Equipav S.A. Pavimentacao, Engenharia e Comercio Ltda. v. Bertin

Background

Equipav filed a petition seeking confirmation of a foreign arbitration award against Silmar Roberto Bertin. Equipav separately submitted, without first notifying Bertin, an application for an order of attachment under Federal Rule of Civil Procedure 64 and New York Civil Practice Law and Rules §§ 6201 and following. An attachment order can restrain or secure a defendant’s property while a claim is pending. Equipav also asked to file the attachment application and its supporting brief under seal, meaning not publicly accessible on the docket.

Sealing request

The court denied Equipav’s request to file the attachment materials under seal. Applying the presumption that judicial documents should be publicly accessible, the court found that Equipav had not shown that its interests in secrecy outweighed public access. The petition and supporting brief were already public and expressly referred to the anticipated attachment application. A publicly filed declaration also described the bank accounts Equipav sought to attach. Because Equipav had already made the relevant information public, the court found no basis for sealing the attachment papers.

Attachment application

Under New York law, an applicant for an attachment order must show four things: a valid claim, a probability of success on the merits, a statutory basis for attachment, and that the amount sought exceeds all counterclaims known to the applicant. The applicant must also provide a financial guarantee, called an undertaking, for payment to the defendant if it is ultimately determined that the attachment was improper.

The court found that Equipav’s application addressed only the first two required elements. It did not explain which statutory grounds for attachment applied, or whether the amount sought exceeded all potential counterclaims known to Equipav. Equipav also did not offer an undertaking and instead asked the court to set the amount at zero. The court stated that New York law required an undertaking and that the amount could not be set at zero under the circumstances. Finally, Equipav had not submitted a proposed attachment order, preventing the court from evaluating the requested attachment’s scope.

Disposition

The court denied Equipav’s application for an order of attachment without prejudice. This means the order did not prevent Equipav from submitting another application. The court directed that any future application include a brief addressing all required attachment elements, a proposed undertaking of at least $500 with supporting case citations, and a proposed attachment order. The court separately denied Equipav’s motion to file the application under seal and directed the clerk to place the application materials on the public docket.