Petition for Writ of Certiorari — Euclides Bartolome Bugliotti, et al., Petitioners v. Republic of Argentina
Supreme Court briefJul 1, 2026
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No.
In the
Supreme Court of the United States
EUCLIDES BARTOLOME BUGLIOTTI,
MARIA CRISTINA DE BIASI, ROXANA INES ROJAS,
DENISE LAURET, MARIA CARLA GONANO,
Petitioners,
v.
THE REPUBLIC OF ARGENTINA,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of A ppeals for the Second Circuit
PETITION FOR A WRIT OF CERTIORARI
Michael C. Spencer
Counsel of Record
100 Garden City Plaza,
Suite 500
Garden City, NY 11530
(212) 594-5300
mspencer@milberg.com
Counsel for Petitioners
394005
(800) 274-3321 • (800) 359-6859
i
QUESTIONS PRESENTED
Argentine holders of defaulted Argentine bonds, in
suing to enforce their bonds in federal court in New York,
invoked the sovereign issuer’s normal waiver of immunity
and consent to jurisdiction contained in its Fiscal Agency
Agreement (FAA) used in issuing the bonds. The holders’
bonds had been placed in an Argentine trust. Their
original enforcement action was dismissed for lack of
standing under an Argentine statute requiring judicial
approval for actions brought by trust beneficiaries instead
of their trustee. The holders immediately obtained judicial
approval and sued again. By that time, the limitation
period on most of their bond claims had run. The court
of appeals held that New York’s “saving” statute did not
extend limitations for these holders on the ground that,
under the Foreign Sovereign Immunities Act (FSIA),
the holders’ lack of standing retroactively voided their
invocation, in their original complaint, of the jurisdictional
consent and waivers contained in the FAA, meaning
jurisdiction had never existed.
1. Whether a plaintiff bondholder’s later-cured lack
of standing under foreign trust law may retroactively
negate a foreign sovereign’s contractual waiver of
immunity and consent to jurisdiction under the FSIA,
thereby extinguishing claims that were timely filed and
continuously litigated under New York law?
2. Whether a federal court of appeals may resolve an
outcome-determinative and unsettled question concerning
the scope of New York’s remedial limitation saving statute
by applying a novel FSIA-based jurisdictional theory
without first obtaining guidance from New York’s highest
court through its available certification procedure?
ii
PARTIES TO THE PROCEEDINGS
Petitioners Euclides Bartolome Bugliotti, Maria
Cristina De Biasi, Roxana Ines Rojas, Denise Lauret,
and Maria Carla Gonano were Plaintiffs-Appellants in
the court below.
Respondent The Republic of Argentina was DefendantAppellee in the court below.
No party is a corporation.
iii
LIST OF RELATED PROCEEDINGS
Bugliotti et al. v. Republic of Argentina, No. 17 Civ.
9934 (LAP), United States District Court for the Southern
District of New York, dismissed and judgment entered,
Jan. 15, 2019.
Bugliotti et al. v. Republic of Argentina, No. 19-379,
United States Court of Appeals for the Second Circuit,
dismissal vacated in part and remanded, Mar. 17, 2020.
Bugliotti et al. v. Republic of Argentina, No. 17 Civ.
9934 (LAP), United States District Court for the Southern
District of New York, dismissed and judgment entered,
Mar. 31, 2021.
Bugliotti et al. v. Republic of Argentina, No. 21-1014,
United States Court of Appeals for the Second Circuit,
affirmed, May 2, 2023.
Bugliotti, Euclides B. and others v. Caja de Valores,
No. 10733/2023, Commercial Court No. 9 of Buenos Aires,
Argentina, judicial authorizations entered, Jun. 21 and
Jul. 17, 2023.
Bugliotti et al. v. Republic of Argentina, No. 23 Civ.
6588 (LAP), United States District Court for the Southern
District of New York, dismissed and judgment entered,
Sep. 30, 2024.
Bugliotti et al. v. Republic of Argentina, No. 242950, United States Court of Appeals for the Second
Circuit, affirmed, Mar. 9, 2026, petition for rehearing and
rehearing en banc denied, Apr. 9, 2026.
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDINGS . . . . . . . . . . . . . . ii
LIST OF RELATED PROCEEDINGS . . . . . . . . . . . . iii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii
CITATIONS OF OPINIONS AND ORDERS . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATUTORY PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 4
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
REASONS FOR GRANTING THE PETITION . . . . . 8
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A. T he Deci sion Below Int roduces a n
Unprecedented Expansion of Foreign
Sovereigns’ Immunities Under the FSIA . . . . . 11
v
Table of Contents
Page
B. T he Decision Below Con f l ict s w ith
Established New York Law Distinguishing
Standing from Jurisdiction in Applying
CPLR § 205(a), Raising Federal-State
Comity Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
C. The T wo Decisions Apply ing CPLR
§ 205(a) Cited by the Second Circuit
Actually Support a Limitation Extension . . . . . 15
D. This Case Involves Basic Legal Ground
Rules Governing the Trillion-Dollar
Foreign Sovereign Bond Market Based
in New York . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
E. This Case Presents an Ideal Vehicle
for Resolution by This Court . . . . . . . . . . . . . . . 18
F.
Alternatively, This Court Should Direct
Certification to the New York Court of
Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
vi
TABLE OF APPENDICES
Page
A P P E N DI X A — O P I N ION O F T H E
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIIT, FILED
MARCH 9, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
A PPEN DI X B — OR DER OF T H E
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT, FILED
APRIL 9, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33a
A PPEN DI X C — M EMOR A N DU M
A ND ORDER OF THE U NIT ED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK,
FILED SEPTEMBER 30, 2024 . . . . . . . . . . . . . . . 35a
A PPENDI X D — J U DGMENT OF THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT, DOCKET
NO. 21-1014, FILED MAY 2, 2023 . . . . . . . . . . . . . 54a
A PPEN DI X E — EXCER P T S OF T H E
DECISION OF COMMERCIAL COURT
NO. 9 OF BUENOS AIRES, ARGENTINA,
DATED JUNE 21, 2023 . . . . . . . . . . . . . . . . . . . . . . 65a
APPENDIX F — STATUTORY PROVISIONS
INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68a
28 U.S.C. § 1605 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68a
vii
Table of Appendices
Page
8 U.S.C. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69a
New York CPLR § 205(a) . . . . . . . . . . . . . . . . . . . . . 70a
New York CPLR § 213 . . . . . . . . . . . . . . . . . . . . . . . . 71a
22 NYCRR § 500.27 . . . . . . . . . . . . . . . . . . . . . . . . . . 72a
A rgentina Civ il and Commercial Code,
Third Book, Article 1689 . . . . . . . . . . . . . . . . . . . . . . 73a
viii
TABLE OF CITED AUTHORITIES
Page
Cases
Allied-Bruce Terminix Cos. v. Dobson,
513 U.S. 265 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Bellotti v. Baird,
428 U.S. 132 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Brown v. Lutheran Medical Ctr.,
939 N.Y.S.2d 817 (Sup. Ct. Kings Co. 2012), aff’d,
107 A.D.3d 837, 968 N.Y.S.2d 526 (2d Dep’t 2013) . . . . 10-13
California Public Employees’ Retirement
System v. ANZ Securities, Inc.,
528 U.S. 497 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Cannellas v. Lentz,
396 F. Supp. 2d 435 (S.D.N.Y. 2005) . . . . . . . . . . . . . 13
Carrick v. Central Gen. Hosp.,
51 N.Y.2d 242, 434 N.Y.S.2d 130,
414 N.E.2d 632 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . 13
Clay v. Sun Insurance Office Ltd.,
363 U.S. 207 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Diffley v. Allied-Signal, Inc.,
921 F.2d 421 (2d Cir. 1990) . . . . . . . . . . . . . . . . . . . . . 13
ix
Cited Authorities
Page
George v. Mt. Sinai Hosp.,
47 N.Y.2d 170, 390 N.E.2d 1156,
417 N.Y.S.2d 231 (1979) . . . . . . . . . . . . . . . . . . . . . 13, 15
Hakala v. Deutsche Bank AG,
343 F.3d 111 (2d Cir. 2003) . . . . . . . . . . . . . . . 10, 16, 17
Matter of Goldstein v.
New York State Urban Dev. Corp.,
13 N.Y.3d 511, 893 N.E.2d 635,
893 N.Y.S.2d 753 (2008) . . . . . . . . . . . . . . . . . . . . 14, 15
Ray v. Ray,
22 F.4th 69 (2d Cir. 2022) . . . . . . . . . . . . . . . . . . . . . . 20
Reliance Ins. Co. v. PolyVision Corp.,
9 N.Y.3d 52, 876 N.E.2d 898,
845 N.Y.S.2d 212 (2006) . . . . . . . . . . . . . . . . . . . . . 9, 15
Reliance Ins. Co. v. PolyVision Corp.,
474 F.3d 54 (2d Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . 20
Virginia v. American Booksellers Ass’n,
484 U.S. 383 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Yonkers Contracting Co., Inc. v.
Port Auth. Trans-Hudson Corp.,
93 N.Y.2d 375, 690 N.Y.S.2d 512,
712 N.E.2d 678 (1999) . . . . . . . . . . . . . . . . . . . . . . 15, 16
x
Cited Authorities
Page
Statutes and Other Authorities
28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
28 U.S.C. § 1605 . . . . . . . . . . . . . . . . . . . 2, 4, 6, 8-12, 15-20
28 U.S.C. § 1605(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16
Arg. Civil and Commercial Code Art. 1689 . . . . . . . . . . 6
Fed. R. Civ. P. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 14
N.Y. Civil Practice Law & Rules § 205 . . . . . . . . . . . . . . 2
N.Y. Civil Practice Law & Rules
§ 205(a) . . . . . . . . . . . . . . . . . . . . 2, 7, 9, 10, 12-17, 19, 20
N.Y. Civil Practice Law & Rules § 213 . . . . . . . . . . . . . . 4
N.Y. Civil Practice Law & Rules § 213(2) . . . . . . . . . . . 16
N.Y. Court of Appeals Rules of Practice, 22 NYCRR
§ 500.27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8
IMF, The International Architecture for Resolving
Sovereign Debt Involving Private-Sector
Creditors—Recent Developments, Challenges,
and Reform Options, September 2020, https://
w w w.imf.org /-/media / Files/ Publications/
PP/2020/English/PPEA2020043.ashx . . . . . . . . . . . 17
xi
Cited Authorities
Page
Mazzaccone v. Bolivarian Republic of Venezuela,
No. 2 4 - cv- 616 8 (DLC), S.D.N.Y. slip op.
Feb. 17, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
David D. Siegel & Patrick M. Connors, New York
Practice § 52 (6th ed. 2018 & Supp. 2025) . . . . . . . . . 13
1
CITATIONS OF OPINIONS AND ORDERS
The opinion of the Court of Appeals for the Second
Circuit below, affirming dismissal of this action on
limitation grounds, is unreported. It is No. 24-2950 (2d
Cir. slip op. Mar. 9, 2026)—“Bugliotti VI” (Pet. App. 1a).
The order of the Court of Appeals for the Second
Circuit below, denying panel rehearing and rehearing en
banc, dated April 9, 2026, is unreported—(Pet. App. 33a).
The opinion of the District Court for the Southern
District of New York below, dismissing the action on
multiple grounds, is unreported. It is 23 Civ. 6588 (LAP),
2024 WL 4349273 (S.D.N.Y. Sep. 30, 2024)—“Bugliotti V”
(Pet. App. 35a).
In the prior action below, the second opinion of the
Court of Appeals for the Second Circuit, affirming in part
and dismissing the action for lack of standing on Argentine
trust law grounds, dated May 2, 2023, is reported at 67
F.4th 102 (2d Cir. 2023)—“Bugliotti IV” (Pet. App. 54a).
In the prior action below, the second opinion of the
District Court for the Southern District of New York,
dismissing the action on multiple grounds, is unreported.
It is 17 Civ. 9934 (LAP), 2021 WL 1225971 (S.D.N.Y. Mar.
31, 2021)—“Bugliotti III.”
In the prior action below, the first opinion of the Court
of Appeals for the Second Circuit, affirming in part,
vacating in part, and remanding, is reported at 952 F.3d
410 (2d Cir. 2020)—“Bugliotti II.”
2
In the prior action below, the first opinion of the
District Court for the Southern District of New York,
dismissing the action on multiple grounds, is unreported.
It is 17 Civ. 9934 (LAP), 2019 WL 58691 (S.D.N.Y. Jan. 15,
2019)—“Bugliotti I.”
JURISDICTION
The court of appeals entered judgment on March 9,
2026. The court of appeals denied a timely petition for
rehearing and rehearing en banc on April 9, 2026.
This Court has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS
28 U.S. Code § 1605 — General exceptions to the
jurisdictional immunity of a foreign state.
“(a) A foreign state shall not be immune from
the jurisdiction of courts of the United States
or of the States in any case—(1) in which the
foreign state has waived its immunity either
explicitly or by implication, notwithstanding
any withdrawal of the waiver which the foreign
state may purport to effect except in accordance
with the terms of the waiver; * * * ”
N.Y. Civil Practice Law & Rules § 205—Termination of
action.
“(a) New action by plaintiff. If an action
is timely commenced and is terminated
in any other manner than by a voluntary
3
discontinuance, a failure to obtain personal
jurisdiction over the defendant, a dismissal
of the complaint for neglect to prosecute the
action, or a final judgment upon the merits,
the plaintiff, or, if the plaintiff dies, and the
cause of action survives, his or her executor
or administrator, may commence a new action
upon the same transaction or occurrence or
series of transactions or occurrences within six
months after the termination provided that the
new action would have been timely commenced
at the time of commencement of the prior action
and that service upon defendant is effected
within such six-month period. * * * ”
N.Y. Court of Appeals, Rules of Practice, 22 NYCRR
§ 500.27—Discretionary Proceedings to Review Certified
Questions from Federal Courts and Other Courts of Last
Resort.
“(a) Whenever it appears to the Supreme Court
of the United States, any United States Court
of Appeals, or a court of last resort of any other
state that determinative questions of New York
law are involved in a case pending before that
court for which no controlling precedent of the
Court of Appeals exists, the court may certify
the dispositive questions of law to the Court of
Appeals. * * * ”
Other relevant statutory provisions are reproduced in
Appendix F, Pet. App. 68a-73a.
4
STATEMENT OF THE CASE
Summary
This litigation is one of the flood of actions arising in
New York federal and state courts brought by holders of
defaulted foreign-sovereign bonds under New York law for
breach of contract to recover unpaid principal and interest.
Petitioners filed their first action in 2017. Argentina
defended on numerous theories. After six years, only one
ground of dismissal was ultimately affirmed by the Second
Circuit: it held, in May 2023, that Petitioners had failed
to obtain an order from an Argentine court authorizing
them to sue in place of their trustee—a standing defect
under Argentine trust law.
Petitioners, along with the trustee, immediately
obtained authorization orders in Buenos Aires, and then
filed the present “follow-on” action in New York federal
court in July 2023. But by then, more than six years had
passed after the bonds’ maturities (New York’s applicable
limitation period, CPLR § 213, Pet. App. 71a). Argentina
asserted a limitation bar. The district court declined to
apply the six-month extension provided by New York’s
limitation “saving” statute for follow-on actions. The
Second Circuit affirmed, based on its finding that the
Foreign Sovereign Immunities Act (FSIA, 28 U.S.C.
§ 1605, Pet. App. 68a) precluded operation of the saving
statute.
5
Facts
Petitioners are two Argentine families who invested
the proceeds of their sale of their lifelong business in their
country’s sovereign bonds in the years prior to the defaults
on those bonds at the end of 2001. They bought about $30.3
million face amount of bonds that would mature in 2012
and about $5.5 million face amount of bonds maturing in
2017. The bonds’ origination document (“Fiscal Agency
Agreement”) contained Argentina’s waiver of sovereign
immunity; consents to personal jurisdiction and service
of process in New York; and application of New York law.
Petitioners enrolled their bonds in an Argentine
government “Tax Credit Program” in early 2001. The
program required participants to place their bonds
in trust with Caja de Valores, a leading depositary, as
trustee. From the outset, Caja reserved the right not to
sue for enforcement of bonds it held in trust, due to Caja’s
close ties with the government. The program provided tax
credit certificates, in amounts equivalent to the accruing
semi-annual bond interest obligations, which participants
could use (if the government failed to make the interest
payments directly) to pay their local taxes. The bonds
defaulted at the end of 2001 and the periodic bond interest
payments ceased.
That aspect of the program worked as intended. After
default, Petitioners received the tax credits until their
bonds matured—one issuance in 2012 and one in 2017.
The major issue in this case is how the bondholders would
then obtain repayment of their principal, as well as postmaturity interest, on their bonds.
6
In mid-2017, as New York’s six-year limitation period
neared expiration for the bonds that had matured in 2012,
Petitioners realized they needed to bring suit. They asked
Caja to sue as trustee, but Caja raised its reservation of
rights not to sue the government. Petitioners and Caja
accordingly entered into a “Certification” stating that
Caja “looked to” or “understood” that the requisite lawsuit
would be brought by Petitioners, as trust beneficiaries,
instead of the trustee. Petitioners sued in the Southern
District of New York for breach of contract to obtain
repayment of principal and payment of post-maturity
interest on both issuances of their bonds in late 2017.
