Merrill Lynch v. Arelna, Inc. , 464 F.3d 885 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MERRILL LYNCH, PIERCE, 
FENNER AND SMITH, INCORPORATED,
a corporation organized and
existing under the laws of the
State of Delaware with its
principal place of business in New
York, New York,
Plaintiff-Appellee,
v.
ENC CORPORATION; SUNTRUST
INVESTMENT CO., S.A., a
corporation organized and existing
under the laws of Switzerland with No. 04-16401
an address at rue de Jargonnant 2,
P.O. Box 76, 1211 Geneva 6,  D.C. No.
Switzerland; JOHN K. BURNS, a CV-00-00595-MLR
citizen of the United States, with
an address at 300 Wacker Drive,
Suite, 900, Chicago, Illinois,
60606; THE ESTATE OF FERDINAND
E. MARCOS; IMELDA R. MARCOS;
FERDINAND R. MARCOS, JR.; MARIA
IMELDA MARCOS; IRENE MARCOS
ARANETA; FRONTIER RISK CAPITAL
MANAGEMENT, L.C.C., a limited
liability company organized and
existing under the laws of the
States of Nevada, with a registered
office at 6100 Neil Road, Suite

11077
11078 MERRILL LYNCH v. ARELMA, INC.
500, Reno, NV. 89511 and an 
address at 300 Wacker Drive,
Suite 900, Chicago, IL 60606;
GROSVENOR CAPITAL LTD., a
company organized and existing
under the law of the United
Kingdom, with an address at
Grosvenor Gardens House, Suite
117, 35-37 Grosvenor Gardens,
London SW1 W OBS, United
Kingdom; THE ESTATE OF ROGER
ROXAS; GOLDEN BUDHA
CORPORATION, a corporation
organized and existing under the
laws of the State of Georgia, with
a registered office at 710 West 
First Street, Blue Ridge, Georgia
30513, and a mailing address at
260 Carrollton St., Buchanan, GA
30113,
Defendants,
and
ARELMA, INC., a corporation
organized and existing under the
laws of Panama with a permanent
address at Ave. Justo Alosemena y
Calle 41 Este, No. 40-59 Pte al
Colegio Immeculada, Panama
1.Rep.de Panama, and a mailing
address at c/o Suntrust Investment

MERRILL LYNCH v. ARELMA, INC. 11079
Co.S.A., rue de Jargonnant 2, P.O. 
Box 76, 1211 Geneva 6,
Switzerland,
Defendant-Appellant,
MARIANO J. PIMENTEL, on behalf of
himself and all other persons 
similarly situated,
Defendant-Appellee,
PHILIPPINE NATIONAL BANK,
Defendant-Appellant.

MERRILL LYNCH, PIERCE, 
FENNER AND SMITH, INCORPORATED,
a corporation organized and
existing under the laws of the
State of Delaware with its
principal place of business in New
York, New York,
Plaintiff-Appellee,
No. 04-16503
v.
 D.C. No.
ENC CORPORATION; ARELMA, INC., CV-00-00595-MLR
a corporation organized and
existing under the laws of Panama
with a permanent address at Ave.
Justo Alosemena y Calle 41 Este,
No. 40-59 Pte al Colegio
Immeculada, Panama 1.Rep.de
Panama, and a mailing address at
c/o Suntrust Investment Co.S.A.,

11080 MERRILL LYNCH v. ARELMA, INC.
rue de Jargonnant 2, P.O. Box 76, 
1211 Geneva 6, Switzerland;
SUNTRUST INVESTMENT CO., S.A., a
corporation organized and existing
under the laws of Switzerland with
an address at rue de Jargonnant 2,
P.O. Box 76, 1211 Geneva 6,
Switzerland; JOHN K. BURNS, a
citizen of the United States, with
an address at 300 Wacker Drive,
Suite, 900, Chicago, Illinois,
60606; THE ESTATE OF FERDINAND
E. MARCOS; IMELDA R. MARCOS;
FERDINAND R. MARCOS, JR.; MARIA
IMELDA MARCOS; IRENE MARCOS
ARANETA; FRONTIER RISK CAPITAL
MANAGEMENT, L.C.C., a limited 
liability company organized and
existing under the laws of the
States of Nevada, with a registered
office at 6100 Neil Road, Suite
500, Reno, NV. 89511 and an
address at 300 Wacker Drive,
Suite 900, Chicago, IL 60606;
GROSVENOR CAPITAL LTD., a
company organized and existing
under the law of the United
Kingdom, with an address at
Grosvenor Gardens House, Suite
117, 35-37 Grosvenor Gardens,
London SW1 W OBS, United
Kingdom; THE ESTATE OF ROGER

MERRILL LYNCH v. ARELMA, INC. 11081
ROXAS; GOLDEN BUDHA 
CORPORATION, a corporation
organized and existing under the
laws of the State of Georgia, with
a registered office at 710 West
First Street, Blue Ridge, Georgia
30513, and a mailing address at
260 Carrollton St., Buchanan, GA
30113; PHILIPPINE NATIONAL BANK,
Defendants,
and 
MARIANO J. PIMENTEL, on behalf of
himself and all other persons
similarly situated,
Defendant-Appellee,
REPUBLIC OF THE PHILIPPINES;
PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT, a government
agency of the Republic of the
Philippines,
Defendants-Appellants.

