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

Filing 81

FIRST MEMORANDUM OF LAW in Opposition re: 78 MOTION to Direct Defendant Supap Kirtsaeng to Bring His Property Into New York And Appoint A Receiver.. Document filed by Supap Kirtsaeng. (Israel, Sam)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JOHN WILEY & SONS, INC.,
08 CV 7834
Plaintiff
-againstSUPAP KIRTSAENG D/B/A BLUECHRISTINE99
and JOHN DOE NOS. 1-5,
Defendants
___________________________________________X
DEFENDANT’S MEMORANDUM OF LAW
IN OPPOSITION TO MOTION FOR AN ORDER
DIRECTING THE DEFENDANT TO BRING ASSETS INTO THE STATE
Defendant Supap Kirtsaeng (“Kirtsaeng”

or

“Defendant”) submits this

memorandum of law and supporting declaration (the “Kirtsaeng Decl.”) in opposition to
the motion of Plaintiff John Wiley & Sons, Inc., (“Plaintiff” or “Wiley”) seeking An Order
Directing The Defendant To Bring Assets Into The State (the “Motion”) as follows:
I.
PRELIMINARY STATEMENT
As the Court is well-aware, the disposition of this case turned on a closely contested
copyright issue, namely whether the Defendant could avail himself of the so-called first sale
entitlement under 17 U.S.C. § 109 in selling overseas manufactured books in this country;
the resolution of this technical issue (one upon which experts have strenuously disagreed)
foretold the ultimate disposition of the case.
Notably, in ruling on the issue, this Court denied the Defendant what would have
been a complete defense to the Plaintiff’s claims, but it did so with less than absolute
confidence (referring to the issue as a close jurisprudential question).
No matter how slender its victory on the law, however, the Plaintiff scored an
unprecedented jury verdict in its favor. Now, even as the case is on appeal (with multiple
supporting amicus in submission), the Plaintiff would exploit its victory by demanding that
the Defendant deliver his few personal items from California to New York City for
immediate liquidation and application toward its windfall judgment. Among other things,

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the Plaintiff hopes to strip the Defendant of a computer and printer he currently needs to
secure his doctoral degree and thereby inflict an injury which would transcend reversal.
Fortunately, the Plaintiff’s purpose is as unavailing as it is malicious. First, the
Defendant does not even own the central item targeted by the Plaintiff, namely the 2001
Audi automobile; the car falls squarely outside the reach of section 5225 (a) and at best,
requires the commencement of a fresh action against a non-party. Second, the computer and
all- in one- machine referenced in the Motion are exempt from the cited CPLR turnover
provision as working tools and/or professional implements. See CPLR section 5205.
Finally, with respect to the only remaining item-- a set of golf-clubs-- the most that the
Plaintiff may demand is delivery of title; the physical shipment of the clubs themselves to
New York is not mandated.
In short, the Motion must be denied in its entirety.
II
ARGUMENT
POINT 1
SECTION 5225 DOES NOT REQUIRE THE
DEFENDANT TO TRANSFER THE 2001 AUDI TO
THE PLAINTIFF SINCE HE IS NOT IN POSSESSION OF THE VEHICLE
CPLR section 5225 provides as follows:
(a) Property in the possession of judgment debtor. Upon
motion of the judgment creditor, upon notice to the judgment
debtor, where it is shown that the judgment debtor is in
possession or custody of money or other personal property in
which he has an interest, the court shall order that the
judgment debtor pay the money, or so much of it as is
sufficient to satisfy the judgment, to the judgment creditor
and, if the amount to be so paid is insufficient to satisfy the
judgment, to deliver any other personal property, or so much
of it as is of sufficient value to satisfy the judgment, to a
designated sheriff. Notice of the motion shall be served on the
judgment debtor in the same manner as a summons or by
registered or certified mail, return receipt requested.
(b) Property not in the possession of judgment debtor. Upon a
special proceeding commenced by the judgment creditor,
against a person in possession or custody of money or other
personal property in which the judgment debtor has an
interest, or against a person who is a transferee of money or
other personal property from the judgment debtor, where it is
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shown that the judgment debtor is entitled to the possession of
such property or that the judgment creditor's rights to the
property are superior to those of the transferee, the court shall
require such person to pay the money, or so much of it as is
sufficient to satisfy the judgment, to the judgment creditor
and, if the amount to be so paid is insufficient to satisfy the
judgment, to deliver any other personal property, or so much
of it as is of sufficient value to satisfy the judgment, to a
designated sheriff. Costs of the proceeding shall not be
awarded against a person who did not dispute the judgment
debtor's interest or right to possession. Notice of the
proceeding shall also be served upon the judgment debtor in
the same manner as a summons or by registered or certified
mail, return receipt requested. The court may permit the
judgment debtor to intervene in the proceeding. The court
may permit any adverse claimant to intervene in the
proceeding and may determine his rights in accordance with
section5239.
(c) Documents to effect payment or delivery. The court may
order any person to execute and deliver any document
necessary to effect payment or delivery.
(Emphasis added.)
CPLR § 5225 (a) makes clear that it is directed only at money or personal property
in which the judgment debtor has an interest. The Defendant has testified that he does not
own the vehicle that the Plaintiff demands that he deliver to New York. See Dunnegan Decl.
Exh. A, deposition testimony of Supap Kirtsaeng at tr. 8 lns 4- 10. ln. 25. Even if the
Defendant could drive the car to New York, he cannot transfer its title to the Plaintiff since
it is not in his name. In short, turnover of the car cannot be ordered under subsection a. See
Erin Capital Mgt., LLC v. Celis, 19 Misc. 3d 390; 854 N.Y.S.2d 640 (Nassau Co.
2008)(“The court found that the judgment creditor failed to clearly show that property was
in the judgment debtor's possession or control. …At the very least, a third party was listed
as a title holder, and therefore was an owner of the vehicle. As a joint owner, it was required
that such person be given the opportunity to be heard.”).
If anything, the Plaintiff "must follow the procedure set forth in [CPLR] 5225 (b),
which requires that the creditor `commence an action against the person in possession,'
instead of merely filing a motion in the original action." Runaway Dev. Group v Pentagen
Tech. Intl. Ltd., 396 F. Supp. 2d 471, 473 (S.D. N.Y. 2005)(quoting Alliance Bond Fund,
Inc. v. Grupo Mexicano de Desarrollo, S.A., 190 F.3d 16, 21 (2d Cir. 1999). “5225 and

