well here the last case on the calendar district attorney of new york county versus republic of the philippines good morning your honor my name is bob swift and for thirty years i've represented the class of filipino human rights victims who were abused during the administration of  injunction or to enjoin the republic from proceeding with its case in the philippines the however there was a decision on the merits which therefore warranted court took jurisdiction in this inner pleader case and took it away from the state court the class was not able to continue to pursue the some one hundred fifty paintings and the only property it was able to pursue were the what we call the the levied property that was in or pleaded in to federal court by the district attorney of new york there is of course an underlying issue of subject matter jurisdiction as to whether the lower court ever properly acquired jurisdiction and i need to tell the court that it is not that duran in the class were unwilling to litigate in federal court we certainly are and have been the issue is whether any party can confer jurisdiction on the federal court the doctrine of prior exclusive jurisdiction is a very old one in this country before we get into that and i think that really is the issue i don't understand why gotten rid of a lot of these and you know very well i don't know that it's maneuverings is the right word but certainly from the standpoint of what we viewed as the proper way in which to litigate this we wanted the entire state court case removed to federal court we could have named the republican wherever i go to the republic once or twice a year and there are security issues and the republican the past has sought to hold me in contempt of court for taking the depositions of my very own clients so i'm somewhat reluctant to to name them initially in litigation i'm not afraid and i certainly have litigated against them but that's the answer to your question what we proposed was that the entire case be removed we as judge fail please remained under fourteen forty seven  we will not object to the republic removing everything to federal court that i think was the proper solution but the lower court did not grasp it and have some disagreement with it but i'd like to move to what the state court and here we had a state court judge who had been involved in this case for two years and we were in discovery he was probably in the process of writing an opinion which ultimately came out after the it had said well i'm going to and enjoying the state court proceeding but no order followed from that and he then wrote his opinion including pining that the property it issue that the class was claiming was in the custody of the court and that the levees were valid isn't there isn't there a question about there is a question about whether or not the levy property actually belongs to a male the marcos and there is there is so if there is a bona fide dispute as to the ownership of property subject to levy under c p l are fifty to thirty two  dozen new york quiet assume jurisdiction and retain it until there is an affirmative finding that the property does not belong to the judgment debtor or is it that there must be some kind of you know initial finding that the property does belong to the judgment debtor to assume jurisdiction i would go a step further back and go back to the levy that the sheriff makes on the property until that levy is disturb by the lower court in a c p l are fifty to twenty five proceeding that property remains in the custody of the court what's the authority for that well  you know i don't know that i can cite to specific new york authority however the united states supreme court in a case that we've cited in the armor case i believe said that on tools such time as the  state court is able to adjudicate entitlement to the property the federal court cannot assume jurisdiction over that same property and i believe that's been the law as it's been well understood for all these  it was property related and much of it related to levies on property of judgment debtors so that's sort of that the font from which a lot of our case law proceeds but  on your views on whether or all statements are are by group courts are you saying they're not binding it's always been my understanding that in a world statement i enjoin you is not binding until it is memorialized in writing i believe that's the law in this circuit and i've cited you a couple other circuits including one in the seventh circuit which has some rather strong language is that case the second circuit case that holds that firmly it's in it's in my brief and i've actually quoted it when you come back you can tell it please the court good morning your honour's tennessee murphy for the republic of the philippines i think my adversary is somewhat misguided and i submit to this court that durant's true goal here is to under law is to appeal the underlying decision rendered in april of two thousand and fifteen which was initially on the february nineteenth court appearance where judge failer went through why she was staying state court proceeding there was a discussion doctrine the colorado river factors was a detailed explanation given by the court at that time on the record and it was later memorialized in a written order on or about i think it was april sixteenth two thousand and fifteen and that was the issue of prior exclusive jurisdiction that was raised in the corporal oh by my adversary then no notice of appeal of that decision was filed what was filed in february of two thousand and sixteen was an appeal of a january twenty eight two thousand and sixteen order denying counsel leave to file a motion to modify the injunction what's very important is that this court be aware what council was seeking to do the end of two thousand fifteen early two thousand and sixteen was to modify the injunction with respect to the other paintings not the paintings at issue here but one hundred fifty paintings that were listed in his new york state turn over proceeding  which the location of which no one knows at this point in time they're not in the state of new york as far as anyone knows they're certainly not held by dany the republic has no idea where they are they've been on a list of missing or stolen artwork that the republic has been seeking hundred eighty six or eighty seven so the other paintings litigation is what he sought to proceed in the state court that is what was enjoined by judge fail in her april sixteenth two thousand and fifteen order and no no notice of appeal was filed for the able to sixteen order i submit to the court that what mr misstepped could have done quite frankly if he really wanted to make the motion he could have just made the motion i don't know why he asked judge failer for leave