Fogade, Fondo De Garantia De Depositos Y Proteccion Bancaria (fogade) an Agency of the Republic of Venezuela, Corpofin, C.a., As Liquidator Plaintiffs-appellees, v. Enb Revocable Trust, a Trust Organized Under the Laws of the British Virgin Islands, Juan Santaella, Julio C. Leanez, Oscar L. Zamora, Mercorpadvisors, Inc. a British Virgin Islands Corporation, Eastern National Bank, Adco Associates, Inc., Defendants-appellants, 263 F.3d 1274 (11th Cir. 2001)

The plaintiffs in this lawsuit are the Venezuelan agency, Fondo de Garantia de Depositos y Proteccion Bancaria (FOGADE), and Corpofin, C.A., a Venezuelan company that FOGADE placed in intervention. The individual defendants - Juan Santaella, Julio C. Leanez, and Oscar L. Zamora - were former shareholders and controlling board members of Corpofin. The remaining defendants - the ENB Revocable Trust, Mercorp Advisors, Inc., Eastern National Bank, and ADCO Associates, Inc. - are business entities that are directly or indirectly controlled by the individual defendants.

Plaintiffs filed suit in the United States District Court for the Southern District of Florida, alleging that the individual defendants had misappropriated from Corpofin the stock of Eastern National Bank (ENB), a United States chartered bank in Miami.¹  The district court initially dismissed plaintiffs' complaint (the second amended one) on forum non conveniens grounds, concluding that it involved primarily Venezuelan legal issues between Venezuelan parties, arising from transactions most of which had occurred in Venezuela. The plaintiffs subsequently requested leave to amend the complaint (for a third time) so that it would focus on defendants' alleged misappropriation of the ENB shares, which took place primarily in Miami, and would omit claims that focused on defendants' alleged violations of Venezuelan corporate and banking law. After reviewing plaintiffs' revised allegations, the district court granted plaintiffs' motion for leave to file a third amended complaint. The court eventually granted summary judgment in favor of plaintiffs on their claims of conversion and for reclamation of shares, and it ordered that the shares of ENB be returned to Corpofin.

The defendants' appeal brings us issues involving the jurisdiction of the district court over the case when it entered the order granting plaintiffs leave to amend after the court had already dismissed the complaint on forum non conveniens grounds, and the propriety of the court's grant of summary judgment to plaintiffs on their conversion and reclamation of shares claims. The defendants also attempt to appeal the dismissal of certain counterclaims they filed, but we lack jurisdiction to review that dismissal.

In early 1994, Venezuela suffered a banking crisis engendered by the failure of Venezuela's largest bank. Several Venezuelan banks were forced to seek financial assistance from FOGADE, a Venezuelan agency, similar to the Federal Deposit Insurance Corporation, that provides financial assistance to struggling Venezuelan depository institutions. Bancor, S.A.C.A., was one such bank. The individual defendants were minority shareholders and controlling board members of Bancor. The majority of Bancor's shares, in turn, was owned by Corpofin, and the individual defendants were also minority shareholders and controlling board members of Corpofin.

Between March and June of 1994, Bancor received financial aid from FOGADE equivalent to $300 million at the then-prevailing exchange rates. In June of 1994, on the stated grounds that Bancor had not repaid its debts or increased its capital, FOGADE caused the Superintendency of Banks to "intervene" Bancor, a process similar to placing a company in receivership in the United States. In September of 1994, upon a finding that Corpofin was related to Bancor and that Corpofin had very large unguaranteed debts with Bancor, FOGADE caused the Superintendency of Banks to intervene Corpofin as well. As part of the intervention process, FOGADE removed the individual defendants from the management of both Bancor and Corpofin and replaced them with FOGADE-appointed boards. In October 1995, the Republic of Venezuela, through its Financial Emergency Board, ordered that Bancor be liquidated. Corpofin remains intervened, though defendants contend that the authority for intervention of it has expired under Venezuelan law.² 

Corpofin's interventor, Juan Miguel Senior, who is responsible for marshaling the corporation's assets for the benefit of creditors, discovered documents detailing a series of transactions between subsidiaries of Corpofin, as well as shell corporations within the exclusive control of the defendants, that had resulted in the transfer of all shares of Eastern National Bank outside of Corpofin's ownership and control. Those documents were dated May 9, 1994, exactly one day before the individual defendants had been removed from control of Bancor by resolution of FOGADE.³  In any event, on May 9, 1994, Corpofin owed Bancor approximately $16.5 million.

Prior to the May 9, 1994 transactions (if they did take place on that date), the corporate structure was as follows: Corpofin, the parent company, owned 100% (70,000 shares) of First Bancorporation ("First Bancorp"). First Bancorp in turn owned 95% of the shares of ENB and 100% of the shares of Eastern Overseas Bank ("Eastern Overseas"). Eastern Overseas owned the remaining 5% of the ENB shares. Allegedly in order to shield the ENB stock (valued at $30 million) from judicial proceedings in Venezuela, Corpofin, at the direction of the individual defendants, engaged in the following five May 9th transactions:

(1.) Corpofin transferred 64,000 shares of First Bancorp, valued at $28.5 million, to Eastern Overseas for the equivalent of $795,000.

(2.) Those 64,000 shares of First Bancorp were then transferred by Eastern Overseas, for approximately $795,000, to Mercorp Advisors ("Mercorp"), a shell corporation allegedly created for the sole purpose of restructuring the ENB ownership.

(3.) Corpofin then transferred, for approximately $75,000, the remaining 6,000 shares of First Bancorp directly to Mercorp, which now owned 100% of the First Bancorp stock, and Bancorp in turn owned 95% of ENB.

(4.) First Bancorp then transferred its 95% ownership of ENB to Mercorp in exchange for a $28.5 million promissory note that was subsequently cancelled and never paid.

