Vera v. Republic of Cuba

Decision Date22 August 2014
Docket NumberNo. 12 Civ. 1596 AKH.,12 Civ. 1596 AKH.
PartiesAldo VERA, Jr., as Personal Representative of the Estate of Aldo Vera, Sr., Plaintiff, v. The REPUBLIC OF CUBA, Defendant. Aldo Vera, Jr., as Personal Representative of the Estate of Aldo Vera, Sr.; and Jeannette Fuller Hausler, and William Fuller, as court-appointed co-representatives of the Estate of Robert Otis Fuller, deceased, on behalf of all beneficiaries of the Estate and the Estate of Robert Otis Fuller; and Alfredo Villoldo, individually, and Gustavo E. Villoldo, individually and as Administrator Executor, and Personal Representative of the Estate of Gustavo Villoldo Argilagos, Petitioners, v. Banco Bilbao Vizcaya Argentaria (S.A.); Bank of America N.A.; Bank of New York Mellon; Barclay's Bank PLCS; Citibank N.A.; Credit Suisse AG, New York Branch ; Deutsche Bank Trust Company Americas; HSBC Bank (HSBC Bank USA, N.A.); Intesa Sanpaola S.P.A.; JP Morgan Chase Bank N.A.; RBS Citizens, N.A.; Royal Bank of Canada; Societe Generale; UBS AG; Wells Fargo Bank, N.A.; Brown Brothers Harriman & Co.; Mercantil Commerce Bank, N.A.; Standard Chartered Bank; and Banco Santander, S.A., Respondents.
CourtU.S. District Court — Southern District of New York

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Aldo VERA, Jr., as Personal Representative of the Estate of Aldo Vera, Sr., Plaintiff
v.
The REPUBLIC OF CUBA, Defendant.


Aldo Vera, Jr., as Personal Representative of the Estate of Aldo Vera, Sr.;

and Jeannette Fuller Hausler, and William Fuller, as court-appointed co-representatives of the Estate of Robert Otis Fuller, deceased, on behalf of all beneficiaries of the Estate and the Estate of Robert Otis Fuller;

and Alfredo Villoldo, individually, and Gustavo E. Villoldo, individually and as Administrator Executor, and Personal Representative of the Estate of Gustavo Villoldo Argilagos, Petitioners
v.
Banco Bilbao Vizcaya Argentaria (S.A.);

Bank of America N.A.;

Bank of New York Mellon;

Barclay's Bank PLCS;

Citibank N.A.;

Credit Suisse AG, New York Branch ;

Deutsche Bank Trust Company Americas;

HSBC Bank (HSBC Bank USA, N.A.);

Intesa Sanpaola S.P.A.;

JP Morgan Chase Bank N.A.;

RBS Citizens, N.A.;

Royal Bank of Canada;

Societe Generale;

UBS AG;

Wells Fargo Bank, N.A.;

Brown Brothers Harriman & Co.;

Mercantil Commerce Bank, N.A.;

Standard Chartered Bank;

and Banco Santander, S.A., Respondents.

No. 12 Civ. 1596 AKH.

United States District Court, S.D. New York.

Signed Aug. 22, 2014.


40 F.Supp.3d 368

Jeffrey E. Glen, Anderson Kill P.C., New York, NY, Robert Alan Swift, Kohn, Swift, & Graf, P.C., Philadelphia, PA, for Plaintiff.

40 F.Supp.3d 369

Beth Ilana Goldman, Edward Henry Rosenthal, Frankfurt Kurnit Klein & Selz, P.C., James Wilson Perkins, Greenberg Traurig, LLP, New York, NY, Andrew Clifford Hall, Brandon R. Levitt, Hall, Lamb & Hall, P.A., Miami, FL, Robert Alan Swift, Kohn, Swift, & Graf, P.C., Philadelphia, PA, Roberto Martinez, Colson Hicks Eidson, Coral Gables, FL, for Petitioners.

Jennifer Gillian Newstead, Karen E. Wagner, Craig Thomas Cagney, Daniel Taylor Young, Gina Marie Cora, James Loran Kerr, Davis Polk & Wardwell L.L.P., Paul Kenneth Stecker, Phillips Lytle LLP, Sean Charles McPhee, Phillips Lytle LLP, Buffalo, NY, Steven B. Feigenbaum, Gregory Phillip Feit, Levi Lubarsky & Feigenbaum LLP, J. Kelley Nevling, Jr., Levi Lubarsky & Feigenbaum LLP, Carmine D. Boccuzzi, Jr., Cleary Gottlieb, New York, NY, for Respondents.

ORDER AND OPINION DENYING MOTION TO DISMISS BY BANCO BILBAO VIZCAYA ARGENTARIA (S.A.)

ALVIN K. HELLERSTEIN, District Judge:

Petitioners are successors of persons who were tortured or assassinated by agents of the Republic of Cuba. Each secured a judgment against Cuba from the Florida Circuit Court for wrongfully causing their predecessors' deaths, following defaults in appearance by Cuba. Each judgment was supported by specific findings of fact and conclusions of law, establishing jurisdiction under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605A, previously § 1605(a)(7). Under the FSIA, a foreign nation is not immune to suit in federal or state court if the court finds that the foreign nation perpetrated certain acts of terror. See Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993).

Section 1605A provides in pertinent part that a foreign state shall not be immune from the jurisdiction of United States federal or state courts in any case “in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture [or] extrajudicial killing,” if the foreign state was designated as a state sponsor of terrorism by the United States at the time the act occurred or if the foreign state was designated a state sponsor of terrorism as a result, at least partially, of the act of terror, and the victim or the claimant is a national of the United States. 28 U.S.C. § 1605A. Under § 1608(e), a hearing must be held to support the findings that must be made to satisfy § 1605A of the FSIA before a default judgment against the foreign state may be entered.