The complaint asserted the FSIA jurisdictional waiver
and consents, as contained in the FAA, and alleged that
Caja looked to the Petitioners to sue in its place. After four
years of litigation involving numerous defenses raised by
Argentina; one dismissal and remand (“Bugliotti I” and
“Bugliotti II”); and another Rule 12 motion, the district
court dismissed the action for multiple reasons (“Bugliotti
III”), including Petitioners’ lack of standing due to
their failure to obtain statutory authorization from an
Argentine court to stand in for the trustee as plaintiffs in
their suit (see Arg. Civil and Commercial Code Art. 1689,
Pet. App. 73a). In May 2023, the Second Circuit affirmed
dismissal of the action, based only on that authorization/
delegation issue (“Bugliotti IV,” 67 F.4th 102 (2d Cir. 2023)
(Pet. App. 54a)).
Plaintiffs, accompanied by Caja, promptly obtained
judicial authorizations in Buenos Aires, Pet. App. 65a, and
then filed the present follow-on action, on July 28, 2023,
again seeking to recover principal and post-maturity
interest on their bonds.
7
Argentina moved to dismiss the follow-on action,
now asserting (among other issues) that the action was
limitation-barred because by that time more than six
years had passed since the maturity dates of both bond
issuances. The district court dismissed on several grounds
(“Bugliotti V”), including that the six-month limitation
saving extension provision in New York Civil Practice Law
& Rules § 205(a) was unavailable to Petitioners because
(it said) the prior action had been terminated due to a
failure by Petitioners to obtain personal jurisdiction over
the defendant—one of the four exceptions listed in § 205(a)
(Pet. App. 70a).
The Second Circuit affirmed the dismissal, only
on limitations (“Bugliotti VI”). It held that Petitioners
did not qualify for a § 205(a) extension because of the
personal jurisdiction exception. It rejected Petitioners’
argument that the prior action had been terminated due
to Petitioners’ lack of standing under Argentine trust
law; the court focused instead on what it termed the “true
defect” in the prior action: failure to obtain personal
jurisdiction, as determined by the district court. The
Second Circuit held:
Although the district court referred to the
Bondholders’ lack of “standing” in its decision
. . . , the true defect was lack of jurisdiction: The
district court was speaking to the Bondholders’
lack of standing to enforce the consent-tojurisdiction terms of the FAA, not to a lack of
Article III or statutory standing.
“Bugliotti VI,” slip op. at 15 (Pet. App. 1a at 14a). That
explanation, referring to the district court’s standing
8
dismissal in Bugliotti III, did not refer to the subsequent
2023 Second Circuit decision (Bugliotti IV), which was the
single operative dismissal of the prior action.
Petitioners sought rehearing and rehearing en banc
in the Second Circuit, including a request to certify the
dismissal issue to the New York Court of Appeals under
its certification rules (N.Y. Court of Appeals Rules of
Practice, 22 NYCRR § 500.27, Pet. App. 72a). The petition
for rehearing was denied on April 9, 2026 (Pet. App. 33a).
REASONS FOR GRANTING THE PETITION
Summary
This case presents an unusual combination of
circumstances. An outcome-determinative question
concerning the scope of New York’s remedial limitationextension statute was resolved by a federal court through
a novel FSIA-based jurisdictional theory.
Certification of the issue to the New York Court of
Appeals was available. Petitioners specifically requested
certification in their rehearing petition below. Yet
Petitioners’ claims were extinguished through a federal
interpretation of New York law, while New York’s highest
court has never had the opportunity to determine whether
that interpretation accurately reflects New York law.
While this petition appears to focus on intricacies
of New York limitation law, standing under Argentine
trust law, and FSIA jurisdiction, its deeper significance
transcends those doctrines. The Second Circuit’s decision
below opens a new pathway for a foreign sovereign to
9
escape the FSIA jurisdictional consents and waivers of
immunity contained in its indenture-like bond origination
documents as conditions for being able to market its debt.
The novel (indeed, unprecedented) logic of the Second
Circuit’s decision is that a later-determined standing
defect concerning a bondholder’s authority or entitlement
to enforce the bonds, adjudicated at any time in the
litigation, gives the sovereign the ability retroactively to
negate its initial jurisdictional waivers and consents, on
the theory that such a defect, although not jurisdictional
in itself, deprived the bondholder of the ability to invoke
the sovereign’s waivers and consents.
That was the meaning of the crucial step in the Second
Circuit’s limitation dismissal in the prior action here. It
denied Petitioners the limitation extension provided by
§ 205(a) by transforming the actual ground of termination
of the prior action (standing) into a so-called “true defect”
of lack of personal jurisdiction, thus engaging the personal
jurisdiction exception in § 205(a). Such an approach would
prevent invocation of the limitation saving statute—which
is a critical protection for plaintiffs that New York’s
highest court has emphasized has existed in New York
law “since at least 1788.”1
The Second Circuit did not need to proceed in
that way. It could have accepted the plain fact that the
termination of the prior action was for a plaintiff-side
standing defect under Argentine trust law, not a personal
jurisdiction dismissal based on the FSIA. Moreover,
1. Reliance Ins. Co. v. PolyVision Corp., 9 N.Y.3d 52, 56, 876
N.E.2d 898, 845 N.Y.S.2d 212 (2006).
10
Petitioners had properly served Argentina at the outset
of their prior action according to the terms of the FAA,
giving defendant full notice of their claims; and Argentina
also had definitively waived personal jurisdiction defenses
in its FAA.
Furthermore, New York caselaw uniformly rejects
equating lack of standing with lack of personal jurisdiction
in applying § 205(a). 2 That saving statute is to be applied
consistent with its “broad and liberal purpose” of resolving
claims on their merits, rather than allowing death-knell
limitation dismissals of follow-on actions even though
the defendant had received timely notice of the claims
against it. 3
Institutionally, the issues presented by this case may
be resolved through a narrow and modest disposition. This
Court may grant the petition, vacate the judgment below,
and remand for further consideration and certification to
the New York Court of Appeals. New York law governs
virtually all sovereign bonds issued in this hemisphere.
The issue ultimately decided below did not depend on
any particular determination of FSIA jurisdiction; it was
a dispositive question concerning the operation of New
York’s remedial limitation statute.4
2. Brown v. Lutheran Medical Ctr., 939 N.Y.S.2d 817, 819-20
(Sup. Ct. Kings Co. 2012), aff’d, 107 A.D.3d 837, 968 N.Y.S.2d 526
(2d Dep’t 2013).
3. Hakala v. Deutsche Bank AG, 343 F.3d 111, 115 (2d Cir.
2003).
4. The restrained approach suggested by Petitioners thus
is warranted in part because this petition does not present
a traditional federal circuit split. As argued below, virtually
11
Such a course would permit resolution of the proper
scope and application of New York’s remedial limitation
saving statute by the court charged with interpreting it,
in a way that would be authoritative and dispositive.
A. The Decision Below Introduces an Unprecedented
Expansion of Foreign Sovereigns’ Immunities
Under the FSIA
The dismissal below appears to be the first reported
decision holding that a bondholder plaintiff’s laterdetermined lack of standing under foreign trust law allows
a foreign sovereign to retroactively nullify its contractual
waiver of immunity and consents to jurisdiction under the
FSIA. Those waivers and consents appear in virtually all
official documents promulgated by sovereign issuers in
connection with their public debt financings (such as the
FAA in this case).
Moreover, the logic of the Second Circuit’s decision
could expand beyond lack of standing under Argentine
trust law to other alleged defects in a bondholder’s action
to enforce sovereign bonds. In this litigation, for example,
Argentina argued that Petitioners were required to pay
back all their tax credit benefits as a condition precedent to
filing their bond enforcement action, and that Petitioners
were required to arbitrate their dispute in Argentina
rather than sue in New York.
all sovereign debt issuances in this hemisphere provide for
application of New York law, jurisdiction in New York courts, and
the sovereign’s acceptance of personal jurisdiction in New York.
The Second Circuit accordingly is the only federal appellate court
likely to receive appeals in sovereign debt cases, meaning that
decisional splits among federal circuits do not arise.
12
Had Argentina prevailed on either of those defense
arguments, and Petitioners cured and filed a follow-on
enforcement action, predictably Argentina would then
have made parallel FSIA-based assertions about lack of
jurisdiction and the unavailability of a § 205(a) extension,
in seeking dismissal of the follow-on action as limitationbarred—even though those defenses, too, are not arguably
about personal jurisdiction.
The decision below sets up a collision between the
New York law governing most sovereign debt instruments
issued in the U.S. and the federal law (FSIA) allowing
foreign sovereign bond issuers to waive immunity and
subject themselves jurisdictionally to lawsuits in the
U.S. Those waivers are necessary preconditions for any
sovereign debt financing here, but the decision below
unnecessarily calls their effectiveness into question.
B. The Decision Below Conflicts with Established
New York Law Distinguishing Standing from
Jurisdiction in Applying CPLR § 205(a), Raising
Federal-State Comity Issues
The Second Circuit’s analysis and result cannot be
reconciled with longstanding New York authority holding
that a plaintiff’s lack of standing does not constitute a
jurisdictional defect under § 205(a).
Brown v. Lutheran Medical Ctr., 939 N.Y.S.2d
817, 819-20 (Sup. Ct. Kings Co. 2012), aff’d, 107 A.D.3d
837, 968 N.Y.S.2d 526 (2d Dep’t 2013), holds that “lack
of standing was not a legitimate ground for denying a
§ 205(a) extension,” because “a party’s lack of standing
does not constitute a jurisdictional defect.” 939 N.Y.S.2d
13
at 819 (emphasis added)). The court explicitly rejected
application of the personal jurisdiction exception in
§ 205(a) based on a standing deficiency. Id. at 820. The
decision was affirmed on appeal.
Likewise, New York courts have repeatedly granted
§ 205(a) limitation extensions when a plaintiff cured a
defect concerning the proper party authorized to bring
suit, holding that lack of standing does not constitute a
lack of personal jurisdiction under § 205(a). 5
The personal jurisdiction exception was enacted to
ensure that a plaintiff can obtain a § 205(a) extension
only when the defendant has received notice of the claim
through proper service of process.6 In the present case,
Argentina never contended, and the courts below never
found, that Petitioners had failed to make timely and valid
service of process in the original action, that Argentina
5. See Carrick v. Central Gen. Hosp., 51 N.Y.2d 242, 25153, 434 N.Y.S.2d 130, 414 N.E.2d 632 (1980) (permitting § 205(a)
extension after dismissal on ground that plaintiff had incorrectly
filed her claim for wrongful death of her spouse in her own name,
rather than as administratrix of her spouse’s estate); Cannellas v.
Lentz, 396 F. Supp. 2d 435, 439 (S.D.N.Y. 2005) (applying § 205(a);
holding that “defendant’s argument that plaintiff’s prior action
was never ‘commenced’ because plaintiff lacked standing to sue
at the time the action was brought is without merit”); George
v. Mt. Sinai Hosp., 47 N.Y.2d 170, 175-79, 390 N.E.2d 1156, 417
N.Y.S.2d 231 (1979); cf. Diffley v. Allied-Signal, Inc., 921 F.2d 421,
423-24 (2d Cir. 1990) (“application of § 205(a) . . . neither affects
nor circumvents . . . dismissal of the prior action; it creates no
‘retroactive’ diversity jurisdiction of the prior action . . . Instead,
§ 205(a) merely extends the period for filing a claim.”).
6. David D. Siegel & Patrick M. Connors, New York Practice
§ 52 (6th ed. 2018 & Supp. 2025).
14
had not received notice, or that the FAA waivers were
otherwise ineffective. There was no real controversy about
personal jurisdiction.7
The decisions applying § 205(a) reflect New York’s
settled understanding that the limitation extension
provision exists to preserve claims when a timely-filed
action is dismissed for curable procedural defects rather
than on the merits. There is no case authority to the
contrary.
CPLR § 205(a) is a remedial statute which has at its core
the strong public policy consideration that controversies
should be adjudicated on their merits. The extension of the
limitation period provided by § 205(a) is to “remedy[] what
might otherwise be the harsh consequence of applying a
limitation period where the defending party has had timely
notice of the action.” Matter of Goldstein v. New York State
7. Argentina’s first Rule 12 motion in the prior action, in 2018,
asserted that Petitioners had given up any interest in the bonds
by placing them in trust, and were in fact suing to enforce the tax
credit trust certificates, which did not contain any jurisdictional
waivers and consents, such as those contained in the bonds’
FAA; and the district court agreed. That decision was belied by
Petitioners’ complaint and was vacated in Bugliotti II. Thereafter,
Argentina’s renewed Rule 12 motion, raising numerous new
arguments, recited the same Rule 12 bases for dismissal, again
including lack of jurisdiction, which the district court accepted
without analysis. Bugliotti III. On appeal, the Second Circuit
affirmed dismissal of the action only for lack of standing based on
Petitioners’ failure to obtain Argentine judicial authorization to
sue; its analysis did not refer to or depend on any defect in federal
jurisdiction. Bugliotti IV. The Second Circuit’s 2023 dismissal
was, on its face, for lack of foreign-law standing, not for lack of
any type of jurisdiction.
15
Urban Dev. Corp., 13 N.Y.3d 511, 521, 893 N.E.2d 635,
893 N.Y.S.2d 753 (2008). The provision provides “a second
opportunity to the claimant who has failed the first time
around because of some error pertaining neither to the
claimant’s willingness to prosecute in a timely fashion
nor to the merits of the underlying claim.” George v. Mt.
Sinai Hosp., 47 N.Y.2d 170, 178–79, 390 N.E.2d 1156, 417
N.Y.S.2d 231 (1979) (refusing to regard the defective prior
action as a “nullity”). The remedial concept of the statute
“has existed in New York law since at least 1788.” Reliance
Ins. Co. v. PolyVision Corp., 9 N.Y.3d 52, 56, 876 N.E.2d
898, 845 N.Y.S.2d 212 (2006).
The conflict between the Second Circuit’s decision and
the New York law described above implicates important
principles of federal-state comity. The Second Circuit’s
decision effectively creates an FSIA-based federal
jurisdictional exception to § 205(a) that New York courts
have never recognized.
C. The Two Decisions Applying CPLR § 205(a) Cited by
the Second Circuit Actually Support a Limitation
Extension
The two decisions on applying § 205(a) cited by the
Second Circuit below clearly indicate that the statutory
requirements for a limitation extension were satisfied.
In Yonkers Contracting Co., Inc. v. Port Auth. TransHudson Corp., 93 N.Y.2d 375, 690 N.Y.S.2d 512, 712
N.E.2d 678 (1999), the sovereign defendant contended
that § 205(a) should not apply because of the terms of
the statute waiving its immunity. The New York Court of
Appeals agreed, holding that a § 205(a) extension was not
16
available if the statute waiving the sovereign’s immunity
itself states the time limit for commencing a claim and
explicitly makes satisfaction of the time limit a condition
precedent for commencing suit.
The clear implication in the decision is that when
those factors are not present in the enactments allowing
waivers of sovereign immunity, § 205(a) extensions are
available despite the defendant’s sovereign status. Here,
the FSIA statute recognizing sovereign waivers of
immunity, 28 U.S.C. § 1605(a), does not itself contain any
limitation period, let alone one expressed as a condition
precedent. The limitation period applicable to Petitioners’
claim appears in the limitation provision of the New York
civil practice laws and rules applicable to contract claims
generally; it is a normal limitation provision. N.Y. Civil
Practice Law & Rules § 213(2). Under Yonkers, a plaintiff
seeking to enforce Argentine bonds qualifies for a § 205(a)
limitation extension.
Hakala v. Deutsche Bank AG, 343 F.3d 111 (2d
Cir. 2003), concerned whether § 205(a) applied in cases
brought under the New York statute on vacating an
arbitration award. Plaintiff’s counsel fumbled starting
the litigation, suffered a dismissal, and sought a § 205(a)
extension for a follow-on claim. The Second Circuit held
that Yonkers-type considerations did not justify denying
application of § 205(a). The court stated that § 205(a)’s
“broad and liberal purpose is not to be frittered away
by any narrow construction” and noted that the timely
filing of the original petition “satisfied the primary goal
of a limitation period—to give the defendant timely notice
of the existence of the claim so that it could take steps
to prepare for the litigation.” 343 F.3d at 115. “In these
17
circumstances it would seem a misadventure of justice to
preclude reliance on the remedial provision of § 205(a).”
Id. at 115-16.
In the present case, the Second Circuit’s reach for a
“true defect” to avoid a limitation extension under § 205(a)
defied Hakala’s injunction to apply the saving statute
broadly and liberally.
D. This Case Involves Basic Legal Ground Rules
Governing the Trillion-Dollar Foreign Sovereign
Bond Market Based in New York
New York serves as the dominant American legal
center for the international sovereign bond market
(sharing the worldwide market about equally with
London) for almost all outstanding issuances. The bonds
originating in New York are governed by New York law;
designate New York courts as the forum for litigation;
appoint a New York agent for service of process; waive
sovereign immunity to the extent permitted by the FSIA;
and are issued, traded, and settled through New Yorkbased market infrastructure. New York is responsible
for well over $1 trillion in estimated total stock of such
bonds outstanding. 8
Upcoming actions to enforce the billions of dollars of
defaulted sovereign debt issued by Venezuela will make
up the next wave of the type of litigation facing American
8. See IMF, The International Architecture for Resolving
Sovereign Debt Involving Private-Sector Creditors—Recent
Developments, Challenges, and Reform Options, September 2020,
https://www.imf.org/-/media/Files/Publications/PP/2020/English/
PPEA2020043.ashx.
18
courts. Those bonds are also issued under New York
law.9 Such bonds are frequently held through trustees,
custodians, clearing systems, beneficial ownership
structures, and other intermediary arrangements.
