Enforcement of Philippine Forfeiture Judgment Against All Assets of Arelma, S.A., Formerly Held at Merrill Lynch, Pierce, Fenner & Smith, Incorporated, Including, but Not Limited To, Account Number 16 ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE: ENFORCEMENT OF )
PHILIPPINE FORFEITURE ) F I L E D
JUDGMENT AGAINST ALL ASSETS |) JUL 15 2019
OF ARELMA, S.A., FORMERLY HELD )
AT MERRILL LYNCH, PIERCE, ) cso a
FENNER & SMITH, INCORPORATED, )
INCLUDING, BUT NOT LIMITED TO, ) Mise. No. 16-1339
ACCOUNT NUMBER 165-07312, AND)
ALL INTEREST, INCOME OR )
BENEFITS ACCRUING OR )
TRACEABLE THERETO )
MEMORANDUM OPINION
July_{ §72019 [Dkt. Nos. 5, 15, 17, 22]
Proposed intervenors Jose Duran (““Duran’’) and Jenna Roxas (“Roxas”) seek to
intervene as of right in this 28 U.S.C. § 2467 action brought by the United States to
enforce a forfeiture judgment entered in the Philippines against $40 million in assets of a
company, Arelma, S.A., once controlled by ex-Philippine president Roger Marcos (“the
Arelma funds”). Duran represents a class of human rights victims (“the Duran Class” or
“the Class”) who have two judgments against the Marcos estate and who have fought for
years to seize these Arelma funds in partial satisfaction of their judgments. Likewise,
Roxas represents her father’s estate (“Roxas estate”) and the Golden Budha [sic]
Corporation (“GBC”), which seek to seize the Arelma funds in satisfaction of their own
Judgments against the Marcos estate arising from Marcos’s torture of Roxas’s father and
theft of a treasure he discovered. The Government does not oppose the Duran Class’s
motion to intervene, although it reserves the right to challenge the class’s standing to
raise certain arguments. The Government does, however, oppose Roxas’s intervention.
1
Additionally, Duran filed a motion to change venue to the Southern District of
New York. The Government opposes this motion and would like the case to remain in
the District of Columbia.
The two motions to intervene and the motion to change venue are now fully
briefed and ripe for review. Upon consideration of the parties’ submissions and the entire
record herein, I have concluded that Duran’s motion to intervene must be GRANTED. In
addition, Duran’s motion to change venue is GRANTED. The Roxas motion to
intervene, however, is DENIED without prejudice so that the judge assigned in the
Southern District of New York can decide its virtue. Accordingly, this case is ordered
transferred to the United States District Court for the Southern District of New York.
BACKGROUND
Before delving into Duran’s motions to intervene and change venue, a little
background on the pot of money at issue in this case, the various parties jockeying to
drain it, and how they have attempted to do so would seem appropriate.
A. The Arelma Funds
Writing for the Supreme Court, Justice Kennedy gave a succinct history of the
funds that are at issue here:
In 1972, Ferdinand Marcos, then President of the Republic [of the
Philippines], incorporated Arelma, S.A. (Arelma), under Panamanian law.
Around the same time, Arelma opened a brokerage account with Merrill
Lynch, Pierce, Fenner & Smith Inc. (Merrill Lynch) in New York, in which
it deposited $2 million. As of the year 2000, the account had grown to
approximately $35 million.
Alleged crimes and malfeasance by Marcos during his presidency
became the subject of worldwide attention and protest... . After Marcos fled
the Philippines in 1986, the [Philippine Presidential] Commission [on Good
2
Governance] asked the Swiss Government for assistance in recovering
assets—including shares in Arelma—that Marcos had moved to Switzerland.
In compliance the Swiss Government froze certain assets and, in 1990, that
freeze was upheld by the Swiss Federal Supreme Court. In 1991, the
Commission asked the Sandiganbayan, a Philippine court of special
jurisdiction over corruption cases, to declare forfeited to the Republic any
property Marcos had obtained through misuse of his office... .
