v.
TELEFONICA LARGA DISTANCIA DE PUERTO RICO, INC.; MCI International, Inc.; et al., Garnishees-Appellants.
No. 99-10225.
United States Court of Appeals,
Eleventh Circuit.
Aug. 11, 1999.
Appeal from the United States District Court for the Southern District of Florida. (Nos. 96-10126-CV-JLK, 96-10127-CV-JLK, 96-10128-CV-JLK), James Lawrence King, Judge.
Before TJOFLAT and DUBINA, Circuit Judges, and O'KELLEY*, Senior U.S. District Judge.
TJOFLAT, Circuit Judge:
In this garnishment action, the district court permitted the plaintiffs to collect a portion of their judgments against the Republic of Cuba (the "Cuban Government") and the Cuban Air Force by garnishing certain debts owed to a Cuban telecommunications company. Because we conclude that this company is an entity separate from the Cuban Government, we vacate the judgment of the district court and remand this case with instructions to dissolve the writs of garnishment.
I.
This case grows out of a decision by the Cuban Government, carried out by pilots of the Cuban Air
Force, to shoot down two unarmed civilian airplanes over international waters on February 24, 1996. Three citizens of the United States and one non-citizen were killed in the attack. On October 31, 1997, the personal representatives of the estates of the three citizens, plaintiffs herein, brought actions in the United States
District Court for the Southern District of Florida seeking monetary damages from the Cuban Government and the Cuban Air Force. Although neither defendant entered an appearance, the district court conducted a
* Honorable William C. O'Kelley, Senior U.S. District Judge for the Northern District of Georgia, sitting by designation. trial in order to determine whether the plaintiffs had satisfactory evidence to support their claims. See 28
U.S.C. § 1608(e) (1994) (prohibiting default judgment against foreign sovereign unless plaintiff establishes claim "by evidence satisfactory to the court").
On December 17, 1997, the district court entered judgment for the plaintiffs and awarded them compensatory damages of $49,927,911 against the Cuban Government and Cuban Air Force, as well as
punitive damages of $137,700,000 against the Cuban Air Force alone.[1] See Alejandre v. Republic of Cuba, 996 F.Supp. 1239, 1253-54 (S.D.Fla.1997) [hereinafter Alejandre I ]. In an opinion accompanying the judgment, the court found that the defendants were not immune from the plaintiffs' suits because the Cuban
Air Force (as an agent of the terrorist-sponsoring Cuban Government) had committed an act of extrajudicial killing by shooting down the airplanes. See 28 U.S.C. § 1605(a)(7) (Supp. II 1996); Alejandre I, 996 F.Supp. at 1247-48. The court also concluded that the defendants were substantively liable to the plaintiffs, under a theory of respondeat superior, for the actions of the Cuban Air Force pilots who shot down the airplanes.
See Pub.L. No. 104-208, § 589, 110 Stat. 3009-172 (codified at 28 U.S.C.A. § 1605 note (West Supp.1999));
28 U.S.C.A. § 1606 (West Supp.1999) (providing that a non-immune foreign state "shall be liable in the same manner and to the same extent as a private individual under like circumstances"); Alejandre I, 996 F.Supp.
[*1278]at 1249.