Questions concerning authority to sue are therefore
neither unusual nor confined to the present case.
This Court has repeatedly recognized the importance
of predictable legal rules governing financial markets.
California Public Employees’ Retirement System v. ANZ
Securities, Inc., 528 U.S. 497, 510 (2017); Allied-Bruce
Terminix Cos. v. Dobson, 513 U.S. 265, 281 (1995).
The rule adopted below creates uncertainty. If a
later-discovered standing defect can retroactively negate
an otherwise valid invocation of a FSIA waiver, investors
cannot reliably determine whether procedural protections
provided under state law will remain available after a
defect is cured.
E. This Case Presents an Ideal Vehicle for Resolution
by This Court
This case presents a clean and outcome-determinative
legal issue.
There are no material factual disputes concerning
the relevant events and relationships among the parties.
Petitioners timely filed their original action. Argentina
received notice of the claims. The original action was
dismissed only on standing grounds as enunciated in the
9. See Mazzaccone v. Bolivarian Republic of Venezuela,
No. 24-cv-6168 (DLC), S.D.N.Y. slip op. Feb. 17, 2026.
19
Second Circuit’s 2023 decision. Petitioners immediately
cured the identified defect and refiled.
T he sole quest ion is whet her t hat st a nd i ng
determination amounts to a jurisdictional defect under the
FSIA that defeats operation of New York’s saving statute.
Because the issue was squarely decided below and is
dispositive of Petitioners’ claims, this case presents an
ideal vehicle for review.
F. Alternatively, This Court Should Direct Certification
to the New York Court of Appeals
Even if this Court concludes that plenary review is
unwarranted at this stage, it should direct certification of
the dispositive state-law question to the New York Court
of Appeals.
This case presents precisely the circumstance for
which such certification exists. An outcome-determinative
and unsettled question concerning the scope of New York’s
principal remedial limitation statute was resolved by a
federal court through a novel FSIA-based jurisdictional
theory, without the benefit of guidance from New York’s
highest court, despite the availability of certification.
The issue is not merely whether the court below
correctly applied CPLR § 205(a). Rather, the court
below effectively narrowed the scope of that statute by
concluding that Petitioners’ later-cured lack of standing
constituted a jurisdictional defect sufficient to externally
defeat application of the saving statute. That logic does not
20
find any support in the decisions of the New York Court
of Appeals, or indeed in any New York or federal caselaw.
Certification is especially appropriate because no
further factual development is required. The relevant
events are undisputed. The issue is purely legal. The
question was fully presented below. And certification was
available but not utilized, notwithstanding the central role
the unresolved state-law question ultimately played in the
disposition of Petitioners’ action.
This Court has long recognized the value of permitting
state courts to speak authoritatively on important
and unresolved questions of state law. See Virginia v.
American Booksellers Ass’n, 484 U.S. 383 (1988); Bellotti
v. Baird, 428 U.S. 132 (1976); Clay v. Sun Insurance Office
Ltd., 363 U.S. 207 (1960); see also Ray v. Ray, 22 F.4th
69 (2d Cir. 2022) (certifying question involving successive
§ 205(a) extensions); Reliance Ins. Co. v. PolyVision Corp.,
474 F.3d 54 (2d Cir. 2007) (certifying question involving
§ 205(a) extension in a follow-on action filed by a related
plaintiff).
As a result of the decision below, Petitioners’ claims
were extinguished through a federal interpretation of
New York law that New York’s highest court has never
had the opportunity to consider. Certification would allow
the New York Court of Appeals to determine whether that
interpretation accurately reflects New York law.
Such a cou r se wou ld prov ide a na r row a nd
institutionally modest means of resolving the dispute.
This Court would not need to determine the full scope
of the FSIA, resolve broader questions concerning
21
sovereign debt enforcement, or undertake plenary review
of the merits. Certification would simply ensure that the
dispositive question concerning the operation of New
York limitation law is answered by the court charged with
authoritatively interpreting it.
Indeed, if certification is not appropriate under these
circumstances, it is difficult to identify what category of
unresolved state-law issue would warrant certification. An
outcome-determinative question concerning the scope of a
major New York remedial statute, resolved below through
application of a novel federal jurisdictional theory and
without guidance from New York’s highest court, presents
one of the strongest imaginable cases for certification
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
Michael C. Spencer
Counsel of Record
100 Garden City Plaza,
Suite 500
Garden City, NY 11530
(212) 594-5300
mspencer@milberg.com
Counsel for Petitioners
APPENDIX
i
TABLE OF APPENDICES
Page
A P P E N DI X A — O P I N ION O F T H E
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIIT, FILED
MARCH 9, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a
A PPEN DI X B — OR DER OF T H E
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT, FILED
APRIL 9, 2026 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33a
A PPEN DI X C — M EMOR A N DU M
A ND ORDER OF THE U NIT ED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK,
FILED SEPTEMBER 30, 2024 . . . . . . . . . . . . . . . 35a
A PPENDI X D — J U DGMENT OF THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT, DOCKET
NO. 21-1014, FILED MAY 2, 2023 . . . . . . . . . . . . . 54a
A PPEN DI X E — EXCER P T S OF T H E
DECISION OF COMMERCIAL COURT
NO. 9 OF BUENOS AIRES, ARGENTINA,
DATED JUNE 21, 2023 . . . . . . . . . . . . . . . . . . . . . . 65a
APPENDIX F — STATUTORY PROVISIONS
INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68a
28 U.S.C. § 1605 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68a
ii
Table of Appendices
Page
8 U.S.C. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69a
New York CPLR § 205(a) . . . . . . . . . . . . . . . . . . . . . 70a
New York CPLR § 213 . . . . . . . . . . . . . . . . . . . . . . . . 71a
22 NYCRR § 500.27 . . . . . . . . . . . . . . . . . . . . . . . . . . 72a
A rgentina Civ il and Commercial Code,
Third Book, Article 1689 . . . . . . . . . . . . . . . . . . . . . . 73a
1a
Appendix
A
APPENDIX A — OPINION
OF THE
UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIIT,
FILED MARCH 9, 2026
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2025
No. 24-2950
EUCLIDES BARTOLOME BUGLIOTTI, MARIA
CRISTINA DE BIASI, ROXANA INES ROJAS,
DENISE LAURET, MARIA CARLA GONANO,
Plaintiffs-Appellants,
v.
THE REPUBLIC OF ARGENTINA,
Defendant-Appellee.*
On Appeal from a Judgment of the United States
District Court for the Southern District of New York
A rgued: September 17, 2025
Decided: M arch 9, 2026
Before: Chin, Nardini, and K ahn, Circuit Judges.
* The Clerk of Court is respectfully directed to amend the
caption as set forth above.
2a
Appendix A
William J. Nardini, Circuit Judge:
This appeal is the latest chapter in the long-running
saga of creditors trying to recover over $35 million in
defaulted principal payments on Argentine sovereign
bonds. The Plaintiffs-Appellants (the “Bondholders”)1 had
brought a previous action against the Defendant-Appellee,
the Republic of Argentina (the “Republic”), in the United
States District Court for the Southern District of New
York (Loretta A. Preska, District Judge). The district
court dismissed those claims for a variety of reasons—
primarily based on the Bondholders’ lack of authority to
sue on the bonds under Argentine law—and we ultimately
affirmed. The Bondholders then obtained authorization
from an Argentine court to sue to enforce the bonds and
filed another complaint in New York.
The district court again dismissed the complaint, on
two grounds. First, the district court held that all of the
Bondholders’ claims were barred under New York’s sixyear statute of limitations for contract claims. According
to the court, N.Y. C.P.L.R. § 205(a), a “savings statute”
that permits an action to be re-filed within six months
after its dismissal, did not preserve the Bondholders’
claims because their prior suit had been dismissed for
lack of personal jurisdiction. Nor could the Bondholders
invoke the tolling provisions in executive orders issued by
1. As discussed in more detail below, the bonds were acquired
by the current Plaintiffs-Appellants or their predecessors in
interest. For convenience, we will refer to them collectively as
the “Bondholders.”
3a
Appendix A
the Governor of New York during the COVID pandemic,
because the Bondholders had failed to demonstrate
equitable entitlement to such tolling. Second, the district
court held that the Bondholders were collaterally estopped
from relitigating issues that had formed the basis of the
district court’s previous dismissal.
On appeal, we agree with the district court that
§ 205(a) does not apply, but we hold that New York’s
COVID-era tolling provisions do not require any showing
of equitable entitlement. Accordingly, some (but not all) of
the Bondholders’ claims are timely. We further hold that
collateral estoppel does not bar the Bondholders from
relitigating certain questions that we did not reach in
our previous affirmance of the district court’s dismissal;
and that under Argentine law, the Bondholders now have
authority to sue on the bonds. Accordingly, we AFFIRM
IN PART and VACATE IN PART the judgment of the
district court and REMAND for further proceedings.
4a
Appendix A
I.
Background
Over a span of time, the Bondholders2 in this case
acquired $35,818,000 worth of bonds issued by the
Republic. Their holdings include bonds from two different
series: $30,299,000 of “GD65 Bonds” and $5,519,000 of
“AR16 Bonds.” The GD65 Bonds had a maturity date of
February 21, 2012, and the AR16 Bonds had a maturity
date of January 30, 2017. The Republic issued both sets
of bonds pursuant to a “Fiscal Agency Agreement” dated
October 19, 1994 (the “FAA” and bonds thereunder the
“FAA Bonds”). The FAA contained a number of provisions
that made the Republic amenable to suit in New York
for disputes over the FAA Bonds, including a consent
to jurisdiction in “any action arising out of or based on
the Securities or this Agreement by the holder of any
Security” in “any state or federal court in The City of New
York” and appointment of a registered agent for service
in New York. Joint App’x at 68. The Republic also waived
“any immunity from the jurisdiction of any such court to
2. Plaintiffs-Appellants in this case are Euclides Bartolomé
Bugliotti, Maria Cristina de Biasi, Roxana Inés Rojas, Denise
Lauret, and Maria Carla Gonano. Bugliotti and non-party Hugo
Lauret were business partners who sold a large wholesale business
in 1998 and decided to invest part of the proceeds in Argentine
bonds. Bugliotti and his wife, de Biasi, purchased $27,252,000
of GD65 Bonds and $5,511,000 of AR16 Bonds. Hugo Lauret
purchased $3,047,000 of GD65 Bonds and $8,000 of AR16 Bonds,
which passed to his three heirs—Rojas, Lauret, and B.L.G., a
minor—following his death in January 2015. Plaintiffs-Appellants
Rojas, Lauret, and Gonano (appearing on behalf of her son, B.L.G.)
presently maintain interests in the Bonds purchased by Hugo
Lauret.
5a
Appendix A
which it might otherwise be entitled in any action arising
out of or based on the Securities or this Agreement by the
holder of any Security.” Id. at 69.
In August 2001, as the Republic was approaching
another debt crisis, it launched a “Tax Credit Program”
under Presidential Decree Number 1005/2001. Under
this program, bondholders could deposit their FAA
Bonds in trust with an Argentine clearing system, Caja
de Valores S.A. (“Caja”). In exchange for their FAA
bonds, participants would receive two different types
of certificates. One set, called “custody certificates”
(“Certificados de Custodia,” or “CCs”), corresponded to
the principal value of their bonds and would be payable
on the bonds’ maturity date. The other set, called “tax
credit certificates” (“Certificados de Crédito Fiscal,” or
“CCFs”), corresponded to the value of outstanding interest
payments. If the Republic missed an interest payment, the
Bondholders could exchange a CCF to get an Argentine
tax credit equal in value to the unpaid interest.
In November 2001, the Bondholders opted into the
Tax Credit Program. They deposited their FAA Bonds in
trust with Caja, and received CCs and CCFs corresponding
in value to the principal and interest payable on the
Bonds. The rights and obligations of the parties to these
trusts were memorialized in identical Trust Agreements
(the “Trust Agreements”), with the Bondholders as the
“Principal” or “Trustor” and Caja as the “Trustee.”
Section 2.1 of these Agreements provides that the trusts
“shall be governed by . . . Law 24[,]441” of Argentina,
which in turn states that “[t]he trustee has standing to
6a
Appendix A
exercise all actions necessary to defend the trust assets,
both against third parties and against the beneficiary.”
Joint App’x 77, 100, 462. Section 16 also contains the
following arbitration clause:
For all purposes of this Agreement, the Parties
agree to resolve their disputes through an
arbitration procedure, for which purpose they
submit to the Permanent Arbitration Tribunal
of the Buenos Aires Stock Exchange and the
application of its regulations, waiving any other
jurisdiction that may correspond to them.
Id. at 105.
On December 24, 2001, the Republic declared a
moratorium on paying both principal and interest on
sovereign debt and stopped making payments on the FAA
Bonds. Because the Bondholders had enrolled in the Tax
Credit Program, they exchanged their outstanding CCFs
for tax credits in place of the unpaid interest until their
FAA Bonds matured on February 21, 2012, and January
30, 2017. But when the FAA Bonds reached their maturity
dates, the Republic failed to pay out the out-standing
principal value represented by the CCs.
The Bondholders then embarked on a long series
of legal proceedings to compel the Republic to pay the
principal on the FAA Bonds.
After initial litigation in Argentine courts proved
unsuccessful, the Bondholders—like many other investors
7a
Appendix A
in Argentine sovereign debt before them—turned to the
federal courts in New York. On December 20, 2017, the
Bondholders sued the Republic for non-payment of the
FAA Bonds in the United States District Court for the
Southern District of New York. The Bondholders relied on
the FAA’s consent to jurisdiction in New York and waiver
of sovereign immunity to establish both personal and
subject matter jurisdiction. Shortly before bringing suit,
the Bondholders and Caja also entered into a certification
recognizing that the Bondholders would sue to recover on
the FAA Bonds in New York and that Caja would not be
responsible for pursuing this action.
On January 15, 2019, the district court dismissed the
Bondholders’ complaint. The court concluded that once the
Bondholders deposited the FAA Bonds with the trustee
pursuant to the Tax Credit Program and received CCs and
CCFs in exchange, it was the trustee—that is, Caja—that
now owned the bonds. Absent an ownership interest in the
FAA Bonds, the Bondholders themselves could not invoke
the FAA’s provisions on sovereign immunity, service,
and jurisdiction that would allow the suit against the
Republic to go forward in New York. Bugliotti v. Republic
of Argentina (“Bugliotti I”), No. 17-CV-9934 (LAP), 2019
WL 586091, at *3-*4 (S.D.N.Y. Jan. 15, 2019).
On appeal, this Court affirmed in part, vacated in
part, and remanded. Bugliotti v. Republic of Argentina
(“Bugliotti II”), 952 F.3d 410, 415 (2d Cir. 2020). As
relevant here, we held that the operative question was
not who owned the FAA Bonds, but whether Argentine
law authorized the Bondholders to bring suit to enforce
8a
Appendix A
them and therefore to invoke the jurisdictional provisions
contained in the FAA. Id. at 411, 413.
On remand, the district court again dismissed
the Bondholders’ complaint. Bugliotti v. Republic of
Argentina (“Bugliotti III”), No. 17-CV-9934 (LAP), 2021
WL 1225971, at *9 (S.D.N.Y. Mar. 31, 2021). Looking
to Argentine trust law, the district court concluded
that Caja had the exclusive right to sue to enforce the
FAA Bonds and that it had not conferred this right on
the Bondholders. Id. at *7-*8. The district court also
concluded that Argentine law required the FAA Bonds
“to be reassembled before being enforced.” Id. at *8. That
is, the Bondholders had to return the unredeemed CCs
(the certificates for principal payments) to the trust, and
to deposit into the trust an amount of money equivalent
to the tax credits that the Bondholders had received
pursuant to the CCFs. However, the court also discussed a
potential “alternative remedy” to reassembly: “obtaining
authorization from the [Argentine] judge to exercise an
action instead of the trustee.” Id. at *9.
The Bondholders appealed, and we affirmed. Bugliotti
v. Republic of Argentina (“Bugliotti IV”), 67 F.4th 102,
107 (2d Cir. 2023). We explained:
[E]ven if we assume arguendo that Caja had the
authority to delegate its enforcement right to
[the Bondholders], and that [the Bondholders]
were not required to first reassemble the bonds
before bringing this action, we still cannot find
that [the Bondholders] are entitled to bring suit
9a
Appendix A
to recover the bonds under Argentine law, since
there is no evidence that Caja ever made such
a delegation.
Id. at 106.
Following this Court’s decision, the Bondholders
sought authorization from Commercial Court No. 9 in
Buenos Aires, Argentina (the “Commercial Court”) for
their American lawsuit. Caja participated in the hearing
and did not object to the Bondholders’ application. On
June 21 and July 12, 2023, the Commercial Court entered
orders authorizing the Bondholders to “exercise and/
or continue the relevant actions and all necessary acts
for that purpose . . . in order to sue the issuer for the
collection of the bonds or public securities that constitute
the underlying assets of the mentioned trusts and their
accessories[.]” Joint App’x at 43-44, 55.
With the Commercial Court’s authorization in hand,
the Bondholders refiled their complaint in the Southern
District of New York on July 28, 2023.
