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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 19, 2004 Decided August 13, 2004
No. 03-5237
SECURITIES AND EXCHANGE COMMISSION, AND
DEBORAH R. MESHULAM,
APPELLEES
v.
PAUL A. BILZERIAN
APPELLEE
ERNEST B. HAIRE, III,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cv01221)
S. Scott Morrison argued the cause for appellant. On the
briefs was G. Michael Nelson.
Charles B. Wayne argued the cause for appellee Deborah
R. Meshulam. On the brief was Deborah J. Israel.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: SENTELLE, ROGERS, and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: This case is ancillary to a long-
standing Securities and Exchange Commission (SEC) en-
forcement proceeding against Paul A. Bilzerian for violation
of federal securities laws. The United States District Court
for the District of Columbia created a receivership estate and
appointed a receiver to satisfy the SEC’s judgment against
Bilzerian’s assets. In the instant action, the receiver filed a
complaint against defendant Ernest B. Haire, III to collect on
the principal, interest, and fees due and owing to the receiver-
ship estate on a $1 million loan. Haire moved to dismiss the
complaint, alleging that the court lacked personal jurisdiction
over him, that venue in the District of Columbia was improp-
er, that the forum was not convenient, and that the receiver
had failed to join a necessary party. The district court
rejected those challenges, and entered summary judgment in
the receiver’s favor. We affirm.
I
In 1993, the United States District Court for the District of
Columbia ordered Bilzerian to disgorge over $33 million in
profits and $29 million in prejudgment interest obtained from
his unlawful transactions in several common stocks. SEC v.
Bilzerian, 814 F. Supp. 116 (D.D.C. 1993), aff’d, 29 F.3d 689
(D.C. Cir. 1994). On December 22, 2000, after finding Bilzeri-
an in contempt for failing to pay the 1993 disgorgement
judgment, the district court appointed the appellee, Deborah
Meshulam, as receiver ‘‘for the purpose of identifying, mar-
shaling, receiving and liquidating [Bilzerian’s] assets.’’ SEC
v. Bilzerian, 127 F. Supp. 2d 232, 232 (D.D.C. 2000), aff’d,
2003 WL 22176183 (D.C. Cir. 2003) (hereinafter Receivership
Order). The Receivership Order authorized the receiver to
‘‘take and maintain complete and exclusive control, possession
and custody of Bilzerian’s assets wherever situated’’ and to
‘‘liquidate any interest in any asset held by anyone on behalf
of Bilzerian, including but not limited to the initiation and
prosecution of litigation against others to recover such asset
3
and/or interests in asset on behalf of the Receivership Es-
tate.’’ Id. at 233. The receiver filed copies of the Receiver-
ship Order in various federal district courts, including the
United States District Court for the Middle District of Flori-
da where Haire resides.
The assets of the receivership estate included, inter alia,
the assets of Overseas Holdings Limited Partnership
(OHLP), a partnership owned by the Bilzerian family to
which Bilzerian transferred substantial assets during the
course of the SEC litigation. On July 12, 2000, during the
pendency of the contempt proceeding against Bilzerian,
OHLP loaned Haire $1 million. The loan was reflected in a
promissory note (the ‘‘Note’’), which accrued interest at an
annual rate of 12% and made the principal payable on de-
mand. The Note was secured by Haire’s pledge of his stock
shares in Cimetrix, Inc. OHLP demanded payment on Au-
gust 23, 2000, and Haire’s failure to pay within 15 days of that
demand triggered the Note’s terms governing default and
penalties. Haire and OHLP subsequently executed a For-
bearance and Extension Agreement on March 1, 2001, under
which Haire agreed to pay accrued interest immediately, and
OHLP agreed to extend the due date for payment of principal
until March 1, 2003.
In December 2001, OHLP agreed to ‘‘transfer to the Re-
ceiver all right, title and interest in that certain note and
stock pledge agreement and related documents by Ernest
Haire III in the principal amount of $1 million, as extended.’’
Consent and Undertakings Agreement at 5 (J.A. 87); see also
Assignment Without Recourse (J.A. 100). Haire, in his ca-
pacity as trustee of another Bilzerian-related entity, signed
the agreement. On January 16, 2002, the court entered the
agreement as a consent judgment. On April 19, 2002, the
receiver sent a letter to Haire demanding that he immediate-
ly pay all accrued and unpaid interest due on the Note, and
warning that failure to pay within fifteen days would result in
a default under the Note’s express terms. Haire failed to
pay, and the receiver notified him that the entire $1 million
principal (and accumulated interest and penalty fees) was
immediately due.
4
On June 19, 2002, the receiver filed the present complaint
against Haire, demanding judgment for the full amount of
principal and accrued interest under the Note. Haire filed a
motion to dismiss the complaint on the grounds of lack of
personal jurisdiction, improper venue, forum non conveniens,
and failure to name an indispensable party. At the same
time, the receiver moved for summary judgment. The dis-
trict court denied Haire’s motion to dismiss, Mem. & Order
(D.D.C. Jan. 17, 2003) (hereinafter Jan. 2003 Mem. Op.), and
granted the receiver’s motion for summary judgment, Mem.
& Order (D.D.C. July 17, 2003) (hereinafter July 2003 Mem.
Op.).
Haire now appeals.1 We review both of the district court’s
orders de novo. See Gormon v. Ameritrade Holding Corp.,
293 F.3d 506, 509 (D.C. Cir. 2002); Gilvin v. Fire, 259 F.3d
749, 756 (D.C. Cir. 2001). In Part II, we consider Haire’s
challenge to the court’s conclusion that it had personal juris-
diction. In Part III, we consider Haire’s remaining objec-
tions to the court’s order denying dismissal, as well as his
objections to the court’s grant of summary judgment to the
receiver.
II
We begin with the threshold question of whether the
United States District Court for the District of Columbia has
personal jurisdiction over the defendant, a Tampa, Florida
resident who claims not to have any contacts with the District
of Columbia. In SEC v. Vision Communications, Inc., a case
1 Haire also appeals the district judge’s 2002 denial of his motion
to recuse the judge from participation in Haire’s case. See Mem. &
Order (D.D.C. Dec. 4, 2002). Haire previously sought to overturn
that denial by petitioning for a writ of mandamus. In denying the
writ, a panel of this court readily held that the ‘‘district court did
not abuse its discretion in deciding not to recuse.’’ In re: Ernest
Haire, 2003 WL 1873948, at *1 (D.C. Cir. 2003). That holding,
premised not on the elevated standard of review for mandamus, but
rather on the same standard that we would apply to the recusal
question on appeal, is the law of the case.
5
also involving a receiver in a proceeding ancillary to an SEC
enforcement action, we explained how such personal jurisdic-
tion could be obtained. 74 F.3d 287, 290–91 (D.C. Cir. 1996).
Step one involves Federal Rule of Civil Procedure 4(k)(1)(D),
which provides that ‘‘[s]ervice of a summons or filing a waiver
of service is effective to establish jurisdiction over the person
of a defendant TTT when authorized by a statute of the United
States.’’ FED. R. CIV. P. 4(k)(1)(D). Step two requires a
statute that provides the ‘‘needed ‘authorization’ to have [the
defendant] served’’ in a district ‘‘outside the territorial bound-
aries of the U.S. District Court for the District of Columbia.’’
74 F.3d at 290. Section 1692 of Title 28, we said, could
provide such authorization. Id. That section states:
In proceedings in a district court where a receiver is
appointed for property, real, personal, or mixed, situated
in different districts, process may issue and be executed
in any such district as if the property lay wholly within
one district but orders affecting the property shall be
entered of record in each of such districts.
28 U.S.C. § 1692. Finally, ‘‘to invoke § 1692, a receiver first
must comply with 28 U.S.C. § 754.’’ 74 F.3d at 290. Under
that section, ‘‘a receiver appointed in one district may obtain
jurisdiction over property located in another district by filing
in the district court of that district, within ten days after the
entry of his order of appointment, a copy of the complaint and
his order of appointment.’’ Id.2 Thus, we said, § 754 is ‘‘a
2 Section 754 provides, in pertinent part:
A receiver appointed in any civil action or proceeding involving
property, real, personal or mixed, situated in different districts
shall, upon giving bond as required by the court, be vested with
complete jurisdiction and control of all such property with the
right to take possession thereofTTTT Such receiver shall, with-
in ten days after the entry of his order of appointment, file
copies of the complaint and such order of appointment in the
district court for each district in which property is located.
The failure to provide such copies in any district shall divest
the receiver of jurisdiction and control over all such property in
that district.
6
stepping stone on [the court’s] way to exercising in personam
jurisdiction over’’ one who holds receivership assets in a
remote district. Id. at 290.3
As precedent, Vision Communications relied on the Sixth
Circuit’s decision in Haile v. Henderson National Bank, 657
F.2d 816 (6th Cir. 1981), which is on all fours with the case
presently before us. In Haile, a receiver was appointed in
the Middle District of Tennessee for a bankrupt church and
its assets. Id. at 818. The receiver then brought suit against
an individual in the Northern District of Alabama who had
defaulted on a note held by the church. Id. at 820. The
Alabama defendant resisted on the ground that the district
court in Tennessee lacked personal jurisdiction over him, and
that court agreed, concluding that while they may provide the
court with control of the property of the debtor, ‘‘neither 28
U.S.C. § 754 nor 28 U.S.C. § 1692 TTT grants this court
personal jurisdiction of the defendants.’’ Id. at 820.
The Sixth Circuit reversed. It held that, pursuant to
§ 754, ‘‘the territorial jurisdiction of the appointing court is
extended to any district of the United States where property
believed to be that of the receivership estate is found, provid-
ed that the proper documents have been filed in each such
district as required by § 754.’’ Id. at 823. It noted that
‘‘Rule 4 of the Federal Rules of Civil Procedure contemplates
the use of statutes of the United States which provide for
service of process upon a party not TTT found within the state
in which the district court is held.’’ Id. at 824. And it
concluded that the ‘‘statute of the United States which pro-
vides for service of process beyond the territorial limits of the
state in which the district court sits in the case at bar is 28
U.S.C. § 1692.’’ Id. ‘‘The process authorized by § 1692,’’
the court said, ‘‘is not ‘extra-territorial’ but rather nation-
28 U.S.C. § 754.
3 Further support for the proposition that § 754 is a ‘‘stepping
stone’’ is the fact that, prior to 1948, the provisions of both sections
were contained in a single predecessor statute, 28 U.S.C. § 117
(1940). See Reviser’s Notes, H.R. REP. NO. 80–308, at 1807, 1869
(1947) (noting that § 117 was the basis for §§ 754 and 1692).
7
wide.’’ Id. at 826. Under that section, ‘‘[t]he appointment
court’s process extends to any judicial district where receiver-
ship property is found.’’ Id.
In American Freedom Train Foundation v. Spurney, the
First Circuit pronounced itself in ‘‘agreement with the Sixth
Circuit’s holding that pursuant to sections 754 and 1692, ‘[t]he
appointment court’s process extends to any judicial district
where receivership property is found.’ ’’ 747 F.2d 1069, 1073
(1st Cir. 1984) (quoting Haile, 657 F.2d at 826). And both
circuits’ discussions paralleled, and Haile expressly relied
upon, the views of Professor Moore, who concluded: ‘‘[I]n
cases under these two sections, the minimum contacts analy-
sis of International Shoe as a limitation on extraterritorial
power, does not apply, since service of process under § 1692
[is] nationwide.’’ 7 (Pt. 2) JAMES WM. MOORE, MOORE’S FEDERAL
PRACTICE ¶ 66.08[1] (2d ed. 1996).
In the present case, the district court followed the analysis
outlined in Vision Communications and Haile. The court
found that the receiver had complied with § 754 by filing the
appropriate documents in the Middle District of Florida, and
that this compliance meant that § 1692 authorized service of
process. The court further found that Haire had been prop-
erly served. Citing Rule 4(k)(1)(D), the court concluded that
it therefore had personal jurisdiction over the defendant.
Jan. 2003 Mem. Op. at 5.
Haire does not dispute that the receiver filed the appropri-
ate documents in Florida, or that he received service of
process there. What he disputes is the district court’s au-
thority to issue process to obtain in personam jurisdiction
over an out-of-state defendant. Section § 1692, Haire con-
tends, authorizes extraterritorial service of process only to
obtain in rem jurisdiction — jurisdiction over property — in
another district, and not in personam jurisdiction over a
defendant in such a district. When a court exercises only in
rem jurisdiction,‘‘the resulting judgment can affect only the
property’’ and ‘‘cannot personally bind absentees simply on
the basis of their interests in the property.’’ 4A CHARLES
ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER,
8
FEDERAL PRACTICE AND PROCEDURE § 1070, at 281 (3d ed. 2002)
(hereinafter WRIGHT & MILLER).
Haire’s contention is, of course, inconsistent with the expla-
nation of the role of § 1692 that we enunciated in Vision
Communications. Haire contends that explanation was dicta
because, in Vision Communications, the receiver had failed
to make the necessary filings within the ten days required by
§ 754, which ‘‘precluded the district court from using § 754
as a stepping stone on its way to exercising in personam
jurisdiction.’’ 74 F.3d at 290. Thus, he says, the court’s
discussion of § 1692 was unnecessary. Haire may be techni-
cally correct, but it is apparent that the Vision Communica-
tions court did not think so. The court made clear that, but
for the failure to comply with § 754, the ‘‘interplay between
Rule 4(k)(1)(D) TTT and 28 U.S.C. § 1692 could have provided
th[e] authorization’’ for service of process sufficient to estab-
lish jurisdiction over the person of the defendant. Id. at 290.
And it ended its opinion with a direction to the parties that it
would not have issued had it not thought § 1692 authorized
the service necessary to bind the defendant:
On remand, the court may reappoint the receiver and
start the ten-day clock of § 754 ticking once again.
Presumably, the receiver will take advantage of his sec-
ond chanceTTTT Once he does so, the receiver will have
jurisdiction over the Pennsylvania property and may
seek to have Vista Vision served in Pennsylvania under
28 U.S.C. § 1692.
Id. at 291.
The defendant asks us to cast aside our statements in
Visions Communications, as well as the Sixth Circuit’s deci-
sion in Haile, and accept instead the analysis found in an
unpublished opinion from the Northern District of Illinois.
That court held that § 1692 ‘‘merely authorizes extraterritori-
al service of process in aid of in rem actions and does not do
so in cases like this one in which the receiver seeks an in
personam judgment.’’ Stenger v. World Harvest Church,
Inc., 2003 WL 22048047, at *2 (N.D. Ill. 2003). The basis for
the Stenger court’s conclusion was that § 1692 ‘‘does not
9
mention service of process; rather it speaks only of issuance
and execution of process.’’ Stenger, 2003 WL 22048047, at
*2. In the Stenger court’s view, ‘‘service of process’’ and
‘‘issuance of process’’ are not the same thing: only ‘‘service’’
achieves in personam jurisdiction; ‘‘issuance’’ is merely the
‘‘Clerk’s ministerial act of issuing a summons to a plaintiff so
that he or she can serve it on the defendant.’’ Id. Moreover,
Stenger continued, ‘‘service’’ and ‘‘execution’’ are also differ-
ent: while ‘‘service’’ achieves in personam jurisdiction, ‘‘exe-
cution of process involves the act, in an in rem action, of
attaching property.’’ Id.
Section 1692 states that ‘‘in a district court where a receiv-
er is appointed for property’’ — which is the case of the
district court here — ‘‘process may issue and be executed.’’
28 U.S.C. § 1692. As Stenger concedes, ‘‘process’’ generally
refers to ‘‘a summons or writ, [especially] to appear or
respond in court.’’ Stenger, at *2 (quoting BLACK’S LAW
DICTIONARY 1222 (7th ed. 1999)). The remaining question,
therefore, is the meaning of ‘‘may issue’’ and ‘‘be executed.’’
And neither Congress nor the courts have restricted those
terms to the meanings insisted upon by Stenger.
Even if Stenger were correct that ‘‘issuance’’ is merely the
‘‘Clerk’s ministerial act of issuing a summons,’’ federal rules,
statutes, and court opinions have used ‘‘execution’’ as more
than merely a synonym for ‘‘attaching property.’’ Indeed,
Rule 79 of the Federal Rules of Civil Procedure uses ‘‘execu-
tion of process’’ as roughly synonymous with ‘‘service of
process.’’ See FED. R. CIV. P. 79 (requiring that the civil
docket contain entries showing ‘‘the substance of each order
or judgment of the court and of the returns showing execu-
tion of process’’). In that sense, providing that a summons
‘‘may issue and be executed’’ means that the summons may
issue and be served. See also BLACK’S LAW DICTIONARY, at 589,
meaning 1 (defining execution as the ‘‘act of carrying out or
putting into effect (as a court order)’’).
‘‘Execution’’ is also often used to mean the method by
which a judgment, including a judgment in personam, is
10
enforced.4 This is as distinct from ‘‘attachment,’’ which is
often used to denote the method by which in-rem (or quasi-
in-rem) jurisdiction is obtained.5 In this sense, then, ‘‘may
issue and be executed’’ describes the entire process from
initial issuance, through service, through judgment, to final
enforcement of judgment.
There is also no support for Stenger’s insistence that
‘‘issuance’’ is limited to a clerk’s ministerial act. Congress
has used ‘‘issue’’ as shorthand to comprehend the phase of the
process that extends from issuance of an order through and
including its service.6 Similarly, courts frequently use ‘‘issu-
4 Indeed Rule 69, entitled ‘‘Execution,’’ provides that ‘‘[p]rocess to
enforce a judgment for the payment of money shall be a writ of
execution.’’ FED. R. CIV. P. 69(a); see also FED. R. CIV. P. 62
(providing that ‘‘no execution shall issue upon a judgment’’ until 10
days after its entry); 28 U.S.C. § 1961 (declaring that ‘‘[i]nterest
shall be allowed on any money judgment,’’ and that ‘‘execution
therefor may be levied by the marshal’’).
5 See 4A WRIGHT & MILLER § 1070, at 291–92; see also Pennoyer
v. Neff, 95 U.S. 714, 720 (1877) (finding no jurisdiction because,
since the property at issue ‘‘was not attached’’ and its ‘‘first
connection with the case was caused by a levy of the execution,’’ it
was therefore not ‘‘disposed of pursuant to any adjudication, but
only in enforcement of a personal judgment, having no relation to
the property, rendered against a non-resident without service of
process upon him’’); 28 U.S.C. § 1921 (providing for the collection
of fees for different writs, including a writ of ‘‘execution,’’ and a writ
of ‘‘attachment in rem’’).
6 See 15 U.S.C. § 77v(b) (providing that in ‘‘case of contumacy or
refusal to obey [an SEC] subpoena issued to any person,’’ federal
courts ‘‘may issue to such person an order requiring such person to
appear before the Commission’’); 28 U.S.C. § 2361 (providing that
in ‘‘any civil action of interpleader or in the nature of interpleader
TTT a district court may issue its process for all claimants’’); Credit
Mobilier Act, ch. 226, § 4, 17 Stat. 485, 509 (March 3, 1873)
(providing that the ‘‘court where said cause is pending may make
such orders and decrees, and issue such process as it shall deem
necessary to bring in new parties’’); see also Robertson v. Railroad
Labor Bd., 268 U.S. 619, 624 (1925) (noting that the Credit Mobilier
11
ance’’ and ‘‘service’’ interchangeably.7
In sum, common legal usage of the words employed in
§ 1692 support the views expressed by this court in Vision
Communications, by the First and Sixth Circuits in Ameri-
can Freedom Train and Haile, and by scholarly commentary.
Accordingly, we decline to part company with those views,
and we conclude that the ‘‘interplay’’ between Rule 4(k) and
29 U.S.C. §§ 754 and 1692 properly provided the district
court with jurisdiction over the person of Mr. Haire.8
Act provided jurisdiction in personam over defendants living in
different states).
7 See, e.g., Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484
U.S. 97, 108 (1987) (‘‘[I]t is unclear at this time whether it is open to
us to fashion a rule authorizing service of process. At common law,
a court lacked authority to issue process outside its district, and
Congress made this same restriction the general rule when it
enacted the Judiciary Act.’’) (emphasis added); Robertson, 268 U.S.
at 622–23 (‘‘In a civil suit in personam, jurisdiction over the defen-
dant TTT implies TTT either voluntary appearance by him or service
of process upon himTTTT Under the general provisions of law, a
United States District Court cannot issue process beyond the limits
of the district.’’) (emphasis added); In re: Bridgestone/Firestone,
Inc., Tires Prod. Liab. Litig., 333 F.3d 763, 768 (7th Cir. 2003)
(‘‘The proposition that the federal court lacks the power to issue
nationwide process must be qualified by the proviso ‘unless a
federal statute authorizes this step’; and one of the claims in the
master complaint rested on RICO, which does authorize nationwide
service of process.’’) (emphasis added).
8 We also reject Haire’s contention that, even if § 1692 authorizes
the exercise of personal jurisdiction over him, to do so would violate
the Due Process Clause because he lacks ‘‘minimum contacts’’ with
the District of Columbia. See International Shoe Co. v. Washing-
ton, 326 U.S. 310 (1945). This circuit has held that the requirement
of ‘‘minimum contacts’’ with a forum state is inapplicable where the
court exercises personal jurisdiction by virtue of a federal statute
authorizing nationwide service of process. Briggs v. Goodwin, 569
F.2d 1, 8–10 (D.C. Cir. 1977), rev’d sub nom. on other grounds,
Stafford v. Briggs, 444 U.S. 527 (1980). In such circumstances,
minimum contacts with the United States suffice. See generally 4
WRIGHT & MILLER § 1068.1, at 605–06.
12
III
The defendant’s remaining challenges to the district court’s
denial of his motion to dismiss, and to its grant of the
receiver’s motion for summary judgment, require only brief
discussion.9
A
Haire sought dismissal of the complaint on three grounds
in addition to personal jurisdiction. First, he contended that
venue was improper in the District of Columbia to enforce a
contract signed in Florida between two Florida residents.
But the district court correctly concluded that, because the
receiver’s complaint was brought to accomplish the objectives
of the Receivership Order and was thus ancillary to the
court’s exclusive jurisdiction over the receivership estate,
venue was properly established. Jan. 2003 Mem. Op. at 5;
see Haile, 657 F.2d at 922 n.6 (‘‘[W]here jurisdiction is
ancillary, the post-jurisdictional consideration of venue is
ancillary as well.’’); 20 WRIGHT & MILLER § 10, at 52–53
(noting with approval that, ‘‘where ancillary jurisdiction suf-
ficed to allow a claim or a party without jurisdictional
grounds, it was also unnecessary to satisfy the venue statutes
with regard to that claim or party’’); see also Scholes v.
Lehman, 56 F.3d 750, 753 (7th Cir. 1995) (‘‘The laying of
venue TTT is authorized by 28 U.S.C. § 754, which allows a
receiver to sue in the district in which he was appointed to
enforce claims anywhere in the country.’’).
Second, Haire sought dismissal on the ground that the
Note provides that all related actions must be brought in local
Florida courts. Although Haire styled this as a forum non
conveniens argument, his challenge centered not on the incon-
venience or burden of litigating in the District of Columbia,
but rather on the Note’s forum selection clause. That clause
states:
9In addition to the core arguments set forth below, we have
considered all of Haire’s myriad variations and sub-arguments as
well. We have concluded that they are without merit, and that they
do not merit further discussion.
13
Venue for any legal proceeding arising under this Note
or the Stock Pledge Agreement shall be in the courts
located in Hillsborough County, Florida and Maker and
Holder waive any right to sue or be sued in any other
venue unless it shall be lawfully required that venue for
any legal proceeding lie elsewhere.
Promissory Note at 2 (J.A. 29) (emphasis added). In arguing
that the forum selection clause requires suit in Florida, Haire
ignores the clause’s exception for cases in which ‘‘it shall be
lawfully required that venue TTT lie elsewhere.’’ Id. As the
district court correctly concluded, the Receivership Order
satisfies that exception. That Order, which was affirmed by
this circuit in an earlier proceeding, provides that the United
States District Court for the District of Columbia ‘‘shall have
exclusive jurisdiction over the Receivership Estate,’’ and that
‘‘no person or entity shall bring any claim against TTT the
Receivership Estate in any forum other than this Court.’’
Bilzerian, 127 F. Supp. 2d at 234 (emphasis added), aff’d,
2003 WL 22176183 (D.C. Cir. 2003).
Finally, Haire contended that dismissal was required be-
cause the receiver failed to join OHLP, the original holder of
the Note, as mandated by Rule 19(a)(1). See FED. R. CIV. P.
19(a)(1) (‘‘Joinder of Persons Needed for Just Adjudication’’);
see also FED. R. CIV. P. 12(b)(7). Haire asserted that OHLP
had fraudulently induced him to sign the Note, and that
OHLP had to be joined in order for him to effectively raise
that defense. But as Haire himself maintains, the receiver’s
only rights with respect to the Note were ‘‘derived from the
assignment by OHLP,’’ and ‘‘[a]s an assignee, [the receiver]
merely step[ped] in the shoes of the assignor.’’ Appellant’s
Br. at 30 (citing Ned Chartering & Trading, Inc. v. Republic
of Pakistan, 294 F.3d 148, 153 (D.C. Cir. 2002)). Accordingly,
as both parties agree, the receiver was ‘‘subject to all defens-
es and rights of setoff that Haire ha[d] against OHLP.’’
