1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 ANTONIO CABALLERO, Case No. 2:20-cv-07602-JWH
12 Plaintiff, MEMORANDUM OPINION AND 13 v. ORDER REGARDING PENDING MOTIONS [ECF Nos. 89–94] 14 FUERZAS ARMADAS REVOLUCIONARIAS DE 15 COLOMBIA, and NORTE DEL VALLE CARTEL, 16 Defendants, 17 and 18 JULIO CESAR ALVAREZ 19 MONTELONGO,
20 Intervenor.
21 22 23 24 25 26 27 1 I. INTRODUCTION 2 Plaintiff Anthony Caballero’s father—a Colombian politician and 3 diplomat—was kidnapped, tortured, and killed by forces from the Ejercito de 4 Liberacion (the “ELN”) and Fuerzas Armadas Revolucionarias de Colombia 5 (the “FARC”).1 The FARC and the ELN committed those heinous acts to 6 facilitate their distribution of illicit drugs throughout the United States.2 FARC 7 forces subsequently threatened Caballero, causing him to abandon his family 8 farm and to flee Colombia.3 Caballero successfully sued the ELN in a Florida 9 state court for the abuse that his father suffered, and Caballero received an 10 award of millions of dollars in damages.4 Caballero then sued the FARC in the 11 United States District Court for the Southern District of Florida under the Anti- 12 Terrorism Act (the “ATA”), 18 U.S.C. § 2333, for the FARC’s terrorist acts 13 against him.5 On May 20, 2020, Caballero prevailed again, and the Southern 14 District of Florida entered judgment in his favor in the amount of $45 million.6 15 This Court now confronts issues pertaining to Caballero’s efforts to collect that 16 judgment. 17 Caballero commenced this enforcement action in August 2020.7 A few 18 days later, Caballero moved ex parte for a writ of execution pursuant to § 201(a) 19 of the Terrorism Risk Insurance Act of 2002 (“TRIA”), Pub. L. No. 107-297, 20 § 201(a), 116 Stat. 2322 (codified at 28 U.S.C. § 1610 note), for post-judgment 21 execution on the blocked assets of four non-parties: Julio Cesar Alvarez 22 1 See Judgment, Caballero v. Fuerzas Armadas Revolucionarias de Colombia, 23 No. 18-25337 (S.D. Fla. May 20, 2020) (the “ATA Action”), ECF No. 63 (the “ATA Judgment”). 24 2 Id. 25 3 Id. 26 4 Id. 5 Id. 27 6 Id. 1 Montelongo (“Alvarez”); Noryban Productions, S.A. de C.V.; JCAM Editora 2 Musical, S.A. de C.V.; and J.C.A.M. Publishing, LLC.8 The Court granted that 3 Application in January 2021.9 In doing so, based upon the evidence that 4 Caballero submitted in support of his Application, the Court determined that 5 Alvarez and the other non-parties were “agencies or instrumentalities” of the 6 FARC.10 See TRIA § 201(a). Accordingly, the Court directed the Clerk to issue 7 a writ of execution and thereby authorized “Caballero to attach any assets within 8 this Court’s jurisdiction in the putative names of, held for the benefit of, or that 9 were blocked due to their association with” Alvarez and the other non-parties.11 10 In March 2021, Alvarez moved to intervene in this action;12 the Court granted 11 that motion a month later.13 12 Presently before the Court are five motions through which Alvarez seeks 13 the following relief: 14 an order dissolving the writ of execution because Caballero has not 15 established that Alvarez is an agency or instrumentality of the FARC;14 16 an order vacating the Order Re Writ of Execution and dismissing this 17 action because the subject assets are not blocked and because Caballero’s 18 judgment is already satisfied;15 19 8 Pl.’s Ex Parte Mot. for Issuance of Post-J. Writ of Execution Pursuant to 20 Section 201(a) of TRIA (the “Application”) [ECF No. 6]. 21 9 See Order Granting the Application (the “Order Re Writ of Execution”) [ECF No. 39]. 22 10 See id. at ¶ 4(b). 23 11 Id. at ¶ 6. 12 See Mot. to Intervene [ECF No. 57]. 24 13 See Order Granting Mot. to Intervene [ECF No. 75]. 25 14 See Mot. for Order Dissolving Writ of Execution Because Pl. Has Not Established Alvarez Is an Agency or Instrumentality of the FARC (the “TRIA 26 Motion”) [ECF No. 89]; Pl.’s Opp’n to the TRIA Motion (the “TRIA Opposition”) [ECF No. 100]; Reply in Supp. of the TRIA Motion (the “TRIA 27 Reply”) [ECF No. 105]. 15 See Mot. to Vacate Order Re Writ of Execution and to Dismiss Because 1 an order vacating the Order Re Writ of Execution and dismissing this 2 action because the underlying judgment is void;16 3 an order vacating the Order Re Writ of Execution and dismissing this 4 action for lack of personal jurisdiction and for failure to comply with 5 California law;17 and 6 leave of Court for Alvarez to take reciprocal depositions of Caballero and 7 his witnesses.18 8 Also pending before the Court is a motion by Caballero to compel the deposition 9 of Alvarez in this District.19 10 The Court conducted a hearing on the six pending motions on July 23, 11 2021. The Court addresses each motion in turn. 12 II. DISCUSSION 13 A. Alvarez’s Motion Regarding Blocked Assets 14 TRIA § 201(a) authorizes a terrorism victim to execute upon the 15 “blocked assets” of a terrorist party or its agency or instrumentality. 16 Section 201(a) of TRIA provides: 17 [ECF No. 90]; Pl.’s Opp’n to the Motion Re Blocked Assets (the “Assets 18 Opposition”) [ECF No. 101]; Reply in Supp. of the Motion Re Blocked Assets (the “Assets Reply”) [ECF No. 106]. 19 16 See Mot. to Vacate Order Re Writ of Execution and to Dismiss Because J. 20 is Void (the “Motion Re Judgment”) [ECF No. 91]; Pl.’s Opp’n to the Motion Re Judgment (the “Judgment Opposition”) [ECF No. 102]; Reply in Supp. of 21 the Motion Re Judgment (the “Judgment Reply”) [ECF No. 107]. 17 See Mot. to Vacate Order Re Writ of Execution and to Dismiss for Lack of 22 Personal Jurisdiction and Failure to Comply with Cal. Law (the “Jurisdiction Motion”) [ECF No. 92]; Pl.’s Opp’n to the Jurisdiction Motion (the 23 “Jurisdiction Opposition”) [ECF No. 103]; Reply in Supp. of the Jurisdiction Motion (the “Jurisdiction Reply”) [ECF No. 108]. 24 18 See Mot. for Leave to Take Reciprocal Deps. (the “Discovery Motion”) 25 [ECF No. 93]; Pl.’s Opp’n to the Discovery Motion (the “Discovery Opposition”) [ECF No. 104]; Reply in Supp. of the Discovery Motion (the 26 “Discovery Reply”) [ECF No. 109]. 19 See Pl.’s Mot. to Compel Alvarez Dep. (the “Motion to Compel”) [ECF 27 No. 94]; Opp’n to the Motion to Compel (the “MTC Opposition”) [ECF No. 99]; Pl.’s Reply in Supp. of the Motion to Compel (the “MTC Reply”) 1 Notwithstanding any other provision of law, and except as provided 2 in subsection (b), in every case in which a person has obtained a 3 judgment against a terrorist party on a claim based upon an act of 4 terrorism, or for which a terrorist party is not immune under 5 section 1605(a)(7) of title 28, United States Code, the blocked assets 6 of that terrorist party (including the blocked assets of any agency or 7 instrumentality of that terrorist party) shall be subject to execution 8 or attachment in aid of execution in order to satisfy such judgment 9 to the extent of any compensatory damages for which such terrorist 10 party has been adjudged liable. 11 Alvarez seeks to dissolve the Writ of Execution and to dismiss this action on the 12 grounds that Alvarez’s assets are not “blocked” for the purposes of TRIA and 13 that Caballero’s judgment is already satisfied. 