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Fonseca v. Regan

decided: May 17, 1984.

JOSE A. FONSECA, PLAINTIFF-APPELLANT,
v.
DONALD T. REGAN, SECRETARY OF THE TREASURY OF THE UNITED STATES, ET AL., DEFENDANTS-APPELLEES; UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. UNITED STATES CURRENCY AMOUNTING TO THE SUM OF TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) MORE OR LESS, DEFENDANT, AND REPUBLIC OF COLOMBIA AND THE STATE OF NEW YORK, DEFENDANTS-APPELLEES, AND JOSE A. FONSECA, DEFENDANT-APPELLANT



Appeal from two judgments entered in the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, the first dismissing appellant's petition for mandamus to recover a misdirected suitcase and its contents and the second dismissing his interpleader claim to the suitcase.

Lumbard, Oakes and Cardamone, Circuit Judges.

Author: Cardamone

CARDAMONE, Circuit Judge:

This appeal involves plaintiff Jose A. Fonseca's five and one-half year struggle to recover a misdirected suitcase and its contents -- $250,000 -- from the United States Government. Fonseca seeks relief from two judgments rendered against him in the United States District Court for the Eastern District of New York, 98 F.R.D. 694 (Costantino, J.), the first dismissing with prejudice his claim for mandamus relief under 28 U.S.C. § 1361 and the second disposing of his interpleader claim in the same fashion. In essence, these judgments hold Fonseca in default for failing to respond to interrogatories and document requests and neglecting to appear at a scheduled deposition.

We reverse and remand, directing the district court to reinstate Fonseca's complaint and dismiss the government's interpleader action.

I. BACKGROUND

On June 9, 1978 Fonseca purchased a ticket to fly from Bogota, Colombia to Lima, Peru on Avianca Airlines. Upon arrival at the Bogota airport, plaintiff checked his suitcase through to Lima and obtained the customary baggage claim check. When Fonseca arrived in Lima his suitcase was missing. Avianca had apparently misdirected it to the Pan American Airlines terminal at John F. Kennedy International Airport in New York. When the suitcase was not claimed there, United States Customs officials at JFK seized it, and upon opening it discovered $250,000 in U.S. currency packed inside.

Fonseca eventually discovered his suitcase's whereabouts and, acting through a New York attorney, requested that the Customs Service return it to him. When this request was denied, Fonseca commenced an action in the district court to compel the money's return. He also retained the services of the Wolf D. Barth Company ("Barth"), licensed customs brokers. Barth prepared and filed with the Customs Service all of the papers and documents, including a bond and carrier certificate, necessary to obtain release of the currency. Normally, Customs would have approved the application and released the currency as a routine matter, but in this case, at the behest of the Regional Counsel's Office, they refused to do so. The refusal touched off the following series of events.

On December 12, 1978 Fonseca filed an amended complaint that alleged compliance with the customs requirements of 19 C.F.R. §§ 141 and 143 and sought mandamus relief pursuant to 28 U.S.C. § 1361. The United States responded by serving interrogatories on Fonseca through his local counsel. At that point Fonseca moved to obtain an order directing immediate return of the suitcase and its contents. Meanwhile, the Superintendent of Exchange Control of the Republic of Colombia requested that the money be delivered to him in connection with an investigation his office was conducting to determine whether Fonseca had violated Colombian laws governing currency exchange control. Acting on this request, the United States Attorney applied for a court order directing delivery of the currency to the Columbian Superintendent pursuant to 28 U.S.C. § 1782. At an evidentiary hearing held in connection with these motions, the district court held that the Superintendent was a "tribunal" within the meaning of § 1782, ordered delivery of the money to the Superintendent and then proceeded to dismiss Fonseca's complaint. On appeal we held to the contrary, finding that the Superintendent was not a tribunal but only a law enforcement official. Accordingly, we reversed the order below and reinstated Fonseca's complaint. Fonseca v. Blumenthal, 620 F.2d 322, 323-324 (2d Cir. 1980) (per curiam).

Before the district court could decide the case on remand, the United States filed a second action, in interpleader, see 28 U.S.C. § 1335, to determine the owner of the suitcase and money. Fonseca, the Republic of Colombia and the State of New York filed claims to the money. Then, the government served a second set of interrogatories on Fonseca inquiring as to his past and present addresses, past and present identification and travel documents and the nature of his employment. Plaintiff objected to these interrogatories, claiming that the questions were irrelevant. On February 4, 1982 the district court ordered Fonseca to answer the interrogatories, yet plaintiff refused to comply.

Colombia, having previously filed a claim to the money, joined the legal controversy on April 14, 1982 when its attorneys served Fonseca's local counsel with interrogatories and a request for documents respecting the interpleader action. Later, Colombia supplemented these efforts with another request for documents and a notice of deposition to take place in New York on June 28, 1982. The information sought encompassed all of the topics covered by the United States' interrogatories as well as additional ones relating to the source, ownership and manner of Fonseca's obtaining the currency, the purpose and particulars of transporting the currency into and out of Colombia and Fonseca's noncompliance with Colombia's currency control laws. The plaintiff did not appear for the deposition, nor did he supply the requested documents; and, although he filed answers to the interrogatories on July 6, Colombia asserted that he answered improperly. Thus, Colombia moved pursuant to Fed. R. Civ. P. 37(d) for an order to strike Fonseca's pleadings and pursuant to Fed. R. Civ. P. 34(b) and 37(a) to compel document inspection or to direct a deposition within 60 days, compel document production and compel proper answers to interrogatories.

The district court granted this motion and directed Fonseca to appear in New York for a deposition on October 5. Fonseca refused to comply. Instead, he claimed that he might be a target of criminal investigations both here and in Colombia and could invoke his Fifth Amendment privilege as a ground for refusing to answer these interrogatories. A week later Colombia again moved, this time for an order to strike Fonseca's pleadings and for default judgment against him. The United States and New York State joined in the motion, and on November 10 the district court heard another round of oral arguments. In a written decision and order, Judge Costantino found no valid excuse for Fonseca's failure to comply with his earlier orders regarding the deposition, interrogatories and document production. Therefore, on account of Fonseca's defaults, the trial court dismissed Fonseca's claim for mandamus relief as well as his interpleader claim.

On appeal, Fonseca argues as he did before the district court that the crucial issue in this case is not his "ownership" of the suitcase and its contents, but rather his right to the return of the property. Thus, he continues, discovery motions going to the issue of ownership should have been deemed irrelevant. Fonseca further contends that he has a right to the suitcase and its contents because he holds the baggage claim check and has otherwise completely complied with applicable Customs regulations. Finding considerable merit to these arguments, we reverse the ...


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