* Judge John Gleeson, of the United States District Court for the Eastern District of New York, sitting by designation. 11-4248-cv(L) NML Capital, Ltd. v. Republic of Argentina, et al.
**UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 

**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C** **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,** **A PARTY MUST CITE EITHER THE F** **EDERAL A** **PPENDIX OR AN ELECTRONIC DATABASE**  **( WITH THE NOTATION**  **“ SUMMARY ORDER** **”). A**  **PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL**  **.** At a stated term of the United States Court of Appeals 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 20 thday of September, two thousand twelve. 4 5 PRESENT: BARRINGTON D. PARKER, 6 RICHARD C. WESLEY, 7 Circuit Judges 8 JOHN GLEESON, * 9 District Judge. 10 11 12 13 NML CAPITAL, LTD., 11-4248-cv (L) 14 11-4250-cv (Con) 15 Plaintiff-Appellant , 11-4252-cv (Con) 16 11-4257-cv (Con) 17 v. 11-4272-cv (Con) 18 11-4273-cv (Con) 19 THE REPUBLIC OF ARGENTINA, 11-4280-cv (Con) 20 11-4281-cv (Con) 21 Defendant-Appellee 11-4284-cv (Con) 22 11-4285-cv (Con) 23 11-4286-cv (Con) 24 25 EMPRESA ARGENTINA DE SOLUCIONES SATELITALES, S.A. 26 27 Interested Non-Party-Appellee 28 29 302 FOR APPELLANT: MATTHEW D. MCGILL, Gibson, Dunn & 1 Crutcher LLP, Washington D.C. (Theodore 2 B. Olson, Gibson, Dunn & Crutcher, 3 Washington D.C.; Robert A. Cohen, Dennis 4 H. Hranitzky, Eric C. Kirsh, Dechert LLP, 5 New York, NY, on the brief ). 6 7 8 FOR APPELLEE: JONATHAN I. BLACKMAN (Carmine Boccuzzi, 9 on the brief ), Cleary Gottlieb Steen & 10 Hamilton LLP, New York, NY. 11 12 FOR INTERESTED STEVEN M. HECHT, (Kevin M. Brennan, on 13 NON-PARTY- the brief ), Lowenstein Sandler PC, New 14 APPELLEE: York, NY. 15 16 17 18 Appeal from the United States District Court for the 19 Southern District of New York (Griesa J. ). 20 21 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 22

**AND DECREED**that this appeal is **DISMISSED** as**MOOT** and the 23 judgment of the United States District Court for the 24 Southern District of New York is **VACATED** . The case is 25