14 1. “Blocked” Assets 15 Alvarez concedes that in 2017 the United States Office of Foreign Assets 16 Control (“OFAC”) designated Alvarez as a Specially Designated Narcotics 17 Trafficker (“SDNT”) pursuant to the Foreign Narcotics Kingpin Designation 18 Act (the “Kingpin Act”), Pub. L. No. 106-120, § 801 et seq., 113 Stat. 1606 19 (codified at 21 U.S.C. §§ 1901 et seq.).20 However, Alvarez contends that in 20 2017, individuals designated—and assets blocked—under the Kingpin Act did 21 not qualify as “blocked” for the purposes of TRIA.21 22 In 2017, when Alvarez was designated as an SDNT under the Kingpin 23 Act, TRIA § 201 defined a “blocked asset” to mean only assets “seized or 24 frozen by the United States under section 5(b) of the Trading With the Enemy 25 Act [Trading Act] . . . or under sections 202 and 203 of the International 26 27 20 See Motion Re Blocked Assets 3:1–4. 1 Emergency Economic Powers Act [Economic Powers Act] . . . .” TRIA 2 § 201(d)(2)(A); see also Stansell v. Revolutionary Armed Forces of Colombia, 704 3 F.3d 910, 915 (11th Cir. 2013) (“Stansell I”). In 2018, Congress amended the 4 ATA (the statute upon which Caballero’s judgment is based) for the express 5 purpose of redefining the term “blocked asset” to include the assets of a party 6 designated under the Kingpin Act. Pub. L. No. 115-253, § 3(a), 132 Stat. 3183 7 (the “2018 Amendment”) (codified at 18 U.S.C. § 2333(e)). As amended, the 8 ATA provides, in pertinent part, the following: 9 [F]or purposes of section 201 of the Terrorism Risk Insurance Act of 10 2002 (28 U.S.C. [§] 1610 note), in any action in which a national of 11 the United States has obtained a judgment against a terrorist party 12 pursuant to this section, the term “blocked asset” shall include any 13 asset of that terrorist party (including the blocked assets of any 14 agency or instrumentality of that party) seized or frozen by the 15 United States under section 805(b) of the Foreign Narcotics Kingpin 16 Designation Act (21 U.S.C. [§] 1904(b)). 17 18 U.S.C. § 2333(e). Congress further established that the 2018 Amendment 18 “shall apply to any judgment entered before, on, or after the date of enactment 19 of this Act.” 2018 Amendment § 3(b). 20 Alvarez does not meaningfully contest the plain language of the 21 2018 Amendment or the fact that Congress expressly stated its intent for the 22 2018 Amendment to apply retroactively to judgments previously obtained under 23 the ATA.22 Indeed, in view of the plain text of the 2018 Amendment, Alvarez’s 24 assets, which were “blocked” after Alvarez was designated under the Kingpin 25 Act, are subject to execution under TRIA. In this regard, however, Alvarez 26
27 22 See id. at 3:19–22; Assets Reply 1:23–2:14 (“The fact that Congress intended the law to apply retroactively does not cure the Ex Post Facto problem, 1 contends that the application of the 2018 Amendment to his assets would violate 2 the Ex Post Facto Clause of the United States Constitution, Art. I, § 10, cl. 1.23 3 The Ex Post Facto Clause of the Constitution “flatly prohibits retroactive 4 application of penal legislation.” Landgraf v. USI Film Prods., 511 U.S. 244, 266 5 (1994). It “not only ensures that individuals have ‘fair warning’ about the effect 6 of criminal statutes, but also ‘restricts governmental power by restraining 7 arbitrary and potentially vindictive legislation.’” Id. at 266–267 (quoting Weaver 8 v. Graham, 450 U.S. 24, 28–29 (1981) (citations omitted)). However, as the 9 Supreme Court has recognized, the Clause’s restrictions “are of limited scope.” 10 Id. at 267. “Retroactivity provisions often serve entirely benign and legitimate 11 purposes, whether to respond to emergencies, to correct mistakes, to prevent 12 circumvention of a new statute in the interval immediately preceding its passage, 13 or simply to give comprehensive effect to a new law Congress considers 14 salutary.” Id. at 267–268. The Ex Post Facto Clause thus applies only to civil 15 statutes that are “so punitive in either purpose or effect as to negate [Congress’] 16 intention to deem it civil.” Smith v. Doe, 538 U.S. 84, 92 (2003) (internal 17 quotations omitted). Here, Alvarez contends that 18 U.S.C. § 2333 is punitive 18 in nature and, therefore, that the retroactive application of the 2018 Amendment 19 to Alvarez’s blocked assets would violate the Ex Post Facto Clause. The Court is 20 not persuaded. 21 Alvarez focuses his argument on the treble damages provision of the 22 ATA, 18 U.S.C. § 2333(a), which Alvarez contends is “overwhelmingly 23 punitive.”24 That argument, however, misses the mark. The ATA establishes a 24 claim for relief for victims of terrorism against foreign terrorist organizations. 25 See 18 U.S.C. § 2333(a) & (d)(2). Caballero is not seeking a judgment (or treble 26
27 23 See Motion Re Blocked Assets 3:19–6:10. 24 Id. at 4:14–15 (quoting Estates of Ungar v. Palestinian Auth., 304 1 damages) against Alvarez—he is seeking only to enforce and collect upon the 2 ATA judgment that he previously obtained against the FARC, a designated 3 foreign terrorist organization. Thus, 18 U.S.C. § 2333(a) is only peripherally 4 relevant here. Moreover, the TRIA does not shift “liability from a terrorist 5 party to its instrumentality.” Bennett v. Islamic Republic of Iran, 927 F. Supp. 2d 6 833 (N.D. Cal. 2013), aff’d, 799 F.3d 1281 (9th Cir. 2015), opinion withdrawn and 7 superseded, 817 F.3d 1131 (9th Cir. 2016), and aff’d, 817 F.3d 1131 (9th Cir. 2016), 8 and aff’d, 825 F.3d 949 (9th Cir. 2016). In this regard, 18 U.S.C. § 2333(e) 9 merely defines the category of assets that are executable; it does not determine 10 liability. Accordingly, to the extent that the ATA is punitive, its punitive 11 provisions do not apply to Alvarez. And 18 U.S.C. § 2333(e), specifically, is not 12 “so punitive in either purpose or effect as to negate [Congress’] intention to 13 deem it civil.” Smith, 538 U.S. at 92. 14 In sum, the Court concludes that Alvarez’s assets are “blocked” pursuant 15 to 18 U.S.C. § 2333(e) and that the application of the 2018 Amendment to 16 Alvarez’s assets does not violate the Ex Post Facto Clause. 17 2. Satisfaction of Caballero’s Judgment 18 Caballero admits that he has collected more than $11 million in damages;25 19 Alvarez regards that sum as excessive. Alvarez argues that Caballero is entitled 20 to collect upon his judgment for “actual compensatory, and economic 21 damages,” in the amount of only $5,189,001.26 The remainder of the judgment, 22 including the award of $45 million for “non-economic damages,” according to 23 Alvarez, is void because no “U.S. National” was ever “injured in his or [sic] 24 person.”27 This argument is closely related to Alvarez’s argument in his 25 separate motion regarding the ATA Judgment, in which Alvarez argues that the 26 25 Assets Opposition 20:19-20. 27 26 See Motion Re Blocked Assets 8:1–8. 1 ATA Judgment is void and unenforceable. For the reasons discussed in more 2 detail below, the Court concludes that Alvarez’s attack on the validity of the 3 ATA Judgment is without merit. Putting that issue aside for the moment, in his 4 instant motion, Alvarez does not cite any authority or evidence in support of his 5 argument that Caballero is entitled to collect only the $5,189,001 in damages 6 awarded for actual compensatory and economic damages, nor is there any 7 support for that argument under the plain text of either 18 U.S.C. § 2333(a) or 8 TRIA § 201(a). Accordingly, the Court is not persuaded that Caballero’s ATA 9 Judgment is satisfied or that the ATA Judgment is unenforceable against 10 Alvarez’s blocked assets.28 11 For the foregoing reasons, the Court DENIES Alvarez’s Motion Re 12 Blocked Assets in its entirety. 13 B. Alvarez’s Motion Re Judgment 14 The Federal Rules of Civil Procedure provide that “[o]n motion and upon 15 such terms as are just, the court may relieve a party or his legal representative 16 from a final judgment, order, or proceeding for the following reasons: . . . (4) the 17 judgment is void.” Fed. R. Civ. P. 60(b)(4). A judgment may be set aside on 18 voidness grounds under Rule 60(b)(4) “only if the court that rendered judgment 19 lacked jurisdiction of the subject matter, or of the parties, or if the court acted in 20 a manner inconsistent with due process of law.” In re Center Wholesale, Inc., 759 21 F.2d 1440, 1448 (9th Cir. 1985). 22 Alvarez contends that the ATA Judgment is void because the Southern 23 District of Florida lacked both subject matter jurisdiction over the action and 24 personal jurisdiction over the defendants. 25 26