For a third time, the district court dismissed
the Bondholders’ complaint. Bugliotti v. Republic of
Argentina (“Bugliotti V”), No. 23-CV-6588 (LAP), 2024
WL 4349273, at *8 (S.D.N.Y. Sept. 30, 2024). The district
court concluded that the Bondholders’ new action was
time-barred by the six-year statute of limitations for
contract claims under N.Y. C.P.L.R. § 213(2). According
to the court, N.Y. C.P.L.R. § 205(a), a “savings statute”
under New York law that permits an action to be re-filed
10a
Appendix A
within six months after its dismissal, did not save the
Bondholders’ claims because their prior suit had been
dismissed for lack of personal jurisdiction. Nor could the
Bondholders invoke the tolling provisions in executive
orders issued by the Governor of New York during the
COVID pandemic, because they had failed to demonstrate
equitable entitlement to such tolling. The district court
further held that, even if the claims were timely, the
Bondholders were collaterally estopped from relitigating
issues of jurisdiction, including whether reassembly was
required, which had formed the basis of the district court’s
previous dismissal in Bugliotti III.
This appeal followed.
II. Standard of Review
This Court reviews de novo a district court’s grant
of a motion to dismiss, accepting the allegations in the
complaint as true and drawing all reasonable inference in
favor of the plaintiff. United States v. EZ Lynk, SEZC, 149
F.4th 190, 198 (2d Cir. 2025). It similarly reviews de novo
both conclusions of law regarding jurisdiction under the
Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C.
§ 1602 et seq., and determinations of foreign law. Harvey
v. Permanent Mission of Republic of Sierra Leone to
United Nations, 97 F.4th 70, 76 (2d Cir. 2024) (FSIA);
Branch of Citibank, N.A. v. De Nevares, 74 F.4th 8, 14 (2d
Cir. 2023) (foreign law).
11a
Appendix A
III. Discussion
This appeal raises several principal issues. As
a threshold matter, we must determine whether the
Bondholders’ claims are time-barred, in light of New
York’s “savings statute,” N.Y. C.P.L.R. § 205(a), as well
as COVID-era executive orders issued by the Governor
of New York. To the extent the claims are not barred
by the statute of limitations, we consider whether the
Bondholders are collaterally estopped from relitigating
whether Argentine law authorizes them to sue on the
FAA Bonds (and therefore to establish jurisdiction in the
district court). If collateral estoppel does not bar their
arguments, we then address (a) whether the Bondholders’
failure to reassemble their FAA Bonds bars this suit;
and (b) if not, whether the Bondholders nevertheless
lack authority to enforce the FAA Bonds because the
Commercial Court’s authorization was ineffective. We
consider each issue in turn.
A.
Statute of Limitations
Under New York law, claims for breach of contract are
subject to a six-year statute of limitations. N.Y. C.P.L.R.
§ 213(2). 3 The Bondholders filed this action on July 28,
2023, more than six years after both the AR16 and GD65
3. The FA A provides that New York law governs the
Agreement. The parties also agree that the Bondholders’ claims
are subject to New York’s six-year statute of limitations on contract
claims.
12a
Appendix A
Bonds matured.4 The Bondholders argue, however, that
the limitations period on their claims has not run because
of New York’s “savings statute,” N.Y. C.P.L.R. § 205(a),
which—subject to certain conditions—lets plaintiffs refile an action within six months after its dismissal. This
argument, if valid, would render timely the Bondholders’
claims on all their Bonds because the Bondholders
initiated their prior suit on December 20, 2017, before the
statute of limitations on either the AR16 or GD65 Bonds
expired. In the alternative, the Bondholders argue that the
limitations period on their claims was tolled for 228 days
by the COVID Orders. This latter argument, if correct,
would save the Bondholders’ claims for recovery on the
AR16 Bonds. But it would not preserve their claims on
the GD65 Bonds, because the limitations period for those
expired in February 2018, long before the COVID Orders
were in place.
1.
N.Y. C.P.L.R. § 205(a)
Under N.Y. C.P.L.R. § 205(a), “[i]f an action is timely
commenced and is terminated . . . the plaintiff . . . may
commence a new action upon the same transaction or
occurrence or series of transactions or occurrences
within six months after the termination” so long as the
new action would have been timely when the prior action
was commenced and service is effected within the same
4. The Bondholders’ AR16 Bonds matured on January
30, 2017, and the subsequent six-year period ended on January
30, 2023. Similarly, the Bondholders’ GD65 Bonds matured on
February 21, 2012, and the following six-year period terminated
on February 21, 2018.
13a
Appendix A
six-month period. N.Y. C.P.L.R. § 205(a). The statute
lists certain exceptions to this rule. As relevant here, the
savings provision does not apply if an action was previously
dismissed for “failure to obtain personal jurisdiction over
the defendant.” Id.
In Bugliotti III, the district court granted the
Republic’s motion to dismiss the Bondholders’ thenoperative complaint under Federal Rules of Civil
Procedure 12(b)(1), (2), and (5). 2021 WL 1225971, at *1.
The district court reasoned that because Caja had not
conferred the right to bring suit on the Bondholders, as
required under the Trust Agreements and Argentine
law, the Bondholders lacked standing to enforce the
FAA Bonds. 2021 WL 1225971, at *7-9. Consequently,
the Bondholders could not “invoke the 1994 FAA Bonds’
service of process and jurisdictional provisions under
the FSIA.” Id. at *9. On appeal, this Court noted that it
reviewed de novo the dismissal of the complaint for lack
of both personal and subject-matter jurisdiction. Bugliotti
IV, 67 F.4th at 104.
The Bondholders now argue that the district court’s
dismissal of the complaint in Bugliotti III was based only
on lack of standing, not lack of personal jurisdiction. As
a result, the Bondholders contend, they can invoke N.Y.
C.P.L.R. § 205(a) to cure their statute of limitations defect.
The Bondholders’ argument misapprehends the
nature of the district court’s jurisdiction over the Republic
in this matter. The FSIA is the “sole basis for obtaining
jurisdiction over a foreign state in our courts.” CC/Devas
14a
Appendix A
(Mauritius) Limited v. Antrix Corp. Ltd., 605 U.S. 223,
229, 145 S.Ct. 1572, 221 L.Ed.2d 867 (2025) (internal
quotation marks omitted). Personal jurisdiction exists
under the FSIA where any of the statute’s exceptions
to immunity applies and service of process has been
accomplished. Id. at 232, 145 S.Ct. 1572. One such
exception is where a “foreign state has waived its immunity
either explicitly or by implication.” Cap. Ventures Int’l v.
Republic of Argentina, 552 F.3d 289, 293 (2d Cir. 2009)
(quoting 28 U.S.C. § 1605(a)(1)).
In the operative complaint at issue in Bugliotti
III, the Bondholders relied on the Republic’s waiver of
sovereign immunity and consent-to-jurisdiction clause in
the FAA to establish personal jurisdiction. However, the
district court in Bugliotti III found that the Bondholders
were unable to enforce the FA A Bonds, 2021 WL
1225971, at *7-*8, meaning that they could not invoke
the jurisdictional provisions contained in the FAA. The
ruling thus undermined the Bondholders’ sole basis for
asserting that the district court had personal jurisdiction
over the Republic. Although the district court referred to
the Bondholders’ lack of “standing” in its decision, id. at
*7, the true defect was lack of jurisdiction: The district
court was speaking to the Bondholders’ lack of standing
to enforce the consent-to-jurisdiction terms of the FAA,
not to a lack of Article III or statutory standing. This
conclusion was made even more clear by the district court’s
express invocation of Federal Rule of Civil Procedure
12(b)(2) (which provides for dismissal for “lack of personal
jurisdiction”) as one of the bases for dismissing the
complaint. See id. at *1. The district court’s dismissal in
15a
Appendix A
Bugliotti III was thus grounded, at least in part, in a lack
of personal jurisdiction. Accordingly, the Bondholders
cannot invoke the six-month relation-back provision of
§ 205(a) to make their present complaint timely.
Further, we are unpersuaded by the Bondholders’
argument that § 205(a) applies despite any “curable
defect,” which they argue is the situation here. As a
preliminary matter, the text of § 205(a) plainly states
that the statute does not apply where the prior action
was dismissed for lack of personal jurisdiction; it does not
distinguish between curable and non-curable defects. See
N.Y. C.P.L.R. § 205(a). But even assuming § 205(a) does
make such a distinction, the Bondholders’ argument would
still fail. In Yonkers Contracting Co. v. Port Authority
Trans-Hudson Corp., 93 N.Y.2d 375, 690 N.Y.S.2d 512, 712
N.E.2d 678 (1999), the New York Court of Appeals held
that § 205(a) does not apply to an action that was previously
dismissed for the “curable defect” of failure to establish
that the defendant waived its sovereign immunity. Id.
at 379, 690 N.Y.S.2d 512, 712 N.E.2d 678 (holding that
sovereign immunity had not been waived, where statute
required “timely suit as an integral part of its waiver of
sovereign immunity”). This Court later stated that the
outcome in Yonkers Contracting was, in part, a result
of the plaintiff’s right to sue arising from a “statutory
waiver of sovereign immunity.” Hakala v. Deutsche Bank
AG, 343 F.3d 111, 114 (2d Cir. 2003). We reasoned that
“[g]iven the fact that a sovereign entity was free to make
itself completely immune to suit by simply declining to
waive its immunity, the harsh result of disallowing the
remedial provision of § 205(a) was far less unfair.” Id. at
16a
Appendix A
116. The same rationale applies here. Because Bugliotti
III held that the Bondholders could not take advantage
of the waiver of sovereign immunity in the FAA Bonds
(which in turn would have granted personal jurisdiction),
2021 WL 1225971, at *9, § 205(a) does not apply to the
Bondholders’ claims.
2.
The COVID Orders
We agree with the Bondholders, however, that New
York’s COVID-era executive orders tolled the statute of
limitations between March 20 and November 3, 2020, for
a total of 228 days.
On March 20, 2020, then-New York Governor Andrew
Cuomo issued Executive Order 202.8, declaring that “[i]n
accordance with the directive . . . to limit court operations
to essential matters during the pendency of the COVID-19
health crisis, any specific time limit for the commencement
. . . of any legal action . . . is hereby tolled from the date of
this executive order until April 19, 2020.” N.Y. Exec. Order
202.8 (emphasis added). The Governor later issued eight
executive orders that repeatedly extended the March 20,
2020, Order. See N.Y. Exec. Order Nos. 202.14, 202.28,
202.38, 202.48, 202.55, 202.55.1, 202.60, 202.67.
Since then, the New York Court of Appeals has
consistently characterized these Orders as “tolling” the
statute of limitations. Favourite Ltd. v. Cico, 42 N.Y.3d
250, 260-61, 218 N.Y.S.3d 540, 243 N.E.3d 494 (2024); see
also Jaime v. City of New York, 41 N.Y.3d 531, 537 n.2,
213 N.Y.S.3d 730, 237 N.E.3d 796 (2024) (“the governor
17a
Appendix A
issued an executive order containing a provision that
tolled all limitations periods due to the COVID-19
pandemic”) (emphasis added). All four New York Appellate
Departments have also stated that these Orders operate
to toll the applicable New York-law limitations periods.
Zak v. Bronx Park Phase I Preserv., LLC, 237 A.D.3d 654,
655, 233 N.Y.S.3d 288 (1st Dep’t 2025) (“the three-year
statute of limitations was tolled by executive orders”);
Baker v. 40 Wall St. Holdings Corp., 226 A.D.3d 637, 638,
208 N.Y.S.3d 680 (2d Dep’t 2024) (holding that executive
orders “constitute a toll of the filing deadlines”) (internal
quotation marks omitted); Matter of Roach v. Cornell
Univ., 207 A.D.3d 931, 932, 172 N.Y.S.3d 215 (3d Dep’t
2022) (holding that executive orders constituted a “toll”
that suspended the running of the limitations period);
Harden v. Weinraub, 221 A.D.3d 1460, 1462, 200 N.Y.S.3d
207 (4th Dep’t 2023) (characterizing executive orders as
creating a “toll”). This Circuit, too, has echoed the New
York Court of Appeals’ characterization of the COVID
Orders as tolling the relevant periods. See In re Nordlicht,
115 F.4th 90, 113 (2d Cir. 2024).
Adopting this characterization, we conclude that the
COVID Orders, like all other tolling provisions, extended
the window for the Bondholders to commence this action
by the length of the 228-day tolled period. See Bermudez
Chavez v. Occidental Chem. Corp., 35 N.Y.3d 492, 505
n.8, 133 N.Y.S.3d 224, 158 N.E.3d 93 (2020) (“A toll does
not extend the statute of limitations indefinitely but
merely suspends the running of the applicable statute
of limitations for a finite and, in this instance, readily
identifiable time period. . . .”). Thus, the Bondholders’
18a
Appendix A
deadline to file claims over the AR16 Bonds was pushed
back 228 days from January 30, 2023, to September 15,
2023. Because the Bondholders initiated suit on July
28, 2023, their claims on the AR 16 Bonds are timely.
By contrast, the tolling provided by the COVID Orders
does not save the claims over the GD65 Bonds because
the limitations period on these claims expired in 2018,
before the COVID Orders were in place. Put another way,
because the statute of limitations had already run on the
GD65 Bonds, there was no longer a limitations period to
be tolled on those claims by the time that the Governor
issued his executive orders.
The district court reached a different conclusion
on the effect of the COVID Orders, reasoning that the
Bondholders could not invoke “equitable tolling” because
they had not explained how the COVID-19 pandemic
impacted their ability to file claims, and indeed they were
litigating this matter while the COVID Orders were in
place. Bugliotti V, 2024 WL 4349273, at *5. The district
court erred, however, in analyzing the COVID Order
under an equitable tolling framework. Equitable tolling
is a discretionary exercise of a court’s equitable powers
that “prevent[s] unfairness to a plaintiff who is not at
fault for lateness in filing” when the movant demonstrates
“some extraordinary circumstance stood in her way” and
that “she has been pursuing her rights diligently.” SaintJean v. Emigrant Mortg. Co., 129 F.4th 124, 142 (2d Cir.
2025) (internal citation and quotation marks omitted).
New York’s COVID Orders do not, however, condition
their applicability upon any equitable showing by a party.
Instead, the COVID Orders provide automatic relief from
19a
Appendix A
limitations periods on New York-law claims for a set period
of time. See N.Y. Exec. Order 202.8.
We are unpersuaded by the Republic’s contention that
the COVID Orders extended the limitations period only
for claims that expired while the Orders were in effect.
The text of the March 20, 2020, Order does not restrict
tolling to limitations periods that expired while the Order
was in place. N.Y. Exec. Order 202.8. Nor, as a general
matter, does tolling work that way. See Bermudez Chavez,
35 N.Y.3d at 505 n.8, 133 N.Y.S.3d 224, 158 N.E.3d 93.
Indeed, the Second Department has expressly rejected the
argument put forth by the Republic, and we are persuaded
that its holding accurately reflects New York law. Baker,
226 A.D.3d at 638, 208 N.Y.S.3d 680.
Nor do we discern any merit in the Republic’s
contention that then-Governor Cuomo lacked authority
to toll the statute of limitations. Executive Law Section
29-a provides the Governor with authority to “temporarily
suspend specific provisions of any statute, local law,
ordinance, or orders . . . if compliance with such provisions
would prevent, hinder, or delay action necessary to cope
with [a state disaster emergency].” N.Y. Exec. Law
§ 29-a(1) (emphasis added). Suspensions of statutory
requirements under Section 29-a “may provide for the
alteration or modification of” these requirements. Id.
§ 29-a(2)(d). The First and Second Departments have both
held that the authority to “alter[]” or “modify[]” statutory
requirements includes tolling limitations periods, and they
have confirmed the Governor’s authority to do so under
Section 29-a. Murphy v. Harris, 210 A.D.3d 410, 411, 177
20a
Appendix A
N.Y.S.3d 559 (1st Dep’t 2022); Brash v. Richards, 195
A.D.3d 582, 584-85, 149 N.Y.S.3d 560 (2d Dep’t 2021). This
outcome strikes us as correct, and these decisions allow
us to predict with confidence that the New York Court of
Appeals would rule the same way if asked. See Licci ex
rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50,
74 (2d Cir. 2012).
In sum, although the Bondholders cannot take
advantage of N.Y. C.P.L.R. § 205(a), the COVID Orders
extended the limitations period on the AR16 Bonds by 228
days. As a result, the Bondholders’ claims to recover on
the AR16 Bonds are timely and the district court erred
in declining to apply the COVID Orders to those claims.
B. The Bondholders’ Authority to Enforce the
FAA Bonds
The Bondholders next argue that the district court
erred in holding that collateral estoppel barred relitigation
of whether they had authority to sue to enforce the FAA
Bonds—in particular, whether they needed to reassemble
their Bonds before bringing suit. In their view, the district
court’s determination on this point in Bugliotti III has no
preclusive effect because this Court affirmed Bugliotti
III on alternative grounds. The Bondholders further
contend that Argentine law does not actually require
reassembly of the FAA Bonds, and that the new orders
of the Commercial Court authorize them to proceed with
the litigation in New York. We agree with the Bondholders
in each respect.
21a
Appendix A
1.
Collateral Estoppel
“[I]f an appellate court considers only one of a lower
court’s alternative bases for its holding, affirming the
judgment without reaching the alternative bases, only the
basis that is actually considered can have any preclusive
effect in subsequent litigation.” Niagara Mohawk Power
Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d
747, 754 (2d Cir. 1996); accord In re Peters, 642 F.3d
381, 386 (2d Cir. 2011). In so holding, we have echoed
the Restatement of Judgments: “If the appellate court
upholds one of [multiple] determinations as sufficient and
refuses to consider whether or not the other is sufficient
and accordingly affirms the judgment, the judgment is
conclusive as to the first determination.” Restatement
(Second) of Judgments § 27 cmt. o (1982), cited in In re
Peters, 642 F.3d at 386.
