OPINION
PAUL
L. FRIEDMAN, UNITED STATES DISTRICT JUDGE.
Pending
before the Court is a motion from plaintiff Continental
Transfert Technique, Limited (“Continental”) for
a writ of attachment [Dkt. Nos. 123 (sealed) and 134
(redacted)] seeking to attach a bank account registered to
the Central Bank of Nigeria (“CBN”) at JPMorgan
Chase Bank in New York. Also pending before the Court are a
motion filed by CBN seeking leave to intervene in this matter
and to file an opposition to Continental's motion for
writ of attachment [Dkt. Nos. 126-1 (sealed) and 137
(redacted)], as well as CBN's motion for leave to file a
surreply to Continental's motion for writ of attachment
[Dkt. Nos. 138 (sealed) and 139 (redacted)]. Defendants - the
Federal Government of Nigeria (“FGN”), the
Attorney General of the Federation, and the Minister of the
Interior - have not responded to any of these motions.
Continental does not oppose CBN's motion for leave to
intervene, but does oppose CBN's motion for leave to file
a surreply.
Upon
careful consideration of the briefs, the relevant
authorities, and the extensive record in this case, the Court
will grant CBN's motion for leave to intervene and to
file an opposition to the motion for writ of attachment [Dkt.
Nos. 126-1 (sealed) and 137 (redacted)]; the Court will
accept CBN's opposition [Dkt. Nos. 126-2 (sealed) and
137-1 (redacted)] as filed.[1] The Court will also grant
CBN's motion for leave to file a surreply [Dkt. Nos. 138
(sealed) and 139 (redacted)], and will accept as filed
CBN's surreply [Dkt. Nos. 138-2 (sealed) and 139-2
(redacted)], Continental's opposition to the motion for
leave to file a surreply and proposed response to the
surreply [Dkt. Nos. 140 (sealed) and 141 (redacted)], and
CBN's reply in support of its motion to file a surreply
[Dkt. Nos. 142 (sealed) and 143 (redacted)]. The Court will
deny Continental's motion for writ of attachment [Dkt.
Nos. 123 (sealed) and 134 (redacted)]. A separate order
giving effect to this opinion will issue this same day.
I.
BACKGROUND
A.
Factual and Procedural Background
The
Court has discussed the lengthy and complex history of this
case in earlier opinions in this matter, and there is no need
to repeat it here. See Cont'l Transfert Technique Ltd. V.
Fed. Gov't of Nigeria, 697 F.Supp.2d 46 (D.D.C. 2011)
(denying Continental's motion for default judgment and
Nigeria's motion to dismiss); Cont'l Transfert
Technique Ltd. v. Fed. Gov't of Nigeria, 800
F.Supp.2d 161 (D.D.C. 2011) (granting Continental's
motion for summary judgment). The instant motions concern
Continental's attempts to obtain a writ of attachment on
a bank account to satisfy this Court's judgment
confirming a substantial arbitral award in favor of
Continental against the Federal Government of Nigeria. The
Central Bank of Nigeria - which has not previously been
involved in this litigation - opposes Continental's
motion for writ of attachment and claims to own the bank
account that is the subject of the motion.
Continental
initiated arbitration proceedings in the United Kingdom
against FGN in November of 2007, alleging that FGN failed to
meet its obligations to Continental under a 1999 commercial
contract. In August of 2008, the U.K. arbitral tribunal
issued an award requiring FGN to pay substantial damages and
interest to Continental. CBN was not a party to the
underlying contract or the arbitration. In November of 2008,
Continental filed this lawsuit seeking confirmation of the
August 2008 arbitral award under the Federal Arbitration Act,
9 U.S.C. §§ 201-08.[2] When FGN failed to respond to the
complaint, Continental sought and obtained an entry of
default from the Clerk of Court in February of 2009. See
Affidavit for Default, Dkt. No. 8; Default, Dkt. No. 9.
Immediately thereafter, Continental filed a motion for
default judgment. See Dkt. No. 10.