27 28 The Court’s ruling on this point is subject, of course, to its final determination of whether Alvarez is an agency or instrumentality of the FARC, 1 1. Subject Matter Jurisdiction 2 Federal courts are courts of limited jurisdiction. “The character of the 3 controversies over which federal judicial authority may extend are delineated in 4 Art. III, § 2, cl. 1” of the United States Constitution, and the jurisdiction “of the 5 lower federal courts is further limited to those subjects encompassed within a 6 statutory grant of jurisdiction.” Ins. Corp. of Ireland v. Compagnie des Bauxites de 7 Guinee, 456 U.S. 694, 701 (1982); see also Kokkonen v. Guardian Life Ins. Co. of 8 Am., 511 U.S. 375, 377 (1994) (federal courts “possess only that power 9 authorized by Constitution and statute”). “[T]he rule, springing from the 10 nature and limits of the judicial power of the United States is inflexible and 11 without exception”; thus, courts of the United States must deny their 12 jurisdiction “in all cases where such jurisdiction does not affirmatively appear in 13 the record.” Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382 (1884); see 14 also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006). 15 Alvarez contends that the Southern District of Florida lacked subject 16 matter jurisdiction because, under the plain language of 18 U.S.C. § 2333(a), 17 Caballero did not qualify as a victim of international terrorism.29 That 18 argument, however, is not jurisdictional. The jurisdictional provision of the 19 ATA, 18 U.S.C. § 2338, provides that federal district courts have exclusive 20 jurisdiction over claims under the ATA. It was through that statutory provision 21 that Caballero invoked the federal court’s subject matter jurisdiction in the 22 23
24 29 See Motion Re Judgment 7:3–13:11. Alvarez does not appear to challenge the validity of the prior judgment entered in Caballero’s action in Florida state 25 court. Even if he did, Rule 60(b)(4) does not allow a federal-court litigant “to raise an untimely argument that the state-court orders and final judgments are 26 void, essentially asking this court to sit as an appellate court over those orders and judgment.” Mather v. First Hawaiian Bank, 2014 WL 7334880, at *3 27 (D. Haw. Dec. 19, 2014). In other words, Rule 60(b)(4) does not authorize this Court to vacate as void state court orders or judgments. Id.; see also Schroeder v. 1 underlying action.30 To that end, it is well-established law that the “presence or 2 absence of federal-question jurisdiction is governed by the well-pleaded 3 complaint rule, which provides that federal jurisdiction exists only when a 4 federal question is presented on the face of the plaintiff’s properly pleaded 5 complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). 6 By focusing on 18 U.S.C. § 2333, Alvarez effectively argues that Caballero 7 failed to state a claim in the underlying action. However, that alleged defect 8 does not relate to whether the federal court had subject matter jurisdiction over 9 that claim in the first instance. That is an important distinction in the context of 10 Rule 60(b)(4)—a judgment is not void merely because it is somehow erroneous. 11 See United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010). As 12 relevant here, 18 U.S.C. § 2333(a) provides that “[a]ny national of the United 13 States injured in his or her person, property, or business by reason of an act of 14 international terrorism, or his or her estate, survivors, or heirs, may sue therefor 15 in any appropriate district court of the United States . . . .” While that provision 16 does have a jurisdictional component—“may sue therefor in any appropriate 17 district court of the United States”—that jurisdictional component merely 18 confirms what is plainly set forth in 18 U.S.C. § 2338: federal district courts 19 have exclusive jurisdiction over claims brought pursuant to the ATA. See 18 20 U.S.C. §§ 2333(a) & 2338. 21 Alvarez’s argument—that Caballero did not qualify to assert a claim 22 under the ATA because neither Caballero nor his father was a U.S. national at 23 the time that his father was tortured and killed—is not persuasive.31 As the 24 25 30 See Pl.’s Compl. (the “ATA Complaint”) [ATA Action, ECF No. 1] ¶ 9 26 (“This Court has jurisdiction pursuant to 18 U.S.C. § 2338, which provides for exclusive federal jurisdiction for ATA claims.”); see also id. at ¶ 8 (“Plaintiff in 27 this action sues Defendants for damages pursuant to 18 U.S.C. § 2333 of the ATA.”); id. at ¶¶ 12–14 (pleading claim for relief under 18 U.S.C. § 2333). 1 court in the ATA Action correctly observed, 18 U.S.C. § 2333(a) “does not 2 explicitly require that the claimant be a U.S. national at the time of the injury, 3 only that he is currently a U.S. national and that he was injured by an act of 4 international terrorism at some time in the past.”32 See, e.g., Linde v. Arab Bank, 5 PLC, 384 F. Supp. 2d 571, 589 (E.D.N.Y. 2005) (holding that “U.S. citizens 6 suing for various non-physical injuries, such as emotional distress and loss of 7 consortium, after their family members, who were not U.S. nationals, became 8 victims of acts of international terrorism” could assert a claim under the ATA); 9 Biton v. Palestinian Interim Self–Government Authority, 310 F. Supp. 2d 172, 181– 10 82 (D.D.C. 2004) (holding that a woman whose husband (a non-U.S. citizen) 11 died in a Gaza Strip bus bombing could maintain an ATA lawsuit even though 12 she was not personally on the bombed bus nor injured in the blast); Weinstock v. 13 Islamic Republic of Iran, 2019 WL 1993778, at *4 (S.D. Fla. May 6, 2019). 14 Moreover, even if the statute did require Caballero to be a U.S. national at the 15 time of his injury, as Alvarez argues, Caballero explicitly alleged a continuing 16 injury in his person by reason of the acts of international terrorism.33 Thus, even 17 accepting Alvarez’s interpretation of the statute, a federal question appears on 18 the face of Caballero’s well-pleaded ATA Complaint. See Caterpillar, 482 U.S. 19 392. 20 Therefore, the Southern District of Florida had subject matter jurisdiction 21 over the ATA Action. 22 2. Personal Jurisdiction 23 Alvarez next argues that the ATA Judgment is void because the district 24 court did not have personal jurisdiction over the defendants.34 Unlike subject 25