11082 MERRILL LYNCH v. ARELMA, INC.
MERRILL LYNCH, PIERCE, 
FENNER AND SMITH, INCORPORATED,
a corporation organized and
existing under the laws of the
State of Delaware with its
principal place of business in New
York, New York,
Plaintiff-Appellee,
v.
ENC CORPORATION; ARELMA, INC.,
a corporation organized and
existing under the laws of Panama
with a permanent address at Ave.
Justo Alosemena y Calle 41 Este,
No. 40-59 Pte al Colegio No. 04-16538
Immeculada, Panama 1.Rep.de
Panama, and a mailing address at  D.C. No.
CV-00-00595-MLR
c/o Suntrust Investment Co.S.A.,
OPINION
rue de Jargonnant 2, P.O. Box 76,
1211 Geneva 6, Switzerland;
SUNTRUST INVESTMENT CO., S.A., a
corporation organized and existing
under the laws of Switzerland with
an address at rue de Jargonnant 2,
P.O. Box 76, 1211 Geneva 6,
Switzerland; JOHN K. BURNS, a
citizen of the United States, with
an address at 300 Wacker Drive,
Suite, 900, Chicago, Illinois,
60606; THE ESTATE OF FERDINAND
E. MARCOS; IMELDA R. MARCOS;
FERDINAND R. MARCOS, JR.; MARIA
IMELDA MARCOS; IRENE MARCOS

MERRILL LYNCH v. ARELMA, INC. 11083
ARANETA; FRONTIER RISK CAPITAL 
MANAGEMENT, L.C.C., a limited
liability company organized and
existing under the laws of the
States of Nevada, with a registered
office at 6100 Neil Road, Suite
500, Reno, NV. 89511 and an
address at 300 Wacker Drive,
Suite 900, Chicago, IL 60606;
GROSVENOR CAPITAL LTD., a
company organized and existing
under the law of the United
Kingdom, with an address at
Grosvenor Gardens House, Suite
117, 35-37 Grosvenor Gardens,
London SW1 W OBS, United 
Kingdom; PHILIPPINE NATIONAL
BANK; REPUBLIC OF THE PHILIPPINES;
PRESIDENTIAL COMMISSION ON GOOD
GOVERNMENT, a government
agency of the Republic of the
Philippines,
Defendants,
and
THE ESTATE OF ROGER ROXAS;
GOLDEN BUDHA CORPORATION, a
corporation organized and existing
under the laws of the State of
Georgia, with a registered office at
710 West First Street, Blue Ridge,

11084 MERRILL LYNCH v. ARELMA, INC.
Georgia 30513, and a mailing 
address at 260 Carrollton St.,
Buchanan, GA 30113,

Defendants-Appellants,
MARIANO J. PIMENTEL, on behalf of
himself and all other persons
similarly situated,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Hawaii
Manuel L. Real, District Judge, Presiding
Argued and Submitted
March 14, 2005—San Francisco, California
Filed September 12, 2006
Before: John T. Noonan, Sidney R. Thomas, Circuit Judges,
and James L. Robart,* District Judge.
Opinion by Judge Noonan
*The Honorable James L. Robart, United States District Judge for the
Western District of Washington, sitting by designation.
MERRILL LYNCH v. ARELMA, INC. 11087
COUNSEL
Stephen V. Bomse, San Francisco, California, for the Repub-
lic of the Philippines.
Jay R. Ziegler, Los Angeles, California, for Arelma, Inc.
and Philippine National Bank.
