) ) IN THE UNITED STATES DISTRICT COURT

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1 Case 1 :03-cv MLR Document Filed 03/17/2009 Page 1 of 2 GOODSILL ANDERSON QUINN & STIFEL A LIMITED LIABILITY LAW PARTNERSHIP LLP THOMAS BENEDICT tbenedict@goodsill.com Alii Place, Suite Alakea Street Honolulu, Hawaii Telephone: ( Facsimile: ( Attorney for Proposed Intervenor REVELSTOKE INVESTMENT CORP., INC. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII INRE: ESTATE OF FERDINAND E. MARCOS HUMAN RIGHTS LITIGATION THIS DOCUMENT RELATES TO: Hilao et al v. Estate of Ferdinand E. Marcos, and DeVera et al v. Estate of Ferdinand E. Marcos MDLNO.840 No No MOTION OF REVELSTOKE INVESTMENT CORPORATION, INC. TO INTERVENE FOR THE LIMITED PURPOSE OF OPPOSING THE CLASS'S PENDING MOTION; MEMORANDUM IN SUPPORT OF MOTION; EXHIBITS A-C; ORDER; CERTIFICATE OF SERVICE Judge: Manuel Real

2 Case 1 :03-cv MLR Document Filed 03/17/2009 Page 2 of 2 MOTION OF REVELS TOKE INVESTMENT CORPORATION, INC. TO INTERVENE FOR THE LIMITED PURPOSE OF OPPOSING THE CLASS'S PENDING MOTION F or the reasons stated in the accompanying memorandum of law, Revelstoke Investment Corporation, Inc. ("Revelstoke" moves pursuant to FRCP 24 to intervene in this action for the limited purpose of opposing the Plaintiff Class's "Second Renewed Motion for Entry of Final Judgment For Civil Contempt Against Imelda R. Marcos and Ferdinand R. Marcos and the Estate of Ferdinand E. Marcos" (Doc A proposed Order is attached. DATED: Honolulu, Hawaii, March 17,2009. /s/ Thomas Benedict THOMAS BENEDICT Attorney for REVELSTOKE INVESTMENT CORPORATION, INC. 2

3 " _t Case 1 :03-cv MLR Document Filed 03/17/2009 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII INRE: ESTATE OF FERDINAND E. MARCOS HUMAN RIGHTS LITIGATION THIS DOCUMENT RELATES TO: Hilao et al v. Estate of Ferdinand E. Marcos, and DeVera et al v. Estate of Ferdinand E. Marcos MDLNO.840 No No MEMORANDUM IN SUPPORT OF MOTION Judge: Manuel Real MEMORANDUM IN SUPPORT OF MOTION Revelstoke Investment Corporation, Inc. ("Revelstoke" moves to intervene for the limited purpose of opposing the Class's "Second Renewed Motion for Entry of Final Judgment For Civil Contempt Against Imelda R. Marcos and Ferdinand R. Marcos and the Estate of Ferdinand E. Marcos" (Doc (the "Class's Motion". Haw. Rev. Stat imposes a strict 10-year limit for enforcing judgments that are not "extended" before their expiration. In this case, the Class did not seek or obtain a timely extension of the judgment entered in its favor on February 3, 1995 (the "1995 Class Judgment". In July 2008, the U.S. Court of

4 Case 1:03-cv MLR Document Filed 03/17/2009 Page 2 of 11 Appeals for the Ninth Circuit unanimously vacated this Court's June 2006 rulings denying Revelstoke' s motions to intervene and purporting to "extend" the 1995 Class Judgment pursuant to HRS In re Estate of Ferdinand E. Marcos Human Rights Litig., 536 F.3d 980 (9th Cir (the "Ninth Circuit Ruling". The Ninth Circuit Ruling undercuts the basis for actions in the U.S. District Court for the Northern District of Texas (the "Texas Action" and elsewhere in which the Class seeks to execute on the 1995 Class Judgment based on allegations that real property owned by Revelstoke actually belongs to the Marcos Estate. The new Class's Motion seeks to evade the Ninth Circuit Ruling by obtaining a judgment that can substitute for the expired 1995 Class Judgment as a basis for the Texas Action and other enforcement proceedings. Under the Ninth Circuit Ruling, Revelstoke is entitled to intervene as of right to oppose the Class's Motion. Like the extension motion granted by this Court in 2006, the Class's Motion seeks to resurrect a 1995 judgment that expired in 2005 under HRS for the purpose of enforcement against Revelstoke. As in the Ninth Circuit Ruling, Revelstoke "ha[s] the right to intervene" pursuant to FRCP 24(a(2 to protect its "interest in not having its property executed upon pursuant to a judgment that has expired." 536 F.3d at 987. In the alternative, permissive intervention under FRCP 24(b (2 would also be appropriate because the Class's 2

5 Case 1 :03-cv MLR Document Filed 03/17/2009 Page 3 of 11 Motion is designed to nullify the Ninth Circuit Ruling in Revelstoke' s favor and prevent dismissal of the Class's Texas Action against Revelstoke. STATEMENT OF THE CASE The Ninth Circuit Ruling held that (i "HRS means what it says: a judgment expires within ten years unless extended before expiration; (ii "the Hawaii Supreme Court said so in International Savings & Loan Ass 'n v. Wiig, 921 P.2d 117 (Haw. 1996"; and (iii this Court "clearly erred in resurrecting the [1995 Class] Judgment in 2006 after it expired in February 2005." Ninth Circuit Ruling, 536 F.3d at 987. On September 11, 2008, the Ninth Circuit denied the Class's petition for panel or en banc rehearing. None of the 28 judges eligible to vote for rehearing did so. In January 2009, the Northern District of Texas held that the validity of the 1995 Class Judgment was "fully litigated before the Ninth Circuit and may not be relitigated here," and granted Revelstoke's motion to dismiss the Texas Action, and rendered a final judgment that dismissed the Class's claims with prejudice and assessed costs against the Class. (Ex. A, Order Denying Leave to Amend, Denying Stay & Granting Mot. to Dismiss, Del Prado v. B.N. Dev. Co., No (N.D. Tex. entered Jan. 9,2009; Ex. B, Final Judgment, Del Prado v. B.N. Dev. Co., No (N.D. Tex. entered Jan. 9, The Class has moved the Texas court 3

