Inversora Murten, S.A. v. Energoprojekt Holding, Misc. Action No. 03-73 (RWR)(JMF).

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtRichard W. Roberts
Citation671 F.Supp.2d 152
Docket NumberMisc. Action No. 03-73 (RWR)(JMF).
Decision Date03 December 2009
PartiesINVERSORA MURTEN, S.A., Plaintiff, v. ENERGOPROJEKT HOLDING CO., Defendant.
671 F.Supp.2d 152
INVERSORA MURTEN, S.A., Plaintiff,
v.
ENERGOPROJEKT HOLDING CO., Defendant.
Misc. Action No. 03-73 (RWR)(JMF).
United States District Court, District of Columbia.
December 3, 2009.

Page 153

Jon Schuyler Brooks, Phillips Nizer LLP, Garden City, NY, for Plaintiff.

MEMORANDUM OPINION

RICHARD W. ROBERTS, District Judge.


Inversora Murten, S.A. ("Inversora") filed a writ of attachment against an intended garnishee, the Japan Bank for International Cooperation ("JBIC"). Magistrate Judge John M. Facciola has recommended that Inversora's writ of attachment be quashed for lack of subject matter jurisdiction because JBIC and its successor organizations—the Japan Finance Corporation ("JFC") and the Japan International Cooperation Agency ("JICA")—enjoy sovereign immunity under the Foreign Sovereign Immunity Act ("FSIA"), 28 U.S.C. §§ 1604, 1611. Inversora has submitted objections to the report and recommendation. Because the magistrate judge's recommendation is fully supported in law and Inversora's objections are without merit, the recommendation will be adopted and Inversora's writ of attachment will be quashed.

BACKGROUND

The history and background of this case and the underlying motions are discussed in Inversora Murten, S.A. v. Energoprojekt-Niskogradnja Co., 264 Fed.Appx. 13, 14 (D.C.Cir.2008), and Magistrate Judge Facciola's report and recommendation of April 8, 2009 ("Report and Recommendation"), Docket Entry 63, at 1-3. Briefly, Inversora obtained a default judgment for roughly $39 million in the U.S. District Court for the District of New Jersey against Energoprojekt Holding Company ("Energoprojekt"). In September, 2005, Inversora obtained from this court against JBIC a form writ of attachment bearing two pre-printed interrogatories with spaces after them for JBIC's answers. That month, JBIC filed verified answers to the interrogatories. Interrogatory 1 asked, "[w]ere you at the time of the service of the writ of attachment, or have you been between the time of such service and the filing of your answers to this interrogatory, indebted to the defendant(s), and, if so, how, and in what amount?" JBIC answered, "[w]ithout waiving any defense based on a lack of personal jurisdiction, [JBIC] states that, at the time of service of the writ of attachment and between that time and service of this answer, JBIC was not indebted to the defendant." (See Verified Answers of JBIC ("JBIC's Answers") at 2.) Interrogatory 2 asked, "[h]ad you at the time of the service of the writ of attachment, or have you had between the time of such service and the filing of your answer to this interrogatory, any goods, chattels, or credits of the defendant(s) in your possession or charge, and if so, what?" JBIC's answer stated, "[w]ithout waiving any defense based on a lack of personal jurisdiction, JBIC states that, at the time of the service of the writ of attachment and between that time and service of this answer, JBIC did not possess or have in its charge any goods, chattels, or credits of defendant [sic]." (Id.) Later, in November 2005, JBIC issued a letter to Inversora's counsel stating that it believed that Inversora's writ of garnishment was "without any force or effect" because, among other things, "JBIC is immune under" the FSIA. (See JFC's Resp. to Pl.'s Objns., Ex. 1 ("November 9, 2005 Ltr.") at 2-3.)

In December 2008, JBIC notified the court that it had been restructured into

Page 154

two entities—JFC and JICA. Shortly thereafter, Inversora moved for an order requiring JFC and JICA to appear at a hearing to allow Inversora and the magistrate judge to question JFC and JICA under oath in order to determine whether they held any property or credits that belonged to Energoprojekt. The magistrate judge granted Inversora's motion and scheduled the hearing. (See Order of January 29, 2009, Docket Entry 51, at 1.)

Instead of appearing at the hearing, JFC and JICA filed notices of sovereign immunity. In its notice of sovereign immunity, JFC stated that it is not a "privatized public corporation," but instead is a "public corporation wholly owned by the Japanese government and established by legislative enactment of the Japanese Diet," which "assumed the responsibility for the former JBIC's international financial operations[.]" (See Notice of Sovereign Immunity by JFC ("JFC's Notice") at 1-2.) Similarly, in its notice of sovereign immunity, JICA stated that it is an "official agency of the Government of Japan, established by legislative enactment of the Japanese Diet." (See Notice of Sovereign Immunity by JICA ("JICA's Notice") at 1.)

