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Sarfati v. Antigua And Barbuda

United States District Court, District of Columbia

February 7, 2013

Dan Abraham SARFATI, Plaintiff,
ANTIGUA AND BARBUDA, a foreign state, the Ministry of Finance, a political subdivision of Antigua and Barbuda, and the Ministry of Agriculture, Fisheries, Lands, and Housing, a political subdivision of Antigua and Barbuda, Defendants.

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David T. Fischer, John Turner, III, Matthew Michael Benov, Shook, Hardy & Bacon, LLP, Humberto H. Ocariz, Edward A. Moss, Mark Schweikert, Shook, Hardy & Bacon, LLP, Miami, FL, for Plaintiff.

Monalie Eloise Bledsoe, Monalie E. Bledsoe, Attorney at Law, Washington, DC.

Conrad A. Airall, Conrad Airall's Law Office, Raleigh, NC, for Defendants.


JAMES E. BOASBERG, District Judge.

The controversy that gives rise to this suit began in 1987 in the tiny twin-island nation of Antigua and Barbuda, located in the Eastern Caribbean. Roydan, Ltd., an Antiguan agricultural company, entered into an agreement that year with the country's Ministry of Agriculture to provide funding and equipment to rehabilitate up to 5,000 acres of fallow land in exchange for four promissory notes, each with a principal sum of $250,000. Plaintiff Dan Sarfati, assignee of Roydan's interest in three of these notes, brought this breach-of-contract action against the Antiguan government and two subdivisions in 2010, seeking payment on the notes, which came due more than twenty years before. Defendants now move to dismiss or for summary judgment, arguing, among other things, that Plaintiff's claims are barred by a six-year statute of limitations. Plaintiff contends that the delay here was justified and that Defendants' wrongdoing— threats and intimidation over the course of many years— equitably estops them fro asserting a limitations defense. Because the Court finds that the conduct that allegedly impeded the bringing of this action subsided more than six years before Plaintiff filed, he cannot invoke equitable estoppel or defeat this Motion.

I. Background

Viewing the facts in the light most favorable to Plaintiff, the Court agrees that the story of this case begins in 1985, when Plaintiff's father, Maurice Sarfati, established Roydan, Ltd., " to develop a modern agricultural project of growing and exporting high-quality produce abroad." Pl.'s Statement of Material Facts (SMF), ¶¶ 5, 6. This first project was a success and led to a second: the rehabilitation of fallow sugar land owned by the Antiguan government. See id., ¶¶ 9, 10. Following multiple presentations to the Antiguan cabinet, Roydan entered into an agreement with the Ministry of Agriculture to provide technical, financial, and marketing expertise on the five-year, 5,000-acre agricultural project. See id., ¶¶ 12-13. The agreement included a provision whereby " [t]he Ministry of Finance and Agriculture jointly and separately will guarantee Roydan Ltd by way of letter of guarantee on behalf of the government, coupled with the instrument of promissory note." See id., ¶ 13 (quoting Exh. M (May 15, 1987, Agreement)). This Guarantee was signed on June 16, 1987, and authorized the Ministry of Agriculture to issue four separate promissory notes to Roydan. See id., ¶ 15.

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Three days later, these notes were issued, wherein the government of Antigua and Barbuda promised to pay Roydan $250,000 for each note, plus interest. See id., ¶ 16. The notes contained a provision that they " shall be governed and construed in accordance with the laws of the state of New York, U.S.A." Id., ¶ 17.

The notes came due on the following dates: Promissory Note No. 1 was due to be paid on June 2, 1990; Promissory Note No. 2 on June 10, 1990; and Promissory Note No. 4 on June 30, 1990. See Verified Compl., ¶ 34. Promissory Note No. 3 was sold to an investor at the end of 1987 and is not at issue in this suit. See id., ¶ 38. On or about October 15, 1987, while still a young child, Plaintiff Dan Sarfati was assigned " all of [Roydan's] right, title, and interest" in the three promissory notes. See SMF, ¶ 16 n. 8. Defendants' obligations under these notes, along with the Guarantee, are at issue in this suit.

