Free Order Setting Briefing Schedule - District Court of Delaware - Delaware

Case 1 :05-cv—OO762-SLR Document 95-2 Filed O2/O9/2007 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CONNECTICUT BANK OF )
COMMERCE )
Plaintiff, i
v. i Civil Action No. 05-7L,7_-SLR
THE REPUBLIC OF CONGO i
Defendant, g
CMS NOMECO CONGO, INC., g
Garnishee. g
ORDER
At Wilmington this jb day of J:.12i007, IT IS HEREBY
ORDERED as follows:
At the discovery conference conducted by the Court on January 18, 2007,
and as confirmed by Order of the Court entered on January 19, 2007, the Court has
determined that discovery should be stayed to allow the parties to brief various threshold
legal issues as identified in open court at the January 18, 2007 discovery conference. The
parties shall brief those threshold legal issues, which are set out below, in accordance
with the procedures and schedule set out herein.
It is ORDERED that the parties shall brief the following threshold legal
issues that will raised by way of a Motion for Judgment on the Pleadings to be filed by
Garnishee CMS Nomeco Congo Inc. ("CMS Nomeco") and a Cross-Motion for Partial
Judgment on the Pleadings to be filed by Af-Cap, lnc. ("Af-Cap"):
Issue l: Whether the writ of garnishment is valid under the FSIA.
I

Case 1:05-cv-00762-SLR Document 95-2 Filed O2/O9/2007 Page 2 of 3
Sub-issues under Issue I:
a. Does CMS Nomeco have standing to raise the
FSIA?
b. Was the Superior Court required to make fact
findings in support of its authorizing Court order as
described in the Fifth Circuit’s decision in FG Hemisphere
Associates LLC v. Republic of Congo, 455 F.3d 575 (5th
Cir. ZOO6)?
c. Whether mere incorporation in Delaware is enough
to put the Congo’s royalty in the United States for purposes
of the F SIA.
d. Whether either party is barred by res judicata or
collateral estoppel by the Fifth Circuit decisions.
Issue 2: Whether non-monetary obligations are garnishable under
Delaware law.
CMS Nomeco’s Cross Motion for Judgment on the Pleadings, Af-Cap’s
Cross-Motions for Partial Judgment on the Pleadin gs, and the supporting briefing, shall
not address any issues other than those identified above, and in particular, shall not
address defenses based on the Congo court orders, including the defenses of double
liability, foreign state compulsion, and act of state. To the extent resolution of those
defenses and any other issues raised in the case remains necessary after the Court’s
resolution of the threshold legal issues described above, the Court will consider those
defenses and other issues raised in this case, and the proper scope of any discovery
2

Case 1:05-cv-00762-SLR Document 95-2 Filed O2/O9/2007 Page 3 of 3
relating thereto, only after the Court has ruled on the threshold legal issues described
above.
The parties shall make their filings in accordance with the following
schedule:
l. On or before Friday, January 26, 2007, CMS Nomeco shall file its
Motion for Judgment on the Pleadings and its Opening Brief in support thereof.
2. On or before Friday, February 9, 2007, Af-Cap shall file its Cross-
Motion for Partial Judgment on the Pleadings, its Answering Brief in opposition to CMS
Nomeco’s Opening Brief, and its Opening Brief in support of its Cross-Motion for Partial
Judgment on the Pleadings.
3. On or before Wednesday, February 2l, 2007, CMS Nomeco shall
file its Reply Brief in support of its Motion for Judgment on the Pleadings and its
Answering Brief in opposition to Af-Cap’s Cross-Motion for Partial Judgment on the
Pleadings.
4. On or before Monday, March 5, 2007, Af-Cap shall file its Reply
Brief in support of its Cross-Motion for Partial Judgment on the Pleadings.
The Court will hold oral argument on CMS Nomeco Congo lnc.’s Motion
for Judgment on the Pleadings and Af-Cap’s Cross-Motion for Partial Summary
Judgment on the Pleadings in Courtroom 6-B on 48 , 2007, at
3: ru am. /@
3