(5.) Finally, Mercorp transferred its 95% ownership interest in ENB to the ENB Revocable Trust ("the ENB Trust"), of which the individual defendants are among the trustees and beneficiaries; and Corpofin caused all of the stock of Eastern Overseas, as well as the remaining 5% of ENB, to be transferred to ADCO associates, another corporation controlled by the individual defendants. The consideration for both of these transfers also consisted of a promissory note that was subsequently canceled.

The final corporate structure was as follows: Corpofin retained no ownership interest in any of the corporations, including ENB. ADCO owned 5% of the ENB stock and 100% of Eastern Overseas. Mercorp owned 100% of First Bancorp and the ENB Revocable Trust owned 95% of the ENB stock. Thus, Corpofin, which owed Bancor $16.5 million, received approximately $870,000 in exchange for its entire ownership interest in ENB, which was valued at $30 million,while various business entities under the control of the individual defendants ended up owning all $30 million worth of those ENB shares.

In order to prevent the defendants from selling the ENB stock to Union Planters Corporation, in June of 1996 FOGADE and Corpofin⁴  brought this lawsuit in the district court against the individual defendants, the various business entities under the individual defendants' control, and Union Planters Corporation. The lawsuit sought a constructive trust over the ENB stock or the proceeds of its sale. The basis of FOGADE's claim was that the individual defendants had perpetrated a several-hundred-million-dollar fraud on FOGADE and Bancor arising out of insider loans, self-dealing, and misuse of financial aid provided by FOGADE to Bancor. Corpofin, through its government appointed interventor, claimed that the individual defendants had misappropriated its ownership interest in ENB.

At the same time they filed their complaint, plaintiffs also filed a motion for a temporary restraining order and a preliminary injunction. The district court, observing that, "it appears that the shares of [ENB] were fraudulently conveyed to [the defendants] . . ., " granted a temporary restraining order preventing the defendants from removing the ENB shares from the court's jurisdiction. However, after conducting an evidentiary hearing on plaintiffs' motion for a preliminary injunction, the district court denied that motion on grounds the plaintiffs had an adequate remedy at law for their claims. On appeal, in an unpublished opinion we affirmed the denial of the preliminary injunction. See FOGADE v. Union Planters Corp., No. 96-4915 (11th Cir. June 30, 1997). After that, plaintiffs twice amended their complaint, with the result being a second amended complaint containing claims for reclamation of shares under Fla. Stat. § 678.315, rescission, specific performance, injunctive relief, fraud, breach of fiduciary duties, conversion, and fraudulent transfer.

1. The Dismissal on Forum Non Conveniens Grounds

The defendants moved to dismiss plaintiffs' second amended complaint on grounds of forum non conveniens and international comity. On April 21, 1997, the district court granted that motion on forum non conveniens grounds, explaining that otherwise it would have been forced to divine and correctly apply Venezuelan substantive law. The dismissal, however, was conditioned on defendants' consent to the jurisdiction of the Venezuelan courts. Although ordering dismissal, the court did not direct entry of a final judgment pursuant to Fed. R. Civ. P. 58.

Plaintiffs timely filed a Rule 59(e) motion, asking the district court to reconsider or amend the April 21, 1997 order of dismissal, and asserting that the defendants had failed to comply with the conditions of the dismissal. On August 18, 1997, the district court denied the motion for reconsideration, reaffirming its prior ruling that the case should be dismissed on forum non conveniens grounds. However, in its August 18 order denying the motion for reconsideration, the court amended its April 21, 1997 order of dismissal by imposing the following condition upon the dismissal: "the Moving Defendants shall file sworn declarations no later than August 29, 1997, unequivocally indicating that they agree to submit to the jurisdiction of the Venezuelan courts ... failure to comply with this requirement shall result in the denial of the Moving Defendants' Threshold Motion to Dismiss." Again, the court refrained from directing entry of a final judgment pursuant to Fed. R. Civ. P. 58.

On August 28, 1997, defendants filed declarations that did not comply with the court's order, together with a motion seeking leave to file those declarations. Plaintiffs opposed that motion, and they cross-moved for an order enforcing the August 18th order, specifically that part of it which provided that the defendants' failure to file by August 28 sworn declarations unequivocally indicating submission to the jurisdiction of the Venezuelan courts would result in denial of their motion to dismiss. At the same time, plaintiffs also requested leave to file a third amended complaint. They contended that their proposed third amended complaint eliminated the claims based on Venezuelan law (such as claims for breach of fiduciary duties to Bancor and misuse of FOGADE funds), and also that, unlike the preceding version of the complaint, this one focused on two events that took place primarily in Miami: the May 9, 1994 transfers of ENB stock, which was largely done in Miami; and the alleged misappropriation of $2.3 million from Bancor, which was conducted through a series of wire transfers at ENB, a Miami bank.⁵ 

On September 23, 1997, the district court denied defendants' motion to file non-complying affidavits and ordered them to file by October 3, 1997 affidavits that fully complied with the conditions of the August 18, 1997 order. In that same September 23 order, the court denied without prejudice the plaintiffs' cross-motion to enforce the August 18 order.

Because the district court's September 23, 1997 order did not address the plaintiffs' request to file a third amended complaint, the plaintiffs on September 24 filed a motion for clarification about that. The defendants say that they filed declarations on September 25 and on September 30 that fully complied with the conditions set out in the August 18 order. Whether that is true or not, the district court did not acknowledge receipt of those declarations, much less find that they fully satisfied the condition set out in the August 18 order. Neither did the court enter a Rule 58 final judgment subsequent to the receipt of the affidavits. Instead, on September 26, 1997, the court granted plaintiffs' motion for clarification, stating that if the plaintiffs wished to proceed under a third amended complaint, they must file a separate motion that would be addressed by the judge who would be handling the case thereafter.