The
motion for default judgment prompted counsel for FGN to enter
an appearance in May of 2009, and thereafter to file a motion
to vacate the default and dismiss the complaint. See Dkt. No.
24. In March 2010, this Court vacated the entry of default
and denied Continental's motion for default judgment, but
also denied Nigeria's motion to dismiss. See
Cont'l Transfert Technique Ltd. v. Fed. Gov't of
Nigeria, 697 F.Supp.2d 46. Shortly thereafter, Nigeria
filed an answer to the amended complaint, see Dkt. No. 39,
and Continental moved for summary judgment. See Dkt. No. 40.
The Court granted Continental's motion for summary
judgment in August 2011. See Cont'l Transfert
Technique Ltd. v. Fed. Gov't of Nigeria, 800
F.Supp.2d 161. Following supplementary briefing on how to
calculate the amount of the award in U.S. dollars, this Court
entered an Amended Order and Judgment in March 2013 requiring
FGN to pay Continental $276, 111, 640 plus post-judgment
interest. See Cont'l Transfert Technique Ltd. v. Fed.
Gov't of Nigeria, 932 F.Supp.2d 153 (D.D.C. 2013).
The U.S. Court of Appeals for the District of Columbia
Circuit affirmed the judgment in January 2015. Cont'l
Transfert Technique Ltd. v. Fed. Gov't of Nigeria,
603 Fed.Appx. 1 (D.C. Cir. 2015).
The
instant motions are the latest of Continental's many
attempts to identify and obtain assets in satisfaction of its
judgment against defendants. Nigeria has resisted and delayed
post-judgment discovery for several years. This Court granted
the motion of FGN's counsel to withdraw from the case in
February 2017. See Dkt. No. 119. Since then, no counsel has
entered an appearance for any defendant, and no defendant has
participated in this litigation. Nevertheless, Continental
has been able to obtain some post-judgment discovery. In
March of 2015, a federal district court in the Southern
District of New York denied CBN's motion to quash a
subpoena that Continental had served on JPMorgan Chase Bank,
with whom FGN has a banking relationship. See Cent. Bank
of Nigeria et al. v. Cont'l Transfert Technique
Ltd., No. 1:14-mc-00066, Dkt. No. 12. (S.D.N.Y. May 5,
2014); see also Mot. at 12. JPMorgan Chase provided two
tranches of records to Continental in response to the
subpoena, including an inventory of 52 bank accounts
associated with Nigeria and data on the wire transfer
activity for those accounts in the period of January 2014 to
June 2017.
B.
The Writ of Attachment and CBN's Response
On May
29, 2018, Continental filed a motion for a writ of attachment
[Dkt. No. 123], seeking to attach an account at JPMorgan
Chase Bank that is titled “Central Bank of Nigeria Main
Account” (“the Account”) and is identified
by the account number located in the parties' sealed
filings. See Mot. at 1; Hankin Decl. at 2. Relying
on subpoenaed records from JPMorgan Chase, Continental
alleges that the Account has been funded with at least one
$100 million deposit from an account at the Federal Reserve
Bank of New York at the direction of defendant FGN.
See Reply at 4, 17. CBN disputes this
characterization. See Surreply at 8-9. Of the 21,
065 wire transfers in the records produced by JPMorgan Chase,
Continental has identified dozens of payments from the
Account to U.S. entities that, it argues, constitute
commercial and non-sovereign activities: aircraft and
military equipment and services, tuition payments to U.S.
institutions, legal and consulting expenses, technology
services and research subscriptions, and professional
training costs. See Mot. at 13-19; Hankin Decl. at
3.
On this
basis, Continental argues that the Account is subject to
attachment under the Foreign Sovereign Immunities Act
(“FSIA”). Although the property of a foreign
state in the United States is generally immune from
attachment under the FSIA, Continental asserts that the
Account falls within the exception to sovereign immunity
established by 28 U.S.C. § 1610(a), because Nigeria used
the funds in the Account for commercial activity.