6 -' Case 1 :03-cv MLR Document Filed 03/17/2009 Page 4 of 11 for reconsideration and has stated that it will appeal to the Fifth Circuit if that motion is denied. Since the Ninth Circuit Ruling, Class Counsel have employed various tactics in this Court and elsewhere in an effort to circumvent and undermine the Ninth Circuit's decision. As explained in Revelstoke's separately filed motion for recusal, this Court has entered orders assisting Class Counsel in this regard, "certifying" to the Supreme Court of Hawai'i the same Hawai'i state law issue that the Ninth Circuit Ruling decided in favor of Revelstoke and against the Class: whether the limitations period under "begin[ s] after the appellate process is completed." (Doc , Order & Certified Question at 2-3 (D. Haw. Sept. 26, The Class has asked the U.S. Supreme Court to "hold" the Class's petition for review of the Ninth Circuit Ruling until after the Supreme Court of Hawai'i decides whether, and if so how, it will answer the question certified by this Court. Revelstoke has opposed the petition. The Class's Motion (Doc is their latest attempt to obtain a ruling from this Court that is designed to circumvent the Ninth Circuit Ruling. The purported basis for the Class's Motion is this Court's ruling on May 26, 1995 that "Imelda R. Marcos and Ferdinand R. Marcos in their personal capacities" were. "adjudged in civil contempt." (Doc , Order Granting PIs.' Mot. for Contempt at 6 (the "1995 Contempt Judgment" (emphasis added. The purpose 4

7 -' Case 1 :03-cv MLR Document Filed 03/17/2009 Page 5 of 11 of the 1995 Contempt Judgment was "[t]o coerce compliance with the Orders of this Court" relating to enforcement of the "Final Judgment" entered February 3, 1995, see id - i.e., the 1995 Class Judgment. For that purpose, this Court "levie[d] a fine of $100,000 per day against Imelda R. Marcos and Ferdinand R. Marcos in their personal capacities." (Doc , 1995 Contempt Judgment at 6. As Revelstoke will explain in more detail in its response on the merits to the Class's Motion, that motion must be denied for several reasons., These reasons include the following: Although the 1995 Contempt Judgment did 'not adjudge the Marcos Estate in contempt, the Class's Motion seeks entry of a new "Final Judgment for Civil Contempt against... the Estate of Ferdinand E. Marcos." (Doc at 2. Because the Marcos Estate was not a contemnor in the first place, the 1995 Contempt Judgment cannot support a new "Final Judgment" against the Estate. (Id. at 1. The Ninth Circuit held that the 1995 Contempt Judgment was "final and appealable" under 28 U.S.C. 1291, and affirmed it on the same date it affirmed the 1995 Class Judgment. Hi/ao v. Estate of Marcos, 103 F.3d 762, (9th Cir. Dec. 17, 1996 (affirming 1995 Contempt Judgment; Hi/ao v. Estate of Marcos, 103 F.3d 767, 771 (9th Cir. Dec. 17, 1996 (affirming 1995 Class Judgment. The 1995 Contempt Judgment is a "judgment." See, e.g., Sherman v. SEC, 491 F.3d 948, 954 (9th Cir. 2007; Reno Air Racing Ass 'n., Inc. v. McCord, 452 F.3d 1126, 1140 (9th Cir Like the 1995 Class Judgment, therefore, the 1995 Contempt Judgment (i is a "judgment or decree"'governed by HRS 657-5, and (ii expired in 2005, ten years after it was entered. A "contempt order" entered in connection with an invalid judgment "must inexorably fall along with the judgment." Ctr.for Biological Diversity v. Marina Point Dev. Co., 535 F.3d 1026, 1037 (9th Cir

8 .- Case 1 :03-cv MLR Document Filed 03/17/2009 Page 6 of 11 Thus, even if the 1995 Contempt Judgment itself had not expired in which it did - it "must inexorably fall along with [the 1995 Class Judgment]," id, which the Ninth Circuit Ruling held expired in February ARGUMENT FRCP 24(a, which provides for intervention as of right, is "construe[d] liberally in favor of potential intervenors" and is plainly satisfied here. California ex rei. Lockyer v. United States, 450 F.3d 436, 440 (9th Cir In the Ninth Circuit, an applicant may intervene as of right if (1 the motion is timely; (2 the applicant claims "a 'significantly protectable' interest relating to the property or transaction which is the subject of the action"; (3 the applicant is "so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4 the applicant's interest is "inadequately represented by the parties to the action." Id. at (quoting Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir Revelstoke satisfies all four factors and may intervene as of right. First, Revelstoke' s motion is timely under any standard. Three factors determine timeliness of a motion to intervene: "(1 the stage of the proceeding at which an applicant seeks to intervene; (2 the prejudice to other parties; and (3 the reason for and length of the delay." San Jose Mercury News, Inc. v. United States Dist. Court - N. Dist., 187 F.3d 1096, 1101 (9th Cir Here, Revelstoke seeks to intervene nine business days after the Class's Motion was filed. No 6

9 Case 1 :03-cv MLR Document Filed 03/17/2009 Page 7 of 11 existing party to the Class's Motion could be unfairly prejudiced by Revelstoke' s intervention. This Court has just recently set a hearing for the motion, and has not made any substantive determination on it. Moreover, insofar as this Court may grant the Class's Motion, Revelstoke's intervention would ensure that any adverse effect on Revelstoke does not result from a proceeding in which it was denied the opportunity to be heard. Second, Revelstoke has a significantly protectable interest in the Class's Motion. An applicant for intervention has a significantly protectable interest if it "asserts an interest that is protected under some law" and there is a "relationship between its legally protected interest and the plaintiff s claims." Ninth Circuit Ruling, 536 F.3d at (internal quotation marks omitted. The Ninth Circuit Ruling held that Revelstoke has a significantly protectable interest in the property at issue in the Texas Action. Id. at 982. That interest - which is protected under HRS 657-5, as well as under the Ninth Circuit Ruling itself - is directly threatened by Class Counsel's attempts to use proceedings in this Court to evade the Ninth Circuit Ruling and obtain a new judgment that might support its Texas Action and its other ongoing enforcement efforts against Revelstoke. 1 The latest 1 After the Ninth Circuit Ruling, the Class petitioned the federal court in Chicago to revive the 1997 Illinois registration of its judgment in In re Estate of Ferdinand E. Marcos, No. 97-C-0477 (N.D. Ill.. The petition - which was served on the Marcos Estate, but not on Revelstoke - mentions neither the Ninth Circuit ( continued... 7

