United States District Court, Southern District of New York
January 20, 2000
PAREX BANK, PLAINTIFF,
RUSSIAN SAVINGS BANK A/K/A SAVINGS BANK OF THE RUSSIAN FEDERATION A/K/A RUSSIAN FEDERATION SAVINGS BANK OF THE RUSSIAN FEDERATION A/K/A SBERBANK, DEFENDANT.
The opinion of the court was delivered by: Sweet, District Judge.
Plaintiff Parex Bank ("Parex") has moved, pursuant to
28 U.S.C. § 1447(c), to remand this action to New York State Supreme Court,
New York County. For the reasons set forth below, the motion is
Background and Prior Proceedings
On July 21, 1999, Parex, a Latvian bank which does business in
New York, filed this action in New York Supreme Court against
Russian Savings Bank a/k/a Savings Bank of the Russian Federation
a/k/a Russian Federation Savings Bank a/k/a Commercial Savings
Bank of the Russian Federation a/k/a Sberbank ("Sberbank"), a
Russian bank which also does business in New York. Parex alleges
that Sberbank failed to perform on a non-deliverable forward
exchange contract purportedly entered into by Parex and Sberbank.
On July 22, 1999, Justice Charles E. Ramos of the New York
Supreme Court issued an order requiring Sberbank to show cause
why an order of attachment should not be issued permitting a levy
on Sberbank's account at the Bank of New York for assets totaling
$3,755,642.01, as well as to show cause why a preliminary
injunction should not be issued restraining Sberbank from
selling, transferring, or assigning such assets. The order also
temporarily restrained Sberbank from selling, transferring, or
assigning those assets. Parex, as required, posted a bond of
$750,000 on July 27, 1999, and served Sberbank with the summons
and complaint and the order to show cause.
On August 9, Sberbank filed a notice of removal to remove the
action to this Court, on the grounds of federal subject matter
jurisdiction pursuant to 28 U.S.C. § 1330(a) & 1441(d).
The instant motion to remand was filed on September 10, 1999.
Oral argument on the motion was heard on October 13, 1999, at
which time the motion was deemed fully submitted.
Section 1441(d) of Title 28 provides:
Any civil action brought in a State court against a
foreign state as defined in § 1603(a) of this title
may be removed by the foreign state to the district
court of the United States for the district . . .
embracing the place where such action is pending.
28 U.S.C. § 1441(d). Federal subject matter jurisdiction exists
over matters involving foreign states pursuant to
28 U.S.C. § 1330(a). Sberbank maintains that it is a foreign
state as defined in the Foreign Sovereign Immunities Act ("FSIA"),
28 U.S.C. § 1603(a), which states that a "foreign state" "includes a
political subdivision of a foreign state or an agency or
instrumentality of a foreign state as defined in subsection (b)."
28 U.S.C. § 1603(a). Under subsection (b), an "agency or
instrumentality of a foreign state" is defined as an entity:
(1) which is a separate legal person, corporate or
(2) which is an organ of a foreign state or political
subdivision thereof, or a majority of whose shares or
other ownership interest is owned by a foreign state
or political subdivision thereof, and
(3) which is neither a citizen of a State of the
United States as defined in section 1332(c) and (d)
of this title, nor created under the laws of any
28 U.S.C. § 1603(b). Parex does not dispute that Sberbank meets
prongs (1) and (3) of subsection (b). The inquiry thus hinges on
prong (2), i.e., whether (i) Sberbank is an organ of a foreign
state or political subdivision thereof; or (ii) a majority of
Sberbank's shares or other ownership interest is owned by a
foreign state or political subdivision thereof. Sberbank
maintains that it satisfies both (i) and (ii). Because this Court
has determined that Sberbank has satisfied (ii), it need not
consider whether Sberbank satisfies (i).
Russian law requires the Russian Central Bank (the "Central
Bank") to maintain ownership of a majority of the shares of
Sberbank. (Fomin Decl. ¶ 5.) As of October 7, 1999, the Central
Bank owned approximately 66.5% of Sberbank's voting common stock
and over 60% of all of Sberbank's outstanding stock. (Id.)
Parex concedes that the Central Bank is an "agency or
instrumentality" of the Russian State.
Under § 1603(a), because the Central Bank is an agency or
instrumentality of the Russian State, the Central Bank itself is,
for purposes of this inquiry, considered to be a foreign state.
Since the Central Bank owns a majority of Sberbank's shares,
Sberbank thus meets prong (2) of § 1603(b). Since Sberbank also
meets prongs (1) and (3) of § 1603(b), it also is an agency or
instrumentality of the Russian State, and thus, under § 1603(a),
is also considered to be a foreign state itself, under §§ 1441(d)
and 1330(a), for purposes of this inquiry.