Daniel C. Cathcart, Los Angeles, California, for defendants-
appellants Golden Budha Corp. and Estate of Roxas.
Robert A. Swift, Philadelphia, Pennsylvania, for defendant-
appellee Mariano J. Pimentel.
OPINION
NOONAN, Circuit Judge:
In this interpleader action, appeal is made by the several
parties dissatisfied with the decision of the district court
awarding the funds in dispute to the Class of Human Rights
Victims represented by Mariano Pimentel (Pimentel). We
hold that the Republic of the Philippines and the Presidential
Commission on Good Government (the PCGG) (collectively,
11088 MERRILL LYNCH v. ARELMA, INC.
the Republic) are not indispensable parties under Federal Rule
of Civil Procedure 19(b). We affirm the judgment of the dis-
trict court.
PARTIES AND PROCEEDINGS
Interpleader was begun on September 21, 2000, by Merrill,
Lynch, Pierce, Fenner & Smith, Inc. (Merrill Lynch), the cus-
todian of the assets of Arelma, S.A. (Arelma), now amounting
to approximately $35 million. The Merrill Lynch account was
found by the district court to have been established in 1972
by a deposit of $2 million by Ferdinand E. Marcos, then the
president of the Republic. The shares of Arelma, a Panama-
nian corporation, are now held in escrow by the Philippine
National Bank, pending an ownership determination by the
Philippine courts.
The Republic was made a defendant in the interpleader and
successfully asserted its sovereign immunity. In re Republic
of the Philippines, 309 F.3d 1143, 1149-52 (9th Cir. 2002).
The Republic now maintains that it is an indispensable party
inasmuch as the Republic asserts that the Arelma assets were
acquired by Marcos illegally and never lawfully belonged to
him but from the beginning of his acquisition belonged to the
Republic. See An Act Declaring Forfeiture in Favor of the
State of Any Property Found to Have Been Unlawfully
Acquired by Any Public Officer or Employee and Providing
for the Proceeding Therefor, Republic Act No. 1379 (1955)
(Forfeiture Act). In the 2002 appeal here, we ruled that the
Republic was a necessary party but declined to rule that the
Republic was indispensable. We stayed the action. Republic
of the Philippines, 309 F.3d at 1153.
Pimentel is the representative of 9,539 persons who
brought suit against Marcos after his fall from power and in
1996 won a judgment against his estate of nearly $2 billion.
In re Estate of Ferdinand E. Marcos Human Rights Litiga-
tion, 103 F.3d 767 (9th Cir. 1996). This class, composed of
MERRILL LYNCH v. ARELMA, INC. 11089
victims of a rough and rapacious ruler, who often exercised
arbitrary power, is a group whose sufferings naturally evoke
sympathy. The district court dissolved the stay and awarded
all the Arelma assets to them.
Arelma, that is the corporation itself, and the Philippine
National Bank, the escrow holder of its stock, have filed a sin-
gle brief contending that Arelma is an indispensable party and
that the district court lacked jurisdiction over Arelma.
The Estate of Roger Roxas and the Golden Budha (sic)
Corporation have similar interests. The Yamashita Treasure
was discovered by Roxas and stolen from Roxas by Marcos’s
men. Roxas was tortured and imprisoned, giving rise to
human rights claims valued at $6 million. Roxas formed a
corporation to which he assigned his rights in the treasure; the
corporation, for reasons connected with the warrants issued to
Roxas, carries a misspelled name. The Estate of Roger Roxas
and the corporation (collectively Roxas) won an initial judg-
ment against Imelda Marcos and the Estate of Ferdinand Mar-
cos. Roxas v. Marcos, 969 P.2d 1209 (Haw. 1998). The
Hawai’i Supreme Court has allowed Roxas’ judgment against
Imelda Marcos to stand, while holding that the Estate of Fer-
dinand Marcos could not be bound by that judgment. Id. at
1244. Roxas claims the Arelma assets both as a creditor of
Marcos and on the basis that the $2 million used by Marcos
to set up the Merrill Lynch account were most probably
derived from the Yamashita Treasure and can be traced to the
property stolen from Roxas.
Other parties named in the caption of the case have not pur-
sued the appeal.
ANALYSIS
[1] The case is governed by Federal Rule of Civil Proce-
dure 19. The first section of the rule speaks of “persons
11090 MERRILL LYNCH v. ARELMA, INC.
needed for just adjudication.” The Republic falls within this
section because, as the rule puts the matter, the Republic
claims an interest relating to the subject of the action
and is so situated that the disposition of the action in
[its] absence may (i) as a practical matter impair or
impede [its] ability to protect that interest or (ii)
leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or oth-
erwise inconsistent obligations by reason of [its]
claimed interest.
