Free Reply to Response to Motion - District Court of Delaware - Delaware

Case 1:05-cv-00762-SLR Document 50 Filed 11/22/2006 Page 1 ot 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CONNECTICUT BANK OF )
COMMERCE, )
Plaintiff} g
v. g Civil Action No. 05-762 SLR
THE REPUBLIC OF CONGO, g
Defendant; g
CMS NOMECO CONGO INC., g
Garnishee. 3
AF -CAP’S REPLY TO CMS NOMECO’S OPPOSITION TO ITS
MOTION TO SUBSTITUTE PARTIES
Pursuant to Rule 7.l.2(a)(3), Af-Cap, Inc. ("Af-Cap") submits this reply to CMS
Nomeco's opposition to its motion to substitute parties. CMS opposes a simple
housekeeping motion in which Af-Cap, the real party in interest, seeks to amend the
caption to reflect that it, not a defunct bank, is attempting to collect a long-overdue
money judgment. Af-Cap’s motion should be granted on the grotmds that (a) CMS offers
no basis to deny it or defer ruling on it; and (b) CMS already consented to a similar
motion to substitute tiled in the United States District Court for the Western District of
Texas.
Initially, in its Opposition, CMS asks the Court to defer ruling on At-Cap’s
motion. See CMS Opp. at 2-3. CMS cites no legal basis, and there is none, to either
deny, or defer ruling on Af-Cap’s request. The Third Circuit has observed that Rule
25(c) is "merely a procedural device designed to facilitate the conduct of a case" and
decisions under the Rule are generally committed to the court’s discretion. Luxffner P. L. E

Case 1:05-cv-00762-SLR Document 50 Filed 11/22/2006 Page 2 ot 4
Export v. RDI/Luxliner, 13 F.3d 69, 72 (3d Cir. I993) (citing Fontana v. United Bonding
Ins., Co., 468 F.2d 168, 169 (3d. Cir. 1972)). Despite the ministerial nature of Af-Cap’s
request, CMS has attempted to turn it into an unnecessary exercise in motions practice.
Alternatively, CMS objects to Af-Cap’s request on three grounds. First, CMS
states that Af—Cap argued to the Fifth Circuit “that the fact Af-Cap purportedly acquired
its interest in the debt from the United States govermnent had legal significance to its
claims against CMS Nomeco." CMS Opp. at 1. Of course, Af-Cap’s acquisition of the
debt from the FDIC has legal significance to its claims; however, it does not have the
negative connotation that CMS would like to ascribe to it. Rather, without the
assignment, Af-Cap would not be able to pursue this case. Second, CMS alleges that Af- l
Cap may have had an interest "in the debt prior to the alleged Assignment Agreement I
with the FDlC." Id at 2. CMS has been litigating with Af-Cap for more than 5 years and
has never alleged Af—Cap was not the proper judgment creditor. And, even if true, which
it is not, a prior interest would not affect Af-Cap’s right to pursue relief here. CMS’s
unfounded speculation is insufficient to deny Af-Cap’s request} Third, CMS complains,
albeit accurately, that the Assignment Agreement was not attached to the Motion. But,
CMS neglects to mention that Af-Cap provided CMS a copy of the Assignment
Agreement when it sought to obtain CMS’s consent to the Motion prior to filing (see
Email to CMS dated October, 27 2006 attached as Exh. A) and when CMS previously
consented to Af—Cap’s Motion to Substitute before the United States District Court for
the Western District of Texas. Thus, the omission caused no prejudice.
1 CMS avers that it needs discovery on this point. lf and when CMS seeks such discovery Af-Cap will I
address ir, but it is not a grounds to deny, or defer ruling on, Af-Cap’s Motion.
2

Case 1:05-cv-00762-SLR Document 50 Filed 11/22/2006 Page 3 ot 4
Furthermore, the arguments CMS raises here were equally available (and equally
unpersuasive) when Af-Cap filed the same motion in the Western District of Texas
action. See Af-Cap’s Motion to Substitute in the Western District of Texas attached to
Exb. A. As noted, CMS did not object to that prior motion. Principles of judicial
estoppel preclude CMS from advancing any objection before this Court. The Third I
Circuit case law holds that three requirements must be met before a court applies this I
doctrine. Montrose Medica! Group v. Buigar, 243 F.3d T73, 789 (3d Cir. 2001).
First, the two positions must be "irreconcilably inconsistent? [ai There is no E
question that CMS’s inconsistent positions in this litigation and the Western District of I
Texas litigation satisfy this requirement. See fat (citing Ryan Operations G.P. v. I
Santiam-Midwest Lumber, Co., 81 F.3d 355, 361 (3d Cir. 1996)). Second, CMS must I
have changed its position “’in bad faith -- i.e. with intent to play fast and loose with the I
cou1t’." Id (citing Ryan Operations GP., 81 F.3d at 361). CMS conduct satisfies this ·
requirement too. In particular, CMS has provided no legal basis for its opposition and I
none exists. Nor has CMS provided any justification for its departure from its prior I
position when the same request was made to the district court in Texas. Third, a court
may not employ judicial estoppel unless it is "’tailored to address the harm identiiied’."
Id. (quoting Ktein v. Stahl GMBH & Co. Maschinefabrik, 185 F.3d 98, 108 (3d Cir.
1999)). Af-Cap’s requested relief -- to grant the motion -- is an adequate remedy for the I
damage done by CMS’s misconduct.2 Ia'. Thus, the circumstances presented here satisfy
each of those requirements.
CMS’s pleading has needlessly imposed on the Court’s resources, raised the costs
of this litigation, and highlights the tactics it has taken to assist its dead-beat business
2 Notwithstanding CMS’ improper conduct, Af-Cap seeks no further relief at this time.
3 I
I

Case 1:05-cv-00762-SLR Document 50 Filed 11/22/2006 Page 4 014 i
partner, Congo, in avoiding payment of its lawful debts. Af-Cap’s motion is a simple and
straightfoiward request to substitute a party based upon the assignment of a judgment.
The absence of any legal authority in CMS’ Opposition shows that there is no basis for 1
the Court to either deny, or defer mling on, Af-Cap’s Motion. Accordingly, Af-Cap I
respectfully requests that the Court grant its motion to substitute. `
Dated: Novemberg; 2006 Respectfully submitted, i
GREENBERG TRAURIG, LLP '
.745‘~@—<:`§ A
Dennis A. Meloro (No. 4435)
The Nemours Building
1007 North Orange Street
Suite 1200
Wilmington, DE 19801 I
(302) 661-7000
and `
GREENBERG TRAURIG LLP
Sanford M. Saunders, Jr.
Kenneth Kaplan
800 Connecticut Ave., N.W.
Suite 500 I
Washington, DC 20006
(202) 331-3100
Attorneys for PZaim‘@
l