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5227 require the judgment creditor to proceed against the party that can produce the asset
that the judgment creditor seeks, whether that party is the judgment debtor itself, or some
third party.” Alliance Bond Fund, Inc. v. Grupo Mexicano de Desarrollo, S.A., 190 F.3d 16,
21 (2d Cir. N.Y. 1999).
The Motion must be denied with respect to the Audi.
POINT 2
CPLR SECTION 5205 EXEMPTS THE DEFENDANT’S COMPUTER
AND PRINTER/FAX MACHINE/COPIER FROM THE TURNOVER STATUTE
The Defendant owns a computer and an “all in one” fax/ copier/ printer machine
which are necessary implements for his completion and defense of his doctoral thesis. Thus,
beyond seeking assets of comparatively little value toward the satisfaction of a judgment of
this size, the Plaintiff demands that the Defendant altogether forfeit the degree he has been
working toward for the last five years. At his January 14, 2010 post-judgment deposition,
the Defendant even offered to hand his computer and fax machine over to the Plaintiff once
his studies are over, see Dunnegan Decl. Exh. A, depo. Tr. at 69. lns. 18- 25, but the
Plaintiff demands the implements without delay.
Needless- to-say a Second Circuit reversal of this Court’s decision on the copyright
issue will do nothing to restore the doctoral degree the Plaintiff hopes to spoil. Under §
5205, however, New York State has prevented such abusive efforts by a judgment creditor
in excluding this kind of personal property from the ambit of the turnover statute.
Subsection 7 exempts “necessary working tools and implements, including those of a
mechanic, farm machinery, team, professional instruments…provided, however, that the
articles specified in this paragraph are necessary to the carrying on of the judgment debtor's
profession…” CPLR § 5205.
In that the Defendant’s computer and all in-one-machine are exempt from the reach
of the turnover statute, the Court should deny the Motion to the extent it seeks to have these
items turned-over to a “receiver.” See also Frobel v. County of Broome, 419 F. Supp. 2d
212, 224 (N.D.N.Y 2005) (noting that a computer is an item which may be exempt from
collection to satisfy a judgment)

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POINT 3
CPLR SECTION 5225 C IS SATISFIED BY
ORDERING A TRANSFER OF TITLE AND DOES NOT REQUIRE
THE PHYSICAL DELIVERY OF THE GOLF CLUBS TO NEW YORK
CPLR section 5225 c provides that to effect payment or deliver, “[t]he court may
order any person to execute and deliver any document necessary to effect payment or
delivery.” Indeed, the Advisory committee notes acknowledge that "delivery" of property
may be achieved by assignment or transfer under subd (c). Nothing in the statute requires
that the Defendant physically transport his golf-clubs to New York State.

POINT 4
CPLR SECTION 5225 DOES NOT CALL
FOR THE APPOINTMENT OF A RECEIVER
The Plaintiff maintains that the Court should appoint a receiver to marshal the
Defendant’s assets. See Pl. Memo. at 5. No authority in favor of this relief is cited, however,
nor is any theory advanced as to its propriety. Without more, the application must be denied.
III.
CONCLUSION
For the foregoing reasons, the Defendant respectfully submits that the Motion should
be denied in its entirety and the Court should grant such other and further relief that it
deems just and proper.

Respectfully submitted:
Sam P. Israel, P.C.
Dated: New York, New York
February 10, 2010

By:
S/______________________
Sam P. Israel (SPI0270)
Attorney for Defendant Supap
Kirtsaeng
Twenty Third Floor
New York, NY 10006
Tel: [phone]
Fax: [phone]

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