After the April 21, 1997 order granting the motion to dismiss had been issued, and while the plaintiffs' motion to reconsider or amend that order of dismissal was pending, the case was reassigned from Judge Moreno to Judge Middlebrooks, but with the proviso that Judge Moreno would decide all previously filed motions, and that Judge Middlebrooks would decide the matters arising thereafter. All the orders we have discussed to this point were entered by Judge Moreno, while all those discussed hereafter were entered by Judge Middlebrooks.

On October 2, 1997, plaintiffs filed their separate motion for permission to file a third amended complaint. The plaintiffs argued that the third amended complaint, by concentrating on conduct that occurred in Miami, cured the deficiencies that had led the court to dismiss the earlier version of the complaint on forum non conveniens grounds. The court granted the motion for leave to amend the complaint. The third amended complaint contained claims under civil RICO 18 U.S.C. §§ 1962(b), (c) & (d) and 1964 (c) & (d), and for breach of contract, fraudulent inducement, conversion, replevin, fraudulent transfers, civil conspiracy, reclamation of shares, and unjust enrichment.

Defendants moved for reconsideration arguing that, in light of the court's April 21, 1997 forum non conveniens dismissal, and its subsequent denials of post-judgment relief, the court lacked jurisdiction to grant plaintiffs leave to amend. The court denied the motion for reconsideration. Defendants then filed a motion to dismiss the third amended complaint, again raising forum non conveniens arguments as well as principles of international comity. That motion, too, was denied.

3. Dismissal of the Counterclaims Pursuant to the Act of State Doctrine

Unable to convince the district court to reinstate its previous order of dismissal, the defendants filed their answer and counterclaims to the third amended complaint. Their affirmative defenses asserted that FOGADE lacked standing to sue on behalf of Corpofin because FOGADE's intervention of that corporation was unlawful. Their counterclaims alleged that FOGADE and others had conspired to illegally confiscate in Venezuela and the United States assets of the defendants, including Bancor, Corpofin and ENB. Plaintiffs moved to dismiss the counterclaims on grounds that they were immune from suit under the foreign sovereign immunity doctrine and the act of state doctrine. On September 18, 1998, the district court granted plaintiffs' motion to dismiss as it applied to thirteen of the fifteen counterclaims on grounds of the act of state doctrine. On October 21, 1998, the court converted the motion to dismiss as it applied to the remaining two counterclaims into a motion for summary judgment and granted that motion on grounds other than the act of state doctrine.

4. Granting of Partial Summary Judgment on the Claims

Thereafter, plaintiffs and defendants cross-moved for partial summary judgment. Corpofin argued three theories in support of its motion for partial summary judgment: that defendants had converted Corpofin's ownership interest in First Bancorp, Eastern Overseas, and ENB; that defendants had wrongfully transferred the stock of those corporations in violation of Fla. Stat. Ann. § 678.315, which entitles "any person against whom the transfer of a security is wrongful for any reason . . . [to] reclaim possession of the certificated security;" and, that defendants had defrauded creditors, in violation of Florida's fraudulent transfer statute, Fla. Stat. § 726.105.

The district court granted summary judgement in favor of Corpofin on its conversion and reclamation of shares claims.⁶  In doing so it concluded that there was no genuine issue of material fact about the defendants' liability to Corpofin for conversion of the stock of First Bancorp, Eastern Overseas and ENB.⁷  That conversion, the court ruled, was "wrongful" as that term is used under the reclamation of shares statute. Accordingly, pursuant to Fla. Stat. § 678.315, the court ordered that the stock of First Bancorp be returned to Corpofin; the stock of Eastern Overseas be returned to First Bancorp; and the stock of ENB be returned to First Bancorp and Eastern Overseas. Thereafter, acting under Fed. R. Civ. P. 54(b), the court expressly directed the entry of partial final judgment for Corpofin providing relief on those two claims and certifying there was no just reason for delay. Defendants filed a notice of appeal from the resulting partial final judgment as to those claims.

A. THE DISTRICT COURT'S JURISDICTION OVER THE CASE WHEN IT GRANTED THE LEAVE TO AMEND

Defendants contend that the district court lacked jurisdiction over the case when it entered the order granting the plaintiffs' motion to file the third amended complaint and therefore did not have jurisdiction to enter any subsequent orders either, including the one granting summary judgment to plaintiffs on two of the claims contained in the fourth amended complaint. The arguments of the parties speak in terms of the orders of Judge Moreno and those of Judge Middlebrooks, and whether the latter judge had the authority over the case after what the former had done, and so forth. We will disregard the identity of the judge who entered a particular order in this case, because it makes no difference. Judicial power and authority is not personal, and every district judge can exercise all the authority and power of the court on which the judge sits and no more. For purposes of the jurisdictional and authority issues in this case, it matters not that two judges sat in tandem on it, and we will treat them as one. The question is whether the district court lost jurisdiction over the case at any point prior to October 15, 1997, when it granted plaintiffs' motion for leave to file their third amended complaint.⁸ 

Of course, the " [s]ubject matter jurisdiction of the district court is a legal question that we review de novo." Bishop v. Reno, 210 F.3d 1295, 1298 (11th Cir. 2000).

As a general matter, a dismissal based on the doctrine of forum non conveniens usually "puts an end to the action," and is therefore a final appealable order if the other prerequisites for finality are met. Norwood v. Kirkpatrick, 349 U.S. 29, 31 (1955) (quotation omitted); see also Sigalas v. Lido Mar., Inc., 776 F.2d 1512, 1516 (11th Cir. 1985) ("Disposition of a case on forum non conveniens grounds per se is a final order subject to appeal."). The core of the defendants' position is that the district court's April 21, 1997 forum non conveniens dismissal order was final and did end the case in the district court with the result that the court lacked jurisdiction to grant the plaintiffs' motion for leave to file a third amended complaint as it purported to do on October 15, 1997. Defendants contend that, because the forum non conveniens dismissal order constituted a final appealable order, once the time period for filing a notice of appeal from that order expired, that was the end of this lawsuit in federal court.

