Jerez v. the Republic of Cuba

• Decision Date: 28 March 2011
• Docket Number: Miscellaneous Action No. 09–466 (RWR/AK).
• Citation: 777 F.Supp.2d 6
• Parties: Nilo JEREZ, Plaintiff,v.The REPUBLIC OF CUBA, Fidel Castro Ruz, Individually and as President of the State and Council of Ministers, Head of the Communist Party Commander–in–Chief of the Military, Raul Castro Ruz, Individually and as First Vice President of the Head of the Cuban Revolutionary Armed Forces, The Cuban Revolutionary Armed Forces, and El Ministerio Del Interior, Defendants.
• Court: U.S. District Court — District of Columbia

777 F.Supp.2d 6

Nilo JEREZ, Plaintiff,

v.The REPUBLIC OF CUBA, Fidel Castro Ruz, Individually and as President of the State and Council of Ministers, Head of the Communist Party Commander–in–Chief of the Military, Raul Castro Ruz, Individually and as First Vice President of the Head of the Cuban Revolutionary Armed Forces, The Cuban Revolutionary Armed Forces, and El Ministerio Del Interior, Defendants.

Miscellaneous Action No. 09–466 (RWR/AK).

United States District Court, District of Columbia.

March 28, 2011.

Richard J. Oparil, Patton Boggs LLP, Washington, DC, David R. Garcia, Joseph I. Zumpano, Leon N. Patricios, Zumpano, Patricios & Winker, P.A., Pro Hac, Vice, Coral Gables, FL, Kevin M. Bell, Patton Boggs LLP, McLean, VA, for Plaintiff.Brendon M. Tavelli, Proskauer Rose LLP, Washington, DC, David Barry Goldstein, Michael R. Krinsky, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York, NY, for Defendants.

MEMORANDUM OPINION

ALAN KAY, United States Magistrate Judge.

This matter was referred to the undersigned Magistrate Judge by the Honorable Richard W. Roberts, pursuant to Local Civil Rule 72.2, for resolution of all pending motions in the above-captioned case. (Order of Referral to United States Magistrate Judge, January 19, 2010 Minute Order.) Pending before this Court are the following motions: 1) Third–Parties' Motion to Vacate Writ of Attachment on Judgment with Prejudice [10]; 2) Plaintiff Nilo Jerez's Motion for an Order to Show Cause as to Why a Writ of Attachment Should Not be Issued against Agencies and Instrumentalities of the Republic of Cuba and its Co–Defendants [48]; 3) Camara de Comercio's Proposed Motion to Vacate Plaintiff's Writ of Execution with Respect to the Republic of Cuba's Registration of its Certification Mark for Cuban Cigars [61] ¹ and 4) Motion by Camara and Third–Parties Requesting the Court's consideration of an Additional Jurisdictional Argument [104]. The Court held a hearing on three motions [10, 48, 61] on July 19, 2010. Upon careful consideration of the arguments presented and for reasons set forth below, the Court finds that the Plaintiff's Writ of Attachment is not enforceable and should be vacated. An appropriate Order accompanies this Memorandum Opinion.

This Memorandum Opinion also addresses supplementation of the Court's record. Since the July 19, 2010 hearing, the Plaintiff, Third–Parties and Intervener Camara del Comercio (“Camara”) have filed a multitude of documents, some of which are recorded on the Court's docket as “Supplemental Authority.” ² More specifically, the parties have filed seven “supplements” to the record, and these “supplements,” have in turn resulted in additional filings such as motions for leave to file the supplements, oppositions to the supplements, replies to the oppositions, and a motion to strike a reply, with an accompanying opposition and reply to the motion to strike.

Fed. R. Civ. P 15(d) controls supplementation of pleadings, where pleadings are defined by Fed.R.Civ.P. 7(a) to include complaints and third-party complaints; answers to complaints, counterclaims and cross claims; and if ordered, a reply to an answer. Courts also have the discretion to determine whether parties are allowed to supplement the record of a case. Having reviewed the series of “supplements” propounded by Plaintiff, Third–Parties and Camara, the Court finds that the only “supplements” that should be permitted are [84] Supplemental Authority by Plaintiff and [87] Supplemental Authority by Third–Parties and Camara, which involve two legal decisions post-dating the July 2010 hearing. The remaining “supplements” address cases that were decided prior to the July 2010 hearing and issues that were raised in the three motions and at the oral hearing on those motions, or the “supplements” follow up on Supplemental Authority in [84] and [87]. This Court neither requested additional briefing nor authorized any additional briefing and accordingly the documents docketed at [71], [72], [78], [91] and [93] should be stricken from the record.