In an effort to collect a portion of this judgment against the Cuban Government and the Cuban Air
Force, the plaintiffs filed a motion pursuant to Fed.R.Civ.P. 69(a)2 and Fla. Stat. ch. 77.03 (1997) requesting that post-judgment writs of garnishment be issued to the following companies (the "garnishees"): AT&T
Corp.; AT&T of Puerto Rico, Inc.; Global One Communications, L.L.C.; IDB WorldCom Services, Inc.;
MCI International, Inc.; Telefonica Larga Distancia de Puerto Rico, Inc. ("TLD"); WilTel, Inc.; WorldCom, Inc. (collectively, the "carrier garnishees" or the "carriers"); the Chase Manhattan Corporation and its
subsidiaries; and Citigroup Inc. and its subsidiaries. On December 9, 1998, the district court granted the motion and directed the clerk to issue the requested writs. Each writ asked the garnishee to serve an answer stating whether it was indebted to "the Cuban Air Force or the Republic of Cuba (including any of its
agencies, entities, or instrumentalities), ... and in what sum."3 The garnishees answered the writs by stating, inter alia, that they were indebted to Empresa de Telecomunicaciones de Cuba, S.A. ("ETECSA").4 They also claimed that their debts to ETECSA were not subject to garnishment for several reasons, including: (1)
[*1279]that ETECSA was a separate entity not responsible for the debts of the Cuban Government; and (2) that the writs were void because the plaintiffs had failed to get a license to garnish ETECSA's property as required by the Cuban Assets Control Regulations ("CACR"), 31 C.F.R. pt. 515 (1998). See 31 C.F.R. § 515.203(e)
(1998). The plaintiffs replied by denying the garnishees' claims and by affirmatively asserting that any indebtedness owed to ETECSA constituted an indebtedness to the Cuban Government.
On February 4, 1999, the carrier garnishees filed a joint motion to dissolve the plaintiffs' writs of garnishment pursuant to Fla. Stat. ch. 77.07(2) (1997).5 ETECSA, which had been served with a notice of garnishment as required by Fla. Stat ch. 77.055 (1997), filed a similar motion to dissolve on February 8.
These motions asked the court to dissolve the writs on several grounds, including those raised in the garnishees' answers. The district court conducted a bench trial on these motions and on the garnishment pleadings.6 Rather than calling witnesses, all parties provided the court with factual background information through affidavits.
These affidavits contained the following relevant information regarding the relationship among
ETECSA, the Cuban Government, and the carriers. Prior to a transition period that began in August 1994, the telephone system in Cuba was operated by Empresa de Telecomunicaciones de Cuba ("EMTELCUBA"), a wholly-owned alter ego of the Cuban Government's Ministry of Communications.[7] Between March and September 1994, all of the carriers except TLD and AT & T of Puerto Rico signed Operating Agreements with EMTELCUBA to provide international telecommunications services between Cuba and the United
[*1280]States. In November 1994, the Department of the Treasury's Office of Foreign Assets Control ("OFAC") granted these carriers licenses under the CACR that permitted them to make payments to EMTELCUBA as
required by the Operating Agreements. See 22 U.S.C.A. § 6004(e)(3)(A) (West Supp.1999) (authorizing the issuance of such licenses); 31 C.F.R. §§ 515.418(a), 515.542(c) (1998) (implementing this authorization).
[*1281]Each license provided, in pertinent part:
All necessary transactions are hereby authorized incident to the execution and performance of the Operating Agreement [the carrier] has negotiated with Empresa de Telecomunicaciones de Cuba ("EMTELCUBA") for the provision of telecommunications service between the United States and Cuba.
This license authorizes all necessary transactions in connection with the transfer to Cuba of funds representing Cuba's share of compensation due for its portion of the jointly provided international telecommunications service....
Meanwhile, on June 28, 1994, ETECSA was incorporated as a mixed enterprise under the provisions of a 1982 Cuban law. ETECSA's stock was held by the following entities at the time of trial: 51% by
Telefonica Antillana, S.A. (a Cuban company); 6.68% by Banco Financiero Internacional, S.A. (a Cuban company); 1% by Banco Internacional de Comercia, S.A. (a Cuban company); 29.29% by STET
International Netherlands N.V. (a Dutch subsidiary of the publicly-owned company Telecom Italia S.p.A.); and 12.03% by Universal Trade and Management Corporation (a Panamanian company). The three Cuban companies, which together held 58.68% of ETECSA's stock, are apparently owned or controlled by the Cuban
Government.[8] On August 17, the Executive Committee of the Cuban Council of Ministers granted ETECSA an administrative concession to render public telecommunications services in Cuba. Under the terms of this concession, ETECSA was granted the exclusive right to supply national and international telephone and data transmission services for twelve years.
