Fonseca v. Regan

98 F.R.D. 694, 37 Fed. R. Serv. 2d 678
CourtDistrict Court, E.D. New York
DecidedAugust 4, 1983
DocketNos. 78-C-1907, CV-81-3542
StatusPublished
Cited by3 cases

This text of 98 F.R.D. 694 (Fonseca v. Regan) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fonseca v. Regan, 98 F.R.D. 694, 37 Fed. R. Serv. 2d 678 (E.D.N.Y. 1983).

Opinion

MEMORANDUM OF DECISION AND ORDER

COSTANTINO, District Judge.

These cases are before the court on the motions of the Republic of Colombia (“Colombia”), the United States, and the State of New York to dismiss Jose A. Fonseca as a party to the second action, and on the defendants’ motion to dismiss the first action. For the reasons set forth below, the motions are hereby granted to the extent hereinafter indicated.

According to the pleadings, on or about June 9, 1978, Fonseca bought a ticket on Avianca Airlines to fly from Bogota, Colombia to Lima, Peru. When he arrived at the Bogota airport for his flight, Fonseca checked his baggage on Avianca for transport to Lima. However, Avianca delivered the baggage to New York, where it arrived at John F. Kennedy International Airport unaccompanied by Fonseca, who was waiting for it in Lima. When the suitcase was not claimed in New York, the United States Customs Service seized and opened it. Approximately $250,000 in U.S. currency was found inside the suitcase.

Acting through a New York attorney, Fonseca requested that the Customs Service return the money. When the request was denied, Fonseca commenced the first action (78-C-1907) to compel return of the money. The United States government served interrogatories on Fonseca through his local counsel. Before responding to the interrogatories, Fonseca moved for an order directing the government to return the suitcase and the money. Thereafter, acting pursuant to a request by the Superintendent of Exchange of Colombia (the Superintendent), the government moved for an order directing that the money be delivered to the Superintendent pursuant to 28 U.S.C. § 1782. After holding an evidentiary hearing, this court found that the Superintendent was a “tribunal” within the meaning of § 1782, ordered that the money be delivered to him, and dismissed Fonseca’s suit. On appeal, the Second Circuit reversed this holding and remanded the case for further proceedings. Fonseca v. Blumenthal, 620 F.2d 322 (2d Cir.1980) (per curiam).

On October 29, 1981, the United States filed the second action (CV-81-3542) in interpleader to determine the owner of the suitcase and money. 28 U.S.C. § 1335. Fonseca, Colombia, and the State of New York filed claims to the money. Shortly after the second action was commenced, the United States served on Fonseca a second set of interrogatories in the first action.1 Fonseca, the plaintiff in the first action, objected to the interrogatories essentially claiming that the questions were irrelevant; Fonseca did not make any claim of privilege in his objection. On February 4, 1982, this court entered an order directing Fonseca to respond to the interrogatories and to comply with Civil Rule 1 of the Eastern District of New York within 21 days.2 Fonseca has never complied with this order.

[697]*697On April 14,1982, attorneys for Colombia served Fonseca’s local counsel with interrogatories and a request for production of documents in the second action. Fonseca’s answers to the interrogatories were filed on July 6, 1982. Prior to receipt of these answers, Colombia sent Fonseca’s local counsel a notice of deposition and another request for production of documents. The deposition of Fonseca was to take place in New York City on June 28, 1982. Fonseca’s counsel sought to have Fonseca deposed in Colombia, but counsel for Colombia refused. Fonseca failed to appear for his deposition and failed to supply the requested documents.

On July 27, 1982, Colombia moved to strike Fonseca’s pleadings pursuant to Fed.R.Civ.P. 37(d) on the grounds that Fonseca failed to appear at his deposition and that he did not properly answer the interrogatories,3 and moved for an order pursuant to Fed.R.Civ.P. 34(b) and 37(a) compelling inspection of the documents or for an order directing the deposition of Fonseca within 60 days and compelling proper answers to the interrogatories and production of the requested documents.

After hearing oral argument on Colombia’s motion, this court entered an order on August 20, 1982, directing Fonseca to appear on October 5, 1982, in New York for a deposition and to respond fully to the interrogatories and produce the documents on or prior to September 13,1982. Fonseca failed to comply with this court’s order: he failed to appear for the deposition, he failed to supply any documents, and, instead of responding to the interrogatories, he filed an affidavit claiming that he believed that he may be a target of criminal investigations in the United States and Colombia and he therefore declined to make any further response to the interrogatories by invoking his Fifth Amendment right against self-incrimination. • >;

On October 13, 1982, Colombia moved to strike Fonseca’s pleadings and to enter default judgment against him. New York State and the United States joined in Colombia’s motion. Oral argument on the motions was heard on November 10, 1982. After a thorough review of the entire record in these cases, this court now dismisses the first action and strikes Fonseca’s pleadings and enters default judgment against him in the interpleader action. Colombia’s motion is denied to the extent that it seeks to have Fonseca pay reasonable expenses and attorney’s fees.

Fonseca argues first that because his motion in the first action to compel the government to return the money has never been opposed by the United States this court should grant the motion and order the money returned to him. At oral argument on November 10, 1982, however, the government clearly indicated its opposition to Fonseca’s motion (Hearing Transcript, p. 11). Fonseca’s contention also ignores the fact that the filing of the interpleader action by the government served, in effect, as the response to Fonseca’s motion in the first action.

The first action was filed to determine Fonseca’s right to the money. The interpleader action was intended to accomplish the same. The difference between the two actions is that the second action will determine the ownership of the money with finality by adjudicating the claims of all the parties to the currency. If Fonseca were to prevail in the second action, his claim to the money would be established as against the other claimants. If he were to win the first action, Fonseca would still face suits by the other claimants. A second action to deter[698]*698mine the claims of Colombia and New York State would waste judicial resources. In addition, a court could later determine that Colombia or New York State should be entitled to the money; if the United States has already paid the fund out to Fonseca, it could be subject to multiple liability. The avoidance of multiple suits and of multiple liability based on a specific, limited fund proffered by the plaintiff constitutes the basic purpose of the interpleader statute. Libby, McNeill, and Libby v. City Nat. Bank, 592 F.2d 504, 509 (9th Cir.1978); Zellen v. Second New Haven Bank, 454 F.Supp. 1359, 1365 (D.Conn. (1978); Massachusetts Mut. Life Ins. Co. v. Central-Penn. Nat.

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98 F.R.D. 694, 37 Fed. R. Serv. 2d 678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fonseca-v-regan-nyed-1983.