10 Case 1:03-cv MLR Document Filed 03/17/2009 Page 8 of 11 such attempt is the Class's Motion, which seeks a new contempt judgment against the Marcos Estate designed to enforce the expired 1995 Class Judgment based on the expired 1995 Contempt Judgment entered against Imelda R. Marcos and Ferdinand R. Marcos, Jr. in their personal capacities. Third, Revelstoke may "suffer a practical impairment of [its] interests as ~ result of the pending litigation." California ex rei. Lockyer, 450 F.3d at 441; see also Southwest Ctr.for Biological Diversity v. Berg, 268 F.3d 810,822 (9th Cir ("'if an absentee would be substantially affected in a practical sense by the determination made in an action, he should, as a general rule, be permitted to intervene"' (quoting FRCP 24 advisory committee's note. Class Counsel filed the Class's Motion in another attempt to relitigate issues resolved in the Ninth Circuit Ruling and enable the Class to continue enforcing its claims against the Marcos Estate, which this Court spent years adjudicating. The Class is now attempting to secure a disguised revival of the 1995 Class Judgment and transform Ruling nor the Texas Action. With no opposition, the Illinois court granted the petition. The Class then purported to "register" what it calls an "Illinois judgment" In Del Prado v. B.N. Dev. Co., No (N.D. Tex., in which the court rejected the tactic, and in Hi/ao v. Estate of Marcos, No (Dist. Ct. of Tarrant County, in which the court has yet to issue a formal ruling. The Class also has pending an action in the U.S. District Court for the District of Colorado to enforce the 1995 Class Judgment against a corporation affiliated with Revelstoke that owns real property in Colorado. 8

11 Case 1 :03-cv MLR Document Filed 03/17/2009 Page 9 of 11 the expired 1995 Contempt Judgment into a new judgment that it would seek to enforce against Revelstoke in the Texas Action and in other proceedings. Fourth, Revelstoke's interests are not adequately represented by any existing party to the Class's Motion. To meet this requirement, Revelstoke need only "show[ ] that representation of its interests 'may be' inadequate," a burden that is "minimal." Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir (quoting Smith v. Pangilinan, 651 F.2d 1320, 1325 (9th Cir Revelstoke more than meets that burden. Only Revelstoke challenged the contrived validity of the 1995 Class Judgment under HRS When the Class moved to "extend" the judgment in this Court in June 2006, the Marcos Estate did not oppose - only Revelstoke did. Likewise, only Revelstoke appealed the "extension" judgment; only Revelstoke sought and obtained the holding in the Ninth Circuit Ruling that "H.R.S. 657 means what it says" (536 F.3d at 987; and only Revelstoke has opposed the Class's petition for review of the Ninth Circuit Ruling in the U.S. Supreme Court. Indeed, Class Counsel has represented to the U.S. Supreme Court that the Marcos Estate "has no interest in the outcome of the Petition." (Ex. C, Letter from Robert Swift to Clerk of the U.S. Supreme Court. It is doubtful that the Estate will litigate that issue effectively here, let alone do so as well as Revelstoke, which has litigated the issue for nearly three years. 9

12 '-.r Case 1 :03-cv MLR Document Filed 03/17/2009 Page 10 of 11 Furthermore, the Estate seemingly has no remaining assets in the U. S. on which the Class may execute. If there were any such assets, presumably Clas~ Counsel would be taking action to freeze them and the Estate would be opposing the Class's efforts to obtain a new judgment. But the Estate has done nothing in response to such efforts by the Class in the N orthem District of Illinois and a state court in Tarrant County, Texas. The Estate was served with the Class's filings in those courts, but never responded or informed Revel stoke, even though it knows that Revelstoke is not on the service list in those proceedings. Thus, the Estate will not "undoubtedly make all [of Revelstoke' s] arguments" and does not appear "capable and willing to make such arguments," so Revelstoke's interests are not adequately represented. Berg, 268 F.3d at 822. In sum, Revelstoke satisfies the four-factor test for intervention as of right, and Ninth Circuit precedent requires this Court to grant intervention. If intervention as of right were denied - and it should not be - permissive intervention under FRCP 24(b(2 would be warranted because the Class's Motion has "a question of law or fact in common" with the Ninth Circuit Ruling and the Texas Action. Fed. R.. Civ. P. 24(b(2. A common question of law or fact exists because the Class's Motion seeks to circumvent the Ninth Circuit Ruling in Revelstoke's favor for the purpose of enabling the Texas Action against Revelstoke to proceed. The Class's Motion and Revelstoke' s recent victories in 10

13 Case 1 :03-cv MLR Document Filed 03/17/2009 Page 11 of 11 the Ninth Circuit Ruling and the Texas Action (and Revelstoke's interest in similar issues raised by other enforcement actions thus share a "sufficiently strong nexus" for permissive intervention. See Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, (9th Cir (permissive intervention granted for limited purpose where issue "supplies a sufficiently strong nexus between [ separate actions] to satisfy the commonality requirement". CONCLUSION The Class's Motion is designed to circumvent the Ninth Circuit Ruling in Revelstoke's favor and thwart Revelstoke's ensuing victory in the Texas Action. Revelstoke is entitled to intervene as of right pursuant to FRCP 24(a(2 and, in the alternative, should be permitted to intervene pursuant to FRCP 24(b (2. DATED: Honolulu, Hawaii, March 17, /s/ Thomas Benedict THOMAS BENEDICT Attorney for REVELSTOKE INVESTMENT CORPORATION, INC. 11