26 32 Order on Mot. for Default J. (the “Default Order”) [ATA Action, ECF No. 62] 5. 27 33 See ATA Complaint ¶ 14. 1 matter jurisdiction, which “is an Art. III as well as a statutory requirement” that 2 “functions as a restriction on federal power,” the “requirement that a court 3 have personal jurisdiction flows not from Art. III, but from the Due Process 4 Clause.” Ins. Corp. of Ireland, 456 U.S. at 702. As such, the “personal 5 jurisdiction requirement recognizes and protects an individual liberty interest.” 6 Id. (emphasis added). It therefore “represents first of all an individual right,” 7 and, like other such rights, it can be waived. Id. at 703. 8 Alvarez was not a defendant in the ATA Action. Because the 9 requirement of personal jurisdiction is “a legal right protecting the individual,” 10 id. at 704, other district courts in this circuit and elsewhere have held that 11 objections to personal jurisdiction can be raised only by the individual defendant 12 who is protected by that right, see, e.g., Verrecchia v. Aviss, 2017 WL 9486151, at 13 *3–*4 (C.D. Cal. Nov. 8, 2017) (co-defendant did not have standing to object to 14 personal jurisdiction over another defendant); Jenkins v. Smead Mfg. Co., 2009 15 WL 3628100, at *3 (S.D. Cal. Oct. 28, 2009) (same); In re Grana y Montero 16 S.A.A. Sec. Litig., 2019 WL 259778, at *3 (E.D.N.Y. Jan. 9, 2019), report and 17 recommendation adopted, 2019 WL 1046627 (E.D.N.Y. Mar. 5, 2019); Zhaoyin 18 Wang v. Beta Pharma, Inc., 2015 WL 5010713, at *12 (D. Conn. Aug. 24, 2015) 19 (collecting cases); Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 20 F.R.D. 106, 114 (S.D.N.Y. 2010) (“[c]o-defendants do not have standing to 21 assert improper service claims on behalf of other defendants,” citing Farrell v. 22 Burke, 449 F.3d 470, 494 (2d Cir. 2006) (“Federal courts as a general rule allow 23 litigants to assert only their own legal rights and interests, and not the legal 24 rights and interests of third parties.”)). 25 In this regard, Alvarez cites no authority to show that he has standing to 26 attack the ATA Judgment for lack of personal jurisdiction over the named 27 defendants in the ATA Action. Therefore, the Court concludes that Alvarez 1 lacks standing to object to personal jurisdiction on behalf of the named 2 defendants in the ATA Action. 3 For the foregoing reasons, the Court DENIES Alvarez’s Motion Re 4 Judgment in its entirety. 5 C. Alvarez’s Jurisdiction Motion 6 Through this motion, Alvarez seeks to dissolve the Writ of Execution 7 because Caballero has not established that this Court has personal jurisdiction 8 over Alvarez and because Caballero failed to comply with the relevant notice 9 requirements under California law. The thrust of Caballero’s response is that he 10 does not have to establish personal jurisdiction over Alvarez because this is a 11 post-judgment collection proceeding against the blocked assets that are located 12 in this district, not Alvarez personally. Caballero also contends that he complied 13 with all applicable notice requirements under California law. 14 1. Requirements Under California Law 15 The Federal Rules of Civil Procedure provide that a money judgment is 16 “enforced by a writ of execution . . . .” Fed. R. Civ. P. 69(a)(1). That Rule 17 further instructs that the procedure on execution “must accord with the 18 procedure of the state where the court is located . . . .” Id. Thus, here, 19 California law governs the procedure on execution. Alvarez previously argued 20 that the term “execution,” in the context of this case, was being misapplied 21 based upon (1) the manner in which that term was used by the Eleventh Circuit 22 in Stansell v. Revolutionary Armed Forces of Colom. (FARC), 771 F.3d 713 (11th 23 Cir. 2014) (“Stansell II”), with reference to Florida law; and (2) how that term 24 is used in the context of the California Code of Civil Procedure.35 25 26
27 35 See generally Ex Parte Appl. by Alvarez to Stay Execution Against His Assets (the “Application”) [ECF No. 58]; see also Objection in Supp. of the 1 In Stansell II, under Florida law, “execution” was synonymous with 2 “turnover” of blocked assets to the judgment creditor. See Stansell II, 771 F.3d 3 at 725–26. In contrast, under California law, a “Writ of Execution” is the 4 exclusive vehicle for the enforcement of a judgment, see generally 5 Cal. Civ. Proc. Code §§ 680.010–720.430, whereas a “Writ of Attachment” is 6 used in the pre-judgment context (in cases involving commercial law), see id. at 7 §§ 481.010, et seq.; see also Writ of Execution, Cal. Prac. Guide Enf. J. & Debt 8 Ch. 6D-2 [6:311] (May 2020 update). 9 The parties agree that the “procedure on execution” must accord with 10 the procedures used in California.36 Under California law, post-judgment 11 collection procedure, such as Caballero’s action before this Court, is set forth in 12 Title Nine of the Code of Civil Procedure: “Enforcement of Judgments Law.” 13 See Cal. Civ. Proc. Code § 680.010 (“This title shall be known and may be cited 14 as the Enforcement of Judgments Law.”). Enforcement of money judgments is 15 accomplished through the service of a Writ of Execution and Notice of Levy. 16 See id. at § 699.510–540. Such writs may be served on third persons. Id. at 17 § 701.010(a). That is the procedure that Caballero employed in this case.37 18 Upon receiving service of a Writ of Execution, a third person has an obligation 19 to “deliver to the levying officer any of the property levied upon that is in the 20 possession or under the control of the third person at the time of levy unless the 21 third person claims the right to possession of the property.” See 22 Cal. Civ. Proc. Code § 701.010(b)(1). The Notice of Levy that Caballero served 23 with the Writ of Execution confirms as much, regardless of whether the Writ 24 25
26 36 See Pl.’s Ex Parte Mot. to Strike the Alvarez Objection (the “Motion to Strike”) [ECF No. 64]. 27 37 See Pl.’s Ex Parte Mot. for Issuance of Post-J. Writ of Execution Pursuant to Section 201(a) of TRIA [ECF No. 6] 13–14; Proof of Service [ECF No. 43-1] 1 and Notice are served on a defendant or a third party.38 Accordingly, Caballero 2 complied with the applicable provisions of California law. Furthermore, 3 Alvarez’s intervention in this case confirms that he received notice of this 4 action. 5 2. Types of Jurisdiction 6 At the outset, it is helpful to understand the distinctions between the 7 three types of potential jurisdiction in federal cases: in personam, in rem, and 8 quasi in rem. 9 a. In Personam Jurisdiction 10 “In personam jurisdiction, simply stated, is the power of a court to enter 11 judgment against a person.” SEC v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007). 12 As noted in the preceding section, the “requirement that a court have personal 13 jurisdiction” flows from the Due Process Clause. Ins. Corp. of Ireland, 456 U.S. 14 at 702. It is “a legal right protecting the individual.” Id. at 704. 15 b. In Rem Jurisdiction 16 In rem jurisdiction, by contrast, “is the court’s power to adjudicate rights 17 over property.” United States v. Obaid, 971 F.3d 1095, 1098 (9th Cir. 2020) 18 (citing Ross, 504 F.3d at 1138). “Jurisdiction in rem is predicated on the fiction 19 of convenience that an item of property is a person against whom suits can be 20 filed and judgments entered . . . .” United States v. Approximately $1.67 Million 21 (US) in Cash, Stock & Other Valuable Assets, 513 F.3d 991, 996 (9th Cir. 2008) 22 (citation and internal quotation marks omitted). 23 c. Quasi in Rem Jurisdiction 24 Finally, a quasi in rem action falls in between in rem and in personam 25 jurisdiction: 26
