Gradel, Theodore F. v. Piranha Capital

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4041
THEODORE F. GRADEL, et al.,
Plaintiffs-Appellants,
v.
PIRANHA CAPITAL, L.P., et al.,
Defendants,
and
ROBB EVANS & ASSOCIATES, L.L.C.,
Intervenor-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 05 C 78—Wayne R. Andersen, Judge.
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SUBMITTED MARCH 18, 2007—DECIDED JULY 25, 2007
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Before EASTERBROOK, Chief Judge, and POSNER and
WOOD, Circuit Judges.
POSNER, Circuit Judge. This appeal presents an issue
concerning the control of property in parallel proceedings.
Investors in a hedge fund called Piranha Capital sued
Piranha in an Illinois state court, claiming violations of
federal securities law as well as state law. By serving the
summons on another company, Pershing LLC, the plain-
2 No. 06-4041
tiffs automatically attached $1 million held in Piranha’s
account with Pershing. 735 ILCS 5/4–126; Maplehurst
Farms, Inc. v. Greater Rockford Energy & Technology Co., 521
N.E.2d 1270, 1272 (Ill. App. 1988). Piranha removed the
case to the federal district court in Chicago, and, having
removed, filed a motion in the district court to vacate
the attachment. But when no one from Piranha showed
up to argue the motion, the district court denied it, and
so the attachment remained in effect. 28 U.S.C. § 1450. The
investors went on to obtain a judgment for almost
$1 million in the district court proceeding, and they
attempted to collect it by filing a motion in that court
to order Pershing to turn over to them the money in
Piranha’s account with Pershing.
While that motion was pending, the Commodity Futures
Trading Commission sued two advisers of Piranha in the
federal district court for the Northern District of Cali-
fornia, charging them with violations of the Commodity
Exchange Act for causing improper diversion of assets of
the investors in Piranha to the defendants. The court issued
a preliminary injunction against the commencement,
prosecution, litigation, or enforcement of any suit with
respect to Piranha. It also appointed Robb Evans & Associ-
ates as a temporary receiver for matters relating to Piranha,
to recover as much money as possible for the investors. The
receiver traced some of the assets to the account at
Pershing and directed Pershing to transfer the money in
the account to him. Discovering that the funds had already
been attached by the plaintiffs in the Chicago suit, the
receiver intervened in that suit (now in the collection
phase) and moved to vacate the attachment. He also
opposed the plaintiffs’ pending motion for turnover.
The district court in Chicago denied the motion for
turnover on the ground that the injunction entered in
No. 06-4041 3
California, which was directed against “the Defendants,
and all other persons and entities,” bound the plaintiffs
because they were included in “all other persons and
entities.” In the same order the district court also granted
the receiver’s motion to vacate the attachment, on the
ground that the receiver “is best equipped to undertake
the orderly administration of the assets of the Piranha
fund.”
The plaintiffs appeal from the order denying turnover
and vacating the attachment. The receiver asks us to
dismiss the appeal on the ground that it is moot because
the plaintiffs did not try to stay the district court’s denial
of the turnover motion and as a result Pershing has trans-
ferred the $1 million to the receiver, who argues that since
he received the money as an agent for the Northern District
of California the money has been withdrawn from the
control of the district court in Chicago. Federal Savings &
Loan Ins. Corp. v. PSL Realty Co., 630 F.2d 515, 521 (7th Cir.
1980), indeed holds that when a court-appointed receiver
takes property, it is held by the district court that ap-
pointed him. But that is a matter of custody; it does not
affect the attachment, or, stated otherwise, the beneficial
ownership of the property, or other rights in it. And so it
does not extinguish the plaintiffs’ interest in the property.
But without the attachment that the district court has
vacated, the judgment the plaintiffs obtained in the district
court in Chicago did not create a judgment lien—a lien that
would relate back to the date of the attachment and thus
potentially give them priority over Piranha’s other credi-
tors. Marchant v. Artists Embassy, Inc., 166 N.E.2d 311, 314-
15 (Ill. App. 1960); United States v. Security Trust & Savings
Bank, 340 U.S. 47, 50 (1950) (California law); Bjork v. United
States, 486 F.2d 934, 939 n. 8 (7th Cir. 1973). So the appeal,
seeking restoration of the attachment, is not moot.
