Estate of Heiser v. Bank of Tokyo Mitsubishi UFJ

919 F. Supp. 2d 411, 2013 WL 342684, 2013 U.S. Dist. LEXIS 12067
CourtDistrict Court, S.D. New York
DecidedJanuary 29, 2013
DocketNo. 11 Civ. 1601 (PKC)
StatusPublished
Cited by9 cases

This text of 919 F. Supp. 2d 411 (Estate of Heiser v. Bank of Tokyo Mitsubishi UFJ) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Heiser v. Bank of Tokyo Mitsubishi UFJ, 919 F. Supp. 2d 411, 2013 WL 342684, 2013 U.S. Dist. LEXIS 12067 (S.D.N.Y. 2013).

Opinion

MEMORANDUM AND ORDER

P. KEVIN CASTEL, District Judge:

The petitioners are family members and the estates of seventeen U.S. Air Force servicemembers killed in the 1996 terrorist attacks on the Khobar Towers in Saudi Arabia. They seek to enforce a judgment against the Islamic Republic of Iran, the Iranian Ministry of Information and Security, and the Iranian Islamic Revolution Guard Corps, all of which were found by the United States District Court for the District of Columbia (Hon. Royce C. Lam-berth, U.S.D.J.) (the “District of Columbia Court”) to have provided support for the terrorist attacks.

Petitioners move for summary judgment and seek an order compelling respondent Bank of Tokyo Mitsubishi UFJ, New York Branch (“Bank of Tokyo”) to turn over funds that they claim belong to Iran-based entities that function as mere instrumentalities of the Islamic Republic of Iran. The funds were initially electronic funds transfers (“EFTs”) that were blocked pursuant to directives of the United States Department of Treasury, and now sit in interest-bearing accounts held by the Bank of Tokyo. The Bank of Tokyo does not oppose the motion.

The petitioners have come forward with evidence that the funds they seek to attach belong to instrumentalities of the Islamic Republic of Iran, and were lawfully blocked pursuant to presidential orders and Department of Treasury authority. For reasons that will be explained, such assets may be attached in satisfaction of a judgment. The petitioners’ motion is therefore granted.

BACKGROUND

For the purpose of this motion, the following facts are undisputed, and the record is scrutinized in the light most favorable to the respondent. See, e.g., Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir.2011).

[413]*413The respondent does not dispute the facts set forth by the petitioners, and has submitted no counter-statement in opposition to the petitioners’ statement of undisputed facts filed pursuant to Local Rule 56.1. In its memorandum of law, the respondent states that it “does not oppose the ultimate relief sought by Petitioners in the Motion, namely, the turnover of the Blocked Assets.” (Response Mem. at 1.) It also déscribes itself as a “disinterested stakeholder” in the underlying assets. (Response Mem. at 3.)

A. Proceedings in the District of Columbia Court.

On June 25, 1996, an attack on the Khobar Towers complex in Saudi Arabia killed nineteen U.S. Air Force personnel. (Pet. 56.1 ¶ 1.) The petitioners in this case include representatives of the estates for seventeen of those victims. (Pet. 56.1 ¶¶ 2-4.)

Petitioners were plaintiffs in two actions filed in the District of Columbia Court. On September 29, 2000, certain of the petitioners filed an action pursuant to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1330, et seq. (the “FSIA”). See Heiser v. Iran, 00 Civ. 2329 (D.D.C.) (RCL). (Pet. 56.1 ¶ 3.) The FSIA establishes exclusive federal jurisdiction over actions against foreign states, 28 U.S.C. § 1330, and includes a terrorism exemption for a foreign state’s immunity, 28 U.S.C. § 1605A. Petitioners asserted that the Islamic Republic of Iran, the Iraniah Ministry of Information & Security (the “MOIS”) and the Iranian Revolutionary Guard Corps (the “IRGC”) were liable to them for wrongful death and intentional infliction of emotional distress. (Pet. 56.1 ¶ 3.) Additional petitioners in this action brought similar claims against the same defendants in a second action filed on October 9, 2001, Campbell v. Iran, 01 Civ. 2104 (D.D.C.) (RCL). (Pet. 56.1 ¶4.) The District of Columbia Court consolidated the two cases, (Pet. 56.1 ¶ 5.)

On December 22, 2006, the District of Columbia Court entered default judgment against Iran, the MOIS and the IRGC. See Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (D.D.C.2006). It concluded that the three defendants were jointly and severally liable for damages totaling $254,431,903. (Pet. 56.1 ¶ 6.)

On January 13, 2009, the District of Columbia Court retroactively applied the recently enacted section 1605A of the FSIA, 28 U.S.C. § 1605A,1 and that the petitioners were entitled to proceed under the new statute. (Pet. 56.1 ¶ 7; Seniawski Dec. Ex. 2.) Thereafter, on September 30, 2009, that court entered a supplemental judgment under section 1605A of the FSIA, awarding additional damages for lost wages and future earnings totaling $336,658,063. (Pet. 56.1 ¶ 8; Seniawski Dec. Ex. 3.)

B. Orders Directed to Satisfying the Judgment.

The District of Columbia .Court subsequently issued orders directed to the collection of the two judgments. On February 7, 2008, it concluded that, pursuant to 28 U.S.C. § 1610(c), a period had elapsed following entry of judgment sufficient to authorize an attachment in aid and execution of the December 2006 judgment. (Pet. 56.1 ¶ 9; Seniawski Dec. Ex. 4.) On May 10, 2010, it reached the same conclusion as to the September 2009 supplemental judgment. (Pet. 56.1 ¶ 10; Seniawski Dec. Ex. 5.)

[414]*414On September 8, 2008, the petitioners registered the December 2006 judgment in this District, pursuant to 28 U.S.C. § 1963. (Pet. 56.1 ¶ 13; M18-302, judgment no. 08,1562; Seniawski Dec. Ex. 7.) Petitioners registered the September 2009 judgment in this District on December 6, 2010. (Amended Petition (“Pet.”) 56.1 ¶ 14; 10 MC 00005, judgment no. 1.0,2146; Seniawski Dec. Ex. 8.) Thereafter, pursuant to Rule 69, Fed.R.Civ.P., and New York CPLR § 5230, the petitioners served writs of execution issued by the Clerk of this District on the U.S. Marshal. (Pet. 56.1 ¶ 15; Seniawski Dec. Ex. 9 & 10.) The U.S. Marshal then served the writs on the Bank of Tokyo. (Pet. 56.1 ¶ 16; Seniawski Dec. Ex. 10.)

C. Procedural History of the Present Action.-

Petitioners commenced this action by filing a petition for a turnover order pursuant to Rule 69 and sections 5225 and 5227 of the CPLR. (Docket # 1.) Petitioners assert that the respondent Bank of Tokyo possesses assets belonging instrumentalities of the MOIS, the IRGC and the government of Iran. (Pet. ¶¶ 25-26.) The Petition states that the respondent is named as a defendant pursuant to CPLR § 5225(b), which permits a judgment creditor to commence a special proceeding against a person in possession or custody of money owed to a judgment creditor. (Pet. ¶ 6.) The respondent asserts no right to these assets. (Pet. 56.1 ¶ 27.)

Petitioners seek to recover funds that were blocked pursuant to Presidential Executive Orders and directives issued by the Office of . Foreign Assets Control (“OFAC”), an agency of the United States Department of Treasury.

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919 F. Supp. 2d 411, 2013 WL 342684, 2013 U.S. Dist. LEXIS 12067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-heiser-v-bank-of-tokyo-mitsubishi-ufj-nysd-2013.