The problem with defendants' position is that it ignores the requirements of Federal Rule of Civil Procedure 58, which provides that: " [e]very judgment shall be set forth on a separate document. A judgment is effective only when so set forth . . . ." Fed. R. Civ. P. 58. The separate judgment rule of Rule 58 is important, having been "designed to eliminate the confusion that previously arose regarding whether a particular order was a final judgment triggering the limitations period for appeal." Kent v. Baker, 815 F.2d 1395, 1397 (11th Cir. 1987); accord Sanders v. Clemco Industries, 862 F.2d 161, 167 (8th Cir. 1988) (" [T]he separate-document rule ... plays an important role in making a judgment `final' for purposes of determining when the time for filing post-judgment motions or notice of appeal starts to run.") (citation omitted).

It is undisputed that the district court's April 21, 1997 order dismissing the case on forum grounds was never entered as a separate judgment in compliance with Rule 58. As a result, the time for filing of a notice of appeal from that dismissal order never started to run. See Fed. R. App. P. 4(a) (1) (A) (" [T]he notice of appeal ... must be filed ... after the judgment or order appealed from is entered.") (emphasis added); Fed. R. App. P. 4(a) (7) ("A judgment or order is entered for purposes of this Rule 4(a) when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure."); see also Reynolds v. Golden Corral Corp., 213 F.3d 1344, 1346 (11th Cir. 2000) (" [C]ases from both the Supreme Court and the circuit courts of appeal make it clear that the time to file a notice of appeal does not begin to run until a separate judgment is entered pursuant to Rule 58."); Virgo v. Riviera Beach Assoc., Ltd., 30 F.3d 1350, 1356 (11th Cir. 1994) (same); Kent, 815 F.2d at 1397 (noting that we mechanically apply Rule 58 to protect the right of appeal, and that the district court's dismissal order in that case, "constitute [d] an opinion rather than a separate final judgment. It did not trigger the time period for an appeal."); Matter of Kilgus, 811 F.2d 1112, 1117 (7th Cir. 1987) ("A party safely may defer the appeal until Judgment Day if that is how long it takes to enter the [Rule 58] document."); Jetero Constr. Co., Inc. v. South Memphis Lumber Co., Inc., 531 F.2d 1348, 1351 (6th Cir. 1976) (" [A] District Court's disposition of an action is not final for purposes of appeal and for purposes of various post-judgment motions until judgment has been entered.").⁹ 

As a result of the time for appeal never having started to run, the district court never lost jurisdiction over the case. See generally, Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58, 103 S. Ct. 400, 402 (1982) ("The filing of a notice of appeal is an event of jurisdictional significance - it confers jurisdiction on the court of appeals and divests the district court of its control of those aspects of the case involved in the appeal."); Weaver v. Fla. Power & Light Co., 172 F.3d 771, 773 (11th Cir. 1999) (same).¹⁰  It follows that the district court had jurisdiction on October 15, 1997 when it granted the plaintiffs' motion for leave to file the third amended complaint, and also on June 15, 1999 when it entered the partial summary judgment in favor of Corpofin (on the fourth amended complaint). We turn now to the merits issues raised in connection with that partial summary judgment over which we have jurisdiction because the district court made the proper certification and entered a separate judgment as to them under Rule 54(b).

B. THE MERITS OF THE PARTIAL SUMMARY JUDGMENT

We review a grant of summary judgment de novo, using the same legal standard as the district court. See Diaz v. United States, 165 F.3d 1337, 1339 (11th Cir. 1999). Summary judgment is appropriate if the record shows no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Id.

On January 15, 1999, plaintiffs moved for partial summary judgment on their claims for conversion, reclamation of shares, and fraudulent transfer. The theory behind those claims is that the individual defendants, in their capacity as controlling board members and directors, had caused Corpofin to wrongfully transfer its ownership interest in ENB for inadequate consideration.

(a) The Conversion Claim

Defendants responded that Corpofin did not have standing to pursue its conversion claim because, at the time of the May 9, 1994 transfers, it did not have an immediate right to possession of the ENB stock. At the time of the transfers, Corpofin owned 100% of First Bancorp, which in turn owned 95% of the shares of ENB. First Bancorp also owned 100% of Eastern Overseas, which in turn owned the remaining 5% of ENB. Defendants argued that because Corpofin was never the direct record owner of the ENB shares, it did not have standing to contest the transfer of those shares from First Bancorp and Eastern Overseas.

The district court rejected defendants' standing argument, finding that because Corpofin owned 100% of First Bancorp, and First Bancorp owned nearly 100% of ENB, Corpofin had standing to maintain its action for conversion as the "equitable owner" of ENB. As to the merits of the conversion claim the court observed that it was undisputed the individual defendants had caused the various corporations under their control to transfer property rights for inadequate consideration. The court also determined that the defendants' admission that they engaged in the suspect transactions in order to protect "their" assets (including the shares of ENB) from appropriation (or as they put it, "misappropriation") by the Venezuelan government established that they possessed the requisite intent to deprive Corpofin of its property interest in ENB. Specifically, the court held that " [a]s long as Defendants took for themselves property that they knew was in the possession of [Corpofin], it does not matter that Defendants believed that they were justified in their acts." Accordingly, the court ruled that defendants were liable to Corpofin for the conversion of First Bancorp, Eastern Overseas and ENB. However, the court also concluded that the equitable relief sought by plaintiffs - the return of the First Bancorp, Eastern Overseas, and ENB shares - was not available under a conversion theory.

