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Isshar Overseas Fze v. Dalmia Cement Ltd.


December 14, 2009


The opinion of the court was delivered by: Richard J. Holwell, District Judge


This Court granted plaintiff's request for process of maritime attachment and garnishment because it found that the conditions set forth in Rule B appeared to exist. Subsequently, the Second Circuit issued a decision holding that "EFTs [electronic fund transfers] are neither the property of the originator nor the beneficiary while briefly in the possession of an intermediary bank" and "cannot be subject to attachment under Rule B." Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., Nos. 08-3477, 08-3758, 2009 WL 3319675, at *10--*11 (2d Cir. Oct. 16, 2009). This Court then ordered the plaintiff to show cause within twenty days why, in light of Jaldhi, the original process of maritime attachment and garnishment should not be vacated and the case dismissed for lack of jurisdiction.

On November 13, 2009, plaintiff filed a memorandum in response. In its brief, plaintiff argues that (a) Jaldhi should not be applied retroactively; (b) even if it is applied retroactively, the Court should make an exception in this case for equitable reasons; and (c) the funds already attached are no longer EFTs and thus not subject to Jaldhi. All three contentions lack merit.

First, plaintiff asks the Court not to apply Jaldhi retroactively. But the Second Circuit recently held just the opposite. It explained that its decision in Jaldhi was jurisdictional, and, "by definition, a jurisdictional ruling may never be made prospective only." Hawknet, Ltd. v. Overseas Shipping Agencies, 2009 WL 3790654, No. 09-2128, at *2 (2d Cir. Nov. 13, 2009) (citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379 (1981)).*fn1

Second, the plaintiff argues that, even if Jaldhi does apply retroactively-and Hawknet plainly says it does-this case presents equitable considerations that justify departure from that rule. Even if the Court were able to depart from Hawknet in exceptional circumstances, it is not convinced that this is such a case. The plaintiff does not explain what equitable considerations exist here that did not in Hawknet. Nor would it would eliminate inequities to apply Jaldhi only prospectively. That would be unfair to defendants like this one, whose property would continue to be restrained even though the basis for restraining that property has been extinguished.

Third, plaintiff argues that, although the funds at issue here originally entered this district as EFTs, they did not remain EFTs. This is so, plaintiff claims, because standard banking practice after restraining funds was to deposit them into a segregated account in the district-after which they became just "funds," not EFTs. But as a number of decisions in this district have already said, that argument, clever though it may be, does not address plaintiff's central problem: under Jaldhi, the defendant never possessed attachable property in this district. And "[n]o alchemy by the bank transformed EFTs that cannot be attached into property of the defendant that can be attacked." Argus Dev. Inc. v. Steelcore Trading Ltd., No. 09-6009, 2009 WL 4016626, at *1 (S.D.N.Y. Nov. 16, 2009) (JGK); See Hansa Sonderburg Shipping Corp. v. Hull & Hatch Logistics LLC, No. 09-7164, slip op. at 1 (S.D.N.Y. Nov. 16, 2009)(LTS)("Because the initial attachement was improper, the deposit of the funds into a segregated account, absent consent of the defendant, did not cure the problem addressed in [Jaldhi].).

The Court ordered the plaintiff to show cause why vacatur was unwarranted and why this action should not be dismissed for lack of jurisdiction. Plaintiff has been unable to do so on both counts. Accordingly, the order of maritime attachment is vacated and the action is dismissed without prejudice. The Clerk of the Court is directed to close the case.


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