27 38 See Notice of Levy [ECF No. 54] 2 (sections entitled “Information for Judgment Debtor” and “Information for Person Other than Judgment 1 The action is not really against the property; rather, the action 2 involves the assertion of a personal claim against the defendant of the 3 type usually advanced in an in personam action and the demand 4 ordinarily is for a money judgment, although in some contexts the 5 objective may be to determine rights in certain property. The basis 6 for transforming the suit from one in personam to an action against 7 the defendant’s property is the attachment or garnishment of some 8 or all of the property the defendant may have in the jurisdiction. 9 Ventura Packers, Inc. v. F/V Jeanine Kathleen, 424 F.3d 852, 860 n.4 (9th Cir. 10 2005), as amended (citations and alteration omitted). 11 There are two types of quasi in rem jurisdiction. “In the first type the 12 plaintiff asserts an interest in property and seeks to have his interest established 13 as against the claim of a designated person or designated persons.” Restatement 14 (First) of Judgments § 32 cmt. a (1942). The first type includes, for example, 15 actions to recover possession of land or to quiet title. See id. 16 “In the second type of proceeding quasi in rem the plaintiff does not assert 17 that he has an interest in the property, but asserts a claim against the defendant 18 personally, and seeks to compel to the satisfaction of his claim the application of 19 property of the defendant, by attachment or garnishment.” Id.; see also Off. 20 Depot Inc. v. Zuccarini, 596 F.3d 696, 699–700 (9th Cir. 2010). Type two quasi in 21 rem is sometimes called “attachment jurisdiction.” Zuccarini, 596 F.3d at 699. 22 A district court can obtain quasi in rem jurisdiction over property situated 23 within its geographical borders. See Pennington v. Fourth Nat’l Bank, 243 U.S. 24 269, 272 (1917); Fed. R. Civ. P. 4(n)(2) (“[T]he court may assert jurisdiction 25 over the defendant’s assets found in the district. Jurisdiction is acquired by 26 seizing the assets under the circumstances and in the manner provided by state 27 law in that district.”). Due process is satisfied when there is a constitutionally 1 Shaffer v. Heitner, 433 U.S. 186, 204 (1977). “In an action to execute on a 2 judgment, due process concerns are satisfied, assuming proper notice, by the 3 previous rendering of a judgment by a court of competent jurisdiction.” 4 Zuccarini, 596 F.3d at 700 (citing Shaffer, 433 U.S. at 210 n.36 (“Once it has 5 been determined by a court of competent jurisdiction that the defendant is a 6 debtor of the plaintiff, there would seem to be no unfairness in allowing an action 7 to realize on that debt in a State where the defendant has property, whether or 8 not that State would have jurisdiction to determine the existence of the debt as 9 an original matter.”)). 10 3. Application to This TRIA Case 11 Because TRIA establishes a unique procedure for post-judgment 12 execution and attachment proceedings, this case does not fit neatly within any of 13 the traditional jurisdictional paradigms. Indeed, the parties do not cite any case 14 addressing the specific jurisdictional basis for post-judgment execution 15 proceedings under TRIA, nor has the Court discovered any such authority 16 through its independent research. Thus, this case appears to present an issue of 17 first impression. Here, although Alvarez was not named as a defendant in the 18 ATA Action and Caballero does not assert a claim against Alvarez personally, 19 the plain language of TRIA mandates that the Court’s jurisdiction over this 20 post-judgment collection proceeding is type two quasi in rem. 21 In view of the traditional quasi in rem framework, the issue that stands out 22 here is that Alvarez was not a defendant against whom the ATA judgment was 23 entered. The bridge to that gap, however, is found in the plain text of TRIA, 24 which provides, in relevant part, as follows: 25 Notwithstanding any other provision of law, and except as provided 26 in subsection (b), in every case in which a person has obtained a 27 judgment against a terrorist party on a claim based upon an act of 1 section 1605(a)(7) of title 28, United States Code, the blocked assets 2 of that terrorist party (including the blocked assets of any agency or 3 instrumentality of that terrorist party) shall be subject to execution 4 or attachment in aid of execution in order to satisfy such judgment 5 to the extent of any compensatory damages for which such terrorist 6 party has been adjudged liable. 7 TRIA § 201(a) (emphasis added). 8 In the underlying ATA Action, judgment was entered against the FARC. 9 It is undisputed that the FARC is a “terrorist party” as defined by TRIA 10 § 201(d)(4), and it is further undisputed that Alvarez’s assets are “blocked” 11 under the Kingpin Act. This Court has, therefore, concluded that Alvarez’s 12 assets are subject to execution pursuant to 18 U.S.C. § 2333(e).39 Accordingly, 13 the only issue remaining is whether Alvarez is an agency or instrumentality of 14 the FARC for the purposes of TRIA § 201(a). The Court already made a 15 preliminary determination that Alvarez is an agency or instrumentality of the 16 FARC,40 although that determination is currently pending further proceedings,41 17 as discussed below. Subject to the Court’s final determination of that issue, 18 however, the plain language of TRIA § 201(a) makes clear that “in every case in 19 which a person has obtained a judgment against a terrorist party . . . , the blocked 20 assets of that terrorist party (including the blocked assets of any agency or 21 instrumentality of that terrorist party) shall be subject to execution or attachment 22 . . . .” Weinstein v. Islamic Republic of Iran, 609 F.3d 43, 49 (2d Cir. 2010) 23 (emphasis in original). Under Alvarez’s interpretation of the statute—that the 24 court in the ATA Action first had to have personal jurisdiction over Alvarez 25 (i.e., the alleged agency or instrumentality) before this Court can properly 26 39 See Sec. II(A)(1), supra. 27 40 See Order Re Writ of Execution ¶ 4(b). 