14 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION ROMULO DEL PRADO, ET AL. v. B.N. DEVELOPMENT COMPANY, INC. CIVIL NO. 4:05-CV-234-Y ORDER DENYING LEAVE TO FILE AMENDED COMPLAINT, DENYING STAY, AND GRANTING MOTION TO DISMISS Pending before the Court are Plaintiffs' Motion for Leave to File a Second Amended Complaint [doc. #227], Defendants' Motion to Dismiss [doc. #205], and Plaintiffs' Motion to Stay Resolution of Defendants' Motion for Judgment on the Pleadings [doc #209]. Because the Court concludes that the amendment sought by Plaintiffs would be futile, the Court DENIES the motion for leave. Additionally, because the Court concludes that Plaintiffs' claim is time barred, the Court GRANTS Defendants' motion to dismiss. Finally, because the motion for stay requests that this Court stay resolution of the motion to dismiss until the United States Court of Appeals for the Ninth Circuit has entered a final decision in related litigation, and because the Ninth Circuit now has done so, the motion for stay is DENIED as MOOT. I. Background On February 3, 1995, a judgment ("the MDL judgment" was entered in favor of a class of human-rights victims in a multidistrict proceeding in the United States District Court for the District of Hawaii against Ferdinand Marcos and his estate. See Estate of Ferdinand E. Marcos Human Rights Litigation, MDL 840; see also Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir The EXHIBIT "A"

15 Ninth Circuit's opinion affirming the MDL judgment issued as mandate on January 8, See generally Hilao, 103 F.3d 767. The plaintiff class in the mutidistrict litigation registered the MDL judgment in the United States District Court for the Northern District of Illinois in January 1997 ("the Illinois judgment". In April 2005, the MDL judgment was registered in this Court and a complaint filed seeking to execute and foreclose upon real property situated in Texas and allegedly beneficially owned by the Marcos Estate. The defendants are corporations that allegedly hold legal title to the Texas properties. On June 5, 2006, after being notified by Defendants that they believed the MDL judgment had expired pursuant to Hawaii law, Plaintiffs filed a motion in the District of Hawaii to extend the MDL judgment for ten years. Defendants then filed a motion in this Court to dismiss Plaintiffs' complaint, arguing that the Hawaii tenyear statute of limitations, as applied by way of the Texas borrowing statute, TEX. CIV. PRAC. & REM CODE (a, barred the enforcement action. Defendant Revelstroke Investment Corporation, Inc., which had attempted to intervene in Plaintiffs' action to extend the MDL judgment, appealed the District Court for Hawaii's decision to extend the judgment. This Court, on August 3, entered an order partially granting Plaintiffs' motion to stay Defendants' motion for judgment on the pleadings pending the Ninth Circuit's decision on the appeal of the District of Hawaii's decision to extend the MDL judgment. A panel of the Ninth Circuit vacated the order of exten- 2

16 '- sion on July 31, 2008, and Plaintiffs' petition for rehearing en banc was denied on September 11. See Hilao, 536 F.3d at After the Ninth Circuit's decision, Plaintiffs sought to revive the Illinois judgment. The Northern District of Illinois granted their petition to revive and, after the revival became final, Plaintiffs registered the revived Illinois' judgment in this Court, as well as in a Texas state court, on October 7 and 10, 2008, respectively. Plaintiffs now seek to amend their petition in order to base the enforcement action pending in this Court on the registered Illinois judgment, rather than the underlying MDL judgment. Defendants oppose the motion, arguing that the Illinois judgment may not be registered under 28 U.S.C As discussed more fully below, the Court agrees. II. Discussion A. Leave to Amend 1. Standard Under Rule 15(a Under Federal Rule of Civil Procedure 15(a, a "court should freely give leave [to file amended pleadings] when justice so requires." FED. R. CIV. P. 15(a. Unless the party opposing the motion for leave comes forward with a reason, the motion should be granted. See Foman v. Davis, 371 U.S. 178, 182 (1962. Nevertheless, the decision of whether to grant leave remains within the discretion of the trial court. See ide In making its decision, a district court may consider various factors, including the futility of the requested amendment, the moving party's failure to cure 3

17 deficiencies with previous amendments, undue delay in seeking leave to amend, or bad fai~h in seeking leave. See id.; see also United States ex rei. Marcy v. Rowan Co., 520 F.3d 384, 392 (5th Cir Analysis At the outset, the Court notes that Plaintiffs' motion to amend could be denied on the grounds that, contrary to the requirements set out in 28 U.S.C for the registration of the judgment of another federal district court, no certified copy of the Illinois judgment has been filed with this Court. The Court has received a copy of the order of the Northern District of Illinois granting Plaintiffs' petition to revive, pursuant to Illinois law, the judgment registered with that court. [See Plaintiff's Notice to the Court of Newly Registered Ju~gment, doc. #224, App. at 1-3.] Under Illinois law, however, a revival is not itself a new judgment. First Nat'l Bank v. Adkins, 650 N.E.2d 277, 279 (Ill. App. Ct ("The revival of a judgment is not the creation of a new judgment, but rather a continuation qf the judgment revived. ". Section 1963 has not, therefore, been complied with. However, to avoid attempts by Plaintiffs to file a certified judgment and relitigate the motion for leave to amend, the Court will addresses their arguments now. Plaintiffs argue that, pursuant to In their motion for leave, 1963 and Illinois state law, once the MOL judgment was registered in Illinois it became an Illinois judgment for all purposes. In turn, according to Plain- 4

18 tiffs, pursuant to 1963 and Texas state law, registration of the Illinois judgment in the Texas state court created a Texas statecourt judgment enforceable in this Court. Plaintiffs are incorrect in asserting that state law provides the rule of decision regarding their registrations of judgment in this case. The MDL judgment was the judgment of a federal district court--the United States District Court for the District of Hawaii. Although a federal court may borrow a state's registration procedures where a civil action to enforce a state-court judgment has been filed based on diversity jurisdiction, 1963 provides the sole authority for the registration of the judgment of one federal court with another federal court. Cf. Caruso v. Perlow, 440 F. Supp. 2d 117, 119 (D. Conn (concluding, in the context of an attempt to register a state-court judgment, that Congress's express provision for registration of judgments in 1963 precluded the use of state-law registration procedures; see Uni ted States v. Febre, 1992 U.S. App. LEXIS 26388, at *8-10 (7th Cir. Oct. 15, 1992 (collecting cases to demonstrate that registration is governed by federal law and enforcement is governed by the law of the forum state and distinguishing between registration under 1963 and Illinois law. Indeed, Plaintiffs have produced no authority by which a federal court could look to state law in registering the judgment of another federal court. Thus, to the extent that Plaintiffs argue that this Court should recognize the registration of the MOL judgment in the Northern District of Illinois as a new judgment based on Illinois state law, such argument is without merit. Cf. Caruso, 5