Fed. R. Civ. P. 19(a). Such a party should be joined to the
action.
The rule goes on to prescribe what a court should do
“whenever joinder is not feasible.” In such a case,
the court shall determine whether in equity and good
conscience the action should proceed among the par-
ties before it, or should be dismissed, the absent per-
son being thus regarded as indispensable. The factors
to be considered by the court include: first, to what
extent a judgment rendered in the person’s absence
might be prejudicial to the person or those already
parties; second, the extent to which, by protective
provisions in the judgment, by the shaping of relief,
or other measures, the prejudice can be lessened or
avoided; third, whether a judgment rendered in the
person’s absence will be adequate; fourth, whether
the plaintiff will have an adequate remedy if the
action is dismissed for nonjoinder.
Fed R. Civ. P. 19(b). Indispensability “can only be deter-
mined in the context of particular litigation.” Provident
Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102,
118 (1968). In determining indispensability, we apply the
MERRILL LYNCH v. ARELMA, INC. 11091
criteria supplied by Rule 19(b) itself, viewed through the lens
of “equity and good conscience.” Id. at 109.
[2] We have determined that the Republic is a necessary
party in this proceeding. That determination appears to mean
that for a just disposition of the assets it is necessary that the
Republic participate. In ordinary speech, a necessary party
would be an indispensable party. Rule 19(b), however, distin-
guishes between necessary and indispensable parties. Rule
19(b) indicates that indispensability must meet a higher stan-
dard than necessity. Only if equity and good conscience
require it is a necessary party also indispensable.
In an appeal from the district court’s dissolution of the stay,
we came close to saying that the Republic was not indispens-
able. We said:
the district court . . . held a hearing and entered find-
ings of fact regarding the impact of the Philippine
litigation and the propriety of going forward in the
absence of necessary parties, i.e., the Republic and
PCGG. We conclude that [the] district court ulti-
mately acted within the spirit of this court’s mandate
and properly exercised its discretion.
Merrill Lynch v. Pimentel, Nos. 03-16742, 03-16743, at 3-4
(9th Cir. Feb. 20, 2004) (per curiam). Pimentel argues that
implicitly our decision found no parties to be absent but indis-
pensable. We, however, were addressing only the decision to
lift the stay. Our decision does not have res judicata effect on
the question of indispensability here presented.
Accordingly, we must apply the factors set forth in Rule
19(b), in “the context of [this] particular litigation.” Provident
Bank, 390 U.S. at 118. The phrase “equity and good con-
science” in our judicial usage is coterminous with the early
opinions of the United States Supreme Court. See Elmendorf
v. Taylor, 23 U.S. 152, 181 (1825). Undoubtedly in its earlier
11092 MERRILL LYNCH v. ARELMA, INC.
usage, equity brought to mind a fairness sought by the chan-
cery courts that transcended statutory law and “good con-
science” referred to an interior moral arbiter regarded as the
voice of God. As the phrase has become domesticated and
invoked in modern times, see Montana v. Crow Tribe of Indi-
ans, 523 U.S. 696, 707 (1998), the distinction of its two ele-
ments has blurred, and it has a secular rather than religious
cast. Still, its unique appearance in Rule 19 of the Federal
Rules of Civil Procedure emphasizes the flexibility that a
judge may find necessary in order to achieve fairness in the
judge’s choice of solutions, a choice to be marked by “mercy
and practicality.” Hecht v. Bowles, 321 U.S. 321, 329 (1944).
Prejudice to the Republic
First, we must consider whether a judgment rendered in the
absence of the Republic “might be prejudicial to [it] or to
those already parties.” Fed. R. Civ. P. 19(b). Following the
example of the Supreme Court in conducting this analysis, see
Provident Bank at 115-16, we consider the circumstances and
practicalities of the Republic’s claim.
[3] The general rule is that a sovereign need not forfeit its
immunity to protect its assertion of indispensability. In the
usual case of interpleader, the sovereign is immune and indis-
pensable and so can cause dismissal of the action. This gen-
eral rule has been developed in cases involving Indian tribes.
