United States District Court, D. Delaware
COUNSEL: Robert L. Weigel Jason W. Myatt Rahim Moloo GIBSON,
DUNN & CRUTCHER LLP.
Raymond J. DiCamillo, Jeffrey L. Moyer, Travis S. Hunter,
RICHARDS, LAYTON & FINGER, P.A., Attorneys for Plaintiff.
Creditor Crystallex International Corporation
("Crystallex") holds a $1.2 billion judgment
against the Bolivarian Republic of Venezuela
("Venezuela" or "the Republic"). (D.I. 1)
Crystallex seeks to collect on its judgment against Venezuela
by executing on property nominally owned by Petr6leos de
Venezuela, S.A. ("PDVSA"), specifically shares of
common stock PDVSA owns in PDV Holding Inc.
("PDVH"), a Delaware corporation. While Venezuela
has not appeared in this case, PDVSA intervened. (D.I. 14) On
August 9, 2018, the Court issued an Opinion and Order finding
that PDVSA is the alter ego of Venezuela, and finding that
identified property of PDVSA - that is, the shares it owns of
PDVH - is subject to attachment and execution in order to
satisfy Venezuela's debt to Crystallex. (D.I. 78, 79) On
the same date, the Court ordered letter briefing from
Crystallex and PDVSA on how the case should proceed and
directed the Clerk of Court not to issue the writ of
attachment until the Court issues an additional order. The
following day, PDVSA filed a Notice of Appeal to the U.S.
Court of Appeals for the Third Circuit. (D.I. 80)
reviewed the August 16 joint letter from Crystallex and PDVSA
containing their respective positions on how the case should
proceed (D.I. 86), a letter from third parties CITGO Holding,
Inc. and CITGO Petroleum Corporation (collectively,
"CIGTO") (D.I. 87), a letter from third party
Rosneft Trading S.A. ("RTSA") (D.I. 92), and two
additional letters from Crystallex responding to CITGO and
RTSA, respectively (D.I. 92, 94), IT IS HEREBY
1. The Clerk of Court is now directed to
ISSUE Crystallex's Praecipe. (D.I. 4-1
Ex. 2) (attached)
2. The Clerk of Court shall, pursuant to the Praecipe,
thereafter ISSUE to the U.S. Marshals
Service the writ of attachment fieri facias. (D.I.
4-1 Ex. 1) (attached)
3. Thereafter, the U.S. Marshals Service shall
SERVE the writ of attachment.
4. Execution on the attached property is
STAYED until further Order of the Court,
which will not be issued until after the Court has the
opportunity to consider any additional motions or other input
any party, or any third party, wishes to provide. Such
motions and briefing shall be submitted in accordance with
the following schedule:
A. Any motion, including a motion to stay pending appeal
pursuant to Federal Rule of Civil Procedure 62(d), and any
other input any party (i.e., Crystallex, Venezuela, PDVSA)
wishes to provide, shall be filed no later than seven (7)
days after service of the writ.
B. Any motion to intervene, or any other motion or input any
third party wishes to provide, shall also be filed no later
than seven (7) days after service of the writ.
C. Responses to any filings made pursuant to A or B above
shall be due no later than fourteen (14) days after any
papers are filed pursuant to A or B above.
D. Replies to any responses shall be due no later than seven
(7) days after such responses.
Court agrees with Crystallex that, notwithstanding
PDVSA's filing of a Notice of Appeal, the Court retains
authority to enforce its August 9 Order. (See D.I.
86 at 2) Unless PDVSA files a Rule 62(d) motion for a stay
and posts a supersedeas bond, "the Court remains free to
issue further orders as needed to enforce the August 9
Order." (Id.) While PDVSA is correct that the
Court no longer retains jurisdiction over the issues on
appeal (see Id. at 6-7) -those issues being the
Court's conclusions that PDVSA's sovereign immunities
under the Foreign Sovereign Immunities Act ("FSIA")
do not preclude the attachment and execution sought by
Crystallex - the Court retains authority to enforce the
judgment that is currently on appeal (see Id. at 2).
mere pendency of an appeal does not, in itself, disturb the
finality of a judgment. The district court has jurisdiction
to act to enforce its judgment so long as the judgment has
not been stayed or superseded." N.L.R.B. v.
Cincinnati Bronze, Inc.,829 F.2d 585, 588 (6th Cir.
1987) (internal citation, quotation marks, and alteration
omitted); see also Lauber v. Belford High Sch., 2012
WL 12994877, at *2 n.4 (E.D. Mich. Aug. 31, 2012) (citing
"well established rule that district courts retain
jurisdiction, even after a notice of appeal is filed, to
enforce an order already issued prior to the filing of the
notice of appeal"); 20 Moore's Federal Practice
§ 303.32(2)(b)(vi) ("Until the district court's
judgment is superseded or stayed, the judgment is fully in
effect and the district court retains the authority to
enforce the judgment."). "If an appeal from an
order or judgment divested the district court of jurisdiction
to enforce that order or judgment, there would be no point to
Rule 62(d) of the Federal Rules of Civil Procedure, which
provides for a stay of an appealed order or judgment with the
posting of a supersedeas bond."In re Gushlak, 2012
WL 2564523, at *4 (E.D.N.Y. July 2, 2012); see also Brown
v. Braddick,595 F.2d 961, 965 (5th Cir. 1979)
("Since Braddick failed to ask the district court for a
stay pending appeal and to post supersedeas bond as required
by F.R.C.P. ...