See Mot. at 21. Continental also argues that the
Account does not qualify for the immunity created by 28
U.S.C. § 1611, because the Account is not the property
of a central bank held for its own account. See id.
at 25.
On July
17, 2018, the Central Bank of Nigeria filed a motion [Dkt.
No. 126] for leave to file two documents under seal, each
attached as exhibits: a motion for leave to intervene and for
leave to file a response in opposition to Continental's
motion for writ of attachment [Dkt. No. 126-1], and the
proffered response in opposition [Dkt. No.
126-2].[3] The motion to intervene characterizes CBN
as a “separate and distinct entity from the government
defendants.” See Mot. Intervene at 2. CBN
asserts that it is an instrumentality of the government of
Nigeria, chartered by statute to serve as Nigeria's
designated central bank. See Ukitetu Decl. at
¶¶ 6, 9. Accordingly, CBN's proffered response
in opposition gives only brief attention to one of the
primary arguments from Continental's motion for writ of
attachment: that the Account may be attached pursuant to the
commercial activity exceptions to immunity under 28 U.S.C.
§ 1610. CBN's primary argument is that “these
immunities will not apply” because the Account is owned
by the Central Bank of Nigeria, and is thus independently
immune from attachment under 28 U.S.C. § 1611, a
separate provision of the FSIA. See Opp'n at 15.
Other than Continental's first filing, most of the
briefing on the motion for writ of attachment - and, thus,
the Court's own analysis - concerns the availability of
immunity under Section 1611, rather than the commercial
activity exception of Section 1610.[4]
In its
reply in support of the motion for writ of attachment [Dkt.
No. 132], Continental contests CBN's interpretation of
the scope of central bank immunity under 28 U.S.C. §
1611. Continental argues that the Account contains the
property of Nigeria, not the property of CBN. See
Reply at 14-15. Furthermore, Continental says that the
Account does not constitute protected central bank property
under Section 1611 because the funds in the Account are
“used to finance the commercial transactions of other
entities” rather than those of the central bank itself.
See id. at 19. In the alternative, Continental
argues that the Account may be attached even if Section 1611
does immunize some limited property used for third party
commercial activity because the particular commercial
activities for which the Account is used do not constitute
central banking activities as they are normally understood.
See id. at 20.
CBN
filed a motion for leave to file a surreply [Dkt. No. 138],
seeking an opportunity to respond after Continental allegedly
raised three new arguments and claims and had cited
additional authorities that did not appear in
Continental's initial brief. See Surreply Mot.
at 1. Continental has opposed CBN's motion to file a
surreply. See Surreply Mot. Opp'n.
II.
RIGHT TO INTERVENE AND TO FILE SURREPLY
A.
CBN may Intervene as of Right under the Federal Rules
CBN
seeks leave to intervene in this matter to defend against
Continental's motion for writ of attachment. See
Mot. Intervene at 2. Continental does not oppose CBN's
motion for leave to intervene, “for the limited purpose
of opposing Continental's motion.” See
Reply at 1, n.1. The Court will grant CBN's motion to
intervene.
Rule 24
of the Federal Rules of Civil Procedure provides that, on
timely motion, the Court:
must permit anyone to intervene who . . . claims an interest
relating to the property or transaction that is the subject
of the action, and is so situated that disposing of the
action may as a practical matter impair or impede the
movant's ability to protect its interest, unless existing
parties adequately represent that interest.
Fed. R. Civ. P. 24(a)(2). In this circuit, Rule 24(a)
requires would-be intervenors to demonstrate four things:
“(1) the application to intervene must be timely; (2)
the applicant must demonstrate a legally protected interest
in the action; (3) the action must threaten to impair that
interest; and (4) no party to the action can be an adequate
representative of the applicant's interests.”
Deutsche Bank Nat'l Tr. Co. v. FDIC, 717 F.3d
189, 192 (D.C. Cir. 2013).