For example in, Makah Indian Tribe v. Verity, 910 F.2d 555(9th Cir. 1990), we held that where the Makah Indian Tribe
sought a reallocation of fishing rights beyond a three-mile
limit, any reallocation would affect the rights of 23 other
Indian tribes whose sovereign immunity prevented them
being made parties. Prejudice to these tribes was inevitable;
no relief could be shaped and no adequate remedy could be
given that would remove the prejudice. In equity and good
conscience, the case had to be dismissed for want of indis-
pensable parties. Similarly, in Manybeads v. United States,
209 F.3d 1164 (9th Cir. 2000), a difficult controversy had
MERRILL LYNCH v. ARELMA, INC. 11093
been settled by an Accommodation Agreement entered into
by the Hopi Tribe, the Navajo Nation and representatives of
individual Navajos and by a Settlement Agreement reached
between the Hopi Tribe and the United States. A few Navajos
who were dissatisfied challenged the agreements in a suit
directed against the United States. We ended the litigation by
holding that the Hopi Tribe was an indispensable party
because upsetting the agreement would inflict substantial
monetary loss on the Hopi Tribe and affect its peaceful rela-
tions with the Navajo Nation. As a sovereign, the Hopi Tribe
could not be subjected to the suit. Indispensable, it was absent
and so put an end, in equity and good conscience, to the
underlying litigation. A fortiori, when the sovereign is a for-
eign state, prejudice to it is a powerful consideration. How-
ever, under Rule 19, it is not the sole consideration.
[4] The Republic’s right in the United States to reclaim the
spoils of office from Marcos has been unquestioned since
Republic of the Philippines v. Marcos, 862 F.2d 1355 (9th
Cir. 1988) (en banc). The Republic has set up the PCGG to
effect this end. It is now eighteen years since the 1988 deci-
sion and four years since we stayed this action. The shares of
Arelma have been since 1995 in escrow at the Philippine
National Bank. In all this time, the Republic has not obtained
a judgment that the assets in dispute belong to it. We do not
hold the Republic guilty of laches, but we do note as an equi-
table consideration that its failure to secure a judgment affect-
ing these assets is a factor to be taken into account. See
Provident Bank, 390 U.S. at 115.
[5] To protect a party as indispensable, Rule 19 requires
“an ‘interest’ that will be impaired by the litigation ‘as a prac-
tical matter.’ ” Am. Greyhound Racing, Inc. v. Hull, 305 F.3d
1015, 1023 (9th Cir. 2002). As a practical matter, it is doubt-
ful that the Republic has any likelihood of recovering the
Arelma assets. The res is in the United States. It cannot be
finally disposed of except by the judgment of a court in the
United States. We have been instructed by the example of the
11094 MERRILL LYNCH v. ARELMA, INC.
Supreme Court to envisage how a lawsuit involving the assets
in dispute would play out in the light of the decision made on
interpleader. See Provident Bank, 390 U.S. 102 at 112-117.
We do so now.
Scenario one: We dismiss this action. Pimentel sues Merrill
Lynch in New York for the assets. The Republic intervenes,
asserting its claim. The New York court holds the Republic
barred by the six year statute of limitations. See N.Y. C.P.L.R.
§ 213. The court rejects the Republic’s appeal to toll the stat-
ute when Marcos was in office, because Marcos left in 1986;
the court also finds that the post-Marcos constitution of the
Republic does not affect the New York limitation on actions.
Pimentel takes the assets to the extent of his judgment. Sce-
nario two: The plaintiff is the Republic. The Republic is time-
barred. Pimentel intervenes and obtains the assets.
The Republic insists that it could obtain a judgment regard-
ing the ownership of these assets in the Philippines, where it
is relieved of any statute of limitations. But a court sitting in
the Philippines would lack jurisdiction to issue a judgment in
rem regarding the ownership of an asset located within the
United States. If a Philippine court were to issue such a
decree, a court of this country would not be bound to give it
effect. See Tchacosh Co. v. Rockwell Int’l, 766 F.2d 1333,
1336 (9th Cir. 1985); see also Restatement (Third) of Foreign
Relations § 482(2)(a) (1987).
Finally, we note that any judgment entered in this action
cannot bind the Republic because it is not a party to the
action. See Idaho ex rel. Evans v. Oregon, 444 U.S. 380, 386
(1980). Consequently, if we act here, the Republic would
remain free to sue for the Arelma assets in a forum of its
choice. True, unless it acts with alacrity, the assets may be
distributed after judgment here and be beyond recapture.