The Swiss assets were transferred to an escrow account set up by the
Commission at the Philippine National Bank (PNB), pending the
Sandiganbayan’s decision as to their rightful owner. The Republic and the
Commission requested that Merril Lynch follow the same course and transfer
the Arelma assets to an escrow account at PNB. Merrill Lynch did not do
so. Facing claims from various Marcos creditors ... Merrill Lynch instead
filed an interpleader action under 28 U.S.C. § 1335.
Republic of Philippines v. Pimentel, 553 U.S. 851, 857-59 (2008). The United States
District Court for the District of Hawaii awarded the disputed Arelma funds to a class of
victims of the Marcos regime in partial satisfaction of a judgment it previously entered in
favor of the class. See id. at 858-60. The Supreme Court ultimately overturned this
award because the Republic of the Philippines (“the Republic”) and the Commission—
who claimed sovereign immunity and did not participate in the interpleader action—were
necessary parties under Federal Rule of Civil Procedure 19(b). See id. at 872.
Thereafter, the Arelma funds were returned to Merrill Lynch. Swezey v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 973 N.E.2d 703, 707 (N.Y. 2012). Two important
things happened next. First, the class of human rights victims went to the New York state
courts in an attempt to enforce the $2 billion class judgment against the Arelma funds in a
State turnover proceeding. See id. As part of this proceeding, Merrill Lynch transferred
the Arelma funds to New York City’s Commissioner of Finance pursuant to a court
order. /d. at 707 n.5. (The parties agree that the New York City Department of Finance
held the funds from 2010 until 2017, when they were transferred to the New York State
Office of the State Comptroller, Office of Unclaimed Funds. [Dkt. #1] 4 4; [Dkt. #5] 9 4;
[Dkt. #24-3]; [Dkt. #24-4] § 3; [Dkt. #26] at 1.) “Second, the Sandiganbayan ruled that
the funds Marcos used to establish the Arelma account had been stolen from the Republic
and that the company’s assets had therefore been forfeited to the Republic.” Swezey, 973
N.E.2d at 707.
Like the U.S. Supreme Court, the New York Court of Appeals ultimately ruled
that the Republic was a necessary party to the state turnover proceedings and ordered it
dismissed without prejudice. /d. at 711. Undeterred, the human rights victims tried the
New York courts again two years later, but the New York Supreme Court Appellate
Division stayed the case pending an attempt by the Philippines to enforce the
Sandiganbayan’s judgment in the United States. Swezey v. Merrill Lynch, Pierce, Fenner
& Smith Inc., 997 N.Y.S.2d 45, 46-47 (N.Y. App. Div. 2014). This action before me is
that attempt.
B. The Duran Class
Jose Duran is a member and representative of a class of 9,539 Filipino human
rights victims who seek to intervene in this action. [Dkt. 5-2] §§ 1-2. This is the same
class of victims who were awarded a roughly $2 billion judgment against Ferdinand
Marcos’s estate in the District of Hawaii. See Hilao v. Estate of Marcos, 103 F.3d 767,
772, 787 (9th Cir. 1996); [Dkt. 5-2] 4.5. The class later secured a second judgment of
over $350 million for civil contempt after the Marcos estate improperly disposed of estate
assets. See In re Estate of Marcos Human Rights Litig., 496 F. App’x 759, 760 (9th Cir.
4
2012). As I explained above, the Duran Class has attempted to enforce its judgments
against the Arelma funds both in Hawaii and in New York.!' Crucially, after the Arelma
Funds were transferred back to Merrill Lynch following the Supreme Court’s 2008
decision in Pimentel, the Duran Class levied the funds in New York. [Dkt. 5-2] § 20;
[Dkt. 5-8] § 2; [Dkt. 24-2] at 3.
C. Philippine National Bank
PNB has entered an appearance in this action as a respondent. [Dkt. 11]. That is
the only action it has taken. PNB held the shares of Arelma, S.A. in escrow, although it
is unclear if it still does, since the Sandiganbayan and Philippine Supreme Court ordered
the Arelma funds forfeited to the Republic. See Swezey, 973 N.E.2d at 547.
DISCUSSION
A. Intervention
The first thing I must determine is who the proper parties are in this action.