The district court’s holding on reassembly in Bugliotti
III falls neatly into this exception to collateral estoppel. In
Bugliotti III, the district court held that the Bondholders
lost on two independent grounds: (1) that Caja had not
at that time conferred on the Bondholders the right
to bring suit, and (2) that the Bondholders failed to
satisfy the reassembly requirement that, the court held,
was mandated by Argentine law. 2021 WL 1225971, at
*7-8. It described the first of these issues—obtaining
authorization to initiate suit—as an “alternative remedy”
to reassembling the Bondholders’ FAA Bonds. Id. at *9.
On appeal, we affirmed on the first ground alone: that
the Bondholders lacked authority to enforce the FAA
Bonds because Caja had not delegated this authority to
22a
Appendix A
the Bondholders. Bugliotti IV, 67 F.4th at 105. We were
studiously agnostic, however, about the district court’s
holding with respect to reassembly. All we said on that
score was that our conclusion would be the same even if
reassembly was not required. Id. at 105-06. In short, the
district court’s holding on reassembly in Bugliotti III was
an alternative basis for the judgment that was not affirmed
on appeal. Accordingly, it is not preclusive.
For similar reasons, the district court erred in holding
that the Bondholders were collaterally estopped from
broadly relitigating “issues of jurisdiction.” Bugliotti V,
2024 WL 4349273, at *7. As we have explained, Bugliotti
III relied on two alternative bases for its holding that the
Bondholders had failed to establish jurisdiction in New
York—Caja’s failure to authorize the Bondholders to sue
on the bonds, and the Bondholders’ failure to reassemble
the bonds—both of which precluded the Bondholders from
invoking the jurisdiction-granting provisions of the FAA.
When this occurs, the preclusion analysis looks to whether
each of the alternative bases was affirmed on appeal, not
whether the overarching holding was upheld. See Niagara
Mohawk, 94 F.3d at 754. Here, the district court framed
its preclusion analysis around Bugliotti III’s overarching
holding on jurisdiction. This was in error.
Therefore, to determine whether reassembly is a
condition precedent to bringing suit on the FAA Bonds,
and then to consider whether the Bondholders have now
obtained authority to sue in lieu of Caja, this Court must
embark on its own examination of Argentine law.
23a
Appendix A
2.
Reassembly Requirement Under Argentine
Law
Under Federal Rule of Civil Procedure 44.1, “the
court may consider any relevant material or source,
including testimony, whether or not submitted by a party
or admissible under the Federal Rules of Evidence” when
determining questions of foreign law. Fed. R. Civ. P.
44.1. “Rule 44.1 frees courts to `reexamine and amplify
material . . . presented by counsel in partisan fashion or
in insufficient detail.” Animal Sci. Prods., Inc. v. Hebei
Welcome Pharm. Co., 585 U.S. 33, 42, 138 S.Ct. 1865, 201
L.Ed.2d 225 (2018) (internal quotation marks and citation
omitted). This extends to appellate courts, which review de
novo a district court’s determination of foreign law under
Rule 44.1. Bugliotti II, 952 F.3d at 413-14.
The parties presented the district court w ith
competing declarations from experienced Argentine
lawyers to marshal the pertinent legal authorities on each
side of the question of whether Argentine law requires the
Bondholders to reassemble their bonds in order to pursue
the present lawsuit. For the Republic, Gabriel Bottini
attests to the existence of a reassembly requirement.
For the Bondholders, Mario A. Carregal and Roberto E.
Silva, Jr., argue to the contrary. After reviewing these
authorities, the district court concluded that “Argentine
law requires Plaintiffs to return the tax-credit certificates
and CCs to reassemble the bonds to bring suit on the
bonds.” Bugliotti III, 2021 WL 1225971, at *8. The court
reasoned that 358*358 Argentine “precedent indicat[es]
that bondholders must reassemble their bonds before
24a
Appendix A
exercising any rights related to their bonds.” Id. Upon our
own independent review of the relevant authorities, we
conclude that Argentine law does not require reassembly
as a condition precedent to suing to recover on the bonds.
The Republic attempts to locate a reassembly
requirement in three sources of Argentine law: (1) the
Argentine Supreme Court’s 2014 decision in Domec
Compania de Artefactos Domésticos S.A.I.C. y F v.
Republic of Argentina, 265/2011, 47-D (Arg. Sup. Ct. Nov.
27, 2014) (“Domec”); (2) the Argentine Supreme Court’s
2015 decision in Bugliotti v. Republic of Argentina,
134/2012 (Arg. Sup. Ct. July 14, 2015) and an “opinion of
the public prosecutor” endorsed therein; and (3) Section 5
of the Trust Agreements. However, none of these sources
establishes that participants in the Tax Credit Program
must reassemble their FAA Bonds before suing to recover
on these instruments.
We beg in w ith Domec. The Republic and its
Argentine-law expert repeatedly cite this opinion as
establishing that participants in the Tax Credit Program
must reassemble their Bonds before suing to enforce
them. We read the Argentine Supreme Court’s decision
differently. 5 That case involved a public debt exchange
5. In considering Argentine law, we accord great weight to
decisions of the Argentine Supreme Court even though its rulings
are not strictly binding on lower courts in the Argentine civil law
system which, like most legal regimes based on the continental
model, lacks a formal doctrine of vertical stare decisis. See Alberto
F. Garay, A Doctrine of Precedent in the Making: The Case of the
Argentine Supreme Court’s Case Law, 25 Sw. J. Int’l L. 258, 268-
25a
Appendix A
offer by the Republic pursuant to a 2004 decree, in which
bondholders could basically swap out their old FAA bonds
for new replacement bonds subject to new terms, even if
they had participated in the Tax Credit Program. In order
to trade in their bonds, however, the program required
bondholders to “reconstitute” (reconstituir) their old
bonds by tendering any unused CCs and CCFs to Caja,
and to deposit cash in the amount of any CCs and CCFs
that had been paid out. Joint App’x at 428. The Republic
devised a similar debt-exchange program in 2010, for
participants in the Tax Credit Program who had not
taken advantage of the 2004 decree. Like its predecessor,
the 2010 program allowed bondholders to swap out their
original bonds, but only if they deposited both their
unused CCs and CCFs and an amount of cash equal to any
certificates they had already used. After recounting the
details of these programs, the Argentine Supreme Court
merely held that the Republic’s suspension of payments
on the FAA Bonds was lawful. Joint App’x at 429 (“Under
the above-mentioned conditions and in the then-prevailing
emergency situation, it is possible to conclude that the
government’s decision to suspend the system stipulated in
Decree No. 1226/01 . . . was a step that can be considered
valid. . . .”).
73 (2019) (describing the role of judicial precedent in Argentina);
Santiago Legarre, Precedent in Argentine Law, 57 Loyola L. Rev.
781, 786 (2011) (noting that as a practical matter lower courts in
Argentina generally follow on-point cases from the Argentine
Supreme Court, but can depart from this precedent where there
is good reason to do so).
26a
Appendix A
Nothing in the Domec decision suggests that, in
order to bring suit on the FAA Bonds in New York,
bondholders had to “reconstitute” or “reassemble” the
bonds. To the extent that the Argentine Supreme Court
discussed reassembly at all, it was only to describe the
steps that were explicitly required by government decree
for participation in the 2004 and 2010 debt exchange
programs. At no point did the Court suggest that a similar
reassembly requirement was mandated in other contexts,
such as a lawsuit to enforce FAA Bonds. Accordingly,
Domec does not support the Republic’s argument that
reassembly was required here.
Nor is the Republic’s argument aided by the Argentine
Supreme Court’s 2015 decision in Bugliotti v. Republic of
Argentina, 134/2012 (Arg. Sup. Ct. July 14, 2015). In that
case, which was part of these Bondholders’ challenge to the
constitutionality of the Republic’s payment moratorium in
Argentina, the Argentine Supreme Court issued a brief
order endorsing an “opinion of the Public Prosecutor.” Joint
App’x at 448. That cross-referenced opinion acknowledged
a reassembly requirement for participants in the Tax
Credit Program who sought to take part in a new “public
debt swap.” Dkt. No. 36, Exhibit A at 14. But that simply
restates the holding in Domec: According to the rules
of a decree creating a new public debt exchange offer,
participants in the Tax Credit Program had to reassemble
the underlying bonds if they wanted to swap their CCs
and CCFs for yet another form of Argentine sovereign
debt. And, as in Domec, the public prosecutor’s opinion
nowhere suggests an analogous reassembly requirement
for creditors who wished to bring suit against the Republic
27a
Appendix A
under the terms of the underlying FAA, pursuant to which
the FAA Bonds were issued.
Finally, the Republic attempts to locate a reassembly
requirement in Section 5 of the Trust Agreements,
whereby the Bondholders agreed to the “disassembly of
the [FAA Bonds] for their crediting as CCFs or CCs.”
Joint App’x at 102-03. However, this language at most
establishes that the Bondholders agreed to “disassembl[e]”
their FAA Bonds when placing them in trust with Caja,
for purposes of receiving corresponding certificates for
the principal and interest components of the bonds. It
does not suggest that, if the Republic were to default on
its obligations under the Tax Credit Program, creditors
would have to effectively repay all of the interest they had
received (or more precisely, the value of the tax credits
they had received in lieu of the interest payments), in
order to sue the Republic to recoup the unpaid principal.
The Republic has thus failed to demonstrate that
Argentine law precludes the Bondholders from proceeding
with this suit if they do not first reassemble the Bonds.
The Republic cautions that failure to impose a
reassembly requirement for private litigants would enable
participants in the Tax Credit Program to double-recover
on interest payments that they already received in the
form of tax credits. This concern is misplaced. As the
Bondholders expressly represented to this Court, they
seek to recover only the unpaid principal amounts on their
FAA Bonds (plus post-maturity interest on that principal),
not any interest that would have been payable on the bonds
28a
Appendix A
themselves. See Appellants’ Reply Br. at 18 (arguing that
reassembly “is particularly insupportable for a lawsuit
(such as this one) not seeking to recover bond interest”).
C.
E f fe c t i v e n e s s o f C o m m e r c i a l C o u r t
Authorization
Finally, we turn to whether the Commercial Court’s
authorization for the Bondholders to sue on the FAA
Bonds was effective under Argentine law. Though the
district court did not address this issue below, Bugliotti
V, 2024 WL 4349273, at *3, *7, this Court has discretion to
decide when issues should be addressed for the first time
on appeal, and it has exercised this discretion to answer
purely legal questions. J.C. v. Reg’l Sch. Dist. 10, Bd. of
Educ., 278 F.3d 119, 125 (2d Cir. 2002). Here, we take up
this issue because the effectiveness of the Commercial
Court’s authorization to enforce the FAA Bonds is a pure
question of Argentine law, the issue has been fully briefed,
and remanding for the district court to consider this
question in the first instance would delay the pendency
of this already long-running suit.
After this Court affirmed dismissal of the Bondholders’
prior complaint in Bugliotti IV, the Commercial Court
issued orders expressly authorizing the Bondholders to
sue the Republic for collection on the FAA Bonds, in light
of the fact that Caja as trustee had declined to bring such
actions. Caja participated in the authorization proceeding
and did not object to the Bondholders’ application. The
Bondholders then initiated the current suit in New York.
29a
Appendix A
The Republic does not dispute that, under the terms of
the Trust Agreements and Argentine law, the Bondholders
were entitled to seek authorization to enforce the bonds in
place of Caja. As the Commercial Court observed, Article
18 of Argentine Law 24,441 (which governed the Trust
Agreements at the time they were executed) provided
that:
The trustee is authorized to exercise all
actions necessary for the defense of the trust
assets, both against third parties and against
the beneficiary. The judge may authorize the
trustor or the beneficiary to exercise actions
instead of the trustee when the trustee fails to
do so without sufficient cause.
Joint App’x at 40 (emphasis added); id. (noting that this
provision “was incorporated almost verbatim in Article
1689 of the Civil and Commercial Code of [Argentina]”).
The Republic’s challenge to the validity of the Commercial
Court’s ruling is based entirely on an arbitration clause
contained in the Section 16 of the Trust Agreements, which
provides that the “Parties agree to resolve their disputes
[discrepancias] through an arbitration procedure, for
which purpose they submit to the Permanent Arbitration
Tribunal [PAT] of the Buenos Aires Stock Exchange
and the application of its regulations, waiving any
other jurisdiction that may correspond to them.” In the
Republic’s view, only the PAT—and not the Commercial
Court—had competency to authorize the Bondholders to
enforce the FAA Bonds. The Bondholders, unsurprisingly,
take the opposite position.
30a
Appendix A
It is not clear to us that the Republic, as a non-party to
the Trust Agreements, has the right to require arbitration
of any disputes between Caja and the Bondholders. But
we need not resolve this question because, as we explain
below, the uncontested proceeding before the Commercial
Court did not fall within the scope of the arbitration clause
at all.
The parties’ disagreement about the scope of the
arbitration clause turns on the term “discrepancias,” in
the phrase “the Parties agree to resolve their disputes
[discrepancias] through an arbitration procedure. . . .” The
parties agree that the word “discrepancias” translates
here to “disputes.” They also agree that under Article 736
of the Argentine Civil and Commercial Procedural Code,
which governs the Trust Agreements, the term “dispute”
must be read to include “questions.” 6 However, the
Bondholders’ Argentine-law experts also explain, citing
“one of the main authorities” on Argentine procedural law,
that the term “questions” must be read to mean “the filing
of a dispute” or a “controversy.” Joint App’x at 464 (citing
Lino Enrique Palacio, V Derecho Procesal Civil 3779-80
(4th ed. 2011)). They also note that arbitrators cannot be
called upon to act in a “voluntary procedural role” under
6. Article 736 provides: “[A]ny question between parties . . .
may be submitted to the decision of arbitration judges, either
before or after the trial has been instituted and whatever the
stage of the trial may be.” Joint App’x at 645. In Spanish, this
reads: “Toda cuestión entre partes, excepto las mencionadas
en el artículo 737, podrá ser sometida a la decisión de jueces
árbitros, antes o después de deducida en juicio y cualquiera
fuere el estado de éste.” Id.
31a
Appendix A
Argentine law. Id (citing Palacio, V Derecho Procesal
Civil at 3779-80). The Republic’s expert, by contrast,
does not cite any Argentine legal authority or scholarly
commentary in arriving at a contrary conclusion.7 We find
the Bondholders’ interpretation more solidly supported
by Argentine authority, and therefore more persuasive.
Applying this interpretation here, the arbitration
clause did not require the Bondholders to resort to the
PAT to obtain authorization to enforce the FAA Bonds,
where Caja informed the Commercial Court that it did not
oppose their request and there was accordingly no “dispute”
between the parties to be arbitrated. We therefore conclude
that the Commercial Court’s orders validly authorized the
Bondholders to bring the present lawsuit.
IV. Conclusion
In sum, we hold as follows:
(1) The Bondholders’ claims to recover on the GD65
Bonds are time-barred by New York’s six-year
statute of limitations for contract actions. Their
7. The Republic’s other Argentine-law expert, Gabriel Bottini,
also opines that “the competent jurisdiction as regards to any
matter relating to the Trust Agreement . . . is the Arbitration
Tribunal of the Buenos Aires Stock Exchange.” Joint App’x at 81.
However, Bottini does not discuss whether a voluntary assignment
of authority to enforce the FAA Bonds can be adjudicated only in the
PAT. Similarly, the Bottini Declaration from the prior district court
docket that the Republic cites in its brief contains only an offhanded
reference to authorizing the right to enforce the FAA Bonds in
arbitration. It does not discuss whether a voluntary authorization,
which is presently at issue, falls within the arbitration clause.
32a
Appendix A
claims to recover on the AR16 Bonds are timely
given the tolling of this limitations period by New
York’s COVID-era executive orders.
(2) The district court’s decision in Bugliotti III
did not collaterally estop the Bondholders from
relitigating the question of whether they were
required to reassemble their FAA Bonds before
initiating suit.
(3) As a matter of Argentine law, reassembly of the
FAA Bonds is not a condition precedent to the
Bondholders bringing suit in New York to recover
unpaid principal on those bonds.
(4) The orders of Commercial Court No. 9 of Buenos
Aires authorizing the Bondholders to sue the
Republic over nonpayment of the FAA Bonds
were effective under Argentine law and permit
the Bondholders to bring this action for the nonpayment of principal on those bonds.
The judgment of the district court is AFFIRMED IN
PART, to the extent it dismissed the Bondholders’ claims
with respect to the GD65 Bonds; it is VACATED IN PART,
to the extent that it dismissed the AR16 Bonds; and the
case is REMANDED for further proceedings.
A True Copy
Catherine O’Hagan Wolfe, Clerk
United States Court of Appeals, Second Circuit
/s/ Catherine O’Hagan Wolfe
33a
Appendix
B UNITED STATES
APPENDIX B — ORDER
OF THE
COURT OF APPEALS FOR THE SECOND CIRCUIT,
FILED APRIL 9, 2026
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Docket No: 24-2950
EUCLIDES BARTOLOME BUGLIOTTI, MARIA
CRISTINA DE BIASI, ROXANA INES ROJAS,
DENISE LAURET, MARIA CARLA GONANO,
Plaintiffs-Appellants,
v.
THE REPUBLIC OF ARGENTINA,
Defendant-Appellee.