(b) The Reclamation of Shares Claim

The district court next turned to the claim plaintiffs brought pursuant to Florida's reclamation of shares statute. See Fla. Stat. § 678.315.¹¹  That statute provides, in relevant part:

(1) Any person against whom the transfer of a security is wrongful for any reason ..., as against anyone except a bona fide purchaser, may:

(a) Reclaim possession of the certificated security wrongfully transferred . . . .

Id. Although the statute does not define "any person," the district court reasoned by analogy to § 8-315 of the Uniform Commercial Code that "only an owner of securities may maintain an action under § 678.315." But the court also reasoned that, although Corpofin was not the record owner of the ENB shares, it could maintain an action under § 678.315 as ENB's "beneficial" owner. The court concluded that the May 9, 1994 transfers were "wrongful" within the meaning of § 678.315 because, as the court had previously determined, those transfers constituted conversion of Corpofin's property.¹² 

(c) The Relief

In attempting to fashion a remedy for the plaintiffs' reclamation of shares claim, the district court ran into a conceptual problem. The court recognized that: " [Because] some of the transfers were made through corporations that were only recently brought into this lawsuit, First Bancorporation and Eastern Overseas Bank, it is not apparent at first how the equitable relief can be administered." The court reasoned that it could not simply order the defendants to "return" the ENB shares to Corpofin, because Corpofin never directly owned those shares.

In a previous order, the court had determined that First Bancorp and Eastern Overseas were indispensable parties to the lawsuit because they were the record owners of the ENB shares prior to the May 9 transactions. In that earlier order, the court concluded that due to the indirect ownership structure, "Corpofin's claims are not direct, but derivative in nature." Specifically, the court stated:

While Corpofin was the equitable owner of the shares of ENB stock at the time of the transfers, it was not the actual owner of the shares. The actual owners of the shares were Eastern Overseas Bank and First Bancorporation, two corporations of which Corpofin was a shareholder. It is settled in this jurisdiction that a corporation is an indispensable party in a derivative action brought by one of its shareholders. (footnote omitted)

For that reason, the district court ordered plaintiffs to file a fourth amended complaint reflecting the addition of First Bancorp and Eastern Overseas as defendants. They did so.

Thereafter, the parties disagreed about whether First Bancorp and Eastern Overseas should be aligned as plaintiffs or defendants. Plaintiffs argued that, although First Bancorp and Eastern Overseas had been added as "nominal" defendants, they should be realigned as plaintiffs in order to reflect their "true interests." Plaintiffs were, they said, seeking "to protect the interests of First Bancorporation and Eastern Overseas Bank by recreating the stock structure in place prior to the wrongful transfers." The defendants responded that they, as the management of First Bancorporation and Eastern Overseas, represented the true interests of those corporations, interests antagonistic to plaintiffs' claims.

In its summary judgment order, the district court resolved that issue in favor of plaintiffs, concluding that "the equities of this situation require the relief sought by Plaintiffs." Accordingly, the court constructed the following three step remedy. Under the first step, Corpofin would reclaim its wrongfully transferred shares of First Bancorp. After those shares were returned to Corpofin, the court reasoned, Corpofin would once again be the 100% owner of First Bancorp, making it appropriate to realign First Bancorp as a plaintiff even though its management, consisting of the individual defendants, was hostile to the suit. Under the second step of the remedy, First Bancorp, as a realigned plaintiff, would reclaim its wrongfully transferred shares of Eastern Overseas Bank. Once those shares were returned, the court reasoned, First Bancorp would be returned to its status as the sole shareholder of Eastern Overseas and it would be appropriate to realign Eastern Overseas as a plaintiff. Finally, under the third step, First Bancorp and Eastern Overseas would be able to reclaim their wrongfully transferred shares of ENB, which together total 100% of that corporation's outstanding shares. By implementing this remedy, Corpofin's ownership structure was returned to its original status as it existed prior to the May 9, 1994 transfers.¹³ 

(a) Defendants' Arguments

Defendants' arguments against the district court's resolution of the conversion and reclamation of shares claims are essentially the same as to both claims. They do not challenge the basic legal proposition that underlies the district court's analysis: that a parent corporation may under certain circumstances pursue, directly as a beneficial or equitable owner, claims to recover property to which the parent's subsidiary alone holds record title. Instead, the defendants challenge the district court's application of that proposition of law to the facts of this case, contending that it was the individual defendants, and not Corpofin, who were the true beneficial or equitable owners of the ENB shares.¹⁴ 

Defendants contest the district court's conclusion that, "there is no doubt that Corpofin, as the 100% owner of First Bancorporation, which in turn owned 95% of the shares of ENB, and wholly owned Eastern Overseas, which owned the remaining 5%, is the beneficial owner of the shares of ENB." They concede that Corpofin owned the corporations that owned ENB, but argue the district court "completely overlooked that Corpofin is actually owned by the individual defendants." In other words, the defendants say that the district court's beneficial ownership analysis simply did not track far enough up the corporate ownership hierarchy. They also point out that it is undisputed that the individual defendants contributed the funds to acquire the shares of ENB. Thus, defendants argue, they, and not Corpofin, were the true beneficial owners of ENB, both before and after the May 9 transfers, and as a result Corpofin did not have standing to bring its reclamation of shares claim.

From this conclusion, defendants argue, it also follows that Corpofin did not have standing to bring its conversion claim. The district court's analysis on this point was essentially the same as on the reclamation of shares claim, concluding that Corpofin had standing as the "equitable owner" of the ENB shares, because: " [I]t is undisputed that First Bancoporation, at the time of the allegedly wrongful acts, either directly or indirectly owned nearly 100% of the outstanding shares of ENB stock, and it is further undisputed that Corpofin in turn wholly owned First Bancoporation." Being consistent, the defendants argue again that the district court's analysis was flawed because it "failed to take into account who owns Corpofin and whose funds were used to purchase ENB."