1 exercise quasi in rem jurisdiction over this action42—“the agency or 2 instrumentality would itself have been a ‘terrorist party’ against which the 3 underlying judgment had been obtained” and “the parenthetical language in 4 Section 201(a) of the TRIA that permits attachment of funds from agencies and 5 instrumentalities would be rendered superfluous.” Id. 6 Instead, the plain language of the statute “clearly differentiates between 7 the party that is the subject of the underlying judgment itself, which can be any 8 terrorist party . . . , and parties whose blocked assets are subject to execution or 9 attachment, which can include not only the terrorist party but also ‘any agency 10 or instrumentality of that terrorist party.’” Id. (quoting TRIA § 201(a)). In 11 effect, TRIA § 201(a) constitutes an independent grant of jurisdiction over the 12 blocked assets of “any agency or instrumentality” of the terrorist party for the 13 purpose of execution and attachment of a valid ATA judgment. Due process is 14 satisfied by the underlying judgment against the terrorist party as well as the 15 requirement under TRIA § 201(a) that the blocked assets subject to execution 16 are the assets of an agency or instrumentality of the terrorist party. Of course, if 17 the Court were to decide that Alvarez is not an agency or instrumentality of the 18 FARC, then the jurisdictional question would be moot. 19 By way of analogy, the Court’s conclusion finds support in cases where a 20 creditor seeks to satisfy its debt out of property transferred by one corporation 21 (the original judgment debtor) to a second, successor corporation. In those 22 cases, the district court applies state law to determine whether the transferee 23 corporation is merely a successor to, and continuation of, the former 24 corporation. See Christiansen v. Mechanical Contractors Bid Depository, 404 F.2d 25 324, 325 (10th Cir. 1968), cited with approval in In re Merrill Lynch Relocation 26 Mgmt., Inc., 812 F.2d 1116, 1120 (9th Cir. 1987) (in actions to enforce a judgment 27 1 under Rule 69, state law applies to determine liability of a successor 2 corporation). If the court finds that the transferee corporation is the successor 3 to the transferor corporation and that state law imposes liability upon a 4 successor corporation for the transferor’s debts, then the judgment creditor can 5 execute upon the assets of the successor corporation, notwithstanding that the 6 successor corporation is not the judgment debtor in the underlying action. See 7 id. Similarly, here, TRIA § 201(a) provides that the judgment creditor may, 8 upon a proper showing, satisfy his judgment against the blocked assets of any 9 agency or instrumentality of the terrorist-party judgment debtor. The agency or 10 instrumentality is an analog to the successor corporation in the aforementioned 11 example. Due Process is satisfied because the agency-or-instrumentality finding 12 establishes a relationship with the judgment debtor and the underlying litigation, 13 and with the forum where the blocked assets of the agency or instrumentality are 14 located. See Shaffer, 433 U.S. at 204. 15 Courts have also adopted similar reasoning in examining the basis for 16 federal subject matter jurisdiction over actions to enforce a judgment obtained 17 against a foreign state under the Foreign Sovereign Immunities Act (“FSIA”), 18 28 U.S.C. §§ 1602 et seq. While this Court recognizes that there are important 19 distinctions between the instant action and actions against a foreign state under 20 FSIA,43 the analytical framework in the FSIA context is instructive with regard 21 to the issue presently before this Court. 22 Like TRIA, FSIA contains provisions requiring an “agency or 23 instrumentality” determination. Specifically, the statute’s definition of the term 24 “foreign state” includes “a political subdivision of a foreign state or an agency 25 or instrumentality of a foreign state.” 28 U.S.C. § 1603(a). Based upon that 26 language, courts have held that Rule 69 authorizes a garnishment action against 27 43 Those distinctions include issues of subject matter jurisdiction over the 1 the assets of an agency or instrumentality of the judgment debtor. See, e.g., IFC 2 Interconsult, AG v. Safeguard International Partners, LLC, 438 F.3d 298 (3d Cir. 3 2006); Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela, 333 F. Supp. 3d 4 380 (D. Del. 2018), aff’d and remanded, 932 F.3d 126 (3d Cir. 2019). In IFC, for 5 example, the Third Circuit reasoned that “[a]lthough garnishment actions are 6 new actions in the sense that there is a new party and a new theory for that 7 party’s liability, they are not new actions in the sense of a new direct claim.” 8 IFC, 438 F.3d at 314. Applying IFC, the district court in Crystallex determined 9 that the judgment creditor’s collection action against a Venezuelan state-owned 10 oil company to collect on the creditor’s judgment against the Bolivarian 11 Republic of Venezuela was part of the action giving rise to the judgment and that 12 Venezuela was subject to the court’s jurisdiction under an exception to FSIA. 13 See Crystallex, 333 F. Supp. 3d at 390–392. That court reasoned that the 14 collection action was part of the “same lawsuit” that gave rise to the judgment 15 and that the judgment creditor did not seek to impose any new obligation on the 16 agency or instrumentality, but rather sought only to attach property that 17 nominally belonged to the agency or instrumentality but effectually belonged to 18 the judgment debtor.44 See id. at 392. The court in Crystallex proceeded to 19 explain that the crucial distinction in such cases is that the judgment creditor 20 seeks only to collect a judgment, not “to impose personal liability for an existing 21 judgment on a new party.” See id. at 393 (quoting Gambone v. Lite Rock Drywall, 22 288 Fed. App’x 9, 12 (3d Cir. 2008)); see also id. at 392–393 (citing cases). 23 24 44 Although Alvarez’s argument in the instant action is somewhat 25 different—Alvarez is contesting this Court’s jurisdiction over him and his assets, and Caballero does not appear to contend that Alvarez is an alter ego of 26 the FARC, cf. Crystallex, 333 F. Supp. 3d at 390–392—as this Court explained, TRIA § 201(a) effectively constitutes an independent grant of jurisdiction over 27 the blocked assets of “any agency or instrumentality” of the terrorist party for the purpose of execution and attachment of a valid ATA judgment. The 1 As in those FSIA cases, here Caballero is not seeking to impose personal 2 liability against Alvarez; Caballero seeks only to enforce his judgment against 3 Alvarez’s blocked assets based upon the theory that Alvarez is an agency or 4 instrumentality of the FARC. Thus, Due Process is satisfied by the underlying 5 judgment and by the implicit requirement under TRIA that the Court make a 6 finding that Alvarez is an agency or instrumentality of the judgment debtor 7 before Caballero can obtain the turnover of Alvarez’s blocked assets. 8 Accordingly, the Court concludes that it has quasi in rem jurisdiction over 9 this action, pending a final determination of whether Alvarez is an agency or 10 instrumentality of the FARC. 11 Therefore, for the foregoing reasons, the Court DENIES Alvarez’s 12 Jurisdiction Motion in its entirety. 13 D. Discovery Motions 14 Caballero and Alvarez each filed separate, but related, motions pertaining 15 to discovery in this action. The Court addresses them in that order. 16 1. Caballero’s Motion to Compel 17 Caballero seeks an order compelling Alvarez to provide a deposition in 18 person in this District.45 Caballero contends that absent an order compelling 19 Alvarez to appear for a deposition in this District, Caballero “would be deprived 20 of one of the strongest weapons in this Court’s arsenal to punish perjury—that 21 is, the risk of arrest.”46 Alvarez objects only to the extent that Caballero seeks to 22 depose Alvarez outside of Mexico.47 Because Alvarez is a designated SDNT, he 23 cannot obtain a visa to travel to the United States.48 Moreover, Alvarez 24 25