Appellant’s Br. at 31; see Appellee’s Br. at 31–32. Because
OHLP’s presence was not needed for Haire to raise those
defenses, ‘‘complete relief’’ could ‘‘be accorded among those
14
already parties’’ and OHLP was not a necessary party. FED.
R. CIV. P. 19(a)(1).10
B
Haire also appeals the district court’s order granting sum-
mary judgment for the receiver, which held, inter alia, that
Haire had to pay the receivership estate the principal amount
of $1 million plus unpaid and accrued interest. See July 2003
Mem. Op. at 26. The purported issues of material fact that
Haire asserted in opposing the receiver’s motion for summary
judgment did not contest anything in the receiver’s statement
of facts, but instead contested entry of judgment on the
grounds of personal jurisdiction, venue, fraudulent induce-
ment, breach of contract, and duress. The first two grounds
raised issues identical to those raised in Haire’s motion to
dismiss, grounds that we rejected in Parts II and III.A. The
remaining three are without merit.
Haire’s first contention was that he was fraudulently in-
duced into signing the Note. Haire’s affidavit asserted that
Bilzerian’s wife (who controlled OHLP) had assured him that
Bilzerian possessed no interest in OHLP’s assets, and claimed
that Haire did not learn the assurance was untrue (and that
the assets were subject to claims by Bilzerian’s creditors)
until December 2001, more than a year after he signed the
Note. But the district court found on the undisputed facts
that the receiver had served Haire with copies of the Decem-
ber 2000 Receivership Order on ‘‘at least two occasions, the
first being on December 22, 2000.’’ July 2003 Mem. Op. at
17–18.11 That Order decreed that the receivership estate
10 Haire was also free, as the district court noted, to pursue
claims for breach of contract, misrepresentation, and fraud that he
had filed against OHLP in state court. Jan. 2003 Mem. Op. at 8.
At the same time, there was no risk of double recovery against
Haire because the consent judgment gave the receiver the sole
right to enforce the Note. See Consent and Undertakings Agree-
ment at 5 (J.A. 87).
11Haire’s opposition to summary judgement did not dispute the
receiver’s statement that she had served two copies of the Receiver-
15
‘‘shall be comprised of’’ Bilzerian’s assets, ‘‘including but not
limited to TTT Overseas Holdings Limited Partnership,’’ and
was transmitted with a cover letter notifying recipients that
those assets were to be ‘‘immediately surrendered to the
Receiver.’’ Id. (quoting Receivership Order and cover letter).
Then, on March 21, 2001 — three months after he received
this notice that OHLP’s assets were subject to the claims of
the receivership estate — Haire signed an extension agree-
ment (the Forbearance and Extension Agreement) with
OHLP that reaffirmed his obligations under the Note. That
reaffirmation, the court held, waived any fraud defense he
might have under Florida law. We agree. See Harpold v.
Stock, 65 So. 2d 477, 478 (Fla. 1953); Price v. Airlift Interna-
tional, Inc., 181 So. 2d 549, 550–51 (Fla. App. Ct. 1966).
Second, Haire contended that OHLP had breached its
obligation under the Note by failing to permit him to sell the
stock he had pledged as security. But the Note does not
mention any such obligation, and the district court correctly
found that evidence of a prior or contemporaneous oral
agreement is inadmissable under Florida’s parol evidence rule
when — as here — the contract is unambiguous. See Unger-
leider v. Gordon, 214 F.3d 1279, 1282 (11th Cir. 2000).
Finally, Haire alleged that OHLP had assigned the Note to
the receiver under duress. Even if that were true, it would
not offer Haire a defense to payment on the Note. More-
over, this court has previously held that Haire lacks standing
to collaterally attack the consent judgment in which OHLP
agreed to assign the Note to the receiver. See SEC v.
Bilzerian, 2002 WL 1998001, at *1 (D.C. Cir. 2002). Accord-
ingly, the court’s grant of summary judgment for the receiver
was appropriate.
IV
For the foregoing reasons, we affirm the district court’s
denial of Haire’s motion for dismissal of the receiver’s com-
ship Order upon him in December 2000. See Ernest B. Haire’s
Opp’n to Receiver’s Mot. for Summ. J.
16
plaint, as well as the court’s grant of the receiver’s motion for
summary judgment.
Affirmed.