One result of this exclusive concession was that, between January and April 1995, each of the carriers that had an Operating Agreement with EMTELCUBA signed a document entitled "Amendment to Transfer
Rights and Obligations." Each document, which EMTELCUBA and ETECSA also signed, stated that the signatories agreed to transfer all rights, obligations, and interests of EMTELCUBA under the Operating
Agreements to ETECSA. They also agreed to release EMTELCUBA from any future rights, obligations, and interests under the Agreements. ETECSA subsequently negotiated additional Operating Agreements with
TLD and AT&T of Puerto Rico; these two carriers received licenses from OFAC that permitted them to make payments to ETECSA9 under the Agreements. These Operating Agreements (whether transferred from
[*1282]EMTELCUBA or negotiated by ETECSA itself) were the source of the carriers' indebtedness to ETECSA.
After reviewing this factual information and holding a hearing on February 16, 1999, the district court issued an opinion disposing of the motions to dissolve and the issues raised by the garnishment pleadings.
See Alejandre v. Republic of Cuba, 42 F.Supp.2d 1317 (S.D.Fla.1999) [hereinafter Alejandre II ]. As an
initial matter, the court concluded that the carriers' debts were owed to ETECSA (rather than directly to the Cuban Government itself) and that the Cuban Government's control over ETECSA was insufficient to render
ETECSA responsible for the Government's debt to the plaintiffs. See id. at 1334-39. Nevertheless, the court held ETECSA responsible for the Government's debt on the ground that a contrary holding would unjustly
prevent the plaintiffs from collecting their judgment and would override the legislative policy in favor of broadening the assets that may be executed upon to compensate victims of terrorist attacks. See id. at 1339.
The court also held that 28 U.S.C.A. § 1610(f)(1)(A) (West Supp.1999), which the President had not waived, permitted the plaintiffs to garnish amounts owed ETECSA without first obtaining a license under the CACR.
See id. at 1327-34.10 Therefore, the court denied the motions to dissolve and ordered that all amounts owed
ETECSA in the possession or control of the garnishees be garnished in aid of execution of the plaintiffs' judgment against the Cuban Government. See id. at 1343. This appeal followed.
II.
The central question that we must answer on appeal is whether ETECSA is an entity separate from the Cuban Government, and therefore not responsible for the Government's debt to the plaintiffs. Our review of the district court's decision to hold ETECSA responsible for this debt is guided both by the Foreign
[*1283]Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602-11 (1994), and by principles of Florida garnishment law.
A.
1.
The FSIA is the exclusive source of subject matter jurisdiction over all civil actions against foreign
states. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434-35, 109 S.Ct. 683, 688, 102 L.Ed.2d 818 (1989); Hercaire Int'l, Inc. v. Argentina, 821 F.2d 559, 563 (11th Cir.1987). Under section
1604 of the FSIA,11 a foreign state is immune from the jurisdiction of federal or state courts unless one of the statutory exceptions to immunity applies. See 28 U.S.C. §§ 1605, 1607 (1994) (listing the exceptions); see also 28 U.S.C. § 1330(a) (1994) (granting district court jurisdiction over civil action against non-immune foreign state). In addition, section 1609 renders the property in the United States of a foreign state immune from execution or attachment (including garnishment12) unless sections 1610-11 provide otherwise. Because
section 1603(a) declares that the term "foreign state" includes an agency or instrumentality of a foreign state
as defined in section 1603(b), such agencies and instrumentalities also enjoy immunity from suit and execution. The district court found that ETECSA was a government instrumentality because the Cuban
Government owned or controlled the companies that held a majority of ETECSA's stock. See 28 U.S.C. §
1603(b)(2) (1994); Alejandre II, 42 F.Supp.2d at 1336. This ruling is not challenged on appeal. ETECSA's property in the United States is therefore immune from garnishment unless an exception applies.13 The exception upon which the plaintiffs relied below is 28 U.S.C. § 1610(a)(7) (West Supp.1999),14 which provides:
[*1284]The property in the United States of a foreign state, ... used for a commercial activity in the United States, shall not be immune from attachment in aid of execution ... upon a judgment entered by a court of the United States ... [if] the judgment relates to a claim for which the foreign state is not immune under section 1605(a)(7), regardless of whether the property is or was involved with the act upon which the claim is based.