to make a motion to modify the stay because frankly even under her new individual rules rule for all you have to ask make the pre motion letter brief is on summary judgment motions on the pleading sanctions and discovery there was a motion he was free to make but it's as if he was seeking the court's indication when he wrote the letter saying i'd like a motion schedule to make this motion and judge fail issue the order january twenty eighth two thousand and sixteen saying i'm denying you permission to make a motion what what counsel could have done i believe is just write a letter to the judge failer citing say iseman versus green two or four f thirty three ninety three or richardson green shields versus a twenty five x second six forty seven which says district courts can't really deny that against the right to make a motion except except under extraordinary circumstances and he simply said that i submit the court would have probably set  motion schedule but we all can pretty much tell from the conversation the orders that came out that counsel probably knows what the result of such a motion would have been the motion would have been denied so he immediately took an  interlocutory appeal here with the hopes that he could revisit not just that issue of lifting the stay with respect to the other paintings but also this issue of the extension doctrine which should not be before this court on an interlocutory basis right now  if he was going to file a motion to revisit that issue that needed to be done by a notice of appeal filed thirty days after the april order now i will go for it as you know is h w that where that where the practical effect of refusing an injunction is such that there could be interlock atory review so why doesn't the district courts and i believe to file a motion to modify the injunction or request a new injunction have the same practical effect i believe under the court's authority here of  the mulligan law firm five ninety four f third one one three this court would evaluate whether or not a twelve ninety two interlocutory appeal is appropriate under certain tests and that being whether or not the interlock attempts to modify the injunction taking your argument your honor was given was an attempt to give or aid in giving substantive relief sought in the lawsuit my point is what counsel was seeking to do even if i accept what you're saying to revisit the injunction let's remember what he was trying to revisit was the lift of the stay with respect to the other paintings not the enter plea to property because we're little getting the interplay to property or what council calls the levy property already he's seeking to lift t stay with respect to the other paintings and such relief would not give or aid in giving the substantive relief sought in the case in the district to wit ownership of the property in the possession of dany so i ask you th question that i ask your your adversary is their jurisdiction over the levy property until there is an affirmative finding that the property doesn't belong to the the judgment direct debtor or does there have to be some kind of finding that the property does belong to the judgment debtor to assume jurisdiction i think it depends on the context in which it is the jurisdiction question is posed when it comes to a state court turnover proceeding where a judgment creditor is seeking to seize i always use the example if you're seeking to seize my car if my my colleague mr shapiro owns that car or it's really his then the court can seize jurisdiction over it but on a federal interplay her where there every enter pleader is a question of ownership your honor that's what into pleaders are about so of course a federal court in a federal interim leader would have to exercise jurisdiction over that property to determine competing interest that at the moment i can't cite off the top of my head a case that i have not found a case admittedly that compares a parallel action where we have a federal into pleader like this and a state court turn over i believe the best case for the authority of this court was judge sand's to pay the decision which cited in our in our paper citi group k l c c vs citi group i think judge sand's reasoning there was spot on and judge faile adopted it with respect to the issue of why the federal into fleeter could proceed because there was a question about ownership in the federal state court proceeding how would you respond to the view the argument for certain th district court abused its discretion in denying duran leave to to file a motion to enjoin the republic because that motion requested new relief that the district court never considered in joining the republic from engaging in litigation abroad well the i submit that the district court under twenty three sixty one there is no authority for the district court to enjoin the republic from litigating abroad because it's in the state courts or in this in the state courts were federal courts of this country so i don't believe that that was an issue that could ever be determined by by the court well that's that's the your all time it view question is whether it's for the district court to make that decision right rect and i believe that counsel can make a motion today on his attempt to modify the the  if that's what he wants to do and i think that he does have the law of this circuit does permit him to make that motion and at that point we would fully brief it in argue it and determine what the outcome would be but at this point all we have are two single three page single space letter briefs that went back to my back and forth to counsel i think when you look at the full context of counsel's brief in the arguments that are made here it was an opportunity to come here to revisit the ultimate issue of the extension doctrine analysis in the pri exclusive jurisdiction even the questions presented his first one is that issue not the denial of an opportunity to make a motion for any further questions thank you and mr murphy represents the republic the republic is the perpetrator of the abuses against my client and it's simply unseemly that the class cannot pursue  collect a judgment against him out of marcos when the republic doesn't even have a judgment and it is now apparently decided it cannot prevail given some of the defenses that i pointed out statute of limitations among them so it's gone into its own court and it's seeking a forfeiture order and presumably it will then come the united saying say see this all belongs to us anyway and it's just too bad the class of human rights victims who are mostly impoverished can't seem to recover on their judgment but that's just too bad i think i'll leave you with that thank you thank you both for your arguments the reserve decision the clerk will journey court thank you