08-2475-cv
`The Estate of Yaron Ungar v. The Palestinian Authority
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`UNITED STATES COURT OF APPEALS
`FOR THE SECOND CIRCUIT
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`SUMMARY ORDER
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`RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED
`AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE
`OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER,
`IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL
`APPENDIX OR BE ACCOMPANIED BY THE NOTATION: “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER
`MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS
`CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN
`ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE
`AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF
`THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET
`NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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`At a stated Term of the United States Court of Appeals for the Second Circuit, held
`at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
`New York, on the 16 day of June, two thousand and nine.
`th
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`Present:
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`HON. ROGER J. MINER,
`HON. RICHARD C. WESLEY,
`Circuit Judges,
`HON. TIMOTHY C. STANCEU,
`Judge.*
`__________________________________________________________________
`
`THE ESTATE OF YARON UNGAR, DVIR UNGAR, MINOR, BY HIS GUARDIANS & NEXT FRIEND
`PROFESSOR MEYER UNGAR, JUDITH UNGAR, RABBI URI DASBERG, JUDITH DASBERG, IND & AS
`LEGAL GUARDIANS OF DVIR UNGAR & YISHAI UNGAR, AMICHAI UNGAR, DAFNA UNGAR, AND
`MICHAL COHEN,
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`Plaintiffs-Appellants,
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`- v -
`
`No. 08-2475-cv
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`PALESTINIAN AUTHORITY, ALSO KNOWN AS THE PALESTINIAN INTERIM SELF-GOVERNMENT
`AUTHORITY, THE PALESTINE LIBERATION ORGANIZATION, YASSER ARAFAT, JIBRIL RAJOUB,
`MUHAMMED DAHLAN, AMIN AL-HINDI, TAWFIK TIRAWI, RAZI JABALI, HAMAS-ISLAMIC
`RESISTANCE MOVEMENT, ALSO KNOWN AS HARAKAT AL-MUQAWAMA AL-ISLAMIYYA, ABDEL
`RAHMAN ISMAIL ABDEL RAHMAN GHANIMAT, JAMAL ABDEL FATAH TZABICH AL HOR, RAED
`
` The Honorable Timothy C. Stanceu, United States Court of International Trade, sitting
`*
`by designation.
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`FAKHRI ABU HAMDIYA, IBRAHIM GHANIMAT, AND IMAM MAHMUD HASSAN FUAD KAFISHE,
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`Defendants-Appellees,
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`(COLLECTIVELY, THE “CANAAN FUNDS”), THE PALESTINE INVESTMENT FUND, DR. MOHAMMAD
`MUSTAFA, AND BECONT LTD., S.A.,
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`Non-Party-Appellees.
`__________________________________________________________________
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`For Appellants:
`
`For Appellee Canaan Funds:
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`For Appellee Becont:
`
`For Appellees Palestine
`Investment Fund and Dr.
`Mohammad Mustafa:
`
`______________________
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`ROBERT J. TOLCHIN (David J. Strachman, McIntyre, Tate &
`Lynch LLP, Providence, RI, on the brief), Jaroslawicz &
`Jaros, LLC, New York, NY.
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`ROBERT A. ALESSI (Robert F. Maslan, Jr., Maslan
`Associates P.C., Darien CT, on the brief), Cahill, Gordon &
`Reindel LLP, New York, NY.
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`ANTHONY R. MINCHELLA, Minchella & Associates, LLC,
`Middlebury, CT.
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`LAWRENCE S. HIRSH, Dewey & LeBoeuf LLP, New York,
`NY.
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`UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
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`DECREED that the appeal be DISMISSED for lack of appellate jurisdiction.
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`Appellants challenge an order of the District Court for the District of Connecticut
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`(Dorsey, J.), filed May 5, 2008, staying their action to enforce a $116 million default judgment of
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`the District Court for the District of Rhode Island against the Palestinian Authority (the “PA”)
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`and the Palestine Liberation Organization (“PLO”) until the final resolution of a motion for
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`vacatur pending in the District of Rhode Island. By virtue of the Rhode Island default judgment,
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`Appellants claim ownership over the Palestine Investment Fund (“PIF”), an entity apparently
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`holding assets of the PA. Appellants further assert ownership over the PIF’s interest in Canaan
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`Equity Offshore C.V., Canaan Equity II Offshore C.V., and Canaan Equity III Offshore C.V. (the
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`“Canaan Funds”), through their claimed ownership of the PIF. At oral argument the Appellants
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`informed the Court that the Rhode Island district court had issued an order denying the motion to
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`vacate, and on June 2, 2009 the PA and PLO filed a notice that they are appealing that order to
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`the First Circuit.
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`As a threshold matter, Appellants assert that we have jurisdiction over this appeal either
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`because the stay is final, 28 U.S.C. § 1291, because the stay is an appealable interlocutory order,
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`28 U.S.C. § 1292(a)(1), or because the district court acted ultra vires in granting the stay,
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`justifying mandamus jurisdiction. None of these provides a valid basis for us to exercise
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`jurisdiction.