The last requirement of this exception is clearly met here, as the plaintiffs' underlying judgment against the Cuban Government related to a claim from which the Government was not immune by virtue of section
1605(a)(7). Thus, assuming arguendo that the amounts owed to ETECSA are property in the United States used for a commercial activity therein,15 these amounts are not immune from garnishment if ETECSA
constitutes a "foreign state" for purposes of this exception. This question might appear to be easily answered:
ETECSA is an instrumentality as defined by section 1603(b), and section 1603(a) declares that the term
"foreign state" under the FSIA includes an instrumentality, so ETECSA is a "foreign state" under section
1610(a)(7). The Supreme Court's decision in First National City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983) [hereinafter Bancec ], however, teaches that things are not that simple.[16]
[*1285]According to Bancec, "[t]he language and history of the FSIA clearly establish that the Act was not
intended to affect the substantive law determining the liability of a foreign state or instrumentality, or the attribution of liability among instrumentalities of a foreign state." Id. at 620, 103 S.Ct. at 2597. Instead, government instrumentalities enjoy a presumption of separate juridical status vis-a-vis the foreign government to which they are related. While Bancec applied this presumption for purposes of determining whether an instrumentality could be held substantively liable for the debts of its related foreign government, subsequent decisions have also applied it in determining whether an exception to immunity that applies to the government may be attributed to the instrumentality as well. See id. at 613, 103 S.Ct. at 2593 (considering whether
Citibank could set off value of branches nationalized by Cuban Government against amount Citibank owed to presumptively separate Cuban instrumentality); Hercaire, 821 F.2d at 564-65 (considering whether waiver
of immunity by foreign government also operated to deprive presumptively separate instrumentality of immunity).17 We must consider, therefore, whether this presumption may be overcome in order to make
ETECSA's assets the property of a "foreign state" (i.e., the property of the Cuban Government), thus rendering the exception to immunity in section 1610(a)(7) applicable to ETECSA and making ETECSA substantively liable for the Government's debt to the plaintiffs. See Letelier v. Republic of Chile, 748 F.2d
[*1286]790, 793 (2d Cir.1984).
In Bancec, the Supreme Court highlighted two situations in which a plaintiff may overcome the presumption of separate juridical status enjoyed by an instrumentality. First, when a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created, the Court observed that one may be held liable for the actions of the other.[18] Second, the Court recognized the broader equitable
principle that the doctrine of corporate entity will not be regarded where to do so would work fraud or injustice or defeat overriding public policies. See Bancec, 462 U.S. at 629-630, 103 S.Ct. at 2601-02. In either situation, the plaintiff bears the burden of proving that the instrumentality is not entitled to separate recognition. See Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 447 (D.C.Cir.1990);
Letelier, 748 F.2d at 795.19
2.