Before me is a motion to intervene by Duran on behalf of the Duran Class. A proposed
intervenor must have standing to intervene and must satisfy the requirements of the
Federal Rules of Civil Procedure. Deutsche Bank Nat’l Trust Co. v. F.D.L.C., 717 F.3d
189, 193 (D.C. Cir. 2013). For the following reasons, I will grant Duran’s motion to
' The Duran Class apparently also attempted to enforce the judgment in the Philippines
but was stymied by, among other things, an $8.4 million filing fee demanded by the
Republic’s courts, the propriety of which took nine years to litigate. See [Dkt. #5-2] € 16.
The UN’s Human Rights Committee, at least, concluded “that the length of time taken to
resolve [this filing fee] issue was unreasonable, resulting in a violation of the [Duran
Class’s] rights under” international law. Pimentel et al. v. Philippines, U.N. Doc.
CCPR/C/89/D/1320/2004 (2007).
intervene.”
1. Standing
As a preliminary matter, Duran has standing to intervene. In order to establish
Article III standing, “[a] prospective intervenor... must show: (1) injury-in-fact, (2)
causation, and (3) redressability.” Fund for Animals, Inc. v. Norton, 322 F.3d 728, 732-
33 (D.C. Cir. 2003). Duran shows all three.
First, an injury-in-fact is “‘an invasion of a legally protected interest which is (a)
concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.”
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks omitted).
Here, the Duran Class holds two judgments against the Marcos’ estate. The Class levied
the Arelma funds, which, for the moment, remain part of that estate. This levy means the
Duran Class is not merely a general unsecured creditor—it has a specific interest in the
Arelma funds. See U.S. v. BCCI Holdings (Luxembourg), S.A., 46 F.3d 1185, 1191 (D.C.
Cir. 1995) (explaining in the criminal forfeiture context that general creditors of an estate
“can have no interest in particular assets [in the estate] .. . unless they have already
secured a judgment against the debtor and perfected a lien against a particular item”
* The United States “does not oppose the participation of Mr. Duran on his own behalf
and as a member of the plaintiff class he represents in these proceedings for the purpose
of raising objections to the enforcement of the Philippine judgment,” however it “does
not concede that Mr. Duran or the class he represents has standing to raise any particular
argument” and “respectfully reserves [the] right to oppose any objections raised” by him.
[Dkt. #6] at 5. In order to prevent future re-litigation of these matters, and because
standing is jurisdictional, I will set forth the full intervention analysis with respect to
Duran.
(emphasis added)).? New York’s courts have stayed the Class’s turnover action seeking
to satisfy its judgments pending the outcome of the present action. But if the
Government succeeds in enforcing the Republic’s forfeiture judgment in this action, the
Arelma funds will no longer be part of the Marcos estate and will no longer be available
to satisfy the Duran Class’s judgments, mooting the New York turnover action. Thus, the
present action presents an imminent, threatened interference with the Duran Class’s very
real interest in asserting its rights to the Arelma funds, meaning Duran has shown an
injury-in-fact.4 See In re $6,871,042.36, 217 F. Supp. 3d 84, 92 (D.D.C. 2016) (finding
standing where proposed intervenor’s “ability to establish its right to [claimed funds]
[wa]s clearly impacted by” a foreign judgment the United States sought to enforce under
28 U.S.C. § 2467) (citing CC Distribs., Inc. v. United States, 883 F.2d 146, 150 (D.C.
Cir. 1989) (stating that a party “suffers a constitutionally cognizable injury by the loss of
an opportunity to purse a benefit . . . even though the [party] may not be able to show that
it was certain to receive that benefit had it been accorded the lost opportunity”)).
> Roxas’s motion is denied because it does not seem she has any more claim to the
Arelma funds than a general judgment creditor and so lacks standing.
* Tt is true, as the New York Court of Appeals noted, that “[i]f the Arelma assets belong
to the people of the Philippines—as that country’s highest court has declared—the
[Duran] class has no claim to that property ....” Swezey, 973 N.E.2d at 711. But it is
also true that a U.S. court may not enforce a foreign judgment if it suffers from any of the
defects outlined in 28 U.S.C. § 2467(d)(1). The Duran Class claims that a number of
these defects apply to the Republic’s judgment. See [Dkt. 5] at 8-12. No other party
before the Court could or would raise these defects, and the statute recognizes that other
potential claimants to targeted assets may intervene. See 28 U.S.C. § 2467(c)(2)(A) (“the
United States shall be the applicant and the defendant or another person or entity affected
by the forfeiture or confiscation judgment shall be the respondent” (emphasis added)).