26 45 See generally Motion to Compel. 46 Id. at 7:17–21. 27 47 MTC Opposition 1:11–12. 1 contends that the Federal Rules of Civil Procedure expressly allow for foreign 2 depositions.49 3 The Federal Rules of Civil Procedure provide as follows: 4 (1) In General. A deposition may be taken in a foreign country: 5 (A) under an applicable treaty or convention; 6 (B) under a letter of request, whether or not captioned a 7 “letter rogatory”; 8 (C) on notice, before a person authorized to administer oaths 9 either by federal law or by the law in the place of examination; or 10 (D) before a person commissioned by the court to administer 11 any necessary oath and take testimony. 12 Fed. R. Civ. P. 28(b)(1). The Rules further provide that “[t]he parties may 13 stipulate—or the court may on motion order—that a deposition be taken by 14 telephone or other remote means.” Fed. R. Civ. P. 30(b)(4). 15 The Court does not share Caballero’s concern that unless Caballero takes 16 Alvarez’s deposition in person, in the Central District, Caballero “would be 17 deprived of one of the strongest weapons in this Court’s arsenal to punish 18 perjury—that is, the risk of arrest.”50 District courts routinely handle cases in 19 which depositions are taken remotely, outside of the district. The Court is also 20 concerned that if it grants Caballero’s Motion to Compel, it would create a 21 situation in which Alvarez’s inevitable failure to appear in this District would 22 lead to Alvarez’s loss of the agency-or-instrumentality determination by default, 23 rather than on the merits. 24 In view of those Rules, the Court concludes that Caballero may depose 25 Alvarez, in person or remotely, at an appropriate venue in Mexico. 26 27 49 See id. at 5:1–8:22. 1 Accordingly, the Court GRANTS the Motion to Compel in part, to the 2 extent that Caballero seeks to compel the Alvarez’s deposition, and DENIES 3 the motion in part, to the extent that Caballero seeks to compel Alvarez to 4 appear in person in this District for his deposition. The Court DIRECTS the 5 parties to meet and confer regarding the timing, sequence, and other logistics 6 pertaining to Alvarez’s deposition. 7 2. Alvarez’s Discovery Motion 8 Alvarez seeks an order compelling reciprocal depositions of Caballero and 9 Caballero’s witnesses.51 Caballero opposes that motion only to the extent that 10 Alvarez seeks to take Caballero’s deposition.52 11 The Federal Rules of Civil Procedure provide, in pertinent part, as 12 follows: 13 Unless otherwise limited by court order, the scope of discovery is as 14 follows: Parties may obtain discovery regarding any nonprivileged 15 matter that is relevant to any party’s claim or defense and 16 proportional to the needs of the case, considering the importance of 17 the issues at stake in the action, the amount in controversy, the 18 parties’ relative access to relevant information, the parties’ 19 resources, the importance of the discovery in resolving the issues, 20 and whether the burden or expense of the proposed discovery 21 outweighs its likely benefit. Information within this scope of 22 discovery need not be admissible in evidence to be discoverable. 23 Fed. R. Civ. P. 26(b)(1). The Court is required to limit “the frequency or extent 24 of discovery” if it determines that: 25 26 27 51 See generally Discovery Motion. 1 (i) the discovery sought is unreasonably cumulative or duplicative, 2 or can be obtained from some other source that is more convenient, 3 less burdensome, or less expensive; 4 (ii) the party seeking discovery has had ample opportunity to obtain 5 the information by discovery in the action; or 6 (iii) the proposed discovery is outside the scope permitted by 7 Rule 26(b)(1). 8 Fed. R. Civ. P. 26(b)(2)(C). 9 Here, in view of the Court’s other rulings herein, and for the reasons set 10 forth in the subsequent section, it appears that there is no testimony that 11 Caballero could provide that would be relevant to the determination of whether 12 Alvarez is an agency or instrumentality of the FARC. Therefore, the Court 13 finds that Caballero’s testimony is not relevant to “any party’s claim or 14 defense.” Fed. R. Civ. P. 26(b)(1). Accordingly, pursuant to 15 Rule 26(b)(2)(C)(3), the Court finds that Alvarez is not entitled to take 16 Caballero’s deposition. 17 For those reasons, the Court GRANTS the Discovery Motion in part, to 18 the extent that Alvarez seeks to take reciprocal depositions of Caballero’s 19 witnesses regarding the agency-or-instrumentality issue, and DENIES the 20 Discovery Motion in part, to the extent that Alvarez seeks to take Caballero’s 21 deposition. The Court further ORDERS that Caballero shall have the right to 22 depose Alvarez’s witnesses regarding the agency-or-instrumentality issue. The 23 Court DIRECTS the parties to meet and confer regarding the timing, sequence, 24 and other logistics for that discovery. 25 E. Alvarez’s TRIA Motion 26 In view of the foregoing, after discovery is completed, the Court will 27 conduct an evidentiary hearing on the TRIA Motion. At the hearing on the 1 decide the applicable legal standard for the agency-or-instrumentality 2 determination. Alvarez contends that, because TRIA does not have its own 3 definition of “agency or instrumentality” and because TRIA § 201 is codified as 4 a note to 28 U.S.C. § 1610, the Court should apply the FSIA definition of 5 “agency or instrumentality,” 28 U.S.C. § 1603(b), which applies to the entire 6 “chapter” including 28 U.S.C. § 1610, see 28 U.S.C. § 1603 (“For purposes of 7 this chapter . . .”).53 In contrast, Caballero urges this Court to apply the so- 8 called “Assistance Standard” adopted by the Eleventh Circuit in Stansell II, 9 which Caballero contends is supported by the plain text of TRIA § 201(a). The 10 Court regards those requests as motions in limine pertaining to the upcoming 11 evidentiary hearing and, accordingly, provides its guidance below. 12 Alvarez correctly observes that TRIA § 201(a) is codified as a note to 28 13 U.S.C. § 1610 and that the FSIA definition of “agency or instrumentality” 14 applies to 28 U.S.C. § 1610. In a typical case involving a question of statutory 15 interpretation, the Court’s analysis would end there. However, “[s]tatutory 16 construction is a ‘holistic endeavor.’” Koons Buick Pontiac GMC, Inc. v. Nigh, 17 543 U.S. 50, 60 (2004) (quoting United Sav. Ass’n v. Timbers of Inwood Forest 18 Associates, Ltd., 484 U.S. 365, 371 (1988)). “A provision that may seem 19 ambiguous in isolation is often clarified by the remainder of the statutory 20 scheme—because the same terminology is used elsewhere in a context that 21 makes its meaning clear, or because only one of the permissible meanings 22 produces a substantive effect that is compatible with the rest of the law.” United 23 Sav. Ass’n, 484 U.S. at 371. Here, importing the FSIA definition into TRIA 24 § 201 is inconsistent with the plain text of both statutes, and such an importation 25 would produce an anomalous result that is incompatible with the plain language 26 of the statute. 