achieve that objective." 10A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2740, at 532 (1983).
The United States has, by affidavit, stated that "because no discovery has been ordered, and no discovery has been exchanged except the pleadings and their attached exhibits, the United States cannot present by affidavit facts essential to justify its opposition to this motion." Response to Motion for Summary Judgment at 2 (Rule 56(f) Affidavit). While this alone is sufficient to overcome the pending motion for summary judgment under the circumstances of this case, the United States has also demonstrated a substantial likelihood that genuine issues of material fact will probably preclude a grant of summary judgment in favor of the petitioner. Although it may be appropriate to reassess the evidence after the completion of discovery, it appears at this stage that genuine issues exist as to how First American actually treated the transfers and whether the relationship between BCP and First American was such that an exception to the general rule of § 4-A-209 is applicable. Contending that the alleged nonacceptance cannot be established on the present record, the United States quotes BCP's L-Claim: "Despite the fact that the Account had been closed, FABNY accepted . . . sixteen (16) transfers of funds addressed to BCP from various financial institutions during the period from July 5, 1991 through September 30, 1991." Id. at 10 (quoting BCP's Petition, at 2-3). This creates at least a prima facie triable issue. Whether BCP's account was a special account and/or whether BCP was an alter ego of the defendants, as has been alleged by the United States, is relevant to this petition and might also create genuine issues of material fact that preclude summary judgment.
The arguments by Banque Indosuez to the contrary are unpersuasive. While Banque Indosuez contends that the United States should be denied discovery because it has failed to act diligently, the Court disagrees. The United States promptly filed motions to dismiss the instant L-Claim, and, absent a discovery order, it is not an unreasonable litigation decision or an inappropriate public policy choice to await the outcome of such motions prior to requesting discovery. Discovery is expensive and in light of the fact that the public fisc would likely foot the bill for these discovery expenses, the United States' decision was both responsible and reasonable.
Additionally, and contrary to the petitioner's view, the date of the transfer is not dispositive of the instant petition. On January 24, 1992, the defendants forfeited their entire extant enterprise to the United States. See United States v. BCCI Holdings, 916 F. Supp. at 1278 (describing Order of Forfeiture). The forfeiture is not limited to the proceeds of BCCI's racketeering activity, but includes all of the corporate defendants' property in the United States. If the corporate defendants obtained title to the assets at issue prior to the date of the forfeiture, such assets were properly included within the scope of the forfeiture order.
The petitioner may ultimately demonstrate that under § 1963(l) the forfeiture order should be amended to exclude these assets, but they have not yet made the necessary showing. Whether the defendants obtained title to the $ 263,250 prior to the Order of Forfeiture is, of course, the principal issue presently in dispute.
The motion for summary judgment will denied without prejudice.
For the reasons stated above, it is hereby
ORDERED that the government's Motion to Dismiss is denied; it is
FURTHER ORDERED that Banque Indosuez's motion for summary judgment is denied without prejudice; and it is
FURTHER ORDERED that the United States shall file its answer pursuant to the Federal Rules and the parties shall meet, confer and file a joint statement in accordance with Local Rule 206. Upon receipt of the joint statement, the Court will issue a discovery/motions scheduling order and address any matters deemed appropriate regarding the future progress of this petition.
IT IS SO ORDERED.
March 25, 1997.
JOYCE HENS GREEN
United States District Judge