7
Second, Duran’s injury—his inability to assert the Class’s interest in the Arelma
funds—-would be caused by the entry of final judgment in this § 2467 action without
providing Duran the right to intervene. In Pimentel, the Supreme Court contemplated
that the Duran Class would ultimately get its day in court: Although the Duran Class
could not proceed against the Arelma funds in federal court at that time, the Court
reasoned that either the Republic would ultimately lose its claim to the Arelma funds in
the Philippines, which would permit the Duran Class to file a new interpleader action in
which the Republic would not be a necessary party, or the Republic would win its case in
the Philippines, which would require it to consent to U.S. jurisdiction and fight the Duran
Class’s claims in order to collect the funds. See 553 U.S. at 873. If the Republic can ask
the United States to enforce the forfeiture judgment in its stead but the Duran Class is not
permitted to assert its interests in the funds, then the solution contemplated by the
Supreme Court will be frustrated. Accordingly, I conclude that denying Duran the right
to intervene in this action would cause it the harm I outlined above.
Third, allowing Duran to intervene will redress this harm. Although the Duran
Class may ultimately fail to obtain the Arelma funds because the Government may
succeed in enforcing the Republic’s judgment, allowing Duran to intervene will redress
the harm that would come from the Class not even getting the opportunity to assert its
interest in the Arelma funds. Therefore, I conclude that Duran has standing to intervene
in this action.
2. Rule 24
Duran also satisfies the requirements for intervention as of right under Federal
8
Rule of Civil Procedure 24(a). That rule provides that courts must allow the intervention
of any party who (1) makes a timely application to intervene and (2) claims a legally
protected interest in the action (3) where the action threatens to impair that interest and
(4) no party to the action can be an adequate representative of the applicant’s interests.
Fed. R. Civ. P. 24(a); Jn re Restraint of Twenty Real Properties in California and
Florida, No. 16-mc-1612, 2019 WL 481167, at *3 (D.D.C. Feb. 6, 2019). I find that
Duran satisfies all four requirements.
First, Duran’s motion to intervene was timely filed. Whether a motion to
intervene is timely lies in the court’s discretion and is determined by all of the
circumstances, including the purpose for which intervention is sought. NAACP v. New
York, 413 U.S. 345, 366 (1973); United States v. McDonald, 432 U.S. 385 (1977). Here,
Duran filed his motion before the Government had done anything except file the action.
See [Dkt. 5]. There can be no doubt this motion was timely.
Second, Duran has claimed a legally protected interest. Our Circuit Court has
repeatedly held that where a prospective intervenor “has suffered a cognizable injury
sufficient to establish Article III standing, [that party] also has the requisite interest under
Rule 24(a)(2).” Jones v. Prince George’s Cty., 348 F.3d 1014, 1018 (D.C. Cir. 2003),
As | explained above, Duran has standing to intervene, so he claims a legally protected
interest.
Third, this action threatens to impair Duran’s legally protected interest. “‘In
determining whether an applicant’s interests will be impaired, courts in this circuit look
to the ‘practical consequences’ that the applicant may suffer if intervention is denied.”
9
Forest Cty. Potawatomi Comm. v. United States, 317 F.R.D. 6, 14 (D.D.C. 2016)
(quoting Nat. Res. Def: Council v. Costle, 561 F.2d 904, 909 (D.C. Cir. 1977)). As I
explained above, allowing this action to proceed without giving the Duran Class the
opportunity to intervene will prevent the Class from advocating for its interests in the
Arelma funds and would almost certainly moot the Duran Class’s (currently-stayed)
turnover action in New York.
Fourth, no other party can adequately represent the Duran Class’s interests. At the
moment, the only parties to this action are the United States, acting on behalf of the
Republic, and the Philippine National Bank, which has also acted on the Republic’s
behalf in the past. Neither party has any incentive to raise the arguments against
enforcement of the Republic’s forfeiture judgment that the Duran Class has.
