Caballero v. de Colombia

• Decision Date: 10 December 2022
• Docket Number: 1:18-cv-25337-KMM/Becerra
• Parties: ANTONIO CABALLERO, Plaintiff, v. FUERZAS ARMADAS REVOLUCIONARIOS DE COLOMBIA, etc. et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

ANTONIO CABALLERO, Plaintiff,
v.
FUERZAS ARMADAS REVOLUCIONARIOS DE COLOMBIA, etc. et al., Defendants.

No. 1:18-cv-25337-KMM/Becerra

United States District Court, S.D. Florida

December 10, 2022

REPORT AND RECOMMENDATION ON INTERESTED PARTIES' ^[1] EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER ^[2]

JACQUELINE BECERRA UNITED STATES MAGISTRATE JUDGE

THIS CAUSE came before the Court on the Interested Parties' Emergency Motion For (1) A Temporary Restraining Order Restraining Plaintiff, His Entities And Agents From Dissipating, Conveying, Encumbering or Otherwise Transferring Ownership of the “Fisher Island” And “Collins Avenue” Properties, (2) A Stay of Any Further Executions And Sales of Levied Properties; And (3) An Order Setting Aside Sales (the “TRO Motion”), ECF No. [187]. Plaintiff Antonio Caballero (“Plaintiff”) filed a Response in Opposition to the TRO Motion (the “Opposition to the TRO Motion”),

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ECF No. [192], and the Interested Parties filed a Reply, ECF (the “Reply to the TRO Motion”), No. [196]. Counsel appeared before the undersigned for a status hearing on the TRO Motion on November 29, 2022 (the day after the TRO Motion was filed) in order to set a date for the evidentiary hearing on the matter. See ECF No. [190]. The parties agreed to set the matter for a hearing on December 2, 2022 (the “Hearing”). See id. At the Hearing, both counsel agreed that an evidentiary hearing was not necessary given certain representation made by Plaintiff's counsel in his Opposition to the TRO Motion. Instead, counsel for the parties presented extensive argument to the Court, with the aid of demonstrative exhibits that are now part of the Court record. See ECF Nos. [197], [199], [200]. After a review of the instant Motion, the arguments of the Parties, the pertinent portions of the record, and the relevant authorities, and for the reasons stated below, it is hereby RECOMMENDED that the TRO Motion be GRANTED IN PART AND DENIED IN PART.

I. PROCEDURAL BACKGROUND

Plaintiff, whose father was a victim of two criminal narco-terrorist organizations, the Fuerzas Armadas Revolucionarias de Colombia (“FARC”) and the Norte de Valle Cartel (“NDV”), brought the underlying action pursuant to 18 U.S.C. § 2333, part of the Anti-Terrorism Act (“ATA”). ECF No. [1] ¶ 1. On May 20, 2020, the District Court entered default final judgment against Defendants, as follows:

[f]orty-five million dollars ($45,000,000.00) in actual compensatory noneconomic damages, which is further trebled pursuant to 18 U.S.C. § 2333; one million, seven hundred and twenty-nine thousand, six-hundred and sixty-seven dollars ($1,729,667.00) in actual, compensatory economic damages which is further trebled pursuant to 18 U.S.C. § 2333 and post-judgment interest at the rate of 0.15% from May 20, 2020 the date of final judgment, on the above-awarded trebled economic and non-economic damages, for which sum let execution issue.

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(the “Final Default Judgment”), ECF No. [63]. The total amount, therefore, is $135,000,000.00 for non-economic damages, and $5,189,001.00 for economic damages, plus interest. Id. The factual and procedural background leading to the Final Default Judgement was previously summarized by the Court, see, e.g., ECF No. [62], and is not at issue.

From the time the Final Default Judgement was entered on May 20, 2020, Plaintiff began his efforts to satisfy the judgment against various parties. The procedural history in this case from Final Default Judgment until April 8, 2022, is not relevant to the issue at hand, and therefore, the undersigned will proceed to review only the collection effort against the Interested Parties.

A. Plaintiff Begins Collection Efforts Against The Interested Parties

Plaintiff's collection efforts as to the Interested Parties began on April 8, 2022, when Plaintiff filed an Ex Parte Expedited Motion for Agency or Instrumentality Determination with Incorporated Memorandum of Law (the “A/I Motion”). ECF No. [150]. Plaintiff argued that under the ATA, and the Terrorism Risk Insurance Act (“TRIA”), Pub. L. No. 107-297, § 201(a), 116 Stat. 2322 (codified at 28 U.S.C. § 1610 note), “a victim holding an unsatisfied judgment against a terrorist party can collect” so long as: (1) the victim “has obtained a judgment against a terrorist party”; (2) the judgment is “either for a claim based on an act of terrorism,” or “for a claim for which a terrorist party is not immune”; and (3) the assets at issue are “‘blocked assets' within the meaning of TRIA”. ECF No. [150] at 4 (citing Weininger v. Castro, 462 F.Supp.2d 457, 459 (S.D.N.Y. 2006)). Plaintiff also argued that the Final Default Judgment could be collected as against any agency or instrumentality of a terrorist party. Id.