These principles of foreign sovereign immunity provide much of the context necessary for our review of the district court's decision. Given the procedural posture of this case, however, we must also be guided by relevant principles of Florida garnishment law. See Fed.R.Civ.P. 69(a); Buck Creek Indus., Inc. v. Alcon Constr., Inc., 631 F.2d 75, 76 (5th Cir.1980).20
[*1287]In their replies to the garnishees' answers, the plaintiffs asserted that the amounts owed by the garnishees to ETECSA were subject to garnishment on the ground that any indebtedness owed to ETECSA constituted an indebtedness to the Cuban Government. We interpret this assertion as a claim that ETECSA is an alter ego of the Cuban Government. Under Florida law, when a plaintiff (judgment creditor) seeks to garnish a debt owed to an entity that was not a party to the underlying judgment on the ground that the entity is an alter ego of the judgment debtor, the plaintiff bears the burden of demonstrating the alter ego relationship. See Live Supply, Inc. v. C&S Plumbing, Inc., 402 So.2d 505, 506-07 (Fla. 4th DCA 1981);21
Reeves v. Don L. Tullis & Assocs., 305 So.2d 813, 815 (Fla. 1st DCA 1975) (placing burden on plaintiff to prove truth of allegation made in reply to garnishee's answer). This burden is consonant with the burden faced by a plaintiff who seeks to overcome an instrumentality's presumptively separate juridical status on the ground that the first situation mentioned by the Bancec Court applies. See supra note 18.
[*1288]In order to determine whether the plaintiffs carried their burden in this case, we must assess their arguments from the perspective of the Cuban Government. Florida law provides that when a plaintiff holding a judgment serves a writ of garnishment upon a garnishee, the plaintiff steps into the shoes of the judgment debtor and can assert only the rights that the judgment debtor could have asserted against the garnishee. See
Hughes Supply, Inc. v. A.C. Elec. Corp., 145 F.R.D. 590, 593 (M.D.Fla.1993); Reeves, 305 So.2d at 815-16.
Thus, if a contractual debtor-creditor relationship between the garnishee and the judgment debtor is
terminated by a non-fraudulent novation that obligates the garnishee to a third party and eliminates the judgment debtor as a party to the contract, the plaintiff has no right to garnish sums owed by the garnishee to the third party. See id. at 816.
B.
1.
With these principles in mind, we consider the district court's decision to hold ETECSA responsible for the Cuban Government's debt to the plaintiffs. The court disregarded the presumptively separate juridical status of ETECSA by invoking the second situation mentioned in Bancec: that the corporate entity will not be regarded where to do so would work fraud or injustice or defeat overriding public policies. The court did not rely upon the fraud element of this rule, and indeed there appears to be no evidence in the record that would support a finding of fraud. For example, the plaintiffs made no showing that the apparent novation
that transferred the rights and obligations of EMTELCUBA (an alter ego responsible for the debts of the Cuban Government, see supra note 7) under the Operating Agreements to ETECSA was entered into for the purpose of insulating payments made under those Agreements from garnishment by the Cuban Government's
creditors. Instead, the court rested its decision on concerns about injustice and public policy. The core of the court's legal rationale was that failing to disregard ETECSA's separate status "not only would prevent [the plaintiffs] from collecting their court-ordered final judgment for the victims of a grave violation of international law, but also would override the clear legislative policy against such terrorist attacks and in favor of broadening the property which may be executed [upon] to compensate for them." Alejandre II, 42
[*1289]F.Supp.2d at 1339. In particular, the court concluded that 28 U.S.C. § 1610(f)(1)(A) constituted an "express[
] legislative commitment to subject the property of a government instrumentality to attachment or execution to satisfy a judgment against [a] terrorist foreign state." Id.
Upon reviewing this rationale de novo, we conclude that it is not a sufficient basis for overcoming
the presumption of separate juridical status that ETECSA enjoys. While the district court's concern about the injustice of preventing plaintiffs from collecting their judgment is understandable,22 this concern is present in every case in which a plaintiff seeks to hold an instrumentality responsible for the debts of its related government. Allowing the Bancec presumption of separate juridical status to be so easily overcome would effectively render it a nullity. We recognize that the district court made an effort to distinguish this case based upon the gravity of the underlying violation of international law. Given the absence of any evidence
that ETECSA was involved in the violation, however, we fail to see how this distinction is relevant to the question of whether ETECSA's separate juridical status should be overcome.