Duran has standing and has satisfied the requirements for intervention as of right
under Rule 24. Therefore, Duran’s motion to intervene is GRANTED.
B. Change of Venue
Having granted Duran’s motion to intervene, I must next consider his motion to
change venue to the Southern District of New York. [Dkt. #22]. A court may transfer a
case to any other district where it might have been brought “[f]or the convenience of
parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). Duran seeks a
change of venue because the Arelma funds are located in New York, that court is the site
of related Marcos litigation, and the only identifiable witnesses are located in New York.
[Dkt. #22] at 3-5. The Government opposes a change of venue because it claims its
choice of forum is entitled to deference, the statute under which this action was brought
10
contains a special venue provision, and its representatives are located in Washington and
not New York. [Dkt. #24] at 3-6. After careful consideration, I will GRANT Duran’s
motion to change venue because I have concluded that venue lies in the Southern District
of New York and that the convenience of the parties and witnesses and the interest of
justice weigh in favor of transferring the case there. How so?
a. Proper Venue
First, I easily conclude that the case could originally have been brought in the
Southern District of New York. “[T]he threshold question is whether this suit could have
been brought in the proposed transferee district.” DeLoach v. Phillip Morris Cos., Inc.,
132 F. Supp. 2d 22, 24 (D.D.C. 2000). The statute providing for enforcement of foreign
forfeiture judgments provides that “venue shall lie in the district court for the District of
Columbia or in any other district in which the defendant or the property that may be the
basis for satisfaction of a judgment under this section may be found.” 28 U.S.C.
§ 2467(c)(2)(B). As I explained above, it is undisputed that at the time this case was
brought in June 2016 the Arelma funds were held by the New York City Department of
Finance.? [Dkt. #24-3]. As the funds “[could] be found” within the Southern District of
New York at the time this case was filed, the case may be transferred there. 28 U.S.C.
§ 2467(c)(2)(B).
> | take judicial notice of the fact that the New York City Department of Finance is
located in the New York City borough of Manhattan, which is within the Southern
District of New York. See “Finance (DOF),” The Green Book 2015-16: Official
Directory of the City of New York (2015), http://a856-gbol.nyc.gov/GBOL Website/
GreenBook/Details?orgld=2871.
1]
Curiously, the Government argues that venue does not lie in the Southern District
of New York because the Arelma funds are currently located in Albany, New York,
which is in the Northern District of New York. [Dkt. #24] at 1-3. But as I explained
above, I need to assess whether venue was proper when the case was filed back in 2016.
So the Government’s argument on this issue is meritless.
b. Convenience of Parties and Witnesses and the Interests of Justice
Second, I conclude that the convenience of parties and witnesses and interests of
justice favor transferring the case to the Southern District of New York. The party
moving to transfer venue bears the burden of establishing that convenience and the
interests of justice weigh in favor of transfer. See Int’l Bhd. of Painters & Allied Trades
Union v. Best Painting & Sandblasting Co., Inc.,621 F. Supp. 906, 907 (D.D.C. 1985).
Section 1404(a) vests discretion in the district court to conduct an “individualized, case-
by-case” analysis of whether transfer is appropriate. Steward Org., Inc. v. Ricoh Corp.,
487 U.S. 22, 29 (1988).
Here, Duran contends that while the Government is equally at home in the
Southern District of New York and the District of Columbia, he is located in New York.
[Dkt. #22] at 3-4. As he and a representative of Merrill Lynch’s New York office are
potential witnesses, New York is most convenient for them. /d. at 4. Moreover, the
Southern District of New York is home to a different matter, District Attorney of New
York Cty. v. Republic of Philippines, which involves substantially the same facts as those
in this case. See 307 F. Supp. 3d 171 (S.D.N.Y. 2018).