I. Background

The pending miscellaneous action involves enforcement of a default judgment issued by the United States District Court for the Southern District of Florida (hereinafter, the “Florida U.S. District Court”) in the amount of $200,000,000.00 in damages, plus interest in the amount of $49,424,647.00, in favor of Plaintiff Nilo Jerez (“Jerez”) against the named Defendants therein: The Republic of Cuba; Fidel Castro Ruz; Raul Castro Ruz; The Cuban Revolutionary Armed Forces and El Ministerio Del Interior. The Florida U.S. District Court's default judgment gave full faith and credit to an earlier Florida state court judgment awarding Jerez 50 million dollars in compensatory damages and 150 million dollars in punitive damages against the same Defendants. Because the Defendants challenge the jurisdiction of the Florida courts, this Court will provide a detailed description of the judicial proceedings that preceded the filing of the miscellaneous action in this Court.

On September 15, 2005, Jerez filed his Complaint in the Circuit Court of the Eleventh Judicial Circuit in and for Miami–Dade County, Florida (hereinafter, the “Florida state court”) requesting compensatory and punitive damages against the aforementioned Defendants. In his civil action captioned Jerez v. Republic of Cuba et al., Case No. 05–18719 CA9, Eleventh Judicial Circuit In and For Miami–Dade County, Florida, the Plaintiff alleged that he had been subjected to tortious and torturous acts committed by Defendants and persons operating under their direction and/or control. The named Defendants did not respond to the Complaint nor did they appear in court at any time, including during the one day non-jury ex parte “trial” held in the Florida state court on January 30, 2007.

On that same date, the Florida state court entered its Final Judgment (Motion to Vacate Writ of Attachment [10–2], Exh. B [January 30, 2007 Final Judgment] ) finding the Defendants liable under the Torture Victim Protection Act, 28 U.S.C. § 1350. The Florida state court noted that it acquired “jurisdiction over the claims asserted by Mr. Jerez pursuant to the Alien Tort Claim[ ] Act, 28 U.S.C. [§ 1350] and 28 U.S.C. § 1331....” (January 30, 2007 Final Judgment at 1–2.) ³ The state court's Final Judgment addressed the physical and mental torture suffered by Plaintiff during his incarceration in Cuba and the psychiatric and physical damages resulting therefrom, including Plaintiff's Hepatitis C infection. The Florida state court did not address or reference the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 et seq., which applies to claims against foreign states, their political subdivisions, and their agencies and instrumentalities.

Jerez subsequently moved to enforce his Florida state court Final Judgment by filing a Complaint, on December 9, 2008, in Florida U.S. District Court, in a case captioned Jerez v. Republic of Cuba, Case No. 08–23405–CIV–Hoveler (S.D.Fla.). The Florida U.S. District Court Clerk's Office entered a default against the Defendants after they failed to respond to the Complaint and that default was followed by entry of a Final Default Judgment Granting Full Faith & Credit to State Judgment (“Final Default Judgment”) (attached to Registration of Foreign Judgment [1] at [1–1] ) on May 6, 2009. In its Final Default Judgment, the Florida U.S. District Court did not address the Florida state court's subject matter jurisdiction to enter a final judgment nor did it undertake any independent examination of Plaintiff's case. The Final Default Judgment was granted pursuant to 28 U.S.C. § 1738, giving full faith and credit and federal recognition to the Florida state court's Final Judgment ⁴ dated January 30, 2007, which awarded Plaintiff two hundred million dollars in compensatory and punitive damages against the Defendants.⁵

On September 1, 2009, Jerez registered his Final Default Judgment ( [1] ) in this Court, pursuant to 28 U.S.C. § 1963, and moved for a Writ of Execution on Judgment to acquire any “personal property located within the District of Columbia against the defendants and their agencies and instrumentalities....” ⁶ (Motion for Order to Issue Writ of Execution on Judgment [2] at 1.) A corrected application for an Order to Issue Writ of Execution on Judgment was filed on September 2, 2009. (Corrected Application for Order to Issue Writ of Execution on Judgment [3].) Also on September 2, 2009, Jerez filed in this Court an application for a Writ of Attachment on Judgment ( [4] ) requesting that the Clerk of the Court issue a Writ of Attachment on Judgment for the personal property, goods and chattels of the named Defendants and their agencies and instrumentalities listed on Schedule A. ⁷ (Application for Writ of Attachment on Judgment [4]; Schedule A.) Schedule A listed 24 entities allegedly related to Defendant, Republic of Cuba. On October 1, 2009, Plaintiff withdrew his Motion for Order to Issue Writ of Execution of Judgment [2], corrected by [3], (Withdrawal of Motion [6] ), and on the following day, a Writ of Attachment on Judgment was issued by the Clerk's Office to the United States Marshal for the District of Columbia.

On November 4, 2009, Plaintiff filed a Notice of Service of Writ of Attachment on Judgment [7] indicating that he had, through a private process server, served the Writ of Attachment on Judgment on the United States Department of Commerce (“Commerce”).⁸ According to the parties, no action was taken by Commerce regarding the service of the Writ of Attachment. On November 19, 2009, approximately 20 of the entities listed in Plaintiff's Schedule A filed a Motion to Vacate the Writ, which is one of the three motions pending before this Court. (Motion to Vacate Writ of Attachment [10].) On November 25, 2009, Camara del Comercio (“Camara”) filed a motion to intervene in the present proceeding. (Motion to...