**REMANDED** to the district court with directions to **DISMISS** 26 NML’s motion to confirm and the Republic’s and AR-SAT’s 27 cross-motion to vacate the attachment. 28 Plaintiff-Appellant NML Capital, Ltd (“NML”) appeals 29 from the opinion of the United States District Court for the 30 Southern District of New York (Griesa, J .), denying NML’s 31 motion for confirmation of an order of attachment and 32 granting the cross-motion of Defendant-Appellee Republic of 333 Argentina (“Republic”) and Interested Non-Party-Appellee 1 Empresa Argentina de Soluciones Satelitales, S.A. (“AR-SAT”) 2 to vacate the attachment. NML moved for reconsideration, 3 and the district court ordered a hearing on the motion. 4 Prior to that hearing, the property was removed from the 5 country. We assume the parties’ familiarity with the 6 underlying facts, the procedural history, and the issues 7 presented for review. 8 An appeal becomes moot “when the issues presented are 9 no longer ‘live’ or the parties lack a legally cognizable 10 interest in the outcome.” Murphy v. Hunt , 455 U.S. 478, 481 11 (1982) (per curiam) (internal quotation marks omitted). 12 Mootness defeats subject matter jurisdiction, and thus is a 13 defect that cannot be waived. Fox v. Bd. of Trs. of State 14 Univ. of N.Y. , 42 F.3d 135, 140 (2d Cir. 1994). Here, the 15 property that NML sought to attach is no longer attachable; 16 it was removed from the country. Accordingly, this case no 17 longer “admit[s] of specific relief through a decree of a 18 conclusive character.” Preiser v. Newkirk , 422 U.S. 395, 19 401 (1975) (internal quotation marks omitted). In the words 20 of the district court at oral argument on NML’s motion for 21 reconsideration, “the relief which might be granted would be 224 the reinstatement of the attachment, but now there is 1 nothing to attach.” (JA 1591.) Because NML cannot get any 2 specific relief from this appeal, the case is moot and this 3 Court lacks jurisdiction to address its merits. Any 4 decision from this Court as to the underlying merits of the 5 attachment would amount to nothing more than an advisory 6 opinion. 7 The standard disposition when a federal civil case 8 becomes moot while on appeal is to vacate the judgment of 9 the district court and remand with a direction to dismiss 10 the case. U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship , 11 513 U.S. 18, 22 (1994); United States v. Munsingwear, Inc. , 12 340 U.S. 36, 39 & n.2 (1950). “The rationale is that a 13 judgment from which litigants have the right of appeal 14 should not be accorded preclusive effect when events beyond 15 their control prevent them from exercising that right.” 16 Penguin Books USA Inc. v. Walsh , 929 F.2d 69, 73 (2d Cir. 17 1991). This is especially true when the winning party below 18 voluntarily moots the case. See id. Indeed, “when actions 19 of winning litigants serve to deny their adversaries the 20 opportunity to appeal[,] . . . it may amount to an abuse of 21 discretion not to vacate the lower court order.” Id. In 225 other words, “vacatur must be granted where mootness results 1 from the unilateral action of the party who prevailed in the 2 lower court.” U.S. Bancorp , 513 U.S. at 23. “Were it 3 otherwise, appellees could deliberately moot cases on 4 appeal, thereby shielding erroneous decisions from reversal. 5 Approval of such a strategy would render the bizarre result 6 that judgments mooted on appeal would have greater 7 preclusive effect than cases susceptible to review.” 8 Penguin Books, 929 F.2d at 73 (internal citations omitted). 9 Because AR-SAT mooted this case pending appeal by 10 intentionally removing from the country the satellite parts 11 sought to be attached, the appropriate disposition is to 12 vacate the district court’s judgment and remand with 13 instructions to dismiss the case. 14 AR-SAT and the Republic attempt to avoid this result on 15 three grounds. First, they contend that this case fits 16 within the narrow “capable of repetition, yet evading 17 review” exception to the mootness doctrine. We disagree. 18 The challenged action in this case is not inherently too 19 short in duration to permit review. See, e.g. , Fox, 42 F.3d 20 at 143. Even if AR-SAT satisfied the “capable of 21 repetition” prong by showing a “demonstrated probability 226 that the same controversy will recur involving the same 1 complaining party,” Murphy, 455 U.S. at 482 (internal 2 quotation marks omitted), the attachment action would evade 3 review only to the extent that AR-SAT again voluntarily 4 removed the subject property from the jurisdiction. This is 5 not an intrinsic limit on the duration of the live 6 controversy. 7 Second, AR-SAT and the Republic argue that NML has 8 waived its right to vacatur by failing to seek a stay of the 9 district court’s order pending reconsideration and appeal. 10 This argument is misplaced. The Supreme Court has 11 recognized that vacatur is not justified where “the party 12 seeking relief from the judgment below caused the mootness 13 by voluntary action.” U.S. Bancorp , 513 U.S. at 24. For 14 example, when a losing party settles with its adversary 15 before the resolution of the appeal, it has “voluntarily 16 forfeited [its] legal remedy . . . of appeal.” Id. at 25. 17 In such a situation, the party “surrender[s] [its] claim to 18 the equitable remedy of vacatur” because “[t]he judgment is 19 not unreviewable, but simply unreviewed by [its] own 20 choice.” Id. 21
227 AR-SAT and the Republic urge the Court to conclude that 1 NML surrendered its claim to vacatur because it voluntarily 2 forfeited its right to appeal by failing to seek a stay of 3 the district court’s order pending appeal. This is not the 4 kind of voluntary forfeiture the Supreme Court had in mind. 5 NML has continuously pursued its rights in this case by 6 timely appealing and timely moving for reconsideration of 7 the district court’s order. The voluntary action that 8 prevented review on appeal was AR-SAT’s removal of the 9 property–not NML’s failure to seek a stay to prevent AR-SAT 10 from removing the property. While courts have recognized 11 that a party waives its right to vacatur for failing to 12 appeal or to follow statutory obligations in pursuit of an 13 appeal, see U.S. Bancorp , 513 U.S. at 24-25; Mahoney v. 14 Babbitt , 113 F.3d 219, 221-22 (D.C. Cir. 1997); In re Motors 15 Liquidation Co. , No. 09-CIV-7794, 2010 WL 3565494, at *2-3 16 (S.D.N.Y. Sept. 10, 2010), this Court has never held that a 17 party forfeits its right to vacatur of an order simply by 18 failing to file a motion to stay the effect of that order 19 while timely pursuing reconsideration and appeal. 20 Finally, AR-SAT and the Republic ask us to affirm the 21 order of the district court because the order still has 228 great “practical significance” and AR-SAT would like to 1 “invoke the court’s decision in the future.” This argument 2 highlights the very reason why vacatur is the appropriate 3 result in this case. Only final judgments are accorded 4 preclusive effect. Arizona v. California , 530 U.S. 392, 414 5 (2000), supplemented , 531 U.S. 1 (2000). Where a party is 6 frustrated from seeking review of an adverse ruling, that 7 party “ought not in fairness be forced to acquiesce in the 8 judgment.” U.S. v. Bancorp , 513 U.S. at 25. Vacating the 9 judgment below properly “clears the path for future 10 relitigation of the issues between the parties.” 11 Munsingwear , 340 U.S. at 40. 12 Accordingly, because the voluntary actions of the 13 winning party below have prevented this Court from reviewing 14 the merits of the district court’s decision, vacatur of the 15 lower court’s judgment is the appropriate remedy in this 16

case. 17 We have considered the Republic and AR-SAT’s remaining 18 arguments and, after a thorough review of the record, find 19 them to be without merit. 20 For the foregoing reasons, the appeal is **DISMISSED** as 21

**MOOT** , and the district court judgment is hereby **VACATED**

. 229 The case is **REMANDED** to the district court with directions 1

to **DISMISS** NML’s motion to confirm and the Republic’s and 2 AR-SAT’s cross-motion to vacate the attachment. 3
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6 7 8