19 440 F. Supp. at 119; also cf. Sephus v. Gozelski, 864 F.2d 1546, 1548 (11th Cir (concluding that 1963 does not provide authority to address challenges to the execution of property under a registered judgment based on state law; Euro-Am. Coal Trading, Inc. v. James Taylor Mining, Inc., 431 F. Supp. 2d 705, 708 (E.D. Ky (noting that 1963 lists only federal courts and describing as jurisdictional this limitation. Similarly, Pla~ntiff' s argument that registration of the Illinois federal judgment in a Texas state court created a state-court judgment enforceable in this Court under 1963 is without merit. Assuming the Illinois judgment was properly registered in a Texas court pursuant to Texas law, in order to enforce such judgment in this Court, Plaintiffs must bring a separate action properly invoking federal jurisdiction. See Fox Painting Co. v NLRB, 16 F.3d 115, 117 (6th Cir ("Nothing in the language of section 1963 grants authority to a district court to register judgments of any courts other than other district courts or the Court of International Trade."; see also Caruso, 440 F. Supp. 2d at 119 (concluding that the holder of state-court judgment could not rely on 1963 but instead, "to have [the judgment] enforced in federal court must fall back upon the traditional... strategy of bringing a civil action on the state-court judgment by invoking, for example, the diversity jurisdiction of the federal court". Next, assuming that the MDL judgment was properly registered in the Northern District of Illinois pursuant to federal law, the question becomes whether such registration created a new judgment 6

20 that could then be registered in this Court. Section 1963 provides in relevant part: A judgment in an action for the recovery of money or property entered in any court of appeals, district court, bankruptcy court, or in the Court of International Trade may be registered by filing a certified copy of the judgment in any other district.. A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner. 28 U.S.C Plaintiffs argue that, as a result of the last sentence of the quoted language, their registration of the MDL judgment in the Northern District of Illinois created a completely new judgment that, in turn, could be registered in this Court despite the fact that the statute of limitations applicable to the MDL judgment has run. Section 1963's plain language does not, however, support the sort of piggy-backing, or, more formally stated--successive registration of registered judgments--that Plaintiffs are attempting. That section allows for the registration of a "judgment in an action for the recovery of money or property entered" in any district court, after such "judgment has become final by appeal or expiration of the time for appeal." This language demonstrates that it is the initial judgment on the merits from the rendering court--i.e., the "judgment in an action for the recovery of money or property"--that may be registered. See Powles v. Kandrasiewicz, 886 F. SUppa 1261, 1263 (W.D.N.C (concluding registration under 1963 "does not consti tute an action, defined in the legal sense as a lawsuit brought in court, to sue or be sued, defined as commencing or to 7

21 continue legal proceedings for recovery of a right" (citations omitted; see also Home Port Rentals v. Int'l Yachting Group, Inc., 252 F.3d 399, 405 (5th Cir (speaking of ' the judgment subject to registration under 1963 as ~a money judgment of the rendering court". Further, it could not seriously be contended that when a clerk enters the judgment of another district court on the docket of his own court he has created a final judgment that may be appealed pursuant to 28 U.S.C See 28 U.S.C (allowing registration only after the rendering court's judgment is final; also compare Harper Macleod Solicitors v. Keaty & Keaty, 260 F.3d 389, 395 (5th Cir (noting that ~the scope of a registering court's power to alter or amend judgments rendered by another court through Rule 60(b is uncertain with Fed. R. Civ. P. 60(b (granting a court authority to relieve parties from the effect of final judgment. Plaintiffs also support their argument wi th language from various cases discussing whether registration under.1963 creates a new judgment in the registering court. For instance, in one of the earliest cases addressing the effect of registration, the Uni ted States Court of Appeals for the Eighth Circuit, in an opinion by then Judge Blackmun, ~concluded that 1963 is more than 'ministerial' and is more than a mere procedural device for the collection of the foreign judgment." See Stanford v. Utley, 341 F.2d 265, 268 (8th Cir The court in Stanford further states, ~registration provides, so far as enforcement is concerned, the equivalent of a new judgment of the registration court." Id. But, contrary 8

22 Cas c1sft3+cm~d\ji.a(d~u:r' 1Dlmwmmttm572-3FiledfmttamrolJgOO~ag~ageffl6f 15 to Plaintiffs' arguments, the court in Stanford did not go so far as to allow a federal judgment to take on an indefinite life by a plaintiff's use of 1963's registration procedures. The specific question of whether a registered judgment could itself be registered was reserved, wi th the court holding simply that a registered judgment is a new judgment "for enforcement purposes" in the forum of the court in which it is registered. See ide at 268, 271; see also Home Port Rentals, 252 F. 3d at 405. As the United States Court of Appeals for the Fifth Circuit stated in Home Port Rentals, a judgment "remains registerable for as long as it is 'live,' i.e., enforceable, in the rendering state," Home Port Rentals, 252 F.3d at 409 n. 26. (emphasis added. Other language within the Home Port Rentals opinion also indicates that the effect of registration as a new judgment is specific to the forum of registration for enforcement purposes. The court explains "once a money judgment of the rendering court is timely registered in another district court pursuant to 1963 at a time when enforcement of that judgment is not time-barred in either jurisdiction, the subsequent expiration of the rendering court's statute of limitations has no effect whatsoever on enforcement of the judgment in the district of the registration court." Id. at 405 (emphasis added. The Ninth Circuit's ruling in Hilao, lends further support to a conclusion that a registered judgment's effectiveness as a new judgment is limited to enforcement in the forum of registration. In their appeal to the Ninth Circuit, Plaintiffs contended, inter 9