(b) Our Analysis

Defendants' beneficial and equitable ownership arguments are premised on their assertion that they "owned" Corpofin at the time of the May 9, 1994 transactions, but that assertion is not supported by the record. Instead, the record reveals that the individual defendants owned only 44.87% of Corpofin. Thus, they could not have been the beneficial or equitable owners of Corpofin because collectively they held only a minority interest in Corpofin. Defendants do not contest the premise that they could not be the beneficial or equitable owners of Corpofin if they owned only a minority interest in it.

Instead, the defendants accept that premise but attack the district court's reasoning in another way. They contend that "while the individual defendants own 44.87% of Corpofin, the beneficiaries of ENB Trust, another defendant/appellant, owns [sic] the remaining 55.13% of Corpofin . . . . Thus, together, the defendants (the individual defendants and all other beneficiaries of ENB Trust) own both the minority and majority shares of Corpofin." (emphasis in original). The problem with that argument is that the record establishes the beneficiaries of the ENB Trust, in their individual capacities, and not the trust as an entity, own the remaining shares of ENB. The ENB Trust is a named defendant in this action, the individual beneficiaries of that trust are not. The defendants have proffered no legal support for the suggestion, necessarily implicit in their argument, that we should disregard the separate legal status of the ENB Trust so that we can "aggregate" the ownership interest of the individual beneficiaries of that trust with the ownership interest of the individual defendants. Because the defendants collectively held only a minority stake in ENB, their beneficial and equitable ownership arguments fail.¹⁵ 

The defendants contend that the district court erred in concluding that the May 9, 1994 transfers were "wrongful" under Florida's reclamation of shares statute, because the court based that conclusion on its earlier erroneous determination that the defendants were liable for conversion. Thus their challenge to the district court's application of the "wrongful" component of the reclamation statute is actually an attack on the merits of the district court's conversion analysis.

Under Florida law, a conversion is "an unauthorized act which deprives another of his property permanently or for an indefinite time." Senfeld v. Bank of Nova Scotia Trust Co. (Cayman) Ltd., 450 So. 2d 1157, 1160-61 (Fla.Dist.Ct.App. 1984) (footnote omitted) (citing Star Fruit Co. v. Eagle Lake Growers, Inc., 33 So. 2d 858, 860 (Fla. 1948)); see also National Union Fire Ins. Co. of Penn. v. Carib Aviation, Inc., 759 F.2d 873, 878 (11th Cir. 1985) (applying Florida law). The defendants are liable for conversion if they "deprived" Corpofin of its property by means of an "unauthorized act." The defendants deprived Corpofin and its subsidiaries of property interests by causing Corpofin to transfer away its direct ownership interest in First Bancorp, and by causing First Bancorp to transfer its direct ownership interest in ENB and Eastern Overseas. As the district court observed: "Defendants do not dispute that the Individual defendants were control persons, nor do they dispute that they caused the various corporations under their control to transfer property rights for inadequate or overvalued consideration."

On the question of whether such transfers constituted "unauthorized acts," it is a well-established rule of corporate law that a corporation cannot authorize illegal conduct. See Flight Equip. & Eng'g Corp. v. Shelton, 103 So. 2d 615, 621 (Fla. 1958) ("It cannot be disputed that a board of directors of a corporation is without power to ratify that which it cannot do directly or that which it could not authorize be done initially. It has no power to ratify a void or illegal act."); accord Wolf v. Frank, 477 F.2d 467, 477 (5th Cir. 1973); 2A William M. Fletcher, Encyclopedia of the Law of Private Corporations, § 752 (2000) (noting that, like other cases of agency, a corporation cannot ratify "acts done in violation of law or in contravention of public policy"). And, as the district court observed, "the Defendants have conceded that the allegedly wrongful transfers were conducted in violation of the Federal Bank Holding Company Act, 12 U.S.C. § 1842, et seq., which requires approval from the Federal Reserve prior to the transfer of the ownership interest in a United States bank to another corporation." The defendants do not contest on appeal that the May 9, 1994 transfers they orchestrated violated the law, specifically the Federal Bank Holding Company Act.

The district court was correct in concluding that the defendants were liable for conversion because the stock transfers were unauthorized acts that deprived Corpofin and its subsidiaries of their property. Accordingly, because the sole basis of the defendants' challenge to the court's finding of wrongfulness under the reclamation statute is that no conversion occurred, that challenge must fail.¹⁶ 

Defendants asserted a large number of affirmative defenses to the fourth amended complaint, the version of the complaint upon which the district court granted summary judgment for the plaintiffs. On appeal, defendants have pursued only one of the theories they asserted in their affirmative defenses. In essence, defendants contend that FOGADE illegally confiscated all of their financial interests in Venezuela, including their interest in Corpofin, and then, by causing Corpofin to pursue defendants' ownership interests in Eastern National Bank, sought to extend that unlawful confiscation into U.S. territory.¹⁷  Specifically, defendants argue FOGADE isguilty of confiscation and mismanagement of Corpofin and Bancor and assert RICO, conspiracy, fraud, reclamation of shares, unjust enrichment, accounting, waste, and breach of fiduciary theories. Plaintiffs respond before us, as they did in the district court, that the act of state doctrine bars consideration of the lawfulness of the Venezuelan government's intervention through FOGADE of Corpofin.

The act of state doctrine limits "the courts in this country from inquiring into the validity of a recognized foreign sovereign's public acts committed within its own territory." Honduras Aircraft Registry, Ltd. v. Honduras, 129 F.3d 543, 550 (11th Cir. 1997). The doctrine requires that "the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid." W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400, 409, 110 S. Ct. 701, 707 (1990).