CBN
easily satisfies each of these requirements. First, the
filing is timely. CBN filed its motion for leave to intervene
only a month after Continental filed its writ of attachment,
by which point counsel had already submitted a joint status
report notifying the Court of the forthcoming intervention
motion. Cf. Karsner v. Lothian, 532 F.3d
876, 885 (D.C. Cir. 2008) (finding motion timely where
petitioner sought intervention less than one month after
intervenor's interest in the dispute ripened).
Second,
CBN has a legally protected interest in this action because
it appears to own and control the asset that Continental
seeks to attach. See Deutsche Bank Nat'l Trust. Co.
v. Fed. Deposit Insurance Corp., 717 F.3d at 193
(“[Would-be intervenors] point to their economic
interest in the receivership funds as a legally protected
interest. That much is clearly correct.”); Friends
of Animals v. Kempthorne, 452 F.Supp.2d 64, 69 (D.D.C.
2006) (proposed intervenor needs only an interest in the
litigation, not a cause of action).
Third,
the attachment proceedings pose a clear risk to CBN's
legally protected interest in the Account. In determining
whether “disposing of the action may as a practical
matter impair or impede” the intervening
petitioner's interest, Fed.R.Civ.P. 24(a), the
“practical consequences of denying intervention”
are dispositive. See Fund for Animals, Inc. v.
Norton, 322 F.3d 728, 735 (D.C. Cir. 2003). Here, the
practical consequence of denying CBN's motion to
intervene is that no one will oppose Continental's motion
for a writ of attachment. Furthermore, if the Court grants
the attachment motion, it will imperil any legal interest CBN
may have in holding and controlling funds in the Account.
Fourth,
the existing parties cannot adequately represent CBN's
interests. This requirement sets a low bar. See Public
Citizen v. FEC, 788 F.3d 312, 321 (D.C. Cir. 2015). The
intervenor “need only show that representation of his
interests may be inadequate . . . .” Dimond v.
Dist. of Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986).
Here, that inadequacy is manifest: defendants have all but
disappeared from this litigation and are not protecting
CBN's interest in the Account.[5]
B.
CBN Has Standing to Intervene
In
addition, CBN has demonstrated that it has standing under
Article III of the United States Constitution. See Roeder
v. Islamic Republic of Iran, 333 F.3d 228, 233 (D.C.
Cir. 2003) (“[A]n intervenor must also establish its
standing under Article III of the Constitution.”);
Ctr. for Biological Diversity v. U.S. Envtl. Prot.
Agency, 274 F.R.D. 305, 309 (D.D.C. 2011) (noting that
constitutional standing requires injury-in-fact, causation,
and redressability). In the circumstances presented here, the
facts that enable CBN to intervene as of right under Rule
24(a) also establish its constitutional standing. CBN timely
filed a motion to intervene that demonstrated a legal
interest in the asset that is the subject of the pending
attachment motion. For the purpose of standing, these facts
also establish an imminent, concrete, and particularized
injury to CBN's interest in the Account; that injury is
“fairly traceable to the challenged action”
(Continental's attempt to attach the Account). See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-64
(1992); cf. United States v. All Assets Held at
Bank Julius Baer & Co., 959 F.Supp.2d 81, 104
(D.D.C. 2013) (“[T]he inquiry into a claimant's
ownership interests is often a surrogate for an inquiry into
whether there is injury direct enough and sufficient enough
to sustain standing.”) (quotations and citations
omitted). Here, it is clear that “the injury will be
redressed by a favorable decision” from this Court -
that is, CBN will not lose access to the Account if this
Court grants leave to intervene and denies the writ of
attachment. See Lujan v. Defenders of Wildlife, 504
U.S. at 561.
C.
CBN May File a Surreply
CBN has
also filed a motion for leave to file a surreply in
opposition to Continental's motion for writ of
attachment. See Dkt. No. 138. Continental opposes
the motion, and also took the liberty of filing a response to
CBN's surreply. See Dkt. No. 140. CBN replied in
support of its motion to file a surreply. See Dkt.