23 alia, that the MDL judgment "was renewed, and thus extended, every time it was registered in another court." Hilao, 536 F.3d at 987. In rejecting this argument, the Ninth Circuit states that "[t]he effect [of 1963] is to allow that judgment, i.e., the newly registered judgment, to be enforced for the period allowed by the law of that forum, i.e., the state of registration, if the judgment were live, and thus registerable, at the time when it was registered." Id. at 989 (emphasis in original; also cf. Board of Trustees v. Eli te Erectors, Inc., 212 F. 3d 1031, 1034 (7th Cir (" [S] ec [tion] 1963 does not say that the original judgment becomes a local one; it says that the original judgment has the effect of a local judgment.". Plaintiffs also cite the United States Supreme Court's decision in Watkins v. Conway as support for their use of In Watkins, the holder of a Florida state-court judgment attempted to enforce that judgment by sui t in a Georgia state court. See Watkins v. Conway, 385 U.s. 188, 188 (1966. The Georgia trial court granted summary judgment in favor of the defendant based on Georgia's five-year statute of limitations on foreign judgments. See ide at The plaintiff challenged the Georgia statute, arguing that it "was inconsistent with the Full Faith and Credit and Equal Protection Clauses of the Federal Constitution" in that it provided for a shorter limitations period for foreign judgments than for domestic. Id. at 189. In rejecting the plaintiff's argument, the Supreme Court notes that the Georgia law bars the enforcement of a foreign judgment only when such judgment cannot be revived 10

24 under the law of the state where it was originally obtained. See ide Thus, far from standing for the broad proposition that the effect of statutes of limitation can be avoided by successive registration of a judgment, Watkins merely holds that a state's imposition of a shorter statute of limitations on foreign judgments does not violate full-faith-and-credit or equal-protection principles if the statute allows enforcement of the judgment once revived under the rendering state's law. And, as held by the Ninth Circuit in Hilao, Hawaii law bars enforcement of the MDL judgment and extension or "revival" of that judgment is not proper. See Hilao, 536 F.3d at Watkins, therefore, has no application to this case. Ultimately, 1963 may in fact allow registration of the rendering court's judgment in more than one district. See Elite Erectors, Inc., 212 F. 3d at But the Stanford, Home Port Rentals, and other,courts to have addressed the issue acknowledge "[t]hat the registered judgment might not be congruent with a new judgment of the registration court for every purpose other than enforcement." Home Port Rentals, 252 F.3d at 405. The Court concludes that this is such a case. Although the argument before the Ninth Circuit (whether registration extended the statute of limitations that was applicable in the rendering court is different than that before this Court (whether a registered judgment may itself be registered despite the running of the statute of limitations in the rendering court the concern is the same. "In effect, [Plaintiffs'] position is that a federal judgment is free of state limitations and 11

25 can be enforced forever." Hilao, 536 F.3d at 987. Absent clear language in the section or binding precedent requiring it to do so, the Court will not give 1963 such an unbounded effect. Given this conclusion, Plaintiffs' desired amendment is futile. Their motion to amend is, therefore, DENIED. See Rowan Co., 520 F.3d at 392 (district court may consider futility of amendment in decision to grant leave under Rule 15. B. Defendants' Motion to Dismiss Having concluded that Plaintiffs may not amend their pleadings and having received timely notice of the Ninth Circuit's decision to vacate the District of Hawaii's extension of the MDL judgment, the Court now turns to Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b (6. 1. Standard for Dismissal Under Rule 12(b (6 Federal Rule of Civil Procedure 12(b (6 authorizes the dismissal of a complaint that fails "to state a claim upon which relief can be granted." This rule must, however, be interpreted in conjunction with Rule 8 (a, which sets forth the requirements for pleading a claim for relief in federal court. Rule 8(a calls for "a short and plain statement of the claim showing that the pleader is enti tied to relief." FED. R. CIV. P. 8 (a; see also Swierkiewicz v. Sorema N.A., 534 U. S. 506, 508 (2002 (holding Rule 8 (a 's simplified pleading standard applies to most civil actions. As a result, ~[a] motion to dismiss for failure to state a claim is 12

26 viewed with disfavor and is rarely granted." Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir (quoting Wright & Miller, Federal Practice and Procedure 1357 (1969. The Court must accept as true all well pleaded, non-conclusory allegations in the complaint and liberally construe the complaint in favor of the plaintiff. Kaiser Aluminum, 677 F.2d at The Court must also "limit [its] inquiry to the facts stated in the complaint and the documents either attached to or incorporated in the complaint." Lovelace v.. Software Spectrum, Inc., 78 F.3d 1015, (5th Cir The plaintiff must, however, plead specific facts, not mere conclusory allegations, to avoid dismissal. LaPlace, 954 F.2d 278, 281 (5th Cir Guidry v. Bank of Indeed, the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face," and his "factual allegations must be enough to raise a right to relief above the speculative level,... on the assumption that all the allegations in the complaint are true (even if doubtful in fact." Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1965 & 1974 ( Analysis In their motion, Defendants argue that Plaintiffs' attempts to enforce the MDL judgment in this Court are time barred. Section 1963 allows a judgment of one district court to be registered in another, so long as the judgment is not time barred in either the rendering or registering jurisdiction. See Home Port Rentals,

27 F.3d at 405. As discussed above, in Hilao, the Ninth Circuit held that the MOL judgment has expired under Hawaii law and that it is too late for Plaintiffs to seek an extension of the judgment. See Hilao, 536 F.3d at 987; see also Home Port Rentals, 252 F.3d at 409 (noting, under 1963, that a judgment "remains registerable for as long as it is 'live,' i.e., enforceable in the rendering stat~". Further, under Texas Civil Practice and Remedies Code (a "[a]n action on a foreign judgment is barred in this state if the action is barred under the laws of the jurisdiction where rendered." TEX. CIV. PRAC. & REM. CODE (a; see also Hilao, 536 F.3d at 988 (collecting cases and noting "the Rules of Decision Act, 28 U.S.C requires application of state statutes of limitations unless a timeliness rule drawn from elsewhere in federal law should be applied". The MOL judgment is, therefore, barred in both this jurisdiction and in the jurisdiction where it was rendered and, as a result, may not be registered for enforcement in this Court. See 28 U.S.C. 1963; see also Home Port Rentals, 252 F.3d at 405. Plaintiffs' arguments in response to these conclusions were fully litigated before the Ninth Circuit and may not be relitigated here. See Next Level Comrnuns. L.P. v. DSC Comrnuns. Corp., 179 F.3d 244, (5th Cir (citing RESTATEMENT (SECOND OF JUDG MENTS 27 (1982 ("When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.". Finally, as discussed in detail above, 14.