With regard to the district court's public policy concerns, we agree that recent enactments evince a congressional policy against terrorist attacks and in favor of making additional property of governments that
sponsor terrorism (such as Cuba) available to compensate victims of such attacks. We disagree, however, with the district court's conclusion that Congress—in section 1610(f)(1)(A)—took the further step of overriding the Bancec presumption of separate juridical status by making instrumentalities responsible for the debts of their related terrorist-sponsoring governments.[23] Section 1610(f)(1)(A) provides:
[*1290]Notwithstanding any other provision of law, ... any property with respect to which financial transactions are prohibited or regulated pursuant to [certain statutes, including those authorizing the CACR,24] ... [or any] license issued pursuant thereto, shall be subject to execution or attachment in aid of execution of any judgment relating to a claim for which a foreign state (including any agency or instrumentality of such state) claiming such property is not immune under section 1605(a)(7).
The effect of this section is not to subject property claimed by the instrumentality ETECSA to execution in order to satisfy the plaintiffs' judgment against the Cuban Government, but to allow the plaintiffs to execute upon property claimed by the Government itself in order to satisfy their judgment (which relates to a claim from which the Government was not immune by virtue of section 1605(a)(7)) without first obtaining a license under the CACR. See 31 C.F.R. § 515.203(e). Congress has previously demonstrated in the FSIA context
that it knows how to express clearly an intent to make instrumentalities substantively liable for the debts of their related foreign governments.25 Absent such a clear expression, which does not appear in section 1610(f)(1)(A),26 we see no reason to interpret that section as contravening Congress' original understanding
[*1291]that the FSIA "[is] not intended to affect the substantive law determining the liability of a foreign state or instrumentality, or the attribution of liability among instrumentalities of a foreign state." Bancec, 462 U.S. at 620, 103 S.Ct. at 2597.
2.
Having concluded that the district court erroneously disregarded ETECSA's separate juridical status
on the ground that the second situation mentioned in Bancec applied, we turn to the question of whether the plaintiffs may instead overcome ETECSA's separate status under the first Bancec situation—that is, whether the plaintiffs carried their burden under Florida law of proving the alter ego relationship between the Cuban
Government and ETECSA. After considering the affidavits submitted by the parties, the district court held that the plaintiffs had not carried their burden. See Alejandre II, 42 F.Supp.2d at 1339 ("Although their relationship may bear some similarities to that between a principal and an agent, the Court does not conclude that the relationship between the Government of Cuba and ETECSA is so similar that the [Bancec ] presumption of independent juridical status is overcome."). We agree. Indeed, when the situation is viewed from the perspective of the Cuban Government (in whose shoes the plaintiffs stand), it would be difficult to come to any other conclusion.
Suppose, for example, that the Cuban Government sued AT&T Corp. on the ground that AT&T had failed to pay it (through EMTELCUBA, its alter ego) certain sums that allegedly became due under the Operating Agreement in 1996. AT&T surely would defend on the ground that while it would have owed such sums to the Government had they become due in 1994, the Government no longer had any right to the sums
[*1292]because ETECSA succeeded to EMTELCUBA's rights and obligations under the Operating Agreement in early 1995. In order to prevail, then, the Government would have the burden of convincing the court to swallow the argument that the substitution of ETECSA for EMTELCUBA under the Agreement had been a purposeless and ineffectual act by which the Government merely changed its name to "ETECSA" while remaining the real party in interest. The plaintiffs face exactly the same burden in this case, and we find that this argument is too difficult to digest.