No. 142. “The standard for granting a leave to file a
surreply is whether the party making the motion would be
unable to contest matters presented to the court for the
first time in the opposing party's reply.”
Lewis v. Rumsfeld, 154 F.Supp.2d 56, 61 (D.D.C.
2001). Some of the propositions in Continental's reply
arguably may be regarded as “matters presented to the
court for the first time” insofar as they characterize
the Account in ways that the motion itself did not. The Court
finds that it is in the interest of justice to allow the
filing of CBN's surreply, Continental's response in
opposition to the surreply, and CBN's reply in support of
the surreply. The questions of law and fact involved in
resolving the attachment motion are complex and benefit from
full explication. Furthermore, Continental is not prejudiced
by the Court's acceptance of the surreply because it has
already responded to the substance of the arguments in the
surreply. See United States v. All Assets Held at Bank
Julius Baer & Co., Ltd., 307 F.R.D. 249, 251 n. 5
(D.D.C. 2014).
III.
SECTION 1611 OF THE FOREIGN SOVEREIGN IMMUNITIES ACT
A.
28 U.S.C. § 1611 Provides Immunity to Certain Central
Bank Property
The
Foreign Sovereign Immunities Act is the sole basis for
obtaining jurisdiction over a foreign state in the courts of
the United States. See Saudi Arabia v. Nelson, 507
U.S. 349, 355 (1993); GSS Grp. Ltd. v. Republic of
Liberia, 31 F.Supp.3d 50, 57 (D.D.C. 2014),
aff'd sub nom., GSS Grp. Ltd. v. Nat'l
Port Auth. of Liberia, 822 F.3d 598 (D.C. Cir. 2016)
(citing Nemariam v. Fed. Dem. Rep. of Ethiopia, 491
F.3d 470, 474 (D.C. Cir. 2007)). The FSIA sets out the
circumstances under which foreign sovereigns, their agencies
and instrumentalities, and their property are immune from
suit, attachment, and execution in the courts of the United
States. The Act provides broad immunity for property of a
foreign state, with certain enumerated exceptions:
Subject to existing international agreements to which the
United States is a party at the time of enactment of this
Act, the property in the United States of a foreign state
shall be immune from attachment arrest and execution except
as provided in sections 1610 and 1611 of this chapter.
28 U.S.C. § 1609. See also Jacobsen v. Oliver,
451 F.Supp.2d 181, 195 (D.D.C. 2006) (“The FSIA grants
blanket immunity to foreign states . . . and then waives it
pursuant to the exceptions enumerated therein.”). The
analysis of whether an exception to immunity applies is
fundamentally jurisdictional. See Elbasir v. Kingdom of
Saudi Arabia, 468 F.Supp.2d 155, 160 (D.D.C. 2007)
(“At the threshold of every action in a district court
against a foreign state . . . the court must satisfy itself
that one of the exceptions applies, as subject-matter
jurisdiction in any such action depends on that
application.”).
One of
those exceptions is Section 1610, which establishes that,
inter alia, “[t]he property in the United
States of a foreign state . . . used for a commercial
activity in the United States, shall not be immune from
attachment in aid of execution, or from execution, upon a
judgment entered by a court of the United States . . . if . .
. the foreign state has waived its immunity from attachment .
. . [or] the property is or was used for the commercial
activity upon which the claim is based.” 28 U.S.C.
§ 1610(a)(1), (3). Section 1611, however, contains an
exception to the rule that property used for commercial
activity is not immune. The scope of that exception lies at
the root of the parties' disputes. Section 1611 provides,
in relevant part:
(b) Notwithstanding the provisions of section 1610 of this
chapter, the property of a foreign state shall be immune from
attachment and from execution, if-
(1) the property is that of a foreign central bank or
monetary authority held for its own account, unless such
bank or authority, or its parent foreign government, has
explicitly waived its immunity from attachment in aid of
execution, or from execution, notwithstanding any withdrawal
of the waiver which the bank, authority or ...