Inversora responded that its writ of attachment should not be quashed and that the garnishment proceeding should occur because JBIC, the predecessor to JFC and JICA, implicitly waived the defense of sovereign immunity by answering the interrogatories that accompanied the writ of attachment with a filing that did not contain the defense of sovereign immunity or lack of subject matter jurisdiction. (See Resp. of Inversora to JFC's Notice at 2-3; Resp. of Inversora to JICA's Notice ("Inversora's Resp. to JICA") at 3-4.) Inversora asserted that JBIC's answers to the interrogatories constituted a responsive pleading, and that once JBIC waived the defense of sovereign immunity by failing to include it in the responsive pleading, neither JBIC nor its successor organizations could reassert the argument. (See Inversora's Resp. to JICA at 5-7.) However, Inversora did not dispute the assertion that the JBIC, JFC, and JICA qualified as agencies or instrumentalities under the FSIA.

The magistrate judge's report and recommendation first determined that based upon the assertions that they made in their...

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8 practice notes
  • United States ex rel. Morsell v. Symantec Corp., Civil Action No. 12-800 (RC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 30 Marzo 2020
    ...of the minds as to material terms to form a contract between the parties."); see Inversora Murten, S.A. v. Energoprojekt Holding Co. , 671 F. Supp. 2d 152, 156 (D.D.C. 2009) (holding that a defense was not waived when it was not raised in response to an interrogatory because interrogatories......
  • Bode & Grenier, L.L.P. v. Knight, Civil Action No. 08–1323 (RWR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 20 Septiembre 2011
    ...“The magistrate judge's report and recommendation is reviewed de novo.” Inversora Murten, S.A. v. Energoprojekt Holding Co., 671 F.Supp.2d 152, 154–155 (D.D.C.2009) (citing LCvR 72.3(c), and Fed.R.Civ.P. 72). “Summary judgment may be appropriately granted when the moving party demonstrates ......
  • Jerez v. Republic Cuba, Misc. Action No. 09–466 (RWR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 29 Agosto 2013
    ...defendant, and therefore ‘must dismiss the case’ against the immune defendant.” Inversora Murten, S.A. v. Energoprojekt Holding Co., 671 F.Supp.2d 152, 155 (D.D.C.2009) (quoting Auster v. Ghana Airways, Ltd., 514 F.3d 44, 48 (D.C.Cir.2008)). “An agency or instrumentality of a foreign state ......
  • TIG Ins. Co. v. Republic of Arg., 18-mc-00129 (DLF)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 18 Abril 2022
    ...agrees in a contract that the laws of another country will govern that contract.” Inversora Murten, S.A. v. Energoprojekt Holding Co., 671 F.Supp.2d 152, 155 (D.D.C. 2009) (quoting World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1161 n.11 (D.C. Cir. 2002)). None is appli......
  • Request a trial to view additional results
8 cases
  • United States ex rel. Morsell v. Symantec Corp., Civil Action No. 12-800 (RC)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 30 Marzo 2020
    ...of the minds as to material terms to form a contract between the parties."); see Inversora Murten, S.A. v. Energoprojekt Holding Co. , 671 F. Supp. 2d 152, 156 (D.D.C. 2009) (holding that a defense was not waived when it was not raised in response to an interrogatory because interrogatories......
  • Bode & Grenier, L.L.P. v. Knight, Civil Action No. 08–1323 (RWR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 20 Septiembre 2011
    ...“The magistrate judge's report and recommendation is reviewed de novo.” Inversora Murten, S.A. v. Energoprojekt Holding Co., 671 F.Supp.2d 152, 154–155 (D.D.C.2009) (citing LCvR 72.3(c), and Fed.R.Civ.P. 72). “Summary judgment may be appropriately granted when the moving party demonstrates ......
  • Jerez v. Republic Cuba, Misc. Action No. 09–466 (RWR).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 29 Agosto 2013
    ...defendant, and therefore ‘must dismiss the case’ against the immune defendant.” Inversora Murten, S.A. v. Energoprojekt Holding Co., 671 F.Supp.2d 152, 155 (D.D.C.2009) (quoting Auster v. Ghana Airways, Ltd., 514 F.3d 44, 48 (D.C.Cir.2008)). “An agency or instrumentality of a foreign state ......
  • TIG Ins. Co. v. Republic of Arg., 18-mc-00129 (DLF)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 18 Abril 2022
    ...agrees in a contract that the laws of another country will govern that contract.” Inversora Murten, S.A. v. Energoprojekt Holding Co., 671 F.Supp.2d 152, 155 (D.D.C. 2009) (quoting World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1161 n.11 (D.C. Cir. 2002)). None is appli......
  • Request a trial to view additional results

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