For its part, the Government argues that as plaintiff, its choice of venue is a
12
“paramount consideration” entitled to “great deference.” [Dkt. #24] at 3 (quoting United
States v. H & R Block, Inc., 789 F. Supp. 2d 74, 78 (D.D.C. 2011)). The Government
contends that its choice of venue is all the more important because 28 U.S.C. § 2467
contains a special venue provision naming the District of Columbia and as such is entitled
to extra weight. See id. at 3-4 (citing Jn re Scott, 709 F.2d 717 (D.C. Cir. 1983)). Far
from being equally at home in both districts, the Government notes that the component of
the Department of Justice litigating the case is located in Washington and not New York.
See id. at 5. And as the key issue in this enforcement action is the validity of underlying
Philippines judgment, the Government expects the key witnesses to be experts in
Philippine law, who are unlikely to be located in the Southern District of New York. See
id. As for the Marcos-related interpleader case in the Southern District of New York
cited by Duran, the Government claims that because it 1s not a Section 2467 action for the
enforcement of a foreign forfeiture judgment, it is of limited relevance. See id. I
disagree.
In my judgment, most of the reasons cited by both parties are essentially valueless.
First, convenience to the witnesses and parties is a wash. New York and Washington are
close enough for a quick train ride, so it would not be inconvenient for lawyers,
witnesses, or parties to travel from one to the other. While the Government is likely
correct that the key witnesses will be experts in Philippine law, but I have no reason to
believe (and the Government has not even argued) that such witnesses are more likely to
13
be found in Washington than in New York. Manilla would seem far more likely!®
Second, “plaintiffs” choice of venue, in this case, is likewise entitled to limited
weight. Indeed, as the Government notes, it is not a “plaintiff,” vindicating its own
rights. Rather, it is an “applicant,” complying with its duty to enforce rights claimed by
others. See [Dkt. #24] at 3.n.2. Even if it were a plaintiff, Duran correctly notes that
deference to a plaintiff's choice of forum “is lessened when plaintiffs forum choice
‘lacks meaningful ties to the controversy and [has] no particular interest in the parties or
subject matter.’” S. Utah Wilderness All. V. Norton, 315 F. Supp. 2d 82, 86 (D.D.C.
2004) (quoting Js/lamic Republic of Iran v. Boeing Co., 477 F. Supp. 142, 144 (D.D.C.
1979)). This case has absolutely no connection whatsoever to the District of Columbia.
By contrast, the Arelma funds are currently located in New York, where they are in the
custody of the State of New York, held pursuant to New York state law. Thus, to the
extent there are any (tenuous) local interests at play in this action, they are those of New
York.
Third, the Government’s focus on the statute’s special venue provision is, to say
the least, unconvincing. Citing a case interpreting the special venue provision in the
Freedom of Information Act (“FOIA”), the Government argues that naming the District
of Columbia as a catch-all venue reflects Congressional intent to place such cases at “the
° | take judicial notice of the fact that there is one direct flight daily between Manilla’s
Ninoy Aquino International Airport and New York’s John F. Kennedy International
Airport. See Philippine Airlines, Jnternational Summer Timetable (2019), https://www.
philippineairlines.com/en/~/media/files/flighttimetable/intl%20summer%20timetable%20
jul%2002%202019.pdf?la=en. At present, there are no direct flights from Manilla to
either of the international airports serving Washington. /d.
14
diplomatic nerve center of the United States” and that “courts in the District of Columbia
likely have more expertise with the governing law than do courts in other districts.”
[Dkt. #24] at 4 (citing Scott, 707 F.2d at 720). But this, of course, is pure guesswork and
the Government’s reliance on Scott is misplaced. There, the legislative history indicated
specific Congressional intent to develop familiarity with and expertise in FOIA cases in
this Court. See Scott, 707 F.2d at 720. The Government here has cited no comparable
legislative history, and there does not seem to be any. See H.R. Rep. No. 105-358, pt. 1
(1997) (explaining purpose of law that was codified at 28 U.S.C. § 2467 but providing no
explanation for special venue provision); H.R. Rep. No. 106-192 (1999) (same). Neither
this Court nor the Southern District of New York has heard many Section 2467 actions,
but both courts have some experience with the statute.