The district court agreed with plaintiffs that under the act of state doctrine the intervention of Corpofin must be deemed valid and cannot be subject to review in a United States court.¹⁸  Relying on Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428, 84 S. Ct. 923, 940 (1964), the district court concluded that:

[w]hether FOGADE and others violated Venezuelan law in committing the alleged acts is irrelevant; "the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government ... even if the complaint alleges that the taking violates customary international law."

Defendants' primary challenge to that reasoning and conclusion is based upon the legislative overruling of Sabbatino by passage of the so-called "Second Hickenlooper Amendment," 22 U.S.C. § 2370(e) (2). The Second Hickenlooper Amendment provides, in relevant part:

Notwithstanding any other provision of law, no court in the United States shall decline on the ground of the federal act of state doctrine to make a determination on the merits . . . in a case in which a claim of title or other right to property is asserted ... based upon (or traced through) a confiscation or other taking after January 1, 1959, by an act of [] state in violation of the principles of international law . . . .

22 U.S.C. § 2370(e) (2). Thus, defendants argue that the district court should not have applied the act of state doctrine to dismiss their counterclaims because plaintiffs' intervention of Corpofin constituted a confiscation of property in violation of the principles of international law.

The Second Hickenlooper Amendment did overrule, at least with respect to confiscations of property, the Sabbatino decision to the extent that it held that the act of state doctrine would apply without regard to whether a foreign state's actions violated international law. Compare Sabbatino, 376 U.S. at 428, 84 S. Ct. at 940 (" [T]he Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government . . . even if . . . the taking violates customary international law."), with 22 U.S.C. § 2370(e) (2) (" [N]o court in the United States shall decline . . . to make a determination on the merits . . . in a case [involving confiscations of property] . . . by an act of [] state in violation of the principles of international law . . . ."); see also Occidental of UMM al Qaywayn, Inc. v. A Certain Cargo of Petroleum Laden, 577 F.2d 1196, 1203 n.10 (5th Cir. 1978) ("The Hickenlooper Amendment [] prevents any United States court from applying the federal act of state doctrine if the confiscation violated international law."). However, the Second Hickenlooper Amendment did not overrule the entire Sabbatino decision, nor the act of state doctrine generally. Industrial Inv. Dev. Corp. v. Mitsui & Co., Ltd., 594 F.2d 48, 52 n.7 (5th Cir. 1979) (" [Sabbatino] is still the leading authority on the act of state doctrine."). The question is how the act of state doctrine and Sabbatino, as modified by the Second Hickenlooper Amendment, apply here.

The Second Hickenlooper Amendment has three requirements that must be met before it applies. The Amendment requires: (1) a claim of title or other right to property; (2) based upon or traced through a confiscation or other taking; (3) in violation of international law. 22 U.S.C. § 2370(e) (2). Here, the parties do not dispute that the first requirement is met, because the Venezuelan-controlled Corpofin has asserted a claim of right to the shares of ENB. Regarding the second requirement, defendants argue that Corpofin's alleged ownership interest in ENB is "based upon" Venezuela's intervention of Corpofin, which, defendants contend, was an "illegal confiscation or other taking." As for the third requirement, defendants argue that Venezuela's confiscation of Corpofin without payment of compensation to the individual defendants constituted a violation of international law.

Even assuming that FOGADE's intervention of Corpofin constituted a "confiscation or other taking" (the second requirement), we are not persuaded that it was carried out in violation of international law (the third requirement). As a rule, when a foreign nation confiscates the property of its own nationals, it does not implicate principles of international law. See, e.g., Bank Tejarat v. Varsho-Saz, 723 F. Supp. 516, 520 (C.D. Cal. 1989) (declining to apply the Second Hickenlooper Amendment because "the taking by a government of the property of one of its citizens, located within its territory, does not constitute a violation of international law"); F. Palicio y Compania, S.A. v. Brush, 256 F. Supp. 481, 487 (S.D.N.Y. 1966) (declining to apply the Second Hickenlooper Amendment because "confiscations by a state of the property of its own nationals, no matter how flagrant and regardless of whether compensation has been provided, do not constitute violations of international law"); cf. De Sanchez v. Banco Central De Nicaragua, 770 F.2d 1385, 1396 (5th Cir. 1985) (noting that section 1605(a) (3) of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605, parallels the Second Hickenlooper Amendment, and observing that " [i]njuries to individuals have been cognizable [under international law] only where they implicate two or more different nations . . . [a]s long as a nation injures only its own nationals, however, then no other state's interest is involved; the injury is a purely domestic affair . . .").

None of the decisions that the defendants rely upon are to the contrary. They involve misappropriations by foreign governments of property that belonged to citizens of other countries. See, e.g., Banco Nacional de Cuba v. Farr, 383 F.2d 166, 185 (2d Cir. 1967) (involving the expropriation by the Cuban government of a corporation that "was largely owned by `nationals of the United States of North America'"); Banco Nacional de Cuba v. Chase Manhattan Bank, 658 F.2d 875 (2d Cir. 1981) (involving the expropriation by the Cuban government of American-owned banks). Because Venezuela's act of intervening Corpofin, a Venezuelan corporation owned entirely by Venezuelan nationals, does not violate international law, the Second Hickenlooper Amendment does not preclude application of the act of state doctrine.

Seeking to avoid this result, defendants attempt to shift the focus away from the plaintiffs' act of intervening Corpofin to their alleged "extraterritorial confiscation" of ENB, which, defendants stress, was at all times located in the United States. In other words, defendants want to collapse the plaintiffs' intervention of Corpofin and their subsequent "confiscation" of the ENB shares into one long drawn out act, arguing that the intervention of Corpofin was "for the sole purpose of confiscating the ENB shares."