27 1 The ambiguity arises in the first instance from Congress’s decision to 2 codify TRIA § 201(a) as a “note” to 28 U.S.C. § 1610 instead of an amendment 3 to that section. In other words, TRIA § 201(a) is an independent enactment 4 separate from the statutory text of 28 U.S.C. § 1610. In making that legislative 5 decision, Congress appears to have recognized that although the two statutes are 6 related in a general sense (i.e., both statutes have a similar purpose), they are 7 directed at different subjects. The plain text of the respective statutes makes 8 that distinction crystal clear. 9 FSIA concerns the activities of “foreign states” (i.e., sovereign countries, 10 see Stansell II, 771 F.3d at 732) and the agencies or instrumentalities of those 11 foreign states. See 28 U.S.C. § 1603(a). Regarding the latter, FSIA provides, in 12 relevant part, as follows: 13 An “agency or instrumentality of a foreign state” means any 14 entity— 15 (1) which is a separate legal person, corporate or otherwise, 16 and 17 (2) which is an organ of a foreign state or political subdivision 18 thereof, or a majority of whose shares or other ownership 19 interest is owned by a foreign state or political subdivision 20 thereof, and 21 (3) which is neither a citizen of a State of the United States as 22 defined in section 1332(c) and (e) of this title, nor created 23 under the laws of any third country. 24 28 U.S.C. § 1603(b) (emphasis added). In contrast, the subject of TRIA 25 § 201(a) is a “terrorist party,” and TRIA’s definition of that term 26 unambiguously includes both state and non-state actors: 27 The term “terrorist party” means a terrorist, a terrorist organization 1 Nationality Act (8 U.S.C. [§] 1182(a)(3)(B)(vi))), or a foreign state 2 designated as a state sponsor of terrorism under section 6(j) of the 3 Export Administration Act of 1979 (50 U.S.C. App. [§] 2405(j)) or 4 section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 5 [§] 2371). 6 TRIA § 201(d)(4). 7 Alvarez contends that the distinction between “foreign state” in FSIA 8 and “terrorist party” in TRIA § 201(a) is trivial and, therefore, that this Court 9 should simply substitute “foreign state” with “terrorist party.”54 However, 10 “our constitutional structure does not permit this Court to ‘rewrite the statute 11 that Congress has enacted.’” Puerto Rico v. Franklin California Tax-Free Tr., 136 12 S. Ct. 1938, 1949 (2016) (quoting Dodd v. United States, 545 U.S. 353, 359 13 (2005)). Furthermore, as the Eleventh Circuit explained in Stansell II, the 14 statutory construction that Alvarez proposes “would create an absurd result and 15 leave TRIA § 201 nearly meaningless.” Stansell II, 771 F.3d at 731. “[A]pplying 16 FSIA’s definition of agencies or instrumentalities to TRIA would leave only 17 terrorist states as potential sponsors of agencies or instrumentalities under 18 TRIA § 201, eviscerating TRIA’s effectiveness vis-à-vis non-state terrorist 19 organizations.” Id. Such an erroneous result would not comport with the plain 20 text of the statute which unambiguously makes nonstate judgment debtors 21 subject to TRIA execution. See id. 22 The so-called “assistance standard,” on the other hand, utilizes the plain 23 and ordinary meaning of the terms “agency” and “instrumentality.” See 24 Stansell II, 771 F.3d at 732; Kirschenbaum v. 650 Fifth Ave. and Related Properties, 25 830 F.3d 107, 135 (2d Cir. 2016) (for the purposes of TRIA, construing the 26 terms “agency or instrumentality” according to their ordinary meaning), 27 1 abrogated on other grounds by Rubin v. Islamic Republic of Iran, 138 S. Ct. 816 2 (2018). As the Second Circuit explained in Kirschenbaum: 3 “Instrumentality” is a means through which a function of 4 another entity is accomplished, analogous to a branch of a governing 5 body. See Black’s Law Dictionary (10th ed. 2014) (defining 6 “instrumentality” as “a means or [a]gency through which a function 7 of another entity is accomplished, such as a branch of a governing 8 body”); Webster’s Third New International Dictionary 1172 (1993) 9 (defining instrumentality as “something that serves as an 10 intermediary or agent through which one or more functions of a 11 controlling force are carried out: a part, organ, or subsidiary branch 12 esp. of a governing body”); OED Online, Oxford University Press, 13 June 2016 (defining instrumentality as “[t]hat which serves or is 14 employed for some purpose or end; a means, an agency”); Merriam– 15 Webster Collegiate Dictionary 22 (10th ed. 1993) (defining 16 instrumentality as a “means” or an “agency”). 17 “Agency” is an entity acting on another’s behalf or providing 18 a particular service on another's behalf. See OED Online, Oxford 19 University Press, June 2016 (defining agency as “[a] person or 20 organization acting on behalf of another, or providing a particular 21 service”); Webster’s Third New International Dictionary 1172 (1993) 22 (defining agency as “a person or thing through which power is 23 exerted or an end is achieved”); Merriam–Webster Collegiate 24 Dictionary 22 (10th ed. 1993) (defining agency as “a person or thing 25 through which power is exerted or achieved”). As ordinarily 26 understood, an entity that is an “agency” or an “instrumentality” is 27 distinct from, even if a part of, the entity for which the agency or 1 Kirschenbaum, 830 F.3d at 135. 2 Accordingly, this Court concludes that to demonstrate that Alvarez is an 3 “agency or instrumentality” of the FARC under TRIA § 201(a), Caballero must 4 show that Alvarez: “(1) was a means through which a material function of the 5 terrorist party is accomplished, (2) provided material services to, on behalf of, or 6 in support of the terrorist party, or (3) was owned, controlled, or directed by the 7 terrorist party.” Id. (emphasis in original) (citing Stansell II, 771 F.3d at 723); see 8 also Stansell v. Revolutionary Armed Forces of Colombia (FARC), 2013 WL 9 12156399, at *2 (M.D. Fla. Apr. 25, 2013), aff’d sub nom. Stansell II, 771 F.3d 10 713. 11 III. CONCLUSION 12 For the foregoing reasons, the Court hereby ORDERS as follows: 13 1. Alvarez’s Motion Re Blocked Assets is DENIED. 14 2. Alvarez’s Motion Re Judgment is DENIED. 15 3. Alvarez’s Jurisdiction Motion is DENIED. 16 4. Alvarez’s Discovery Motion is GRANTED in part, to the extent 17 that Alvarez seeks to take the depositions of Caballero’s witnesses regarding the 18 agency-or-instrumentality issue, and DENIED in part, to the extent that 19 Alvarez seeks to take Caballero’s deposition. The Court further ORDERS that 20 Caballero shall have the right to depose Alvarez’s witnesses regarding the 21 agency-or-instrumentality issue. 22 5. Caballero’s Motion to Compel is GRANTED in part, to the extent 23 that Caballero seeks to compel the Alvarez’s deposition, and DENIED in part, 24 to the extent that Caballero seeks to compel Alvarez to appear for deposition in 25 person in this District. 26 6. The Court will conduct an evidentiary hearing on the TRIA 27 Motion. 1 7. The parties are DIRECTED to confer regarding the timing, sequence, and logistics of discovery; the schedule for further briefing, if any, on || the TRIA Motion; and the schedule for the evidentiary hearing on the TRIA 4|| Motion. The parties are DIRECTED to file a Joint Status Report no later than 5|| 12:00 noon on January 14, 2022, regarding those issues 6 8. Avideo Status Conference is SET for 11:00 a.m. on January 21, || 2022. 8 IT IS SO ORDERED. MDA 10 || Dated: December 29, 2021
11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28