D.E. 95: Womply's Reply Addressing Prejudgment Attachment Procedure (Oct. 10, 2023)

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U.S. District Court for the District of Puerto Rico · No. 3:23-cv-01034-GMM · Doc. 95 · 2023-10-10 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF PUERTO RICO 
 
OTO ANALYTICS, LLC, 
 
Plaintiff, 
 
v. 
 
BENWORTH CAPITAL PARTNERS PR 
LLC, BENWORTH CAPITAL PARTNERS 
LLC, BERNARDO NAVARRO and 
CLAUDIA NAVARRO, 
 
Defendants. 
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Civil Action No. 23-01034 
 
 
 
 
  
 
 
 
PLAINTIFF WOMPLY’S REPLY ADDRESSING THE PROCEDURAL 
REQUIREMENTS OF PREJUDGMENT ATTACHMENT 
 
Alexander L. Cheney (admitted pro hac vice) 
Willkie Farr & Gallagher LLP 
One Front Street  
San Francisco, CA 94111 
(415) 858-7400 
acheney@willkie.com 
Stuart R. Lombardi (admitted pro hac vice) 
Willkie Farr & Gallagher LLP 
787 7th Avenue 
New York, NY 10019 
(212) 728-8000 
slombardi@willkie.com 
Joshua S. Levy (admitted pro hac vice) 
Willkie Farr & Gallagher LLP 
1875 K Street, N.W. 
Washington, D.C. 20006 
(202) 303-1000 
jlevy@willkie.com 
Alejandro J. Cepeda Diaz 
USDC-PR 222110 
McConnell Valdés LLC 
270 Muñoz Rivera Ave. 
Hato Rey PR 00918 
Tel: (787) 250-5637 
Email: ajc@mcvpr.com 
October 10, 2023 
Attorneys for Plaintiff Oto Analytics, LLC  
Case 3:23-cv-01034-GMM   Document 95   Filed 10/10/23   Page 1 of 7

 
 
Pursuant to this Court’s October 4, 2023 Order (“Order”; ECF No. 94), Plaintiff Womply 
submits this “reply specifically addressing the procedural requirements of its requested remedy of 
prejudgment attachment.”1 
PRELIMINARY STATEMENT 
Womply commenced this action in January 2023 and asserted claims for actual fraudulent 
transfer, constructive fraudulent transfer, and declaratory relief.  Womply alleges that Benworth 
FL contracted to use Womply’s services, refused to pay for Womply’s services as required under 
the parties’ agreements, and then fraudulently transferred money to Benworth PR to prevent 
Womply from collecting its fees.  Womply’s contractual claims against Benworth FL are currently 
being arbitrated and, during discovery in the Arbitration, Benworth FL CEO Bernardo Navarro 
testified that he secretly transferred at least $171 million from Benworth FL to Benworth PR, 
leaving Benworth FL unable to pay its debt to Womply.  Womply sought and obtained the 
arbitrator’s approval to use confidential information from the Arbitration to commence this action. 
In its Complaint, Womply seeks equitable and declaratory relief, including attachment of 
Defendants’ assets.  Under Puerto Rico law, Womply can move for the preliminary relief of 
“prejudgment attachment” at any time, which would require Womply to show “the validity of the 
plaintiff’s claim against the defendant,” and that the requested relief “has the objective of ensuring 
the effectiveness of the Court’s future judgment.”  Roca-Buigas v. LM Waste Servs. Corp., 2021 
WL 4496467, at *2 (D.P.R. Sep. 30, 2021) (cleaned up).  Womply can make that showing now.  
However, as Benworth concedes, Womply is not seeking prejudgment attachment at this time.  
(Joint Reply Br. in Support of Motions to Dismiss at 2–3, ECF No. 61 (“Joint Reply”) (“Womply 
has not properly requested prejudgment attachment in this case . . . .”).)  Among other reasons, 
 
1 Capitalized terms have the same meanings as in Womply’s Opposition to Benworth’s Motion to 
Dismiss (“Opp.”; ECF No. 49) unless otherwise indicated. 
Case 3:23-cv-01034-GMM   Document 95   Filed 10/10/23   Page 2 of 7

 
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pursuing prejudgment attachment now would be inefficient and likely a waste of judicial resources.  
Indeed, Defendants admit they would oppose the motion using many of the same arguments that 
Benworth FL has raised in the Arbitration, which the arbitrator is on the verge of resolving.2  (Joint 
Reply at 2–3.)  It would be inefficient for the parties to begin re-litigating those issues here only 
to have the issues be mooted by the arbitrator.   
The issue of prejudgment attachment arose in this case in the context of Defendants’ 
motions to dismiss the Complaint, which argue, among other things, that Womply’s claims “lack 
ripeness” because the Arbitration is “ongoing.”  (Mot. at 2; Joinder Mot. at 4.)  In opposing the 
Motions, Womply argued that its claims do not ripen only after Womply obtains a favorable 
determination in the Arbitration.  In making this argument, Womply relied on First Circuit 
precedent holding that where, as here, “[t]he plaintiff’s underlying civil claims are actively being 
litigated” and the defendant “fraudulently concealed millions of dollars” that “rendered [it] 
insolvent,” “the plaintiff’s fraudulent conveyance claims” are “ripe for adjudication.”  Foisie v. 
Worcester Polytechnic Inst., 967 F.3d 27, 35–36 (1st Cir. 2020).  Womply further argued that the 
availability of prejudgment attachment under federal and Puerto Rico law supports Womply’s 
position that Womply is entitled to pursue relief while the parties litigate Benworth FL’s defenses 
to the existence of a debt to Womply. 
Womply’s decision not to move for prejudgment attachment while the Arbitration is 
ongoing does not render Womply’s causes of action unripe.  However, it does weigh in favor of a 
stay of these proceedings pending a decision by the arbitrator that may be relevant to the 
availability of prejudgment attachment as a provisional remedy and the underlying claims in this 
 
2 The arbitrator recently indicated that he was extending his target date for issuing an interim award 
(i.e., excluding collection costs) from September 15, 2023, to November 1, 2023. 
Case 3:23-cv-01034-GMM   Document 95   Filed 10/10/23   Page 3 of 7

 
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case.  For that reason, Womply has agreed with Benworth’s request for a short stay of this case 
pending a decision of the arbitrator. 
Accordingly, the only issue before this Court is whether to dismiss or stay this case pending 
a decision in the Arbitration.  This Court need not resolve now whether Plaintiff is entitled to 
prejudgment attachment, as Plaintiff has not yet sought that provisional relief.  In any event, 
Womply provides below the procedural requirements for obtaining prejudgment attachment in 
response to this Court’s request. 
PROCEDURE FOR PREJUDGMENT ATTACHMENT 
Prejudgment attachment provides “for seizure of property for the purpose of securing 
satisfaction of the [j]udgment ultimately to be entered in the action.”  Cisco Sys. Cap. Corp. v. 
Glob. Hotel Mgmt. Inc., 712 F. Supp. 2d 22, 23 (D.P.R. 2010); see also Fed. R. Civ. P. 64(b); P.R. 
Code of Civ. P. R. 56.1 (P.R. Laws Ann. tit. 32A, § 56.1).  Puerto Rico law supplies the substantive 
standard for obtaining a writ of prejudgment attachment.  See Fed. R. Civ. P. 64(a).   
When deciding whether to issue prejudgment attachment, “the Court must consider 
whether the requested remedy is ‘(1) provisional; (2) has the objective of ensuring the 
effectiveness of the Court’s future judgment; and (3) takes into account the interests of both parties, 
as required by substantial justice and the circumstances of the case.’”  Roca-Buigas, 2021 WL 
4496467, at *2 (quoting Citibank v. ACBI, 200 D.P.R. 724, 733 (2018)).  “[T]he Supreme Court 
of Puerto Rico has construed its procedural rule expansively” to “confer[] upon the court sufficient 
flexibility to issue the measures which it deems necessary or convenient, according to the 
circumstances of the case, to secure the effectiveness of the judgments.”  Goya Foods, Inc. v. 
Wallack Mgmt. Co., 290 F.3d 63, 71 (1st Cir. 2002) (quoting HMG Prop. Invs., Inc. v. Parque 
Indus. Rio Canas, Inc., 847 F.2d 908, 913–14 (1st Cir. 1988) (quoting F.D. Rich Co. v. Super. Ct., 
99 P.R. 155, 173 (1970))).  The “only limitation” is that the remedy must “be reasonable and 
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adequate to the essential purpose of the same, which is to guarantee the effectiveness of the 
judgment which in due time may be rendered.”  Id.   
“[A] prejudgment attachment . . . depends ‘on the validity of the plaintiff’s claim against 
the defendant.’”  Roca-Buigas, 2021 WL 4496467, at *2 (quoting Garcia-Guzman v. Villoldo, 273 
F.3d 1, 6 (1st Cir. 2001)).  Puerto Rico law also requires pre-attachment notice, hearing, and a 
bond, unless the movant shows that such procedures are unnecessary.  P.R. Code of Civ. P. R. 56.4 
(P.R. Laws Ann. tit. 32A § 56.4).  “[A] pre-attachment hearing [i]s not required” where “the 
claimant has alleged or demonstrated,” among other things, “a probability of prevailing on the 
merits through the use of authentic documentary evidence which shows that there is a debt liquid, 
due, and payable,” or “the existence of extraordinary circumstances.”  Citibank, N.A. v. Allied 
Mgmt. Grp., 466 F. Supp. 2d 403, 406 (D.P.R. 2006) (citing Rivera Rodríguez & Co. v. Stowell, 
133 D.P.R. 881, 899–900 (1993)).  Courts have significant flexibility “to determine the bond 
required for a[] [prejudgment] attachment,” considering “‘the usefulness of the property to be 
attached for the defendant; how solid are the grounds that prima facie support the plaintiff’s claim; 
and if the security requested is the least onerous that may guarantee the effectiveness of the 
judgment which may be rendered.’”  Roca-Buigas, 2021 WL 4496467, at *5 (quoting Soc. de 
Gananciales v. Rodriguez, 116 P.R. Dec. 468, 471–72 (1985)).  Prejudgment attachment “may be 
granted without the filing of a bond” if “it appears from public or private documents, as defined 
by law, signed before a person authorized to administer oaths, that the obligation is legally 
enforceable.”  P.R. Code of Civ. P. R. 56.3(a) (P.R. Laws Ann. tit. 32A, § 56.3(a)). 
 
 
Case 3:23-cv-01034-GMM   Document 95   Filed 10/10/23   Page 5 of 7

 
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Dated: October 10, 2023 
Of Counsel: 
Willkie Farr & Gallagher LLP 
By: /s/ Alexander L. Cheney 
Alexander L. Cheney (admitted pro hac vice) 
One Front Street  
San Francisco, CA 94111 
(415) 858-7400 
acheney@willkie.com 
Stuart R. Lombardi (admitted pro hac vice) 
Willkie Farr & Gallagher LLP 
787 7th Avenue 
New York, NY 10019 
(212) 728-8000 
slombardi@willkie.com 
Joshua S. Levy (admitted pro hac vice) 
1875 K Street, N.W. 
Washington, D.C. 20006 
(202) 303-1000 
jlevy@willkie.com 
Respectfully submitted, 
By: /s/ Alejandro J. Cepeda Diaz 
  
Alejandro J. Cepeda Diaz 
USDC-PR 222110 
McConnell Valdés LLC 
270 Muñoz Rivera Ave. 
Hato Rey PR 00918 
Tel: (787) 250-5637 
Email: ajc@mcvpr.com 
 
Attorneys for Plaintiff Oto Analytics, LLC  
 
 
 
Case 3:23-cv-01034-GMM   Document 95   Filed 10/10/23   Page 6 of 7

 
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CERTIFICATE OF SERVICE 
The undersigned certifies that on October 10, 2023, the foregoing document was filed with 
the Clerk of the Court using CM/ECF, which sent notices to all parties receiving notifications 
through the CM/ECF system. 
Dated: October 10, 2023  
 
 
 
By: /s/ Alejandro J. Cepeda Diaz 
Attorney for Plaintiff Oto Analytics, LLC 
 
 
 
Case 3:23-cv-01034-GMM   Document 95   Filed 10/10/23   Page 7 of 7

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