ORDER
Appellants, Euclides Bartolome Bugliotti, Maria
Cristina De Biasi, Roxana Ines Rojas, Denise Lauret and
Maria Carla Gonano, filed a petition for panel rehearing,
or, in the alternative, for rehearing en banc. The panel
that determined the appeal has considered the request
for panel rehearing, and the active members of the Court
have considered the request for rehearing en banc.
34a
Appendix B
IT IS HEREBY ORDERED that the petition is
denied.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
/s/ Catherine O’Hagan Wolfe
35a
Appendix C
APPENDIX C — MEMORANDUM
AND ORDER
OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK,
FILED SEPTEMBER 30, 2024
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
No. 23 CV 6588 (LAP)
EUCLIDES BARTOLOMÉ BUGLIOTTI, MARIA
CRISTINA DE BIASI, ROXANA INÉS ROJAS,
DENISE LAURET, AND MARIA CARLA GONANO,
Plaintiffs,
-againstTHE REPUBLIC OF ARGENTINA,
Defendant.
MEMORANDUM & ORDER
LORETTA A. PRESKA, Senior United States District
Judge:
Euclides Bartolomé Bugliotti, Maria Cristina De
Biasi, Roxana Inés Rojas, Denise Lauret, and Maria Carla
Gonano (collectively, “Plaintiffs”) bring this second action
against the Republic of Argentina (“the Republic”) for
damages resulting from the Republic’s alleged default on
36a
Appendix C
bonds.1 The Republic moves to dismiss the action pursuant
to Federal Rules of Civil Procedure 12(b)(1), (2), (5), and
(6). 2 Plaintiffs oppose. 3 For the following reasons, the
Republic’s motion to dismiss is granted.
I.
Background
This is Plaintiffs’ second action against the Republic
and the Republic’s third 12(b) motion before the Court.
This action arises between Plaintiffs, who are citizens and
residents of Argentina, and the Republic, a foreign state
under the Foreign Sovereign Immunities Act (“FSIA”).
(See Compl. ¶ 2); see 28 U.S.C. § 1603(a).
1. (See Compl., dated July 28, 2023 [dkt. no. 1].)
2. (See Def.’s Notice of Mot. to Dismiss, dated Oct. 16, 2023
[dkt. no. 17]; Def.’s Mem. of Law in Supp. of Mot. to Dismiss
(“Def.’s Br.”), dated Oct. 16, 2023 [dkt. no. 18]; Def.’s Notice under
Rule 44.1, dated Oct. 16, 2023 [dkt. no. 19]; Decl. of Rathna J.
Ramamurthi in Supp. of Mot. to Dismiss (“Ramamurthi Decl.”),
dated Oct. 16, 2023 [dkt. no. 20]; Def.’s Reply Mem. of Law in Supp.
of Mot to Dismiss, dated Jan. 9, 2024 [dkt. no. 33]; Decl. of Rathna
J. Ramamurthi in Supp. of Reply, dated Jan. 9, 2024 [dkt. no. 34];
Decl. of Carlos M. Tombeur in Supp. of Reply, dated Jan. 9, 2024
[dkt. no. 35]; Decl. of Caja de Valores in Supp. of Reply, dated Jan.
9, 2024 [dkt. no. 36].)
3. (See Pl.’s Mem. of Law in Opp’n to Mot. to Dismiss (“Opp’n
Br.”), dated Nov. 27, 2023 [dkt. no. 27]; Decl. of Michael C. Spencer
in Opp’n to Mot. to Dismiss (“Spencer Decl.”), dated Nov. 27, 2023
[dkt. no. 28]; Decl. of Mario A. Carregal & Roberto E. Silva, Jr.,
dated Nov. 27, 2023 [dkt. no. 29]; Notice under Rule 44.1, dated
Nov. 27, 2023 [dkt. no. 30].)
37a
Appendix C
A.
Factual Background
The instant action derives from the same “[b]onds,
claims, transactions, and occurrences . . . as in the prior
action [before this Court,] 17 Civ. 9934.” (Compl. ¶ 23.) The
Court presumes familiarity with the facts and lengthy
history of the prior case, which this Court and the Court
of Appeals have recounted at length.
In short, Plaintiffs are the beneficiaries of trusts
holding $35.8 million of Argentine bonds. (Id. at 2.)
Plaintiffs originally purchased the bonds pursuant to the
Fiscal Agency Agreement dated October 19, 1994 (“FAA”).
(Id. ¶¶ 6-7.) The terms of the FAA required the Republic
to make payments for principal and interest on the bonds.
(Id. ¶ 9.) Moreover, under the FAA, the Republic appointed
Banco de la Nación Argentina as its agent for service of
process, waived sovereign immunity, and submitted to the
jurisdiction of this Court. (Id. ¶ 10.)
In or around November 2001, Plaintiffs subscribed to
a Tax Credit Program, whereby Plaintiffs agreed to place
their bonds in trust with Caja de Valores, S.A. (“Caja”)
and, in exchange, received custody certificates and tax
credits. (Id. ¶ 12.) Under the Program, Plaintiffs could
credit any unpaid interest on their bonds toward local
tax liabilities. (Id. ¶¶ 12, 15); Bugliotti v. Republic of Arg.
(“Bugliotti I”), No. 17 Civ. 9934 (LAP), 2019 WL 586091,
at *2 (S.D.N.Y. Jan. 15, 2019).
The Trust Agreement governing this transaction
provides, in relevant part, that the trust “is governed by
38a
Appendix C
. . . [Argentine] Law 24[,]441. . . .” Bugliotti v. Republic of
Arg. (“Bugliotti IV”), 67 F.4th 102, 105 (2d Cir. 2023) (citing
Trust Agreement § 2.1). In turn, Article 18 of Law 24,441
provides that the trustee (Caja) may “exercise all actions
necessary to defend the [bonds]” but notes that a “judge
may authorize the trustor or the beneficiary to exercise
actions instead of the trustee[]. . . .” See id. (citation
omitted). Moreover, Section 5 of the Trust Agreement
requires “the disassembly of the [bonds] for their crediting
as [tax-credit certificates or custody certificates]. . . .” (See
Ramamurthi Decl., Ex. 2.3 § 5(iii).) Plaintiffs do not allege
that the Trust Agreement contains a waiver of sovereign
immunity or submission of jurisdiction.
On or around December 24, 2001, the Republic declared
a moratorium on the payment of principal and interest on
bonds issued under the FAA. (Compl. ¶ 13.) Plaintiffs
allege that the Republic has not made any payments on
these bonds since it instituted the moratorium. (Id. ¶ 14.)
Plaintiffs’ bonds matured on February 21, 2012, and
January 30, 2017, respectively. (Id. ¶ 15.)
B. Procedural History
As relevant here, Plaintiffs filed suit in federal court
on December 20, 2017 (the “Earlier Action”), seeking
damages and injunctive relief based on the Republic’s
alleged non-payment on the bonds.4 The Republic moved
4. Plaintiffs also commenced amparo proceedings in
Argentina, which were the subject of some discussion in the Earlier
39a
Appendix C
to dismiss, arguing lack of subject-matter jurisdiction,
lack of personal jurisdiction, insufficient service of
process, and failure to state a claim. (See Spencer Decl.,
Ex. 4.) The Court dismissed the Earlier Action on January
15, 2019, concluding that Plaintiffs’ participation in the Tax
Credit Program constituted an “exchange” of Plaintiffs’
bonds, such that Plaintiffs no longer “owned” bonds under
the FAA. See Bugliotti I, 2019 WL 586091, at *2-3. The
Court concluded that Plaintiffs therefore could not rely
on the Republic’s waiver of sovereign immunity under
the FAA and the Court lacked jurisdiction to hear the
matter. See id.
The Court of Appeals vacated the judgment as to
damages, holding that the relevant question was “not
whether Plaintiffs ‘own’ the bonds but whether they
may sue to enforce them[,]” and it remanded the case
for a determination of whether Plaintiffs are “entitled to
sue to enforce the bonds.” Bugliotti v. Republic of Arg.
(“Bugliotti II”), 952 F.3d 410, 411 (2d Cir. 2020). The
Court of Appeals instructed this Court to apply Federal
Rule of Civil Procedure 44.1 to interpret whether, under
Argentine law, Plaintiffs retained a right to sue on the
bonds in federal court. See id. at 414.
On remand, the Republic renewed its motion to
dismiss for lack of subject-matter jurisdiction, lack of
personal jurisdiction, and insufficient service of process,
(see Spencer Decl., Ex. 11), and the parties briefed the
Action. As the amparo proceedings do not bear on the instant
motion, the Court omits further mention of them here.
40a
Appendix C
question of whether, under Argentine law, Plaintiffs
maintained a right to bring suit on the bonds held in trust.
The Court again dismissed the Earlier Action, concluding
that Caja held an exclusive right to enforce the bonds, and
Caja had not delegated that right to Plaintiffs. Bugliotti v.
Republic of Arg. (“Bugliotti III”), No. 17 Civ. 9934 (LAP),
2021 WL 1225971, at *7-8 (S.D.N.Y. Mar. 31, 2021).
The Court also held that no party could bring suit
on the bonds unless they were first “reassembled” by
returning the custody certificates and economic value of
the tax—credit certificates and terminating the trust. (Id.
at *7-9.) The Court then noted that, still, Plaintiffs were
not without recourse because Article 18 of Law 24,441
permits Plaintiffs to seek judicial authorization to enforce
the bonds instead of Caja. See id. at *9 (citing Law No.
24,441, Art. 18, Jan. 9, 1995, B.O. 28061 (Arg.)).
Plaintiffs again appealed the dismissal order to
the Court of Appeals. In recounting the procedural
history below, the Court of Appeals recited this Court’s
determination that “no party—Caja or Plaintiffs—could
bring suit under the bonds without first reassembling
[them]. . . .” Bugliotti IV, 67 F.4th at 104 (emphasis added).
It also quoted the Court’s holding that “‘Plaintiffs lack[ed]
standing to bring suit to enforce the [bonds] . . . under
Argentine trust law,’ and therefore, could not ‘invoke the
[FAA’s] service[-]of[-] process and jurisdictional [waivers]
under the FSIA.’” See id. (quoting Bugliotti III, 2021
WL 1225971, at *9). The Court of Appeals affirmed the
judgment, holding that “Plaintiffs do not have the right
to recover the bonds under Argentine law.” See id. at 107.
41a
Appendix C
After the Court of Appeals ruled, Plaintiffs applied for
judicial authorization orders from Argentine Commercial
Court No. 9. (Compl. ¶ 20.) On June 21, 2023, Argentine
Commercial Court No. 9 issued such orders authorizing
Plaintiffs to bring suit in place of Caja. (Id. ¶¶ 2, 20; id.,
Ex. A.) Plaintiffs do not allege that they have reassembled
the bonds.
Plaintiffs filed the instant action on July 28, 2023,
seeking damages for principal and post-maturity interest
on the bonds, as well as an award of Plaintiffs’ costs and
attorney’s fees and any pre-judgment interest. (Id. ¶ 40.)
Plaintiffs again rely on the jurisdictional waivers and
service-of-process provisions under the FAA to bring
this suit.
II. Legal Standards
The Republic moves to dismiss this action pursuant to
Federal Rules of Civil Procedure 12(b)(1), (2), (5), and (6).
A.
Rule 12(b)(1)
On a Rule 12(b)(1) motion, a district court “must accept
as true all material factual allegations in the complaint,
but [may] not . . . draw interferences from the complaint
favorable to plaintiffs.” Wasman v. Cliffs Nat. Res. Inc.,
222 F. Supp. 3d 281, 286 (S.D.N.Y. 2016) (citation and
internal quotation marks omitted). The plaintiffs, as the
non-moving party, bear the burden of proving subjectmatter jurisdiction by a preponderance of the evidence.
See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
42a
Appendix C
2000) (citation omitted); Davis v. Kosinksy, 217 F. Supp. 3d
706, 707 (S.D.N.Y. 2016). A court may also refer to evidence
outside of the pleadings. Makarova, 201 F.3d at 11.
B. Rule 12(b)(2)
Under Rule 12(b)(2), the plaintiffs bear the burden of
demonstrating personal jurisdiction over the defendant.
Troma Entm’t, Inc. v. Centennial Pictures Inc., 729 F.3d
215, 217 (2d Cir. 2013). To meet this burden, the plaintiffs
must make a prima facie showing of facts, which, “if
credited by the ultimate trier of fact, would suffice to
establish [personal] jurisdiction over the defendant.” O’Neill
v. Asat Tr. Reg (In re Terrorist Attacks on Sept. 11, 2001),
714 F.3d 659, 673 (2d Cir. 2013) (quotation marks omitted).
C.
Rule 12(b)(5)
Rule 12(b)(5) provides for dismissal of a claim for
improper service of process. Fed. R. Civ. P. 12(b)(5).
“[T]he plaintiff bears the burden of proving [the] adequacy”
of service. Mende v. Milestone Tech., Inc., 269 F. Supp. 2d
246, 251 (S.D.N.Y. 2003) (internal quotation marks and
citation omitted). In evaluating whether service of process
was proper under a Rule 12(b)(5) motion to dismiss, a court
must look to Federal Rule of Civil Procedure 4. The Court
is required to dismiss an action if service was improper
or incomplete “unless it appears that proper service may
still be obtained.” Garcia v. City of New York, No. 15CV-7470 (ER), 2017 WL 1169640, at *4 (S.D.N.Y. Mar. 28,
2017) (quoting Romandette v. Weetabix Co., 807 F.2d 309,
311 (2d Cir. 1986)). In analyzing a motion to dismiss under
43a
Appendix C
Rule 12(b)(5), the Court may look outside the four corners
of the complaint to determine whether it has jurisdiction.
Garcia, 2017 WL 1169640, at *4.
D.
Rule 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6), a
plaintiff must plead sufficient facts “to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A court must accept as true all
well-pleaded facts and must draw all reasonable inferences
in favor of the plaintiff. Twombly, 550 U.S. at 566. But
the court is not bound to accept as true legal conclusions
that are couched as factual allegations. Iqbal, 556 U.S.
at 678. “Nor does a complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id.
(citing Twombly, 550 U.S. at 557). If there are insufficient
factual allegations to raise a right to relief above the
speculative level, the complaint must be dismissed.
Twombly, 550 U.S. at 555.
III. Discussion
The Republic moves, again, to dismiss the instant
action for lack of subject-matter jurisdiction, lack of
personal jurisdiction, insufficient service of process,
and failure to state a claim. The Republic primarily
argues (1) that the claims are time-barred under New
York state’s six-year statute of limitations for contract
claims, and (2) that Plaintiffs are not entitled to sue on
the bonds as a matter of Argentine law. The Court agrees.
44a
Appendix C
A. Plaintiffs’ Claims Are Time-Barred
The Republic argues first that Plaintiffs’ claims are
time-barred by New York’s C.P.L.R. § 213(2). Under
C.P.L.R. § 213(2), “an action upon a contractual obligation
or liability, expressed or implied,” must be “commenced
within six years.” The limitations period for principal and
post-maturity interest begins to run the day after bond
maturity. See Lucesco Inc. v. Republic of Arg., No. 16 Civ.
7638 (LAP), 2018 WL 9539167, at *2 (S.D.N.Y. Sept. 10,
2018) (citation omitted), aff’d, 788 F. App’x 764, 769 (2d
Cir. 2019); see also Ajdler v. Province of Mendoza, 768 F.
App’x 78, 79 (2d Cir. 2019) (“Once a creditor can no longer
establish a right to repayment of principal, there is no basis
or foundation upon which to allege a right to repayment
of post-maturity interest.” (quotation omitted)). Here, the
bonds matured on February 21, 2012, and January 30,
2017, respectively. (Compl. ¶ 15). As such, the limitations
period on the 2012 bonds expired on February 21, 2018,
and the limitations period on the 2017 bonds expired on
January 30, 2023. See C.P.L.R. § 213(2); (see also Def.’s Br.
at 12 (citing Compl. ¶ 15).) Plaintiffs do not contest that
C.P.L.R. § 213(2) applies, that the limitations periods have
run, and that, absent an exception, the claims are barred.
Rather, Plaintiffs argue that New York’s “savings
statute,” C.P.L.R. § 205(a), applies and saves the timebarred claims. In the alternative, Plaintiffs argue that
Executive Order 202.8 (the “COVID-19 Order”) tolls the
statute of limitations by 228 days, such that the claims
on the 2017 bonds are still timely. (See Opp’n Br. at 8-16.)
45a
Appendix C
i.
C.P.L.R. § 205(a)
Under C.P.L.R. § 205(a), a party may commence a
new action within six months after termination of an
earlier action unless the earlier action was dismissed for
“voluntary discontinuance, a failure to obtain personal
jurisdiction over the defendant, a dismissal of the
complaint for neglect to prosecute the action, or a final
judgment upon the merits.” See C.P.L.R. § 205(a). The
parties disagree whether the Court dismissed the Earlier
Action on personal jurisdiction grounds. (See Def.’s Br. at
12-14; Opp’n Br. at 8-16.)
The Republic contends that the Court ruled on
personal jurisdiction, which renders § 205(a) inapplicable
and bars Plaintiffs’ claims. (See Def.’s Br. at 13.) Plaintiffs
argue that the Court cabined its holding to whether
Plaintiffs had standing to enforce the terms of the FAA—a
basis separate from personal jurisdiction. (See, e.g., Opp’n
Br. at 12.) Plaintiffs’ narrow reading ignores the plain text
of the Court’s holdings and that, without the ability to sue
under the FAA, Plaintiffs cannot demonstrate a basis for
subject-matter and personal jurisdiction.