28 Plaintiffs may not avoid the effect of the Hawaii statute of limi tations or the Ninth, Circuit's decision in Hilao by registering the Illinois judgment in this Court under Because Plaintiffs' enforcement action is time barred, the Court GRANTS Defendants' motion to dismiss. III. Conclusion In light of the foregoing, the Court concludes that Plaintiff's desired amendment would be futile. Further, the Court concludes that Plaintiffs' enforcement action is time barred as stated in the Ninth Circuit's opinion in Hilao. Accordingly" Plaintiffs' motion to amend is DENIED and Defendants' motion to dismiss is GRANTED. Plaintiffs' motion to stay is DENIED as MOOT. SIGNED January 9, UNITED STATES DISTRICT JUDGE 15

29 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION ROMULO DEL PRADO, ET AL. v. B.N. DEVELOPMENT COMPANY, INC. CIVIL NO. 4:05-CV-234-Y FINAL JUDGMENT Pursuant to the order issued this same day dismissing Plaintiffs' complaint for failure to state a claim upon which relief can be granted and Federal Rule of Civil Procedure 58, the Court orders all claims in the above-styled and -numbered cause DISMISSED WITH PREJUDICE. Costs under 28 U.S.C are taxed against Plaintiffs. SIGNED January 9, UNITED STATES DISTRICT JUDGE EXHIBIT "B"

30 Case 1 :03-cv MLR Document Filed 03/17/2009 Page 1 of 2 'KOHN, SWIFT 8c GRAF, P. C. ONE SOUTH BROAD STREET. SUITE JOSEPH C. KOHN ROBERT A. SWIFT GEORGE W. CRONER ROBERT..J, LAROCCA DENIS F: SHEILS to DOUGLAS A. ABRAHAMS WILLIAM E. HOESE STEVEN M. STEINGARD STEPHEN H. SCHWARTZ t CRAIG W. HILLWIG EL.KAN M. KATZ CHRISTINA O. SALER HADL.EY P. ROELTGEN NEIL. L. GLAZER t,jared G. SOLOMON t ALSO ADMITTED IN NEW YORK o ALSO ADMITTED IN NEVADA ALSO ADMITTED IN NEW.JERSEY PHILADELPHIA, PENNSYLVANIA ( TELECOPIER ( FIRM info@kohnswift.com WEe SITE: RSWIFT@KOHNSWIFT.COM February 9, 2009 HAROLD E. KOHN OF COUNSEL MERLE A. WOLFSON L.ISA PALFY KOHN Mr. William K. Suter Clerk of Court Supreme Court of the United States 1 First Street, N.E Washington, DC Re: Petition for Writ of Certiorari Hilao, et al. v. Revelstoke Investment Comoration, Inc. Dear Mr. Suter: Contemporaneously with the filing of the Petition in the above-referenced matter, I write to infonn you, pursuant to the Court's Rule 12.6, of Petitioners' belief that the Estate of Ferdinand E. Marcos (the "Estate", nominally a party below, has no interest in the outcome of the Petition. Though named a party to the proceedings in the court below, the Estate did not make an appearance in those proceedings. Very truly yours, ~. Robert A. Swift Counsel of Record for Petitioners RAS/cwh cc: Counsel for the Estate of Ferdinand E. Marcos Counsel for Respondent Revelstoke Investment Corporation, Inc. EXHIBIT "e"

31 Case 1 :03-cv MLR Document Filed 03/17/2009 Page 2 of 2 No. IN THE SUPREME COURT OF THE UNITED STATES CELSA HILAO, DANILO DE LA FUENTE, RENATO PINEDA, ADORA DEVERA, RODOLFO BENOSA, JOSE DURAN, JOSEFINA FORCADILLA, ARTURA REVILLA AND CHRISTOPHER SORIA, v. Petitioners, REVELSTOKE INVESTMENT CORPORATION, INC. Respondent. PROOF OF SERVICE I, Craig W. Hillwig, one of the counsel for Petitioners, and a member of the Bar of this Court, certify that on February 9,2009, I caused a copy of the Rule 12.6 Letter of Robert A. Swift to William K. Suter dated February 9, 2009 in the abovecaptioned matter to be served by First Class U.S. Mail, postage prepaid, on all parties to the proceedings below, addressed as follows: Eugene D. Gulland Covington & Burling 1201 Pennsylvania Avenue, NW Washington, D.C Counsel of Record for Respondent Revelstoke Investment Corporation, Inc. John J. Bartko Bartko, Tarrant & Miller 900 Front Street, Suite 300 San Francisco, CA Bert T. Kobayashi, Jr. LexR. Smith Kobayashi Sumita & Goda 999 Bishop St., 26 th FIr. Honolulu, HI Counsel for the Estate of Ferdinand E. Marcos CraigW.. g KOHN, SWIFT & GRAF, P.C. 1 South Broad Street, Suite 2100 Philadelphia, PA (

32 Case 1 :03-cv MLR Document Filed 03/17/2009 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII INRE: MDLNO.840 No ESTATE OF FERDINAND E. No MARCOS HUMAN RIGHTS LITIGATION ORDER THIS DOCUMENT RELATES TO: Hilao et al v. Estate of Ferdinand E. Marcos, and DeVera et al v. Estate of Ferdinand E. Marcos Judge: Manuel Real ORDER After consideration of Revelstoke Investment Corp., Inc. 's motion to intervene for the limited purpose of opposing the Plaintiff Class's "Second Renewed Motion for Entry of Final Judgment For Civil Contempt Against Imelda R. Marcos and Ferdinand R. Marcos and the Estate of Ferdinand E. Marcos" (the "Class's Motion"