Parex maintains, however, that § 1603 does not contemplate
successive tiers of ownership as qualifying for "foreign state"
status, i.e., using the logic displayed in the previous
paragraph, a corporation many stages removed from direct control
by a foreign government could still be considered a foreign state
so long as majority ownership could be traced back to the
government through majority ownership at each corporate level.
While the language of the statute itself is not a model of
clarity, see, e.g., Hyatt Corp. v. Stanton, 945 F. Supp. 675,
685-90 (S.D.N.Y. 1996); In re Aircrash Disaster Near Roselawn,
Indiana, 909 F. Supp. 1083, 1088 (N.D.Ill. 1995), the plainer
reading of the statutory language contemplates successive tiers.
This reading is supported by the legislative history of the FSIA,
the controlling authority in this circuit, see O'Connell
Machinery Co. v. M.V. "Americana," 734 F.2d 115, 116-17 (2d Cir.
1984), and the majority of courts which have considered the
issue, see, e.g., In re Air Crash Disaster Near Roselawn, 96
508 F.3d 932, 940-41 (7th Cir. 1996) (citing cases).
Parex, on the other hand, relies heavily on Hyatt Corp. v.
Stanton, 945 F. Supp. 675, for a reading of § 1603 not permitting
tiering. As Hyatt points out, the reading of § 1603 which
permits tiering renders the phrase "or political subdivision
thereof" in § 1603(b)(2) superfluous, because under § 1603(a), a
political subdivision is already included in the definition by
the phrase "foreign state." See Hyatt, 945 F. Supp. at 685. On
the other hand, to read the statute as Parex does — excluding
"from the definition of `agency or instrumentality' corporations
a majority of whose shares are owned by an entity that is itself
an agency or instrumentality of a foreign state, but not a
foreign state or political subdivision thereof" — contradicts
"the definition of `foreign state' in subsection (a), which
includes an agency or instrumentality of a foreign state." Id.
at 685-86. The Hyatt court felt that either interpretation was
equally inconsistent and passed on to consider other factors.
However, an interpretation giving an outright contradiction is
less consistent than one giving a superfluity — as a principle of
statutory construction. Thus, a better reading of the plain
language of § 1603 would permit tiering.
Moreover, the legislative history supports an inclusive reading
of "foreign state." The Hyatt court, citing Gates v. Victor
Fine Foods, 54 F.3d 1457 (9th Cir. 1995), emphasizes that
tiering could expand FSIA coverage considerably. See Hyatt, 945
F. Supp. at 688-89. Yet this appears to have been one of the very
goals of the legislation: "Such broad jurisdiction in the Federal
courts should be conducive to uniformity in decision, which is
desirable since a disparate treatment of cases involving foreign
governments may have adverse foreign relations consequences."
H.R.Rep. No. 94-1487, 94th Cong., 2d Sess. (1976), reprinted in
1976 U.S.C.C.A.N. 6604, 6605.
Furthermore, Hyatt does not sit comfortably with O'Connell
Machinery Co. v. M.V. "Americana", 734 F.2d 115 (2d Cir.
1984), the sole decision from the Second Circuit to touch upon
this issue. The O'Connell court upheld a district court ruling
that a company called the Italian Line, which was majority-owned
by the Societa' Finanziaria Maritima (FINMARE), which itself was
under the direct control of the Istituto per la Riconstruzione
Industriale, a public financial entity coordinating commercial
enterprises of the Italian Government, qualified as an agency or
instrumentality of Italy. See id. at 116. "The fact that the
Italian Government saw fit to double-tier its administrative
agencies did not compel a holding to the contrary." Id.
Hyatt distinguished O'Connell on the grounds that the
O'Connell court considered FINMARE to be a political
subdivision, not an administrative agency. However, the language
— "saw fit to double-tier its administrative agencies" — suggests
that the O'Connell court did not think it necessary to
distinguish between administrative agencies and political
subdivisions. This makes sense, of course, because § 1603(a)
itself does not make such distinctions. Other courts have cited
O'Connell in support of tiering. See, e.g., Talbot v. Saipem
A.G., 835 F. Supp. 352, 353 & n. 2 (S.D.Tex. 1993); Rutkowski v.
Occidental Chem. Corp., No. 83 C 2339, 1988 WL 107342, at *1
(N.D.Ill. Oct. 5, 1988); Great American Boat Co. v. Alsthom
Atlantic, Inc., Nos. 84-0105, 84-5442, 1987 WL 4766, at *3 (E.D.
La. April 8, 1987). Hyatt's distinction is not persuasive. A
holding permitting tiering sits better with the sole controlling
authority in this circuit on the question.
For these reasons, it is concluded that Sberbank is an agency
or instrumentality of the Russian State, and thus, under the
definition in 28 U.S.C. § 1603(a), a "foreign state." Therefore,
removal to this Court under § 1441(d) was proper.
For the reasons stated above, Parex's motion to remand, and for
attorney's fees, is denied.
It is so ordered.
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