Towards the end of 1987, after the notes had been issued, Plaintiff's father's relationships with various members of the Antiguan government began to deteriorate. See id., ¶ 23. Beginning in January 1988, Maurice Sarfati was subjected to threats from various individuals within the government. See id., ¶¶ 24-62. Maurice claims that during this time, the government, in connection with his creditors, " hatched an illicit scheme to run [him] out of Antigua and seize Roydan." Id., ¶¶ 27-33, 35, 37. Maurice was warned that if anyone sought payment on the notes, the government would " issue an international arrest warrant for that person, have them extradited to Antigua, and thrown in jail." Id., ¶ 39. The nature and extent of these threats are discussed in detail in Sections III(B)(a)-(c), infra. Intimidated by these threats to his father, Plaintiff, who reached the age of majority in 2000, took no action to seek payment on the Notes until 2005. See id., ¶ 58. At that point, he contacted an American attorney, William O'Connor, who sent letters to the Antiguan government requesting payment, but received no response. See id. On July 19, 2010— more than 20 years after the notes had come due and nearly ten years after he had attained the age of majority— Plaintiff filed this suit seeking payment on the notes. See Verified Compl., ¶¶ 5, 34, 36.

Defendants now move to dismiss the Complaint or, in the alternative, for summary judgment, arguing that both the Foreign Sovereign Immunities Act and the applicable statute of limitations bar the suit. As Defendants prove correct on the latter argument, the Court need not address the former. Prior to the filing of Defendants' Motion, Plaintiff preemptively filed a Motion for Summary Judgment on Defendants' First, Second, and Fourth Affirmative Defenses. See ECF No. 34. The Court will deny this Motion as moot, given its determination that Plaintiff's claims are barred by the statute of limitations. In addition, both sides have filed Motions to Strike certain affidavits or exhibits filed by their adversary. See ECF Nos. 42, 43. Because summary judgment for Defendants is appropriate even if Plaintiff's materials are considered and Defendants' are ignored, the Court will also deny both Motions to Strike as moot.

II. Legal Standard

Defendants' Motion seeks dismissal of Plaintiff's Complaint under Federal Rule of Civil Procedure 12(b)(6) as barred by the statute of limitations. See Mot. at 5-15. Plaintiff, however, argues that because Defendants cite to matters outside of the pleadings, the Court should convert that portion of Defendants' Motion to one for summary judgment. See Opp. at 6. Because both Defendants and Plaintiff have submitted, and the Court has considered, matters outside of the pleadings, the

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Court agrees with Plaintiff and will treat Defendants' Motion as one for summary judgment, as Rule 12(d) contemplates. See Yates v. Dist. of Columbia, 324 F.3d 724, 725 (D.C.Cir.2003) ( per curiam ) (motion to dismiss under Rule 12(b)(6) converted to summary-judgment motion under Rule 56 where parties submitted and magistrate judge considered matters outside pleadings); see also Brown v. Dorsey & Whitney, 267 F.Supp.2d 61, 68 (D.D.C.2003) (court converted Rule 12(b)(6) motion to one for summary judgment where " the parties will not be prejudiced by the Court's consideration of matters outside the pleadings" ).

Summary judgment may be granted if " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). " A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record." Fed R. Civ. P. 56(c)(1)(A). " A fact is ‘ material’ if a dispute over it might affect the outcome of a suit under governing law; factual disputes that are ‘ irrelevant or unnecessary’ do not affect the summary judgment determination." Holcomb, 433 F.3d at 895 (quoting Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). " An issue is ‘ genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The party seeking summary judgment " bears the heavy burden of establishing that the merits of his case are so clear that expedited action is justified." Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C.Cir.1987). " Until the movant has met its burden, the opponent of a summary judgment motion is under no obligation to present any evidence." Gray v. Greyhound Lines, East, 545 F.2d 169, 174 (D.C.Cir.1976).

When a motion for summary judgment is under consideration, " the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505; see also Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C.Cir.2006); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1288 (D.C.Cir.1998) ( en banc ); Washington Post Co. v. U.S. Dep't of Health and Human Servs., 865 F.2d 320, 325 (D.C.Cir.1989). On a motion for summary judgment, the Court must " eschew making credibility determinations or weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007). The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits, declarations, or other competent evidence, setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmovant is required to provide evidence that would permit a reasonable jury to find in its favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C.Cir.1987). If the nonmovant's evidence is " merely colorable" or " not significantly probative," summary judgment may be granted. Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. 2505.

III. Analysis

Defendants contend that Plaintiff's Complaint— filed on July 19, 2010— is barred by the statute of limitations, as it was filed beyond the six-year limit for breach-of-contract actions under New York law. See Mot. at 5-15; Reply at 2-9. Plaintiff maintains that Defendants should be equitably estopped from asserting this ...

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