4 No. 06-4041
But can a court in Chicago issue an order that will affect
funds held by a court in California? In this case it can,
because the receiver intervened in the Chicago suit and by
doing so submitted himself to the jurisdiction of the court
in which that suit was pending. In re Bayshore Ford Trucks
Sales, Inc., 471 F.3d 1233, 1248 (11th Cir. 2006); County
Security Agency v. Ohio Dept. of Commerce, 296 F.3d 477, 483
(6th Cir. 2002). He can therefore be ordered to acknowledge
the plaintiffs’ claim to the funds. What is more, he can and
should be ordered to turn over to the plaintiffs the money
seized from Piranha’s account with Pershing, since “as
between two courts of concurrent and coordinate jurisdic-
tion, the court which first obtains jurisdiction and construc-
tive possession of property. . . [namely the $1 million in the
Pershing account] is entitled to retain it without interfer-
ence and cannot be deprived of its right to do so.” Harkin
v. Brundage, 276 U.S. 36, 43 (1928); see Princess Lida of Thurn
& Taxis v. Thompson, 305 U.S. 456, 466 (1939); United States
v. $79,123.49 in U.S. Cash & Currency, 830 F.2d 94, 96-97 (7th
Cir. 1987); Carter Oil Co. v. McQuigg, 112 F.2d 275, 281 (7th
Cir. 1940); Madewell v. Downs, 68 F.3d 1030, 1041 n. 13 (8th
Cir. 1995).
This case is like Warshawsky & Co. v. Arcata National Corp.,
552 F.2d 1257, 1260 (7th Cir. 1977). The plaintiff in a suit in
the federal district court in Chicago moved for a prelimi-
nary injunction to restrain the defendants from prosecuting
a suit in the Northern District of California based on a
claim that was a compulsory counterclaim in the Illinois
suit. The district court in Chicago granted the motion but
then turned around a month later and vacated it, and we
held that that was an abuse of discretion. Id. at 1265.
Likewise here. The district court in Chicago obtained
jurisdiction over the plaintiffs’ case and with it control of
No. 06-4041 5
the Piranha account in Pershing, and there was no basis for
its relinquishing that control just because another suit had
been filed elsewhere. The California suit was not filed until
six months after the plaintiffs in Chicago had attached the
money held by Pershing, and the final judgment later
entered by the district court in Chicago perfected the
plaintiff’s judgment lien as of the date of the attachment.
Even if the California proceeding were a bankruptcy
proceeding, the plaintiffs would in all likelihood be entitled
to enforce their Chicago judgment lien, pursuant to the
principle that (with immaterial exceptions) liens pass
through bankruptcy unaffected. Dewsnup v. Timm, 502 U.S.
410, 417 (1992); Johnson v. Home State Bank, 501 U.S. 78, 83
(1991); Long v. Bullard, 117 U.S. 617 (1886); In re Paeplow, 972
F.2d 730, 735 (7th Cir. 1992) (“creditors are not prohibited
from executing a judgment lien against a discharged
debtor’s property, as long as the judgment was obtained
before discharge”); 4 Collier on Bankruptcy § 524.02[1] (Alan
N. Resnick et al., eds., 15th ed. rev. 2007). The trustee in
bankruptcy would assume the position of a hypothetical
lien creditor at the moment of the bankruptcy filing, 11
U.S.C. § 544(a), and the recipient of a judgment lien
perfected well before 90 days prior to the filing, thus
eliminating the possibility of a voidable-preference action,
§ 547(b)(4), would trump the trustee’s claim. But that is
neither here nor there. The proceeding in California is not
a bankruptcy proceeding, and the receiver does not argue
for a departure from the ordinary rules governing priority
between proceedings in two courts when the same prop-
erty is at issue in both proceedings.
Although the Commission has not sought to participate
in this proceeding, we invited it to express its views
concerning the possible impact of this appeal on the
6 No. 06-4041
Commission’s suit in California, specifically whether the
relief sought by the plaintiffs in this appeal would if
granted adversely affect the Commission’s suit. The
Commodity Futures Trading Act authorizes the Commis-
sion to promulgate regulations governing the liquidation
of commodity brokers that are in Chapter 7 bankruptcy,
7 U.S.C. § 24(a)(3); 11 U.S.C. §§ 761-767, but the Commis-
sion’s statement does not cite any of those statutes, or any
other source of authority to regulate the insolvency of
Piranha or of the advisers (assuming they are insolvent too)
that the Commission sued in California. The Commission
contends only that it would be “unfair” for the investors
in the Chicago suit to enjoy a priority over other claimants
to the proceeds of the California receivership; it suggests
no basis in any statute, regulation, or judicial decision for
the contention. Stated otherwise, no federal interest in the
relative priorities of different claimants to Piranha’s
assets has been shown.
The district court’s order vacating the attachment and
denying turnover is therefore reversed with instructions
to reinstate the attachment and order the receiver to turn
over to the plaintiffs the money the receiver obtained
from Piranha’s account with Pershing.
REVERSED AND REMANDED WITH DIRECTIONS.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-25-07