Free Letter - District Court of Delaware - Delaware

Case 1:05-cv-00762-SLR Document 106 Filed O3/12/2007 Page 1 012
Pepper HHIHlll]l]Il LLP
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Fax 502.421-859% carigna;@pepperlaw.com
March l2, 2007
VIA CM/EC}? AND HAND DELIVERY
The Honorable Sue L. Robinson
United States District Court for the District of
Delaware
J. Caleb Boggs Federal Building
Chambers ofthe Honorable Sue L. Robinson
844 King Street
Wilmington, DE l980l
Q Connecticut Bank of Commerce v. Republic of Congo, Defendant,
CMS Nomeco Congo, Inc., Garnishee gCiv. Act. N0. 05-762 SLR;
Dear Chief Judge Robinson:
We write to respond to the letter from Mr. Detweiler, dated March 9, 2007,
regarding Plaintiff s request that the above-referenced action be dismissed pursuant to Rule
·¢ll(a)(l)(i) of the Federal Rules of Civil Procedure. As Your Honor knows, CMS Nomeco
objects to dismissal pursuant to Federal Rule 4l(a)(l), because: {i) CMS Nonieco has submitted
an answer in this action, making it an ‘adverse pa.rty’ within the meaning of Federal Rule
4l(a)(l); and (ii) CMS Norneco intends to pursue recovery of substantial attorney’s fees and
costs incurred in this proceeding.
ln Mr. Detweilefs letter, Af-Cap asserts that it is entitled, unilaterally, to dismiss
this proceeding based on a ruling in an unreported decision in another district court, Fantasy
Shipping Pool, Ltd. v. Sirnatech Marine S.A., No. 0l CIV l0725lCSil, 2002 WL 1733662
(S.D.N.Y. July 25, 2002). The Fantasy Shipping opinion is inapposite to the instant case,
however, for several reasons. First, the Fantasy Shipping court held that the garnishees in that
case were not "adverse” to the plaintiffs based on the specific facts of that case. As the court put
it, the garnishees and plaintiff at issue were not ‘adverse parties’ because "garnisl1ees were
entirely indifferent to the underlying issues between Fantasy and defendant . . . The resolution of
those issues, by litigation or settlement, would have no impact upon the property or any other
interest of the garnishees.” Fantasy Shipping, Mem. Op. at * 2. That was not the case here,
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Case 1:05-cv-00762-SLR Document 106 Filed O3/12/2007 Page 2 ot 2
ill?
The Honorable Sue L. Robinson
Page 2
March l2, 2007
where Af-Cap sought to impose significant and independent liability upon CMS Norneco. As
stated in CMS Norneco’s Answer To Writ of Garnishrnent (D.I. 2) (the "Answer"), Af·»Cap
sought to impose liability on CMS Nonreco despite the orders of Congolese courts directing
CMS Nomeco to deliver the oil that Af—Cap sought to garnish, and despite the fact that the
Congo had threatened to terminate CMS Nomeco’s concession to produce oil in the region.
Because CMS Nomecois own interests, separate and independent of the Congo’s, were at risk,
CMS Nomeco is an "adverse party" for purposes of Federal Rule 4l(a)(l), both by a common-
sense reading of the rule and under the analysis employed in Fantasy Shipping.
Second, conspicuously absent from Af·—Cap’s discussion of Fantasy Shipping is
the court’s ruling in that case that dismissal of that action did not divest the court of jurisdiction
to consider the garnishees’ claim to recover fees and expenses. Fantasy Shipping, Mem. Op. at *
3 (citing Cooter & Gell v. Hartmax Corp., 496 U.S. 384 (1990) (holding that voluntary dismissal
of complaint did not divest court of jurisdiction to decide Rule ll motion)). Rather, the court
stated that it retained jurisdiction to consider a fee application (in that case, as to a limited
discovery point) and gave the garnishees a period of time to file motion papers supporting such
an application. Af—Cap’s suggestion that dismissal ofthe underlying action would prevent CMS
Norneco from recovering its attonrey’s fees in this matter is directly contrary to the holding of
Fantasy Shipping.
CMS Norneco respectfully submits that, particularly given the absence of
controlling case law on this issue, the most logical course of action is for the Court to hold the
dismissal notice in abeyance and to hear any argument concerning the effectiveness or
ineffectiveness of At?·Cap’s dismissal notice along with CMS Nomeco’s planned motion for fees,
costs and expenses. As such, CMS Norneco respectfully requests that this action remain open
pending the Couit’s determination of CMS Norneco’s claim. CMS Nomeco is pleased to answer
any questions the Court may have and thanks th Court for its attention.
Respectfully yours,
rf · i`-i”i"""*? M
A.: Qs
James C. Carignan (Del. Bar No. 4230)
cc: Donald J . Detweiier, Esq.
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