Plaintiff further argued that he needed an expedited determination as to the individuals and entities he alleged were agencies and instrumentalities so that he could “file a lis pendens against and start the execution process upon the blocked assets.” Id. at 1. Exhibit 1 to the A/I Motion

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contained a list of individuals that Plaintiff proffered were agencies and instrumentalities of the FARC. ECF No. [150-1]. Raul Gorrin Belisario (“Gorrin”) was one of two individuals listed. Id. at 2. Exhibit 2 to the A/I Motion contained a list of entities Plaintiff proffered as agencies and instrumentalities of the FARC. ECF No. [150-2]. Posh 8 Dynamic, Inc. and Planet 2 Reaching, Inc., as well as the other Interested Parties herein, were among the twenty-three entities listed. Id. Exhibit 3 to the A/I Motion contained a list of blocked assets, purportedly owned by these individuals and entities, that Plaintiff sought to attach in execution of the Final Default Judgment. ECF No. [150-3]. The property located at 7043 Fisher Island Drive, Miami Beach, Florida, purportedly owned by Planet 2 Reaching, Inc. (the “Fisher Island Property”) and the property located at 18555 Collins Avenue, Sunny Isles, Florida, purportedly own by Posh 8 Dynamic Inc. (the “Collins Avenue Property”), were two of ten assets listed in Exhibit 3. Id. at 2.

As to the ex parte and sealed nature of the request, Plaintiff argued, citing to the Court's previous Orders as to other parties in this case and to Eleventh Circuit case law, that the Interested Parties were “not entitled to a hearing before the issuance of a writ of attachment, but only before turnover.” ECF No. [150] at 5. In sum, Claimants were entitled to notice and to be heard before execution, though not necessarily before attachment. Id. And, as to the need for an expedited request, Plaintiff reiterated that:

[g]iven the fleeting nature of these blocked assets, Caballero has filed this expedited motion in order to place lis pendens on such blocked assets listed on Exhibit 3 pending application for and issuance of writs of execution in accordance with the procedures previously used with this Court. [citation omitted] Significantly, the Eleventh Circuit has opined that TRIA favors “immediate attachment” and that “[m]ere attachment is a minimally intrusive manner” of reducing the risks of fleeting assets. See Stansell, 771 F.3d at 729-30. Accordingly, Caballero respectfully requests expedited review under SDFL Local Rule 7.1(d)(2) and relief by [date] certain-April 22, 2022 (14 days after filing) to promptly attach these assets and perfect his judgment lien under Florida law.

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Id. at 20. Finally, in support of the A/I Motion, Plaintiff also referenced a prior submission of a declaration and supplement of John Robert McBrien, the former Associate Director for Global Targeting in the Office of Foreign Asset Control (“OFAC”). Id. at 7; ECF Nos. [73-2]; [81-1][81-2]. Mr. McBrien opined, based on his experience and review of public documents, that the listed individuals and entities were agencies and instrumentalities of the FARC. See ECF Nos. [73-2]; [81-1]-[81-2].

B. The Court Finds That The Interested Parties (And Others) Are Agencies And Instrumentalities Of The FARC

On April 25, 2022, the District Court granted the A/I Motion (the “A/I Order”). ECF No. [151]. Accordingly, the individuals listed in Exhibit 1 to the A/I Motion and the entities listed in Exhibit 2 to the A/I Motion were deemed agencies or instrumentalities of the FARC, and the properties listed in Exhibit 3 were now subject to attachment in satisfaction of the Final Default Judgment. See ECF Nos. [151]; [150-1]; [150-2]; [150-3]. Although the A/I Motion, its Exhibits, and the A/I Order were all filed under seal, the Court instructed the Clerk of Court to unseal the A/I Motion and the A/I Order on the earlier of thirty days after entry of the A/I Order, or upon the filing of Plaintiff's notice of attachment of all assets therein. ECF No. [151] at 6. No notice of attachment appears to have been filed. However, the A/I Motion and A/I Order would have been unsealed, in any event, by May 25, 2022. Given that the Court ordered that the A/I Motion and A/I Order be unsealed without further order or showing necessary, it appears that the Court contemplated what Plaintiff had argued would be the process: that notice and a hearing would be had before any properties were turned over.^[3]

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C. Plaintiff's Ex Parte Expedited Motion for Writs of Execution Against Real Property in the Putative Name Of Two Of The Interested Parties, Planet 2 Reaching, Inc. and Posh 8 Dynamic, Inc.

On May 27, 2022, Plaintiff filed an Ex Parte Expedited Motion for Writs of Execution Against: (1) Real Property in the Putative Name of Planet 2 Reaching, Inc.; and (2) Real Property in the Putative Name of Posh 8 Dynamic, Inc. (the “Motion for Writs of Execution”). ECF No. [155]. Again, the filing was under seal. Plaintiff assured the Court again that “Planet 2 Reaching, Inc., Posh 8 Dynamic. Inc., and Gorrin would receive additional notice of the execution proceedings against them as required under the Florida Statutes.” Id. at 10...