33 Case 1 :03-cv MLR Document Filed 03/17/2009 Page 2 of 2 IT IS HEREBY ORDERED that Revelstoke Investment Corp., Inc.'s motion to intervene is GRANTED. Dated: Honolulu, Hawai'i, IT IS SO ORDERED. In Re: Estate of Ferdinand E. Marcos Human Rights Litigation This Document Relates to: Hilao, et al. v. Estate of Ferdinand E. Marcos and De Vera et al v. Estate of Ferdinand E. Marcos MDL No. 840, No , No (Order 2

34 Case 1 :03-cv MLR Document Filed 03/17/2009 Page 1 of 4 INRE: ESTATE OF FERDINAND E. MARCOS HUMAN RIGHTS LITIGATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII THIS DOCUMENT RELATES TO: Hilao et al v. Estate of Ferdinand E. Marcos, and DeVera et al v. Estate of Ferdinand E. Marcos MDLNO.840 No No CERTIFICATE OF SERVICE Judge: Manuel Real I CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the within document was served on this date in the following manner: I HAND DELIVERED I MAILED II CWECF I JOSEPH A. STEW ART [ ] [ ] [X] Kobayashi Sugita & Goda First Hawaiian Center 999 Bishop Street, Suite 2600 Honolulu, HI

35 Case 1 :03-cv MLR Document Filed 03/17/2009 Page 2 of 4 I I HAND DELIVERED I MAILED II CMffiCF I PAUL HOFFMAN, ESQ. [ ] [X] [ ] Shonbrun, De Simone, Seplow Harris & Hoffman 723 Oceanfront Walk, Suite 100 Venice, CA BERT T. KOBAYASHI, JR., ESQ. [ ] [X] [ ] LEX R. SMITH, ESQ. JOSEPH A. STEWART, ESQ. Kobayashi Sugita & Goda First Hawaiian Center 999 Bishop Street, Suite 2600 Honolulu, HI JAMES PAUL LINN, ESQ. [ ] [ ] [X] James P. Linn Law Firm PLLC 1601 NW Expressway, Suite 1710 Oklahoma City, OK JOHN J. BARTKO, ESQ. [ ] [ ] [X] Bartko Welsh Tarrant & Miller 900 Front Street, Suite 300 San Francisco, CA MATTHEW J. VIOLA, ESQ. [ ] [X] [ ] Law Office of Matthew Viola 1132 Bishop Street, Suite 1860 Honolulu, HI

36 Case 1 :03-cv MLR Document Filed 03/17/2009 Page 3 of 4 I I DE~RED I MAILED II CMffiCF I STEPHEN V. BOMSE, ESQ. [ ] [X] [ ] RACHEL M. JONES, ESQ. Heller Ehnnan LLP 333 Bush Street San Francisco, CA RICHARD CASHMAN, ESQ. [ ] [X] [ ] Heller Ehnnan LLLP Times Square, 7 Times Square New York, NY CAROL A. EBLEN, ESQ. [ ] [ ] [X] Goodsill Anderson Quinn & Stifel LLP Alii Place, Suite Alakea Street Honolulu, HI JA Y R. ZIEGLER, ESQ. [ ] [ ] [X] Buchalter Nemer 1000 Wilshire Boulevard, 15 th Floor Los Angeles, CA JON M. V AN.. DYKE, ESQ. [ ] [X] [ ] 2515 Dole Street, Room 239 Honolulu, HI

37 Case 1 :03-cv MLR Document Filed 03/17/2009 Page 4 of 4 I, I HAND DELIVERED I MAILED II CMffiCF I ROBERT A. SWIFT, ESQ. [ ] [ ] [X] Kohn Swift & Graf One South Broad Street, Suite 2100 Philadelphia, P A DATED: Honolulu, Hawaii, March 17,2009. /s/ Thomas Benedict THOMAS BENEDICT Attorney for REVELSTOKE INVESTMENT CORPORATION, INC. 4

38 .. CMlECF-DC V3.2:2 (1/09 **LIVE** Page 1 of3 Motions 1 :03-cv MLR In Re: MDL 840 MARCOS. et al v.. et al U.8. District Court District of Hawaii Notice of Electronic Filing The following transaction was entered by Benedict, Thomas on 3/17/2009 at 2:02 PM HST and filed on 3117/2009 Case Name: In Re: MDL 840 MARCOS, et al v., et al Case Number: 1 :03-cv Filer: Revelstoke Investment Corp., Inc. Document Number: 1 Q5_72 Docket Text: MOTION to Intervene MOTION OF REVELSTOKE INVESTMENT CORPORA TION, INC. TO INTERVENE FOR THE LIMITED PURPOSE OF OPPOSING THE CLASSS PENDING MOTION; MEMORANDUM IN SUPPORT OF MOTION; EXHIBITS A-C; ORDER; CERT/F/CA TE OF SERVICE Thomas Benedict appearing for Intervenor Revelstoke Investment Corp., Inc. (Attachments: # (1 Memorandum IN SUPPORT OF MOTION, # (2 Exhibit A, # (3 Exhibit B, # (4 Exhibit C, # (5 ORDER, # (6 CERTIFICATE OF SERVICE (Benedict, Thomas 1:03-cv-lllll Notice has been electronicauy mailed to: Carol A. Eblen James Paul Linn John J. Bartko ceblen@goodsill.com, jikeda@goodsi11.com jcostello@linnlaw.net jbartko@bztm.com, bsage@bztm.com Joseph A. Stewart jas@ksglaw.com, jstewart@ksglaw.com, saw@ksglaw.com Lex R. Smith Robert A. Swift lrs@ksglaw.com, jkeane@ksglaw.com rswift@kohnswift.com Sherry P. Broder Thomas Benedict sherrybroder@sherrybroder.com tbenedict@goodsill.com, mkahalewai@goodsill.com, pho@goodsill.com 1:03-cv-lll11 Notice will not be electronically mailed to: 3/17/2009 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection