In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1058
1ST SOURCE BANK,
Plaintiff‐Appellee,
v.
JOAQUIM SALLES LEITE NETO,
Defendant‐Appellant.
____________________
Emergency Motion for Judgment
Pending Appeal from the U.S. District Court for the
Northern District of Indiana, South Bend Division.
No. 3:15‐cv‐00261 — William C. Lee, Judge.
____________________
MARCH 30, 2017
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Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Defendant Joaquim Neto, an inter‐
national businessman from Brazil, entered into a trust
agreement with Wells Fargo Bank in 2009 to purchase an air‐
craft for use in his business. Wells Fargo borrowed $6 mil‐
lion from plaintiff 1st Source Bank (a major Indiana bank),
pledging the aircraft as collateral, and Neto signed a person‐
2 No. 17‐1058
al guarantee backing the loan. Three years later the Brazilian
tax authorities seized the plane as part of an investigation
into Neto’s attempt to avoid paying Brazilian import tax.
Neto continued to pay the amount due on the loan until De‐
cember 2014, but after he stopped paying, 1st Source sued
him in a federal district court in Indiana, basing jurisdiction
on diversity of citizenship. 1st Source filed a second lawsuit
in July 2016 in Brazil, where the plane resides.
In December 2016 Neto moved the district court in Indi‐
ana to enjoin the Brazilian lawsuit on the grounds that the
language of the guarantee did not permit duplicative litiga‐
tion and that the Brazilian litigation was “vexatious and op‐
pressive.” 1st Source opposed the motion, countering that
the express language in the guarantee gives it “sole and ex‐
clusive discretion” to pursue litigation where the assets
(primarily, perhaps exclusively, the plane) are held (Brazil),
in addition to litigating in Indiana. Brazilian law permits a
prejudgment attachment of assets that would give Neto only
three days to pay the debt after being served with a sum‐
mons, and if he failed to comply the court would be entitled
to seize as many assets as necessary to guarantee payment of
the debt, though Neto could file a motion to stay the seizure
within 15 days after the issuance of the summons, advancing
defenses such as unfeasible or undue obligation, inaccurate
attachment, excessive execution, or the court’s lack of juris‐
diction.
The district court denied Netoʹs motion, reasoning that
“it ma[de] perfect sense, from a business standpoint” for 1st
Source to have included a clause in the guarantee, authoriz‐
ing it to pursue legal proceedings in any jurisdiction in
which its collateral was located. Remarking that “Indiana
No. 17‐1058 3
courts zealously defend the freedom to contract,” State v.
Int’l Business Machines Corp., 51 N.E.3d 150, 160 (Ind. 2016)
(citation omitted), the judge rejected Neto’s argument that
having to defend the two actions was unduly burdensome
because as part of the Indiana litigation Neto had had to
travel to Chicago from Brazil for a mediation session (which
had involved another case as well) and a deposition imme‐
diately before the mediation session.
Neto appealed the denial and moved the district court for
an emergency injunction pending appeal, on the ground that
1st Source intended to serve its summons on him in the Bra‐
zil case forthwith and that upon service of the summons he
would have only three days within which to pay the alleged
amount due—and if he missed that tight deadline his assets
(enough to pay the debt) would be seized. The district court
denied the motion on the ground that although the Brazilian
prejudgment attachment would freeze Neto’s assets he
hadn’t shown a sufficient likelihood of prevailing on his
claim that the Brazilian litigation was improper to warrant
our interfering with that litigation. Neto then turned to the
appellate court, asking us for an emergency stay of the Bra‐
zilian proceeding during his appeal. We denied his motion
three days later, promising an explanation to follow.
Neto argues that 1st Source shouldn’t be allowed to sue
him wherever he has assets, for that he argues would un‐
dermine the purpose of a forum selection clause, and there is
such a clause in the guarantee that Neto signed agreeing to
back the loan that 1st Source had made to Wells Fargo to pay
for the plane. The clause selects the federal court for the
Southern District of Indiana for “all legal proceedings in
connection with this guarantee,” but it goes on to state—
4 No. 17‐1058
crucially—that 1st Source reserves the option to sue Neto,
for the money he owes the bank, “in any jurisdiction where
the aircraft may be located.”
Neto expresses fear that the district court’s ruling permits
1st Source to sue him all over the world, raising the specter
of inconsistent judgments or piecemeal litigation. But that
specter is insufficiently concrete to warrant an emergency
injunction. It’s true as he reminds us that we allow an injunc‐
tion against litigating in a foreign forum if the foreign suit
would be gratuitously duplicative of pending domestic liti‐
gation. Allendale Mutual Ins. Co. v. Bull Data Systems, Inc., 10
F.3d 425, 431 (7th Cir. 1993). But he has not provided suffi‐
cient information about the nature of the Brazilian lawsuit to
support his contention that it is identical to or duplicative of
the Indiana suit. Cf. id. at 429. And he has neither responded
to the bank’s contention that he can ask the Brazilian court to
stay the case before it, cf. id. at 431, nor explained why he
can’t present a defense to the seizure of the plane within the
15 days (not 3 days) allowed by Brazilian procedure.
His emergency motion for an injunction pending appeal
is therefore denied.