acting with intent to defraud. Fraud is not lightly inferred, and the
moving papers must contain evidentiary facts -- as opposed to conclusions -- proving the fraud." Brastex Corp.
v. Allen Int'l, Inc., 702 F.2d 326, 331-32 (2d Cir. 1983)
(affirming district court's denial of attachment where
plaintiffs' sole evidence of fraudulent intent was defendant's violation of agreement with plaintiff and "shaky
financial condition") (citation and quotation marks omitted); see also Arias-Zeballos v. Tan, 06-CV-1268, 2007
U.S. Dist. LEXIS 5069, at *11-*12 (S.D.N.Y. Jan. 24,
2002) ("[I]t is incumbent upon a plaintiff to show, by
affidavit or other competent evidence, the fraudulent
intent of a defendant in disposing of, encumbering, removing or secreting his or her property to . . . frustrate
the enforcement of a judgment that might be obtained in
the future. Absent such a showing, the [*8] mere possibility that a defendant may remove assets from New
York is too remote to justify prejudgment attachment.").
Here, plaintiffs have not even made the requisite
showing of intent the Second Circuit rejected as inadequate in Brastex: Plaintiffs have provided no evidence
that sale of the property or tigers would render the defendant insolvent or unable to pay damages in the event
plaintiffs prevail. Further, plaintiffs have failed to cite
any facts showing that defendant has engaged in past
fraudulent activity, intends to engage in future fraudulent
activity, or plans to transfer assets out of the jurisdiction.
Defendant's attempt to sell the property is transparent;
Sotheby's has publicly posted the property on the internet. If "[t]he intent to defraud cannot be presumed from
the mere fact that the defendant has liquidated or disposed of some of its business assets," Nanjing Textiles
Imp/Exp Corp. v. NCC Sportswear Corp., 06 Civ. 52,
2006 U.S. Dist. LEXIS 56111, at *14-*15 (S.D.N.Y. Aug.
11, 2006), certainly the potential of a future sale cannot
give rise to this presumption.

Indeed, plaintiffs cite only a single fact to show defendant's alleged intent to frustrate judgment: the [*9]
proposed sale's proximity in time to trial. (Pl.'s Aff. at 4.)
Without more, however, the Court will not presume that
the timing of the proposed sale evinces defendant's
fraudulent intent. Plaintiffs essentially ask the Court to
find as a matter of law that civil defendants may not sell
assets in close proximity to trial. In the absence of a
showing of actual intent to frustrate judgment, the Court
declines to create such a sweeping precedent here. The
Court finds that plaintiffs are not entitled to attachment
under Rule 64.
In sum, there is no basis for the relief sought by the
plaintiffs as it relates to the sale of the property and/or
the tigers. 2 Plaintiffs also ask the Court to continue the
stipulation. (Rep. Aff. P 3.) Because the Court finds that
a preliminary injunction or attachment is unwarranted,
the Court will not continue to impose on defendant the
condition that he notify plaintiffs of any accepted offers
for the property.
2
Because the Court holds that relief under
Rules 64 and 65 is unwarranted under the facts of
this case, the Court need not address defendant's
alternative argument that the property is exempt
from judgment under state law. (Opp. Mem. at 57.)
IV. [*10] CONCLUSION
For the reasons stated above, the motion for a preliminary injunction is denied. 3
3 Defendant seeks costs in connection with his
opposition to plaintiffs' motion, which he characterizes as frivolous. The Court does not believe
there is any basis for awarding costs in connection with the opposition to this motion and, thus,
that request is denied.
SO ORDERED.
Joseph F. Bianco
United States District Judge
Dated: October 12, 2007
Central Islip, New York