Free Reply Brief - District Court of Delaware - Delaware

Case 1 :05-cv-00762-SLR Document 20 Filed 12/29/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CONNECTICUT BANK OF )
COMMERCE, )
Plaintiff, i
v. i Civil Action No. 05-762 SLR
THE REPUBLIC OF CONGO, i
Defendant; g
CMS NOMECO CONGO INC., g
Gamishee. i
GARNISHEE CMS NOMECO’S REPLY IN SUPPORT OF ITS
MOTION FOR LEAVE TO FILE SURREPLY BRIEF IN
OPPOSITION TO AF-CAP’S MOTION TO REMAND ACTION
Gamishee CMS Nomeco Congo Inc. (now named CMS Nomeco Congo LLC)
("CMS Nomeco") submits this Reply in support of its Motion for Leave to File Surreply Brief in
Opposition to Af—Cap’s Motion to Remand Action.
Af-Cap opposes CMS Nomeco’s request for leave to file a surreply brief on the
remand issues, arguing that Af—Cap "is entitled to the last word" on the remand issues and
accusing CMS Nomeco of attempting to "sandbag" Af-Cap. Af-Cap Opposition {[3. A review of
the facts demonstrates that Af-Cap is attempting to have the only word on the remand arguments
that it raised for the first time in its Reply, and it is Af—Cap that is doing the sandbagging. The
reason for Af—Cap’s unreasonable refusal to agree to the filing of the surreply is its desire to
prevent the Court’s consideration of full briefing on its new remand arguments, as part of its
effort to avoid a decision by this Couit on the merits of its baseless garnishment action.

Case 1:05-cv-00762-SLR Document 20 Filed 12/29/2005 Page 2 of 4
l. Af-Cap’s Motion to Remand Action was based on three arguments: (l)
Af-Cap’s argument that CMS Nomeco is not a party to this gamishment action and is without
standing to remove; (2) Af-Cap’s argument that the notice of removal allegedly was not timely;
and (3) Af-Cap’s argument that the Congo’s consent was necessary for removal. The Motion to
Remand Action did not challenge the bases for subject—matter jurisdiction set out in the Notice of
Removal, and the only mention of the Foreign Sovereign lmmunities Act in the Motion to
Remand Action was in footnote l, in which Af-Cap stated that 28 U.S.C. §l44l(d) provides no
basis for removal of this action because CMS Nomeco is not a foreign sovereign. That footnote
reference is and was irrelevant because CMS Nomeco did not rely, and does not rely, on 28
U.S.C. §l44l(d) as a basis for removal.
2. In its Opposition, CMS Nomeco demonstrated that all of the arguments
presented in the Motion to Remand Action are meritless. In its Reply, Af—Cap attempted to raise,
for the first time, arguments relating to subject matter jurisdiction and FSlA—related arguments
that were not raised in the Motion to Remand Action. Specifically, Af-Cap argued in its Reply
that (l) "CMS wrongfully asserts federal jurisdiction under 28 U.S.C. §l33l when the Foreign
Sovereign Immunities Act (‘FSlA’) and Supreme Court precedent limits jurisdiction to 28
U.S.C. §l33O"1; (2) 28 U.S.C. §l44l(d) "is the sole statutory basis for standing to remove an
action under the FSlA"2; and (3) CMS Nomeco "may not bootstrap itself into federal court by
asserting a defense that raises a federal question."3
3. The proposed surreply brief demonstrates that all of these new arguments
are also baseless. Af-Cap’s opposition to the motion for leave to file the surreply brief exposes
its effort to have the Court consider the new remand issues on a one-sided record, having only
$f§§iE2£ Eiléil ZE $1
3 Af-Cap Reply at 3.
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Case 1:05-cv-00762-SLR Document 20 Filed 12/29/2005 Page 3 of 4
Af-Cap’s perspective on the subj ect-matter jurisdiction and FSIA-related arguments raised for
the first time in the Reply.
4. Af-Cap attempts to justify its failure to raise the new arguments in its
original motion by contending that it was merely responding to cases cited in CMS Nomeco’s
Opposition. But those same cases were cited in the Notice of Removal, and Af-Cap chose to
address only one of those cases in its Motion to Remand Action. When CMS Nomeco pointed
out in its Opposition that Af-Cap’s motion failed to address the other cases cited in the Notice of
Removal, Af-Cap shifted gears and for the first time raised in its Reply the subject-matter
jurisdiction and other FSlA—based challenges to removal.
5. This is not a situation in which Af—Cap could not anticipate the arguments
raised in the Opposition, as they are the same arguments presented in the Notice of Removal. By
raising subject matter jurisdiction and other FSIA-based arguments for the first time in its Reply
and then opposing CMS Nomeco’s motion for leave to file a surreply brief to address those new
arguments, Af-Cap is attempting to prevent the Court from hearing CMS Nomeco’s side of the
subj ect-matter jurisdiction and FSIA-related issues and to force a decision on those issues based
on a one-sided presentation of the arguments.
6. Once again, Af—Cap has wasted the Court’s time and forced expenditure of
additional attorney’s fees by CMS Nomeco in connection with a matter that should have been
resolved by agreement. Af-Cap’s effort to obtain a remand based on a one-sided presentation of
issues raised for the first time in a reply is just its latest attempt to avoid a decision by this Court
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Case 1:05-cv-00762-SLR Document 20 Filed 12/29/2005 Page 4 of 4
on the merits of its baseless garnishment action. The motion for leave to file the surreply brief
should be granted.
Respectfully submitted,
OF COUNSEL: /s/ M. Duncan Grant
M. Duncan Grant (Del. Bar No. 2994)
Guy S. Lipe James C. Carignan (Del. Bar No. 4230)
Jason M. Powers PEPPER HAMILTON LLP
VINSON & ELKINS L.L.P. Hercules Plaza, Suite 5100
First City Tower 1313 N. Market Street
1001 Fannin Street, Suite 2300 P.O. Box 1709
Houston, TX 77002-6760 Wilmington, DE 19899-1709
(713) 758-2222 (302) 777-6500
Dated: December 29, 2005 Attorneys for Gamishee CMS Nomeco Congo
Inc.
1839990
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