After the assets are distributed, the Republic might seek the
equivalent of the assets from their present holder, Merrill
Lynch, in New York where they were invested. But it would
MERRILL LYNCH v. ARELMA, INC. 11095
be confronted with the New York statute of limitations of six
years for its underlying claim. See Stafford v. International
Harvester Co., 668 F.2d 142, 147 (2d Cir. 1981); N.Y.
C.P.L.R. § 213 (misappropriation of public property). Tolling
by Marcos’ time in office would not help it. The generous
provision for recapture of the assets provided by the new con-
stitution of the Philippines would not trump New York law.
In practical effect, a judgment in this action will deprive the
Republic of the Arelma assets.
The Possibility of Protective Provisions
Rule 19 (b) requires us to assess the opportunity for the
court to use “protective provisions in the judgment” by which
“the prejudice” to the absent party “can be lessened or avoid-
ed.” Fed. R. Civ. P. 19(b). Because the Republic has little
practical likelihood of obtaining the Arelma asserts, there is
no need to lessen prejudice to it.
Adequacy of Judgment and Availability of Alternative Forums
[6] Under Rule 19(b), we are charged with determining
whether “a judgment rendered in [the Republic’s] absence
will be adequate” and “whether the plaintiff will have an ade-
quate remedy if the action is dismissed for nonjoinder.” Fed.
R. Civ. P. 19(b). We note the presence in this action of vic-
tims of the former president of the Republic. The class repre-
sented by Pimentel has secured a judgment against Marcos of
almost $2 billion, which the assets in dispute will scarcely sat-
isfy. Nonetheless, the symbolic significance of some tangible
recovery is not to be disregarded, and if the recovery is dis-
tributed pro rata among the individuals, it will have monetary
meaning for the poor among them.
The counter consideration, that most of the victims are citi-
zens of the Philippines and should find redress from their own
government, is outweighed by the fact that the Republic has
not taken steps to compensate these persons who suffered out-
11096 MERRILL LYNCH v. ARELMA, INC.
rage from the extra-legal acts of a man who was the president
of the Republic. If we dismiss the action for nonjoinder of the
Republic, they will have no forum within the Philippines open
to their claims. They might sue again within the United States,
perhaps in New York, yet such a suit would merely raise the
same question of indispensability.
Balancing of the Factors
[7] In terms of the four factors set out by Rule 19(b) as
included among those “to be considered,” the Republic will
not be prejudiced because it has no practical likelihood of
obtaining the Arelma assets and so there is no need of lessen-
ing prejudice to it; judgment rendered in its absence will be
adequate; if we dismiss the action for nonjoinder of the
Republic, Pimentel and Roxas will be required to sue again in
New York, a needless repetition that will not benefit the
Republic. No injustice is done it if it now loses what it can
never effectually possess.
The Claims of Arelma and the Philippine National Bank
[8] As the district court has determined, Arelma is a shell
corporation, and the court may look through the corporate
form to Marcos, the owner of its assets. Chung v. Animal
Clinic, Inc., 636 P.2d 721, 723 (Haw. 1981). Accordingly,
neither Arelma itself nor the Philippine National Bank as
escrow holder now have an interest to be protected. Merrill
Lynch risks being sued again, but it has indicated no dissatis-
faction with the judgment.
The Claims of Roxas and Golden Budha
Roxas was a victim, too. His injury was suffered before the
date used to determine the Pimentel class. The district court,
however, found that Roxas had not proven that the assets in
the Arelma account derived from any treasure stolen from
him. Roxas contends that the district court erred in excluding
MERRILL LYNCH v. ARELMA, INC. 11097
expert testimony regarding the source of the funds and in
excluding depositions of fact witnesses from his earlier action
against Marcos. We do not believe that the district court
abused its discretion in either ruling. The expert failed to pro-
duce the report required by Fed. R. Civ. P. 26(a)(2), and the
district court acted within its discretion in excluding his testi-
mony. See Yeti by Molly, Ltd. v. Deckers Outdoor Co., 259
F.3d 1101, 1105-06 (9th Cir. 2001). As for the depositions,
they were excludable as hearsay because the cross examina-
tion in the prior proceeding was not undertaken by a party
with a “similar motive to develop the testimony.” Fed. R.
Evid. 804(b)(1). We agree with the district court that the
record does not support a finding that the Arelma assets were
stolen from Roxas.
As the district court held, Roxas’ tort judgment is against
Imelda Marcos personally. It does not bind the Marcos estate.
Roxas has no claim to be satisfied here.
Accordingly, we AFFIRM the judgment of the district
court.