Plaintiffs sued upon their respective judgments from the Florida Circuit Court to recover judgments against Cuba from this court and, once judgments were obtained, levied on funds in banking institutions that had been blocked by order of the U.S. Treasury Department as funds owned or controlled by Cuba pursuant to the Cuban Asset Control Regulation, 31 C.F.R. § 515.201. Federal law authorizes levies on such blocked funds. See the Terrorism Risk Insurance Act, 28 U.S.C. § 1610 (“TRIA”); see also Hausler v. JP Morgan Chase Bank, 740 F.Supp.2d 525, 527 (S.D.N.Y.2010).

One affected bank, Banco Bilbao Vizcaya Argentaria (S.A.) (“Banco Bilbao”), moves against this procedure by attacking the jurisdictional basis of plaintiffs' judgments granted in the Florida Circuit Courts. Banco Bilbao argues that plaintiffs lacked the right to sue Cuba, a foreign sovereign, under the Foreign Sovereign Immunities Act, and that the Florida Circuit Court

40 F.Supp.3d 370

therefore lacked jurisdiction to grant judgments to plaintiffs. However, Banco Bilbao cannot collaterally attack in this court a judgment obtained in another state or federal court; that underlying judgment is entitled to full faith and credit under the United States Constitution and statutes. As I discuss in this order, the judgments granted by the Florida Circuit Court in favor of plaintiffs and against Cuba are entitled to full faith and credit. Banco Bilbao's motion is denied.

I. Plaintiffs' Claims and Judgments against Cuba

1. The Hausler Claim and Judgment

Jeannette Fuller Hausler, a United States citizen, as personal representative of the estate of her deceased brother, Robert Otis Fuller (“Bobby Fuller”), filed suit against Cuba in the Florida Circuit Court. She sued under the FSIA, alleging that Cuba extra-judicially killed her brother in 1960. Cuba was properly served with process but did not appear. After taking extensive evidence, the court found that Bobby Fuller and his family, while living in Cuba during the revolution, were repeatedly harassed and threatened by members of the Castro-led revolutionary movement. Castro's agents arrested Bobby Fuller in October 1960 and charged him with counterrevolutionary activity against Castro's regime. He was held in solitary confinement, interrogated, and tortured until he signed a confession. He had a fifteen-minute public trial, described by the Florida Circuit Court as a “sham of a court proceeding,” after which he was sentenced to death by execution. An appeal was denied. Fuller was removed from his cell and executed by firing squad in October 1960. Dkt. No. 364–1.

The Florida Circuit Court found from the evidence that “Cuba ... was designated to be a state sponsor in 1982 ... at least in part by reason of the acts of terrorism described herein including the torture and extra-judicial killing of Bobby Fuller ...,” and “that all statutory criteria for the exercise of jurisdiction under this statute [the FSIA] over a claim against Defendant Cuba and the remaining Defendants (who are agents or instrumentalities of Defendant Cuba) have been established by evidence satisfactory to the Court.” Dkt. No. 364–1 at 5.

The Florida Circuit Court found that plaintiff was a United States citizen; that Cuba had committed acts of terror against her brother, Bobby Fuller; and that partially as a result of those acts, Cuba was designated as a state sponsor of terrorism when Cuba was designated as a state sponsor of terrorism in 1982. By amended final judgment entered on January 19, 2007, the Florida Circuit Court granted Jeannette Fuller Hausler a money judgment in the amount of $400 million, pursuant to 28 U.S.C. § 1605(a)(7), codified since 2008, at 28 U.S.C. § 1605A.

Plaintiff Hausler domesticated her judgment against Cuba in the U.S. District Court for the Southern District of Florida on September 26, 2008 in the amount of $454,000,000 (inclusive of post-judgment interest). That court granted the judgment of the Florida Circuit Court full faith and credit. Plaintiff then sued in the U.S. District Court for the Southern District of New York, and on February 22, 2012, this court also granted the Florida Circuit Court judgment full faith and credit. See Hausler v. JPMorgan Chase Bank, N.A., 845 F.Supp.2d 553, 557–58 (S.D.N.Y.2012).

2. The Vera Claim and Judgment

Petitioner Aldo Vera, Jr. (“Vera”) is a United States citizen and the executor and personal representative of the estate of Aldo Vera, Sr. On December 28, 2001, Aldo Vera Jr. brought an action against

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Cuba in the Florida Circuit Court pursuant to 28 U.S.C. § 1605(a)(7), codified since 2008, at 28 U.S.C. § 1605A, seeking damages for the assassination of his father, Aldo Vera, Sr. Vera Jr. alleged that Vera, Sr. was a high-ranking Cuban police official who defected to Puerto Rico and organized an anti-revolutionary political group there. The Cuban government sentenced him to death in absentia. Vera, Jr. alleged that Cuban agents then assassinated his father in 1976, constituting an extrajudicial killing which the FSIA classifies as an act of terror. On November 25, 2002, Cuba was duly served with a summons and complaint, but did not appear. In May 2008, the Circuit Court held a trial and heard evidence on the merits and concerning...

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  • Vera v. Republic Cuba
    • United States
    • U.S. District Court — Southern District of New York
    • August 22, 2014
    ...40 F.Supp.3d 367Aldo VERA, Jr., as Personal Representative of the Estate of Aldo Vera, Sr., Plaintiff,v.The REPUBLIC OF CUBA, Defendant.Aldo Vera, Jr., as Personal Representative of the Estate of Aldo Vera, Sr.; and Jeannette Fuller Hausler, and William Fuller, as court-appointed co-represe......

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