Merrill Lynch, Pierce, Fenner & Smith, Inc. v. ENC Corp.

467 F.3d 1205, 2006 U.S. App. LEXIS 27265, 2006 WL 3113100

Opinion

ORDER

The panel has voted to deny the petitions for rehearing. Judge Thomas has voted to deny the petitions for rehearing en banc and to deny any further petitions, and Judge Noonan and Judge Robart so recommend.

Petitioners’ fears of res judicata are baseless.

The Republic's claims of prejudice under Rule 19(b) are without merit, because its suit to recover the Arelma assets in the Philippines is a forfeiture action, one which a unanimous en banc Philippine Supreme Court has “categorically declared” is in rem. Rep. of the Phil. v. Sandiganbayan, (Nov. 18, 2003). The Republic has no jurisdiction over the rem, which is in the United States, and any judgment made without proper jurisdiction is unenforceable in the United States. Restatement (Third) of the Foreign Relations Law of the United States, § 482(2)(a) (1987).

Petitioner also omits the crucial language in American Greyhound, see Pet. Reh’g at 6, which reads, “some courts have held that sovereign immunity forecloses in favor of tribes the entire balancing process under Rule 19(b), but we have continued to follow the four-factor process even with immune tribes.” Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1025 (9th Cir.2002).

The full court has been advised of the petitions for rehearing en banc, and no active judge has requested a vote whether to rehear the matter en banc. Fed. RApp. P. 35.

The petitions for rehearing en banc are DENIED.