First National City Bank v. Banco Para el Comercio Exterior de Cuba

PETITIONER: First National City Bank
RESPONDENT: Banco Para el Comercio Exterior de Cuba
LOCATION: Residence of Gates

DOCKET NO.: 81-984
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 462 US 611 (1983)
ARGUED: Mar 28, 1983
DECIDED: Jun 17, 1983

ADVOCATES:
Henry Harfield - on behalf of the Petitioner
Michael Krinsky - on behalf of the Respondent
Richard G. Wilkins - for U.S. as amicus curiae

Facts of the case

Question

Media for First National City Bank v. Banco Para el Comercio Exterior de Cuba

Audio Transcription for Oral Argument - March 28, 1983 in First National City Bank v. Banco Para el Comercio Exterior de Cuba

Warren E. Burger:

We will hear arguments next in First National City Bank against Banco de Cuba.

Mr. Harfield, I think you may proceed whenever you are ready.

Henry Harfield:

Mr. Chief Justice, and may it please the Court, this case was begun by a Cuban government instrumentality in February, 1961.

The Cuban government instrumentality, Banco Para El Comercio Exterior de Cuba, which translates to Bank... the Foreign Trade Bank of Cuba, and which for convenience we are going to call Bancec, was suing to recover a sum of money.

In its answer, the defendant, which I am going to call Citibank, again for the sake of convenience, in its answer, Citibank alleged that the action was brought by and for the Republic of Cuba, Bancec being a mere segment or instrumentality, an indistinguishable and integral part of the Cuban government.

Citibank then asserted as a defensive counterclaim to curtail the sum of money that was sought by Bancec in this case its claim for an amount of money equivalent to the value of its properties in Cuba, its eleven branches that had been confiscated, taken without any compensation by the Cuban government in a manner which the Second Circuit from which this case comes has held was in violation of international law.

The issue framed, the threshold issue framed by the pleadings was therefore in this claim and counterclaim, are the claimant and the counterclaimant opposing parties?

The question here is who is the real claimant, as put in issue by that answer.

Now, some three weeks after the commencement of this action by Bancec the Cuban government dissolved Bancec and exercised direct dominion over all of Bancec's assets, including the claim in this case.

Thereafter, some several months later, the respondent sought and obtained from the court in which the action was pending leave to substitute the Republic of Cuba as the plaintiff in the action, and that leave was granted, and leave was granted to file a supplemental complaint in which it was alleged that the claim which is the subject of this action was assumed by the Republic of Cuba.

Now, that supplemental complaint was never formally filed.

It was just approved for filing by the court at the instance of the respondent.

William H. Rehnquist:

Mr. Harfield, what does that connote in the practice of the Southern District, approval for filing by the court?

Henry Harfield:

Well, this was an application by counsel for a party to substitute another party, another person as the party plaintiff, and the Court in this case on stipulation, on the agreement of the defendant, said it is so ordered.

You may.

This was an application for leave to substitute.

So that technically it did not effect a substitution.

It was leave to substitute.

They asked for it.

They asked for permission.

They got the permission.

Then I suppose they changed their mind.

Warren E. Burger:

Are you suggesting that certain inferences can be drawn as a result of that?

Henry Harfield:

Yes, I think so, Your Honor.

Sandra Day O'Connor:

Mr. Harfield, you don't contend that Bancec is somehow unable to proceed in the litigation because it was dissolved, I take it.

Henry Harfield:

Well, I am troubled by that, Justice O'Connor.

I should think that it would be very difficult for Bancec as such to proceed in the litigation, and if I--

Sandra Day O'Connor:

Did you take that position below?

Henry Harfield:

--We simply took the position that there was an identity between Bancec or, if you like, between Bancec's ghost and the Republic of Cuba, the Cuban government.

Sandra Day O'Connor:

But you didn't argue that because Bancec was dissolved, it couldn't proceed?