To take a step back, “the FSIA provides the sole basis
for obtaining jurisdiction over a foreign state in federal
court. . . .” Reiss v. Societe Centrale du Groupe Des
Assurances Nationales, 235 F.3d 738, 746 (2d Cir. 2000)
(quoting Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428, 439 (1989)). Under the FSIA, a district
court may exercise personal jurisdiction over a foreign
state where (1) it has original jurisdiction over the claim,
46a
Appendix C
and (2) service has been made under 28 U.S.C. § 1608. 28
U.S.C. § 1330(b) (emphasis added). A district court has
original jurisdiction over “any nonjury civil action against
a foreign state . . . as to any claim for relief in personam
with respect to which the foreign state is not entitled to
immunity. . . .” Id. § 1330(a). Put another way, subjectmatter jurisdiction exists under the FSIA when there is
(1) a nonjury civil action, (2) against a foreign state, (3)
a claim for relief in personam, and (4) no entitlement to
immunity. As to the fourth element, specifically, a foreign
state is “presumptively immune from the jurisdiction of
United States courts” unless an exception applies. See
Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993); see also
28 U.S.C. §§ 1605-07 (listing FSIA exceptions). Waiver is
one such exception.
Plaintiffs’ complaint in the Earlier Action invoked the
terms of the FAA to argue that the Republic had waived
immunity and submitted to the jurisdiction of this Court.
(See Compl., Bugliotti v. Republic of Arg., No. 17-cv-9934
(S.D.N.Y. filed on Dec. 20, 2017), ECF 1 ¶ 10.) The Court,
in concluding that Plaintiffs lacked standing to sue on the
FAA, held that Plaintiffs could “not invoke the 1994 FAA
Bonds’ service of process and jurisdictional provisions
under the FSIA.” Bugliotti III, 2021 WL 1225971, at *9.
Because Plaintiffs relied on the FAA to allege a basis
for jurisdiction—that is, that the Republic had waived
immunity and submitted to this Court’s jurisdiction,—and
Plaintiffs did not allege any other basis for subject-matter
or personal jurisdiction, the Court concluded that it lacked
jurisdiction and dismissed the Earlier Action.
47a
Appendix C
On appeal, the Court of Appeals acknowledged the
same, applying a de novo standard of review for lack of
subject-matter and personal jurisdiction and reciting
the Court’s conclusion that Plaintiffs “could not invoke
the FAA’s service-of-process and jurisdictional waivers
under the FSIA.” See Bugliotti IV, 67 F.4th at 104. Thus,
the plain text of two court opinions makes clear that the
Court ruled, in part, on personal jurisdiction grounds.
Accordingly, as the Court dismissed the Earlier
Action for lack of personal jurisdiction, § 205(a) does
not apply to the instant action, and Plaintiffs’ claims are
barred by § 213(2).
ii.
The COVID-19 Order
Alternatively, Plaintiffs argue that the COVID-19
Order tolls the six-year statute of limitations by 228 days,
such that Plaintiffs’ claims on the 2017 bonds are timely.
(See Opp’n Br. at 16.) Plaintiffs are incorrect.
The COVID-19 Order, like § 205(a), does not apply
to Plaintiffs’ claims. Under the COVID-19 Order,
former Governor Andrew Cuomo declared a state of
emergency due to the COVID-19 pandemic and “toll[ed]”
the limitations periods prescribed under New York’s
procedural laws “to cope with the disaster emergency”
or “to assist or aid in coping with such disaster.” N.Y.
Comp. Codes R. & Regs. tit. 9, § 8.202.8 (2020). Governor
Cuomo extended the tolling period, through successive
executive orders, until November 3, 2020—228 days from
the effective date. See id. § 8.202.72.
48a
Appendix C
Plaintiffs’ effort to invoke the COVID-19 Order to
toll the six-year statute of limitations by 228 days is
without merit because “[t]he COVID-19 pandemic alone
is insufficient to warrant equitable tolling without a more
specific personal reason.” See Verne v. N.Y.C. Dep’t of
Educ., No. 21-CV-5427, 2022 WL 4626533, at *6 (S.D.N.Y.
Sept. 30, 2022). Plaintiffs provide no reason for how the
COVID-19 pandemic affected their ability to file these
claims. To the contrary, between May 8, 2020 and October
5, 2020—while the COVID-19 Order was in effect—
Plaintiffs were busy preparing expert testimony and
briefing the issues ultimately considered in Bugliotti III.
(See Bugliotti v. Republic of Arg., No. 17-cv-9934 (S.D.N.Y.
filed May 8, 2020-Oct. 5, 2020), ECF 26-46.) That Plaintiffs
were actively litigating during this span demonstrates, in
the first instance, that Plaintiffs were capable of meeting
filing deadlines and did not require assistance “coping”
during the COVID-19 pandemic.
Permitting Plaintiffs to benefit from the COVID-19
tolling period now, nearly four years after its expiration
and without a specific reason as to why, would result in
“an unwarranted windfall” to Plaintiffs. See Loeb v. Cnty.
of Suffolk, No. 22-CV-6410 (HG), 2023 WL 4163117, at *3
(E.D.N.Y. June 23, 2023). Thus, the COVID-19 Order does
not apply to Plaintiffs’ claims on the 2017 bonds, and these
claims remain time-barred.
49a
Appendix C
B. Plaintiffs Are Collaterally Estopped from
Relitigating Issues of Jurisdiction
Even assuming arguendo that any of Plaintiffs’
claims were timely, they would nonetheless fail because
Plaintiffs are collaterally estopped from relitigating issues
of jurisdiction. Although preclusion doctrines are typically
considered affirmative defenses subject to waiver, see
Fed. R. Civ. P. 8(c), a court may nonetheless raise issues
of collateral estoppel sua sponte where, as here, the prior
action was brought before the same court and deference
to the prior determinations promotes judicial economy.
See Doe v. Pfrommer, 148 F.3d 73, 80 (2d Cir. 1998)
(observing that a court may, sua sponte, raise collateral
estoppel issues); see also Grieve v. Tamerin, 269 F.3d 149,
154 (2d Cir. 2001). The doctrine of collateral estoppel, or
issue preclusion, serves to conserve judicial resources
and to relieve parties of the cost and vexation of repeat
litigation. See Montana v. United States, 440 U.S. 147,
153-54 (1979) (explaining that the doctrine of collateral
estoppel is “central to the purpose for which civil courts
have been established”).
Collateral estoppel bars relitigation of a specific
factual or legal issue in a second proceeding where (1) the
identical issue was raised in a prior proceeding, (2) the
issue was actually litigated and decided, (3) the precluded
party had a full and fair opportunity to litigate the issue
in the earlier action, and (4) the resolution of the issue was
necessary to support a valid and final judgment on the
merits. See Grieve, 269 F.3d at 153 (citation and internal
quotation marks omitted); MMA Consultants 1, Inc. v.
50a
Appendix C
Republic of Peru, 245 F. Supp. 3d 486, 518 (S.D.N.Y. 2017)
(citing Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir.
2006)), aff’d, 719 F. App’x 47 (2d Cir. 2017).
Collateral estoppel, unlike the doctrine of claim
preclusion, may apply to determinations of jurisdiction.
Zapata v. HSBC Holdings PLC, 414 F. Supp. 3d 342,
348 (E.D.N.Y. 2019); see also Ins. Co. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n.9
(1982) (“It has long been the rule that [collateral estoppel]
appl[ies] to jurisdictional determinations—both subject
matter and personal.”). That is, a dismissal for lack of
jurisdiction may bar a party’s invocation of jurisdiction
in a second action based on the same facts. See Stengel
v. Black, 486 F. App’x 181, 183 (2d Cir. 2012) (summary
order); see also Reed v. Columbia St. Mary’s Hosp., 782
F.3d 331, 335 (7th Cir. 2015).
Plaintiffs bring this second action for claims predicated
on the same causes of actions and factual allegations as
the Earlier Action. Plaintiffs concede as much, alleging
that “[t]he [b]onds, claims, transactions, and occurrences
at issue in the present action are the same as in the prior
action 17 Civ. 9934. . . .” (See Compl. ¶ 23.) Plaintiffs
contend here that a judicial authorization order permits
them to sue on the bonds under the FAA because they
are not required to reassemble the bonds. (See Opp’n Br.
at 18-20.) As explained below, Plaintiffs are collaterally
estopped from relitigating issues previously decided by
this Court in reaching its jurisdictional determinations.
See Bugliotti III, 2021 WL 1225971, at *7-9 (concluding
that Plaintiffs must reassemble the bonds before invoking
the provisions of the FAA).
51a
Appendix C
To be sure, each element of collateral estoppel is
met. As discussed, the jurisdictional issues at bar are
identical to those presented in the Earlier Action. The only
additional fact is that, since the Court of Appeals affirmed
dismissal and terminated the Earlier Action, Plaintiffs
have sought and obtained a judicial authorization order
from an Argentine court. (See Compl. ¶ 21; id., Ex. A.) Still,
absent reassembly of the bonds, this fact is insufficient
to change the legal result or to establish a different basis
for jurisdiction. See also JDM Import Co. Inc. v. Shree
Ramkrishna Exports Pvt., Ltd., 2023 WL 2632179, at *5
(S.D.N.Y. Mar. 24, 2023) (considering identicalness).
Plaintiffs also had a full and fair opportunity to
litigate these issues, which were actually litigated and
decided in the Earlier Action. The Republic has now
moved three times to dismiss Plaintiffs’ claims, in part,
for lack of subject-matter jurisdiction and lack of personal
jurisdiction. (See Def.’s Notice of Mot. to Dismiss; Spencer
Decl., Exs. 4, 11.) Plaintiffs have known the Republic’s
arguments for dismissal since the Republic filed its first
motion to dismiss in 2018. Additionally, the Court already
considered whether Plaintiffs could invoke the terms of the
FAA to exercise jurisdiction over the Republic, and the
Court determined that, regardless of the party seeking
to enforce the bonds, reassembly of the bonds remained
a precondition to jurisdiction. 5 See Bugliotti III, 2021 WL
5. The Court observes that Plaintiffs also rely on the FAA’s
service-of-process provisions for bringing this suit. (See Opp’n Br.
at 7 (noting that Plaintiffs served a summons and the Complaint “as
prescribed in the 1994 FAA for service of process on Argentina for
bond matters,” that is, “by serving Banco de la Nación Argentina
52a
Appendix C
1225971, at *7-9. Accordingly, Plaintiffs had a full and
fair opportunity to litigate the issues, which the court
considered and decided in the Earlier Action.
Last, resolution of these issues was necessary to
support a valid and final judgment on the merits. See DDR
Const. Servs., Inc. v. Siemens Indus., Inc., 770 F. Supp. 2d
627, 649 (S.D.N.Y. 2011) (quoting MTS, Inc. v. 200 E. 87th
Street Assocs., 899 F. Supp. 1180, 1184 (S.D.N.Y. 1995))
(explaining that an issue is necessary when it is not “mere
dictum”); see also 18 Wright et al. § 4421. Although “a
dismissal for lack of jurisdiction is not an adjudication
on the merits of a claim, . . . such a dismissal precludes
[relitigation] of the issue[s] it decided.” Stengel, 486 F.
App’x at 183. Because the Court dismissed the Earlier
Action for lack of jurisdiction, its determinations were
“necessary” to the ultimate judgment.
Accordingly, the doctrine of collateral estoppel
applies to the issues of jurisdiction. Plaintiffs’ attempt
to relitigate these points now through opposition papers
is tantamount to their requesting reconsideration of the
prior determinations. Thus, even if Plaintiffs could allege
timely claims, they would be collaterally estopped from
relitigating the issues of jurisdiction. Plaintiffs’ claims
must therefore fail.
in New York[] on August 16, 2023”).) Although the Court need not
reach the issue of service to dispose of this case, the Court notes
that the method of service is also improper in light of the Court’s
prior holdings.
53a
Appendix C
C.
Remaining Arguments
In light of the foregoing conclusions, the Court need
not reach the parties’ remaining arguments.
IV. Plaintiffs’ Request for Oral Argument
On November 27, 2023, Plaintiffs filed a letter
requesting oral argument on the Republic’s pending
motion to dismiss. (See dkt. no. 31.) Because the Court
decides the Republic’s motion on the papers, Plaintiffs’
request for oral argument is DENIED as moot.
V. Conclusion
For the foregoing reasons, the Republic’s motion to
dismiss (dkt. no. 17), is GRANTED. The Clerk of the Court
is directed to mark the above-captioned case as closed and
any open letter motions denied as moot.
SO ORDERED.
Dated: September 30, 2024
New York, New York
/s/ Loretta A. Preska
LORETTA A. PRESKA
Senior United States District Judge
54a
Appendix D OF THE UNITED
APPENDIX D — JUDGMENT
STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT, FILED MAY 2, 2023
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2021
Argued: June 7, 2022
Decided: May 2, 2023
No. 21-1014
EUCLIDES BARTOLOMÉ BUGLIOTTI,
MARIA CRISTINA DE BIASI, AND
ROXANA INÈS ROJAS, AS THE EXECUTOR OF
THE ESTATE OF HUGO MIGUEL LAURET,
Plaintiffs-Appellants,
v.
REPUBLIC OF ARGENTINA
Defendant-Appellee.*
Appeal from the United States District Court
for the Southern District of New York
No. 17-cv-9934, Loretta A. Preska, Judge.
* The Clerk of Court is respectfully directed to amend the
official case caption as set forth above.
55a
Appendix D
Before: Calabresi, Lynch, and Sullivan, Circuit
Judges.
Richard J. Sullivan, Circuit Judge:
Euclides Bartolomé Bugliotti, Maria Cristina de
Biasi, and Roxana Inès Rojas (collectively, “Plaintiffs”)
appeal from the judgment of the district court (Preska, J.)
dismissing their claims against the Republic of Argentina
(“Argentina”) in connection with sovereign bonds issued
by Argentina and purchased by Plaintiffs. We vacated in
part the district court’s previous judgment of dismissal
and remanded the case for the district court to determine
in the first instance whether Plaintiffs are entitled to bring
suit under Argentine law. The district court found on
remand that Plaintiffs were not. Plaintiffs appealed again,
arguing that the district court’s findings are erroneous,
and that Rule 17 of the Federal Rules of Civil Procedure
offers them an alternative avenue to enforce their rights
under the bonds in federal court. We hold that Plaintiffs
are not entitled to bring suit under Argentine law and
that nothing in Rule 17 can be read to alter that result.
Accordingly, we AFFIRM the judgment of the district
court.
I.
BACKGROUND
Like many other claimants who have come before us
in recent years, Plaintiffs purchased a large amount of
Argentina’s sovereign bonds under the 1944 Fiscal Agency
Agreement (“FAA”), on which Argentina defaulted in
2001. But unlike those other claimants, Plaintiffs enrolled
56a
Appendix D
in a tax credit program (the “Tax Credit Program”)
shortly before Argentina’s default, which allowed them
to receive tax credits in lieu of interest payments. Under
the Tax Credit Program, Plaintiffs placed their bonds in
trust with Caja de Valores, S.A. (“Caja” or the “Trustee”)
and received in return two types of certificates—tax
credit certificates and custody certificates (abbreviated in
Spanish as “CCFs” and “CCs,” respectively). Each CCF
corresponded to one scheduled interest payment on the
bond tendered, and each CC corresponded to the bond’s
outstanding principal. Bondholders in possession of the
certificates were able to redeem the CCFs as each interest
payment came due for a credit against their Argentine tax
obligations. Plaintiffs, therefore, were able to claim tax
credits using the CCFs after Argentina defaulted, while
bondholders who did not participate in the Tax Credit
Program stopped receiving interest payments on their
bonds altogether.
All of Plaintiffs’ bonds matured by the end of 2017, but
Argentina has not repaid the principal to date. Plaintiffs
brought this case in federal court against Argentina,
seeking damages in the amount of the unpaid principal
and post-maturity interest. Argentina moved to dismiss
the case, arguing that it was immune from suit under the
Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C.
§ 1602 et seq. The district court agreed, finding that,
although Argentina had previously waived sovereign
immunity, submitted to federal jurisdiction, and appointed
an agent for service of process under the FAA in connection
with the bonds, Plaintiffs’ participation in the Tax Credit
Program constituted an “exchange” of Plaintiffs’ bonds
57a
Appendix D
for the CCFs and CCs, such that Plaintiffs no longer
“own[ed]” the bonds themselves. Bugliotti v. Republic
of Argentina (Bugliotti I), No. 17-cv-9934 (LAP), 2019
WL 586091, at *2 (S.D.N.Y. Jan. 15, 2019). Since the trust
agreement that Plaintiffs and Caja executed in connection
with the Tax Credit Program (the “Trust Agreement”)
did not contain any comparable waiver, submission, or
appointment of agent, the district court reasoned that
Plaintiffs could no longer rely on the FAA as a waiver
of sovereign immunity. Accordingly, the district court
dismissed Plaintiffs’ claims for lack of jurisdiction. See
Bugliotti I, 2019 WL 586091, at *3-4.
Plaintiffs appealed to this Court, and in March 2020,
we determined that the relevant question was not whether
Plaintiffs owned the bonds but “whether the bonds remain
a live obligation of the Argentine government and, if so,
who may bring suit to enforce them” under Argentine law.
Bugliotti v. Republic of Argentina (Bugliotti II), 952 F.3d
410, 413 (2d Cir. 2020). We remanded the case, concluding
that the district court was, in the first instance, “better
situated” for determining foreign law under Rule 44.1 of
the Federal Rules of Civil Procedure. Id. at 411.
