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Vera v. Republic of Cuba

United States Court of Appeals, Second Circuit

September 8, 2015

ALDO VERA, JR., as Personal Representative of the Estate of Aldo Vera, Sr., Plaintiff-Appellee,
v.
THE REPUBLIC OF CUBA, Defendant, BANCO BILBAO VIZCAYA ARGENTARIA, S.A., Appellant

Argued August 18, 2015

On appeal from orders entered in the Southern District of New York (Hellerstein, J.) (1) enforcing an information subpoena against a third-party foreign bank in connection with plaintiff's ongoing efforts to enforce a money judgment against the Republic of Cuba, and (2) denying reconsideration, the bank moves for a stay pending appeal. We deny the motion as moot because the challenged decisions are not appealable final orders, and, therefore, we lack appellate jurisdiction in this matter.

KENNETH A. CARUSO (Kelly A. Bonner, Harold W. Williford, on the brief), White & Case LLP, New York, New York, for Appellant.

JEFFREY E. GLEN, Anderson Kill P.C., New York, New York (Robert A. Swift, Kohn, Swift & Graf, P.C., Philadelphia, Pennsylvania, on the brief), for Plaintiff-Appellee.

Before: CABRANES, RAGGI, and WESLEY, Circuit Judges.

OPINION

Page 243

Reena Raggi, Circuit Judge.

Third-party defendant Banco Bilbao Vizcaya Argentaria, S.A. (" BBVA" ), a Spanish bank, appeals from orders entered in the United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge ) on September 10, 2014, and March 17, 2015. The first order directs BBVA to comply with an information subpoena issued in connection with plaintiff Aldo Vera, Jr.'s attempt to enforce a $49 million default judgment against the Republic of Cuba; the second order denies reconsideration of the first. BBVA now moves this court for a stay of the district court's enforcement order pending resolution of these appeals. Vera, Jr., opposes a stay, arguing, inter alia, that this court is without jurisdiction because the appealed decisions are not final orders under 28 U.S.C. § 1291. We agree and, therefore, dismiss the appeals for lack of jurisdiction and deny the stay motion as moot.

I. Background

A. The Florida Default Judgment

In 2001, Aldo Vera, Jr., acting as representative of his father Aldo Vera, Sr.'s estate, invoked the terrorism-exception provision of the Foreign Sovereign Immunities Act (" FSIA" ) to sue the Republic of Cuba in Florida state court for money damages resulting from his father's 1976 murder in San Juan, Puerto Rico. See 28 U.S.C. § 1605(a)(7); Final Judgment at 1-4, Vera v. Republic of Cuba, No. 01-31216 (Fla. Cir. Ct. May 15, 2008) (construing FSIA terrorism exception to allow money-damages action against foreign state for extrajudicial killing).[1] Vera, Jr., alleged that his father--formerly Havana's Chief of Police--fled Cuba after becoming disillusioned with the Communist regime, residing thereafter in Florida and Puerto Rico, where he participated in counter-revolutionary activities. Final Judgment at 5, Vera v. Republic of Cuba, No. 01-31216 (Fla. Cir. Ct. May 15, 2008). On October 25, 1976, as Vera, Sr., was emerging from a political meeting in San Juan, he was shot dead, allegedly by agents acting on orders of the Cuban government. See id. While BBVA disputes this account, that issue is not before us.[2] Cuba

Page 244

failed to appear in the Florida action, and, in 2008, after holding a bench trial, the state court entered a default judgment in Vera, Jr.'s favor for $95,579,591.22. See id. at 1-3, 9-10; see also 28 U.S.C. ยง 1608(e) (requiring FSIA plaintiff to " establish[] his claim or right to relief by evidence satisfactory ...


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