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`With respect to finality of the order, Appellants argue that the district court’s order stayed
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`enforcement of the judgment indefinitely and, therefore, rendered the order final within the
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`meaning of 28 U.S.C. § 1291 because the order stayed the enforcement action “to await a more
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`precise defining of the issues by the Rhode Island District Court” and because the final order on
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`the motion to vacate is “subject to [First] Circuit and perhaps Supreme Court appeals.” This,
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`according to Appellants, is akin to the situation in Idlewild Bon Voyage Liquor Corp. v. Rohan,
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`289 F.2d 426 (2d Cir. 1961), reasoning affirmed and remanded on other grounds by 370 U.S.
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`713 (1962), in which this Court found error in a district court decision not to impanel a three-
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`judge district court on the chance that a state court action would be filed requiring adjudication of
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`the same issues. Even were we to assume the stay in this situation – pending the resolution of a
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`Federal Rule of Civil Procedure 60(b) motion to vacate a default judgment in another district
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`court and any appeal taken from that resolution – is analogous to the denial of an application for
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`a three-judge district court panel, we would still conclude that Idlewild is inapposite. The basis
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`for this court’s decision in Idlewild was that the contemplated state adjudication was purely
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`speculative. Here a motion was made in another district that could determine the outcome of the
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`action in Connecticut, while in Idlewild there was no other action pending. “Idlewild does not
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`disturb the usual rule that a stay is not ordinarily a final decision for purposes of § 1291, since
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`most stays do not put the plaintiff ‘effectively out of court.’” Moses H. Cone Mem’l Hosp. v.
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`Mercury Constr. Corp., 460 U.S. 1, 10 n.11 (1983).
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`Nor do we have jurisdiction under 28 U.S.C. § 1292(a)(1), which provides for appeals of
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`orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to
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`dissolve or modify injunctions.” Even if Appellants’ turnover motion properly could be
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`characterized as a request for injunctive relief, and the stay an order of the requisite nature,
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`Appellants “have not shown that all the relief sought will be unavailable if we wait until after the
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`district court proceedings are final before hearing an appeal.” Sahu v. Union Carbide Corp., 475
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`F.3d 465, 468 (2d Cir. 2007) (citing Cuomo v. Barr, 7 F.3d 17, 19 (2d Cir. 1993)).
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`Appellants have likewise not demonstrated that the district court’s stay merits the
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`extraordinary remedy of mandamus. “[T]he Court of Appeals may exercise its power to issue the
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`writ only upon a finding of exceptional circumstances amounting to a judicial ‘usurpation of
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`power,’ or a ‘clear abuse of discretion.’” Cheney v. United States Dist. Court for the Dist. of
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`Columbia, 542 U.S. 367, 390 (2004) (citations and internal quotation marks omitted). There are
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`no such circumstances present in this case. The district court did not need to apply Federal Rule
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`of Civil Procedure 62(b), as Appellants contend. This is not a case of the district court staying
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`enforcement of its own judgment, the district court’s stay does not affect other proceedings
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`Appellants may have begun in order to enforce the Rhode Island judgment, and the relationship
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`between Appellees and the judgment debtors remains unclear at this point in the litigation.
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`The stay, unlike that in In re Zapata Gulf Marine Corp., 941 F.2d 293 (5th Cir. 1991),
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`falls under the inherent power of the court to control its own docket. See Clinton v. Jones, 520
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`U.S. 681, 707 (1997). While some courts, like the Fifth Circuit in Zapata, have exercised
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`mandamus jurisdiction to lift “immoderate” stays
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`, it is not obvious to us that the district court’s
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`stay pending resolution of the motion to vacate in Rhode Island is immoderate. Moreover,
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`although Appellees posted no bond, Canaan Funds assert that they must honor a Rhode Island
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`injunction and Conn. Gen. Stat. § 52-356c(d), which prohibit distributions that normally would
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`have been paid to PIF and Becont. This is not a situation in which “discretion was abused by a
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`stay of indefinite duration in the absence of a pressing need.” Landis v. N. Am. Co., 299 U.S.
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`248, 255 (1936).
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`Appellees Becont, Ltd. and PIF, through purported counsel Dewey & Leboeuf,
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` argue that
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`the district court did not have ancillary subject matter jurisdiction under Peacock v. Thomas, 516
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`U.S. 349 (1996), because they are separate legal entities from those involved in the Rhode Island
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`proceeding. See Knox v. Orascom Telecom Holding S.A.E., 477 F. Supp. 2d 642, 647-48
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`(S.D.N.Y. 2007). However, Appellees’ motions to dismiss on this basis remain pending before
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`the district court, and determinations of the relationships of the parties vis-à-vis one another and
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`the Rhode Island judgment are integral to the proceedings below. We decline to rule on this
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`issue when the district court has not yet done so.
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`Accordingly, the appeal is DISMISSED for lack of appellate jurisdiction.
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`For the Court
`Catherine O’Hagan Wolfe, Clerk
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`By: ________________________
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` Conn. Gen. Stat. § 52-356c(d) applies to post-judgment determinations of interests in
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`disputed property and reads: “Pending the hearing on the claim and subject to further order of
`the court, any property in dispute shall continue to be held by the person then in possession and
`shall not be transferred to any person who is not a party to the supplemental proceeding. If
`previously seized by or delivered to a levying officer, the property shall remain in the custody of
`the levying officer.”
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