18-3015-cv
Weston Capital Advisors, Inc. v. PT Bank Mutiara, Tbk


                                  UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT


                                         SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 28th day of June, two thousand nineteen.

PRESENT:           JOSÉ A. CABRANES,
                   REENA RAGGI,
                   CHRISTOPHER F. DRONEY,
                                Circuit Judges.



WESTON CAPITAL ADVISORS, INC.,

                             Petitioner-Appellant,                   18-3015-cv

                             v.

PT BANK MUTIARA, TBK,

                             Respondent-Appellee.



FOR PETITIONER-APPELLANT:                                   ALEX KRIEGSMAN, Kriegsman PC, Sag
                                                            Harbor, NY.



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FOR RESPONDENT-APPELLEE:                                  DANIEL R. KOFFMANN (Marc L.
                                                          Greenwald, Andrew P. Marks, Ryan A.
                                                          Rakower, on the brief), Quinn Emanuel
                                                          Urquhart & Sullivan, LLP, New York,
                                                          NY.

        Appeal from an October 4, 2018 order of the United States District Court for the Southern
District of New York (Paul A. Crotty, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED.

         Petitioner-Appellant Weston Capital Advisors, Inc. (“WCAI”) appeals from an October 4,
2018 order enjoining WCAI and its affiliated entities from prosecuting an action in the Delaware
Court of Chancery (the “Anti-Suit Order”). We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.

         This appeal constitutes yet another chapter in WCAI’s longstanding, unapologetic, and
willful defiance of numerous court orders mandating the return of $3.6 million improperly collected
on a larger judgment awarded to Respondent-Appellee PT Bank Mutiara Tbk (“Bank Mutiara”). See
Weston Capital Advisors, Inc. v. PT Bank Mutiara, Tbk, 667 F. App’x 15 (2d Cir. 2016) (summary order)
(“Weston I”); Weston Capital Advisors, Inc. v. PT Bank Mutiara, Tbk, 738 F. App’x 19 (2d Cir. 2018)
(summary order) (“Weston II”).

        On November 19, 2013, the District Court ordered WCAI to return the improperly
collected funds (the “November 2013 Order”). Over the course of the next four years, the District
Court would enter successive contempt orders of increasing severity that WCAI would continuously
flout.

         In a last-ditch effort to secure WCAI’s compliance, the District Court entered an order on
February 13, 2017, scheduling the incremental turnover of WCAI’s assets and equity interests to
Bank Mutiara (the “February 2017 Contempt Order”). Subsequently, as a result of WCAI’s
continued recalcitrance, the District Court ordered that all of the equity interests in WCAI and its
affiliated entities be “revested” in Bank Mutiara, thereby rendering Bank Mutiara the owner of
WCAI and its related corporate entities. We affirmed the February 2017 Contempt Order, including
the “revesting” of WCAI’s equity interests in Bank Mutiara, on June 25, 2018. See Weston II, 738 F.
App’x at 22.

      On September 14, 2018, a WCAI entity commenced an action in the Delaware Court of
Chancery (the “Delaware Action”), seeking a declaratory judgment that WCAI’s board of directors

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remains what it was prior to the transfer of ownership to Bank Mutiara. The Delaware Action also
seeks an injunction against Bank Mutiara from filing any further certificates or instruments with the
Delaware Secretary of State.1 In effect, the Delaware Action seeks to undermine and relitigate what
we affirmed in Weston II—that is, that Bank Mutiara now “owns” WCAI as a result of the February
2017 Contempt Order.

        On September 25, 2018, the District Court ordered WCAI to show cause why it should not
be enjoined from prosecuting the Delaware Action. The Order to Show Cause granted WCAI an
opportunity to file an opposition by October 1 and to appear before the District Court at a show
cause hearing on October 4.

       On September 27, Alex Kriegsman (“Kriegsman”) filed a notice of appearance on behalf of
WCAI as well as a motion for a three-week extension of time to respond to the Order to Show
Cause. Bank Mutiara refused to consent to the extension request unless WCAI agreed to stay the
Delaware Action. On October 1, the District Court denied WCAI’s request for an extension of time
but noted that it would “consider a shorter request, provided it is on consent.” App. 129. WCAI did
not renew its request for an extension of time, nor did it file an opposition brief or appear at the
show cause hearing on October 4.2 Accordingly, the District Court entered the Anti-Suit Order on
October 4, 2018, effectively enjoining WCAI from prosecuting the Delaware Action.

        On appeal, WCAI challenges the Anti-Suit Order on several grounds, none of which were
raised before the District Court. “It is a well-established general rule that an appellate court will not
consider an issue raised for the first time on appeal.” In re Nortel Networks Corp. Sec. Litig., 539 F.3d
129, 132 (2d Cir. 2008) (internal quotation marks and brackets omitted). Here, WCAI has failed to
provide a compelling reason for its failure to file a timely opposition brief. Any purported prejudice
that WCAI encountered from its inability to file a timely opposition to the Order to Show Cause is
attributable to its eleventh-hour decision to retain Kriegsman, who was unfamiliar with the five years



    1
     After mandate issued in Weston II, Bank Mutiara appointed Melissa Butarbutar (“Butarbutar”)
as WCAI’s sole director, President, and Secretary. Butarbutar subsequently made corporate filings
with the Delaware Secretary of State and changed the registered agent of WCAI in Delaware.
    2
      On appeal, Kriegsman claims that he had a scheduling conflict that prevented him from
attending the October 4 hearing. Kriegsman claims to have requested that the hearing be moved,
but upon examination of the record, it appears that no such request was ever made. See App. 134
(objecting to the hearing as “a violation of my clients’ due process rights,” but never mentioning a
scheduling conflict or requesting an adjournment). Instead, Kriegsman and/or WCAI dispatched an
“appearance counsel” to the October 4 hearing who never filed a notice of appearance, expressly
disclaimed any affiliation with WCAI’s designated counsel, and professed to not have “any
familiarity with the long history” of the case. App. 138. Needless to say, this appearance counsel did
not substantively challenge the Anti-Suit Order.

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of litigation preceding the Order to Show Cause. As the District Court aptly explained during the
October 4 hearing, WCAI “engaged in one of the older tricks in the litigation book, they fired one
counsel, hired a new counsel, asked for three weeks.” App. 139.

        Nor did the District Court abuse its discretion by denying WCAI’s motion for an extension
of time. See Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 226 (2d Cir. 2004) (reviewing ruling on a
motion for extension of time for abuse of discretion). Indeed, in light of WCAI’s protracted and
flagrant disregard of successive court orders, the District Court acted prudently by requiring Bank
Mutiara’s consent as a necessary condition for granting any extension. In sum, we decline to exercise
our discretion to consider WCAI’s waived arguments where WCAI has failed to proffer any
compelling reasons for failing to oppose the Anti-Suit Order below.

                                          CONCLUSION

        We have reviewed all of the remaining arguments raised by WCAI on appeal and find them
to be without merit. For the foregoing reasons, we AFFIRM the October 4, 2018 order of the
District Court.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk of Court




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