On remand, the district court reviewed evidence and
arguments from the parties under Rule 44.1. The district
court found that Argentine law provided Caja with the
exclusive right to sue under the bonds, that Caja had
not delegated its right to sue to Plaintiffs, and that no
party—Caja or Plaintiffs—could bring suit under the
bonds unless Plaintiffs first “reassembled” their bonds
by returning the CCs and the economic value of the CCFs
58a
Appendix D
to the Argentine government. Bugliotti v. Republic of
Argentina (Bugliotti III), No. 17-cv-9934 (LAP), 2021
WL 1225971, at *7-9 (S.D.N.Y. Mar. 31, 2021). The district
court concluded that “Plaintiffs lack[ed] standing to bring
suit to enforce the [bonds] . . . under Argentine trust law,”
and therefore, could not “invoke the [FAA’s] service[-]of[-]
process and jurisdictional [waivers] under the FSIA.” Id.
at *9. Plaintiffs timely appealed.
II. STANDARDS OF REVIEW
“We review de novo the dismissal of a complaint for
lack of personal and subject-matter jurisdiction.” Bugliotti
II, 952 F.3d at 412. Rule 44.1 provides that a “court’s
[foreign-law] determination must be treated as a ruling
on a question of law,” Fed. R. Civ. P. 44.1, which—“as is
true of domestic[-]law determinations”—is subject to de
novo appellate review, Animal Sci. Prods., Inc. v. Hebei
Welcome Pharm. Co., ___ U.S. ___, 138 S. Ct. 1865, 1873,
201 L.Ed.2d 225 (2018).
III. DISCUSSION
On appeal, Plaintiffs argue that the district court
erred in finding that they were not entitled to bring suit
to recover the bonds under Argentine law; alternatively,
they contend that Rule 17 of the Federal Rules of Civil
Procedure provides a separate avenue for them to enforce
their rights under the bonds in federal court. We address
each of these arguments in turn.
59a
Appendix D
A.
Right to Bring Suit Under Argentine Law
The district court found that Plaintiffs were not
entitled to bring suit under the bonds because (1) Caja
could not delegate its enforcement right to Plaintiffs
under Argentine law; (2) even if Caja could do so, Caja
did not in fact delegate its enforcement right to Plaintiffs;
and (3) no party—Caja or Plaintiffs—could bring suit
under the bonds without first reassembling the bonds
by returning the CCs and the economic value of the
CCFs to the Argentine government. See Bugliotti III,
2021 WL 1225971, at *7-9. We conclude that even if
Caja could delegate its enforcement right to Plaintiffs
under Argentine law, and Plaintiffs were not required to
reassemble the bonds before bringing suit, Plaintiffs still
lacked authority to bring suit under the bonds because
Caja did not, in fact, delegate its enforcement right to
Plaintiffs.
Section 2.1 of the Trust Agreement provides that
the trust “is governed by . . . Law 24[,]441” of Argentina.
App’x at 33. Article 18 of Law 24,441, in turn, states that
Caja as the Trustee may “exercise all actions necessary
to defend the [bonds],” but “[a] judge may authorize the
trustor or the beneficiary to exercise actions instead
of the [T]rustee[] when the latter fails to do so without
sufficient cause.” Id. at 352. Section 6 of the Trust
Agreement further provides that “the Trustee is not
obliged to initiate any court proceedings of any kind” in
“pursuing the enforcement of the rights that are granted
by the CCFs or CCs, or the [bonds].” Id. at 36. Moreover,
“[f]or all purposes of [the Trust] Agreement,” section 16
60a
Appendix D
states that Plaintiffs and Caja “agree to resolve their
disputes through an arbitration [before] the Permanent
Arbitration Tribunal of the Buenos Aires Stock Exchange
. . . , waiving any other jurisdiction that may correspond
to them.” Id. at 38.
Plaintiffs argue that they were free to bring suit
under the bonds on Caja’s behalf without first seeking
judicial authorization as required by Law 24,441 because
“Caja delegated and ratified Plaintiffs . . . to commence
and prosecute this case.” Pls. Br. at 35. In making this
argument, Plaintiffs rely on paragraph 5 of a certification
executed between Caja and Plaintiffs (the “Caja
Certification”), which states:
The Trustee certifies that according to the
terms of the Trust Agreement, the Trustee is
not responsible for the pursuit of legal action
for the fulfillment of the rights granted by the
CCs or the underlying [b]onds, and the Trustee
accordingly looks to [(“entiende”)] Bugliotti to
take such action.
App’x at 190-91 (emphases added). Plaintiffs argue that
“[t]he only plausible meaning of [paragraph] 5 is that Caja
was passing the baton to Plaintiffs” to “recover[] on the
bonds.” Pls. Br. at 36. We disagree.
A s A rgentina’s exper t pointed out, the Caja
Certification does not contain “any indication . . . that
any party intended to modify . . . the Trust Agreement,”
App’x at 857, which expressly provides that the Trustee
61a
Appendix D
retained exclusive authority to “exercise all actions
necessary” to bring suit under the bonds absent judicial
intervention. Id. at 809. Nothing in the Caja Certification
suggests an intent to change, modify, or amend the terms
of the Trust Agreement. Id. at 847. Plaintiffs nonetheless
contend that the word “entiende” in paragraph 5—which
they translate as “looks to,” id. at 191, rather than
“understands,” id. at 858—suggests such a reading, see
Pls. Br. at 36. But whether “entiende” means “looks to”
or “understands” does not matter, since neither word
suggests that the parties intended to “modify any term
of the Trust Agreement,” App’x at 858 (emphasis added),
or that “the Trustee delegated the ability to enforce its
rights to Plaintiffs,” id. at 859 (internal quotation marks
omitted) (emphasis in original). To the contrary, when
read in full and in context, the Caja Certification plainly
states that Plaintiffs “certif[y] [their] submission to the
regime established in the Trust Agreement.” Id. at 191.
As discussed, the Trust Agreement provides that Caja
alone may “exercise all actions necessary” to bring suit
under the bonds, id. at 809, and that Caja “is not obliged
to initiate any court proceedings of any kind,” id. at 36.
To the extent that Plaintiffs disagree with Caja’s decision
not to bring suit to recover on the bonds, their remedy is
limited by section 16 of the Trust Agreement, which directs
Plaintiffs and Caja to “resolve their disputes through an
arbitration [before] the Permanent Arbitration Tribunal
of the Buenos Aires Stock Exchange . . . , waiving any
other jurisdiction that may correspond to them,” id. at 38,
and by Law 24,441, which requires judicial authorization
before “the beneficiary [may] exercise actions instead of
[Caja],” id. at 352.
62a
Appendix D
Therefore, even if we assume arguendo that Caja
had the authority to delegate its enforcement right to
Plaintiffs, and that Plaintiffs were not required to first
reassemble the bonds before bringing this action, we still
cannot find that Plaintiffs are entitled to bring suit to
recover the bonds under Argentine law, since there is no
evidence that Caja ever made such a delegation.1
B. Rule 17 of the Federal Rules of Civil Procedure
Plaintiffs argue, in the alternative, that Rule 17 of the
Federal Rules of Civil Procedure “recognizes Plaintiffs
. . . as proper plaintiffs entitled to sue in place of [Caja].”
Pls. Br. at 49 (internal quotation marks omitted). Rule
17(a)(1) provides that “[a]n action must be prosecuted in
the name of the real party in interest,” which includes “a
trustee of an express trust.” Fed. R. Civ. P. 17(a)(1)(E).
But under Rule 17(a)(3), “[t]he court may not dismiss an
action for failure to prosecute in the name of the real party
in interest until, after an objection, a reasonable time
has been allowed for the real party in interest to ratify,
join, or be substituted into the action.” Fed. R. Civ. P.
17(a)(3). “After [such] ratification, joinder, or substitution,
1. After oral argument in this case, Plaintiffs moved to
supplement the record on appeal to include a certification that
they executed with Caja. See Doc. No. 72. We declined to consider
such post-hoc, “extra-record assertions and documents.” Rana v.
Islam, 887 F.3d 118, 122 (2d Cir. 2018) (citing Fed. R. App. P. 10(a)
(1)); see also Doc. No. 80 (denying Plaintiffs’ motion to supplement
record on appeal); Loria v. Gorman, 306 F.3d 1271, 1280 n.2 (2d
Cir. 2002) (“[M]aterial not included in the record on appeal will
not be considered.”).
63a
Appendix D
the action [shall] proceed[] as if it had been originally
commenced by the real party in interest.” Fed. R. Civ.
P. 17(a)(3).
Plaintiffs’ Rule 17 argument comes in two steps.
First, Plaintiffs contend that Rule 17(a)(1)—rather than
Argentine law—prescribes the identity of the real parties
in interest. Second, Plaintiffs argue that because Caja—
as the Trustee—is the real party in interest under Rule
17(a)(1)(E), and the Caja Certification is effectively Caja’s
ratification for Plaintiffs to proceed as plaintiffs in this
action, the district court erred in dismissing Plaintiffs’
claims in violation of Rule 17(a)(3). Again, we disagree.
The Rules Enabling Act provides that the Federal
Rules of Civil Procedure “shall not abridge, enlarge[,]
or modify any substantive right.” 28 U.S.C. § 2072(b).
Heeding this command, we have repeatedly held that
“[t]he procedural mechanisms set forth in Rule 17(a)
for ameliorating real[-]party[-]in[-]interest problems
may not . . . be employed to expand substantive rights.”
Stichting Ter Behar tiging Van de Belangen Van
Oudaandeelhouders In Het Kapitaal Van Saybolt Int’l
B.V. v. Schreiber, 407 F.3d 34, 49 (2d Cir. 2005); see also
Cortlandt St. Recovery Corp. v. Hellas Telecomms.,
S.a.r.l, 790 F.3d 411, 424 (2d Cir. 2015) (holding same); Fed.
Treasury Enter. Sojuzplodoimport v. SPI Spirits Ltd.,
726 F.3d 62, 83 (2d Cir. 2013) (holding same). Rule 17(a)
simply requires that a federal “action be brought by the
person who . . . is entitled to enforce the [asserted] right,”
and whether a plaintiff is entitled to enforce the asserted
right is a “question [that] must be answered with reference
64a
Appendix D
to substantive . . . law.” Schreiber, 407 F.3d at 48. To hold
otherwise “would amount to an improper expansion of the
substantive rights provided by the [substantive law].” Fed.
Treasury, 726 F.3d at 83.
As explained above, we have already concluded that
Plaintiffs do not have the right to recover the bonds under
Argentine law—the applicable substantive law in this case.
That being so, Rule 17 provides no alternative avenue for
Plaintiffs to bring suit in federal court. See id.; Schreiber,
407 F.3d at 49.
IV.
CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
65a
E
APPENDIX EAppendix
— EXCERPTS
OF THE
DECISION OF COMMERCIAL COURT NO. 9
OF BUENOS AIRES, ARGENTINA,
DATED JUNE 21, 2023
Judiciary of the Nation
Commercial Court No. 9
TRANSLATION
10733/2023 —BUGLIOTTI, EUCLIDES B. A N D
OTHERS v. CAJA DE VALORES on/SUMMARY
PROCEDURE—
In the City of Buenos Aires, on June 21, 2023, at 10:00
a.m., the following individuals appear before Your Honor
at the hearing scheduled for today’s date:
ON BEHALF OF THE PLAINTIFFS: Dr. Horacio
Tomas Liendo (CPACF T° 11 F° 303);
ON BEHALF OF CAJA DE VALORES S.A.: Dr. Efrain
Diego Carvajal -according to the power of attorney herein
incorporated into the computer system- (CPACF T° 55
F° 713);
The act is opened and the parties are informed of the
purpose of the hearing. Caja de Valores S.A. states that
it does not modify its position regarding the fact that it
will not pursue enforcement of any rights related to the
instruments under the Trust, and does not oppose the
judicial authorization requested by the trustors and/or
beneficiaries in these proceedings, further ratifying the
terms of the 2017 and 2022 Certifications, which were
mutually agreed upon between the parties within the
framework of the Trust Agreements.
66a
Appendix E
The plaintiffs confirm the terms of the 2017 and 2022
Certifications, which were mutually agreed upon between
the parties within the framework of the Trust Agreements.
*
V.-
*
*
Therefore, it is RESOLVED:
1°.- Authorize Euclides Bartolome Bugliotti and
María Cristina De Biasi (32,763,000), Roxana Ines
Rojas (1,527,000), and Denise Lauret (917,000)—in the
proportion that corresponds to each one—to exercise and/
or continue the relevant actions and all necessary acts for
that purpose, in any jurisdiction and at all levels, including
the enforcement of the issued judgment, in substitution of
the Trustee of the Trust Agreements signed on November
23, 2001, with Caja de Valores S.A., in order to sue the
issuer for the collection of the bonds or public securities
that constitute the underlying assets of the mentioned
trusts and their accessories, in their capacity as trustors
and beneficiaries.
2°.- Order costs to be paid in the manner they were
incurred, given the lack of opposition (see art. 68, final
provision, of the Procedural Code).
3°.- Issue a certified copy of the proceedings, as
necessary.
4°.-
Register and notify through the Secretariat.
67a
Appendix E
With which the act concluded, and the appearing
parties signed after me, the undersigned, following
its reading and ratification, which I attest to.
PAULA M. HUALDE
JUDGE
AFFIDAVIT OF TRANSLATOR
REGARDING ACCURACY OF TRANSLATION
CITY OF CORDOBA
PROVINCE OF CORDOBA
ARGENTINE REPUBLIC
July 3, 2023
MARIA LUZ CAPDEVILA, being duly sworn, deposes
and says:
I am a Public Translator, Professional Registration N°
382, Province of Cordoba, Argentine Republic, presently
residing in Cordoba, Argentina and declare:
I am proficient with the English language and the Spanish
language, have has prior experience in translating
documents in those languages, have reviewed the foregoing
document (RESOLUTION 06.21.2023 – COMMERCIAL
COURT No. 9 – BUENOS AIRES, ARGENTINA),
translated from Spanish into English and believe the
translation is complete and accurate.
/s/
Maria Luz Capdevila
MARÍA LUZ CAPDEVILA
Traductora Pública de Inglés
M.P. 382
68a
F PROVISIONS
APPENDIX F — Appendix
STATUTORY
INVOLVED
28 U.S.C. § 1605—General exceptions to the jurisdictional
immunity of a foreign state.
(a) A foreign state shall not be immune from the
jurisdiction of courts of the United States or of the States
in any case—
(1) in which the foreign state has waived its immunity
either explicitly or by implication, notwithstanding any
withdrawal of the waiver which the foreign state may
purport to effect except in accordance with the terms of
the waiver; * * *
***
69a
Appendix F
8 U.S.C. § 1254: Courts of appeals; certiorari; certified
questions
Cases in the courts of appeals may be reviewed by the
Supreme Court by the following methods:
(1) By writ of certiorari granted upon the petition
of any party to any civil or criminal case, before or
after rendition of judgment or decree; * * *
***
70a
Appendix F
Civil Practice Law & Rules
§ 205. Termination of action.
(a) New action by plaintiff. If an action is timely
commenced and is terminated in any other manner
than by a voluntary discontinuance, a failure to obtain
personal jurisdiction over the defendant, a dismissal of
the complaint for neglect to prosecute the action, or a
final judgment upon the merits, the plaintiff, or, if the
plaintiff dies, and the cause of action survives, his or her
executor or administrator, may commence a new action
upon the same transaction or occurrence or series of
transactions or occurrences within six months after the
termination provided that the new action would have been
timely commenced at the time of commencement of the
prior action and that service upon defendant is effected
within such six-month period. Where a dismissal is one
for neglect to prosecute the action made pursuant to rule
thirty-two hundred sixteen of this chapter or otherwise,
the judge shall set forth on the record the specific conduct
constituting the neglect, which conduct shall demonstrate
a general pattern of delay in proceeding with the litigation.
***
***
71a
Appendix F
New York Civil Practice Law & Rules
§ 213. Actions to be commenced within six years: where not
otherwise provided for; on contract; on sealed instrument;
on bond or note, and mortgage upon real property; by
state based on misappropriation of public property; based
on mistake; by corporation against director, officer or
stockholder; based on fraud.
The following actions must be commenced within six
years:
1. an action for which no limitation is specifically
prescribed by law;
2. an action upon a contractual obligation or liability,
express or implied, except as provided in section two
hundred thirteen-a or two hundred fourteen-i of this
article or article 2 of the uniform commercial code or
article 36-B of the general business law; * * *
***
72a
Appendix F
New York Court of Appeals, Part 500. Rules of Practice
(22 NYCRR Part 500)
CERTIFIED QUESTIONS
§ 500.27 Discretionary Proceedings to Review Certified
Questions from Federal Courts and Other Courts of
Last Resort.
(a) Whenever it appears to the Supreme Court of the
United States, any United States Court of Appeals, or a
court of last resort of any other state that determinative
questions of New York law are involved in a case pending
before that court for which no controlling precedent of
the Court of Appeals exists, the court may certify the
dispositive questions of law to the Court of Appeals. * * *
***
73a
Appendix F
Argentina Civil and Commercial Code, Third Book—
Individual Rights, Title IV—Contracts in Particular
Chapter 30—Trusts
Article 1689: Actions
The trustee has standing to exercise all actions necessary
to defend the trust assets, against third parties, the
trustors, the beneficiary, or the residual beneficiary.
The judge may authorize the trustor, the beneficiary or
the residual beneficiary to exercise actions instead of the
trustee, when the latter fails to do so without sufficient
cause.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.