Nevertheless, the plaintiffs contend that we must conclude, as a matter of law, that ETECSA is an alter ego of the Cuban Government because ETECSA receives payments from the carriers under the OFAC
licenses.[27] In support of this contention, the plaintiffs point out that the relevant statute authorizes the President to "provide for the issuance of licenses for the full or partial payment to Cuba of amounts due Cuba
as a result of the provision of telecommunications services." 22 U.S.C. § 6004(e)(3)(A). Not surprisingly, the sections of the CACR that implement this statute and the licenses issued by OFAC thereunder include similar language. See 31 C.F.R. §§ 515.418(a), 515.542(c). The plaintiffs argue that these references to
"Cuba" mean that the licenses do not permit the carriers to make payments to any entity other than the Cuban
Government.28 By making and accepting payments under these licenses, therefore, the carriers and ETECSA are supposedly estopped to deny that ETECSA is an alter ego of the Government.
We reject this argument for two reasons. First, while the term "Cuba" is not specifically defined in the statute, the CACR define it to include "any political subdivision, agency, or instrumentality thereof." 31
[*1293]C.F.R. § 515.301 (1998) (defining "foreign country"); see also 31 C.F.R. § 515.201(d) (1998) (stating that
the term "designated foreign country" means Cuba). Thus, the garnishees' payments to "Cuba" under the licenses could be lawfully made to the separate instrumentality ETECSA rather than to the Cuban
Government itself. In addition, we note that the licenses issued to all of the carriers authorize more than
merely payments to "Cuba"; they also authorize all necessary transactions incident to the performance of the Operating Agreements that the carriers negotiated with EMTELCUBA.[29] Because these Agreements provide that the expression "EMTELCUBA" includes that entity's successors, all necessary transactions with its successor ETECSA are apparently authorized as well.
C.
Finally, the plaintiffs contend on appeal that even if we reject their legal arguments that ETECSA is not a juridical entity separate from the Cuban Government, we must remand this case for discovery regarding the actual relationship between ETECSA and the Government. The plaintiffs argue that such discovery, which they never had an opportunity to seek below, is necessary if they must attempt to prove an alter ego relationship between ETECSA and the Government. We recognize that courts of appeals have not been hesitant to remand for further factual inquiry in an FSIA case after clarifying the legal standards that
govern the case. See, e.g., Walter Fuller Aircraft Sales, Inc. v. Republic of the Philippines, 965 F.2d 1375, 1383 (5th Cir.1992); Foremost-McKesson, 905 F.2d at 448, Gilson v. Republic of Ireland, 682 F.2d 1022, 1029-30 (D.C.Cir.1982). Nevertheless, we conclude that the plaintiffs expressly waived any right to discovery upon remand in this case.
On February 12, 1999, only four days before the district court was scheduled to hold a hearing on the carriers' motion to dissolve the writs of garnishment, the plaintiffs filed a motion to postpone the hearing for nine weeks and to set an expedited schedule for discovery regarding the issues raised by the writs. The carriers opposed this motion on the ground that a nine-week delay in payment of funds to ETECSA could lead to disruption of telecommunications services between the United States and Cuba. At the hearing on
[*1294]February 16, the plaintiffs told the court that they were prepared to go forward and address all of the issues before it. They also stated, however, that they did not "want to withdraw the motion ..., only because we may
want to supplement the record." Later in the hearing, the plaintiffs clarified that "[a]ll we are saying to the court [is that] after the court rules, ... [i]t may be appropriate to supplement the record with certain documents which support the court's ruling and may not even be necessary." The court's response indicated that it
construed these statements to mean that the plaintiffs were withdrawing their motion for discovery30 and moving instead to supplement the record. The court therefore stated that "[y]our motion to supplement the record, if it should be necessary or required, is granted." Following the hearing, the plaintiffs did supplement the record by filing a compilation of materials (including affidavits) with the court.
We agree with the district court's conclusion that the plaintiffs withdrew their motion for discovery.
Therefore, the plaintiffs have waived any right to discovery on remand.
III.
For the foregoing reasons, we VACATE the judgment of the district court and REMAND this case with instructions to dissolve the plaintiffs' writs of garnishment insofar as they seek to garnish amounts owed to ETECSA.
IT IS SO ORDERED.
[*1295]