Free Letter - District Court of Delaware - Delaware

Case 1 :05-cv—00762-SLR Document 89-2 Filed 01/26/2007 Page 1 of 3
{N THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CONNECTICUT BANK O]? )
COMMERCE )
Plaintiff, g
v. g Civil Action No. 05-726 SLR
THE REPUBLIC OF CONGO i
Defendant, i
CMS NOMECO CONGO, TNC., g
Garrtishee. i
ORDER
At Wilmington this www day of January, 2007, [T IS HEREBY
ORDERED as follows:
At the discovery conference conducted bythe Court on January 18, 2007,
and as confirmed by Order ofthe Court entered on January 19, 2007, the Court has
deterrnirred that discovery should be stayed to allow the parties to brief various tnresliold
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.
lt 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 Noineco Congo Inc. ("Cl\/IS Nomeco”) and a Cross-Motion for Partial
Judgment on the Pleadiogs to be filed by Af-Cap, {nc. ("Af-Cap"):
Issue iz Vt/'hether the writ of garnishment is valid under the FSIA.
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Case 1 :05-cv—00762-SLR Document 89-2 Filed 01/26/2007 Page 2 of 3
Sub—issues under issue I:
a. Does CMS Nonieco have standing to raise the
FSEA?
b. Was the Superior Court required to make fact
findings in support of its authorizing Court order as
described in the Fifth Ctrcuit’s decision in FG Hemisp/zere
Associates LLC v. Republic: of Congo, 455 F.3d 575 (Sth
Cir. 2006)‘?
c. Whether niere incorporation in Delaware is enough
to put the Congo”s royalty in the United States for purposes
of the FSIA.
d. Whether either party is barred by res _juc/1`eum or
co!/stem} estoppel by the Fifth Circuit decisions.
issue 2: Whether non-monetary ohiigations are garnishable under
Delaware law.
CMS Nonieco’s Cross Motion for Judgment on the Pieadings, At`—Cap’s
Cross—`i\/lotions tor Partial Judgment on the Pieadings, and the supporting briefing, shall
not address any issues other than those ideutitied above, and in particular, shail not
address defenses based on the Congo court orders, iuclud.ing the defenses ot` double
tiabiiity, 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
resoiuticn ofthe threshoid legal issues described above, the Court wilt consider those
defenses and other issues raised in this case, and the proper scope of any discovery
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Case 1 :05-cv—00762-SLR Document 89-2 Filed 01/26/2007 Page 3 of 3
reiating thereto, only after the Court has ruled on the threshold legal issues described
above.
The parties snail make their tiiings in accordance with the following
schedule:
l. On or before Friday, January 26, 2007, CMS Norneeo shail iiie its
Motion for J ndgrnent on the Pieadings and its Opening Brief in support thereof.
2. On or before Friday, February 9, 2007, Af»—Cap shall tile its Cross-
Motion for Partial Judgment on the `Pleadings, its Answering Brief in opposition to CMS
NOIH€CO’S Opening Brief, and its Opening Brief in support of its Cross—l\/lotion for Partial
Judgment on the Pieadings.
3. On or before Wednesday, February 21, 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—l\/lotion for Partiai Judgment on the
Pleadings.
4. On or before Monday, March 5, 2007, At"—Cap shall fiie its Reply
Brief in support of its Ci·oss—l\/lotion for Partial Judgznent on the Pleadings.
The Court will hoid oral argument on CMS Nonieco Congo lncfs Motion
for Judgment on the Pleadings and At—Cap’s Cross~».Motior1 for Partial Summary
Jndgnient on the Pieadings in Courtroom 6—B on , 2007, at
a.rn. / pm.

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