In contrast to these ultimately inconclusive factors, considerations of judicial
economy are dominant here. Courts routinely cite existing familiarity with the facts and
parties involved in a case in support of transferring a case. See, e.g., Pueblo v. Nat’l
Indian Gaming Comm’n, 731 F. Supp. 2d 36, 40-41 (D.D.C. 2010) (“[T]he courts’
respective knowledge of the parties and facts is also relevant.”’); F.7.C. v. Cephalon, Inc.,
551 F. Supp. 2d 21, 30-31 (D.D.C. 2008) (“That court’s familiarity with these facts...
supports transfer ... for judicial efficiency purposes.”); cf Oil, Chemical & Atomic
Workers Local Union No. 6-418, AFC-CIO v. NLRB, 694 F.2d 1289, 1294 (D.C. Cir.
1982) (holding under similar statute allowing inter-circuit transfer of administrative
agency cases that “whether one circuit is more familiar with the same parties and issues
or related issues than other courts” should be considered). Here, the District Attorney of
15
New York County case was actively litigated in the Southern District of New York from
early 2014 until it settled just months ago. See Interpleader Compl., District Attorney of
New York Cty. v. the Republic of the Philippines et al (No. 14-cv-890), ECF Nos. 2, 489,
That case runs to 521 entries on the court’s docket, see Order Granting Mot. to Withdraw
as Counsel & Denying Request to Proceed Pro Se, ECF No. 521, and generated three
lengthy and considered opinions, see 307 F. Supp. 3d 171 (S.D.N.Y. 2018); 2016 WL
9022581 (S.D.N.Y. Nov. 4, 2016); 2016 WL 9022580 (S.D.N.Y. Jan. 20, 2016). As one
of those opinions noted, that case is part of “a long series of proceedings—spanning
decades and pursued in numerous jurisdictions.” 307 F. Supp. 3d at 180 n.2. Duran’s
request to reduce the number of jurisdictions involved seems eminently reasonable and
surely accords with the interests of justice.
Finally, the Government’s sole rebuttal on the issue of judicial economy is that
District Attorney 1s an interpleader action involving different assets and is therefore “not
nearly coextensive with the issues governing this case.” [Dkt. #24] at 5-6. Poppycock!
Although the ultimate issue in this case—whether the forfeiture judgment against the
Arelma funds entered in the Philippines complies with the requirements of Section
2467—1s different, the decades-long factual morass that a court will need to sift through
in order to decide that question is nearly identical. What’s more, the court in District
Attorney has already considered (and at least to some degree disposed of) two of the
arguments Duran has raised in this action for why the forfeiture judgment is invalid:
e The voluntary dismissal of cases filed by the Republic in 1986 in the Southern
District of New York, Southern District of Texas, and Central District of
California operate as an adjudication on the merits of the Republic’s claims.
16
Compare [Dkt. #5] at 12 9§ 57-61 (raising this argument) with District Attorney,
307 F. Supp. 3d at 197-99 (rejecting this argument as a matter of law).
e The five-year statute of limitations for Section 2467 actions bars the Republic
from enforcing its forfeiture judgment because the Arelma funds were
misappropriated in 1972 and the Marcoses became susceptible to service of
process in the United States beginning in 1986. Compare {Dkt. #5] at 8 44 29-32
(raising this argument) with District Attorney, 307 F. Supp. 3d at 199-204
(considering and rejecting this argument at summary judgment with respect to a
number of state law claims).
The Southern District of New York’s familiarity with the facts, parties, and issues at play
in this action surely tips the scales in favor of transferring it to that court. Accordingly,
the Motion to Change Venue filed by Duran is GRANTED.
CONCLUSION
For the foregoing reasons, Jose Duran’s [Dkt. #5] Motion to Intervene is
GRANTED, Roxas’s [Dkt. #17] Motion to Intervene is DENIED without prejudice so
that the assigned Southern District judge can decide that matter, and Jose Duran’s [Dkt.
#22| Motion to Change Venue is GRANTED. The Clerk of Court is hereby ORDERED
to terminate the pending Motion for Hearing [Dkt. #15] and to transfer this case to the
United States District Court for the Southern District of New York. A separate Order
consistent with this decision accompanies this Memorandum Opinion.
A
RICHARD J.
United States District Judge
17