Confiscations by a foreign state of property located in the United States, even if the property belongs to one of the foreign state's own nationals, implicates principles of international law. Republic of Iraq v. First Nat'l City Bank, 353 F.2d 47, 51 (2d Cir. 1965). Moreover, a foreign state's expropriations occur in the jurisdiction in which they are perfected. See Tabacalera Severiano Jorge, S.A. v. Standard Cigar Co., 392 F.2d 706 (5th Cir. 1968); Maltina Corp. v. Cawy Bottling Co., 462 F.2d 1021 (5th Cir. 1972). Defendants' position is that the plaintiffs' actions about which they complain were not perfected in Venezuela with the intervention of Corpofin, but in this country when the ENB shares were "confiscated" by means of this lawsuit. That confiscation, the defendants argue, constituted a violation of international law, thereby precluding application of the act of state doctrine.

We disagree. As previously noted, the Second Hickenlooper Amendment provides that a federal court must not decline on act of state grounds to address the merits in a case when a party asserts a claim of right "based upon . . . a confiscation or other taking . . . by an act of state in violation of the principles of international law. . . ." 22 U.S.C. § 2370(e) (2) (emphasis added). Thus, the claim to property must be "based upon" - that is, must be derivative of - an act of state that is in violation of international law.

Here the plaintiffs' claim of right to the ENB shares is "based upon" FOGADE's intervention of Corpofin and the defendants' contention that the plaintiffs obtained the ENB shares illegally is also "based upon" FOGADE's intervention of Corpofin. If the plaintiffs legitimately controlled FOGADE, the defendants would have no argument that plaintiffs acted illegally in taking control of ENB. The premise of defendants' position that FOGADE would not have standing to sue on behalf of Corpofin is that FOGADE unlawfully intervened it. So, everything turns on FOGADE's intervention of Corpofin. Thus, the defendants must show that the alleged confiscation of Corpofin was in violation of international law, not that the plaintiffs' subsequent and successful attempt to recapture the ENB shares through Corpofin was. As we have already explained, however, the intervention of Corpofin was purely domestic (to Venezuela) in nature, and does not violate international law. Therefore, because FOGADE's intervention of Corpofin, upon which Corpofin's claim to ENB is based, was not in violation of international law, the Second Hickenlooper Amendment does not apply to preclude the application of the act of state doctrine to defendants' affirmative defenses questioning the standing of plaintiffs to sue because of the alleged illegality of the intervention of Corpofin.¹⁹ 

Defendants' final argument about the act of state doctrine is that it should not be applied where, as here, it is raised only as a response or bar to affirmative defenses. That argument is inconsistent with the decision of the Supreme Court in Sabbatino, 376 U.S. at 438-39, 84 S. Ct. at 945-46, upholding application of the act of state doctrine as the basis for dismissing the defendants' counterclaims against a foreign state, Cuba. The counterclaims challenged the legitimacy of Cuba's claim of right to the disputed property. Id. at 439, 84 S. Ct. at 946 ("Since the act of state doctrine proscribes a challenge to the validity of the Cuban expropriation decree in this case, any counterclaim based on asserted invalidity must fail."); see also Empresa Cubana Exportadora de Azucarv. Lamborn & Co., 652 F.2d 231, 239 (2d. Cir. 1981) ("Depriving a sovereign plaintiff of its act of state defense to counterclaims would be just as arbitrary and unfair as stripping it of its right to invoke any other affirmative defense, such as the statute of limitations or res judicata."). If the act of state doctrine applies to counterclaims, and we know from Sabbatino that it does, there is no reason it does not also apply to affirmative defenses.

The defendants ask us to reverse the district court's September 18, 1998 order dismissing 13 of their 15 counterclaims, but we lack jurisdiction to consider that order. See United States v. Taylor, 632 F.2d 530, 531 (5th Cir. 1980) (order dismissing counterclaim is interlocutory and appeal cannot be taken until judgment makes dismissal final). We do have jurisdiction over the order granting summary judgment to the plaintiffs on two of their claims, because a proper Rule 54(b) certification and partial final judgment was entered as to that order on July 23, 1998, but none has ever been entered as to the dismissal of the counterclaims. Nor has the district court disposed of the case as a whole. So, there is no final judgment as to the case as a whole. See Beluga Holding, Ltd., v. Commerce CapitalCorp., 212 F.3d 1199, 1200 (11th Cir. 2000) ("To be a final judgment, the judgment must have disposed of all claims as to all parties.") (footnote omitted).

The action the district court took on July 23, 1999 related only to the summary judgment it had entered on two of the plaintiffs' claims. True, the document is captioned "Final Judgment," but that does not mean that it is a final judgment as to all of the claims and counterclaims in the case. To the extent, if any, that the caption implies judgment over the case as a whole, content counts over caption, and the content of the document establishes that it is a Rule 54(b) partial final judgment. The first sentence of the document states: "The Court, upon making the express determination that there is no just reason for delay, hereby directs entry of partial final judgment pursuant to Rule 54(b)." It did so only as to two of the plaintiffs' claims.

The district court has never directed entry of final judgment as to all the claims and counterclaims in the case, nor has it ever decided all of the claims. The partial final judgment the district court entered on July 23, 1999, does state that, while the court retains jurisdiction to decide certain issues relating to costs and damages under temporary restraining order bonds, " [a]ll other motions are DENIED as moot." But claims are not motions, and most of the plaintiffs' claims against the defendants are still outstanding. Indeed, the fact that the district court felt compelled to proceed under Rule 54(b) evidences that there was no final judgment as to all the claims in the case.

Because no final judgment has been entered disposing of all the claims in this case, our appellate jurisdiction is confined to the issues made appealable under Rule 54(b). Those are the issues arising from the summary judgment entered on plaintiffs' reclamation of shares and conversion claims, which we have decided.²⁰ 

We AFFIRM the district court's orders granting leave to amend and its order granting partial summary judgment for plaintiffs. We lack jurisdiction to decide any issues arising from the district court's orders relating to the counterclaims.