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 also requested, without notifying Bertin, an order of attachment covering Bertin’s assets in the United States. An attachment order is a court order allowing property to be restrained or levied to secure a potential judgment.

The court had previously denied Equipav’s first attachment application without prejudice because it lacked information needed to decide whether attachment was warranted. Equipav then filed a renewed application supported by declarations.

Court’s Analysis

The court found that Equipav had shown an imminent risk that Bertin, whom the order describes as a person residing outside New York, would remove or dissipate assets if given notice of the renewed application. The court also found that the requirements for attachment under Federal Rule of Civil Procedure 64 and New York Civil Practice Law and Rules section 6201(1) were satisfied. Specifically, the court found that Equipav had a cause of action under 9 U.S.C. sections 201 and following, was likely to succeed on the merits, had grounds for attachment because Bertin was a non-domiciliary residing outside New York, and sought more than the amount of any counterclaims known to Equipav.

Equipav identified deposits held or placed at JPMorgan Chase Bank at 383 Madison Avenue in New York. The court concluded that attachment of Bertin’s assets in New York was not barred by the cited case law. The court did not authorize attachment of Bertin’s assets located outside New York.

Order

The court granted Equipav’s renewed application as to assets held by Bertin in New York. The attachment order became effective immediately and was to remain effective unless amended or vacated by the court. The amount secured was $40,679,434.05.

The court directed the U.S. Marshal, or a person appointed to act in the Marshal’s place, to levy—without taking possession—on Bertin’s money, accounts, property, or property interests held by banks or financial institutions in New York, up to that amount. The court authorized Demovsky Lawyer Service and its employees to serve the order and carry out the levy.

The court also extended the duration of any levy until 30 days after the court or the parties resolved a motion to confirm or vacate the attachment order or a related levy. Garnishees had to provide a required statement within five days after service. Equipav had to seek confirmation of the attachment order by a proposed order to show cause within ten days after serving the order and had to post a $40,000 bond within 14 days.

The court denied Equipav’s request to attach assets located outside New York.