CONTINENTAL TRANSFERT TECHNIQUE LIMITED, Plaintiff, v. FEDERAL GOVERNMENT OF NIGERIA, et al., Defendants.
Civil Action No. 08-2026 (PLF).
United States District Court, District of Columbia.
March 27, 2012.
277-288
PAUL L. FRIEDMAN, District Judge.
Although Ms. Thompson asserts that she is entitled to damages and rescission under TILA, see Am. Compl. ¶ 25, she has failed to allege what disclosures required by TILA she did not receive. Compare Am. Compl. ¶ 123 (alleging that mortgage loan, Note, and Deed of Trust failed to disclose that “1) the actual lender re Alleged Loan is Plaintiff, i.e., the source of the funds used for funding Alleged Loan consists of Plaintiff‘s Note; 2) Defendant lent Plaintiff nothing of Defendant‘s, i.e., no valuable consideration sufficient for supporting a simple contract; 3) Plaintiff owes Defendant no debt re Alleged Loan; and 4) Defendant owes Plaintiff for Plaintiff‘s deposit of $82,500.00 and interest for Defendant‘s use of Note“), with
Moreover, Ms. Thompson‘s TILA claim—whether for damages or for rescission—conclusively is time-barred. Ms. Thompson‘s amended complaint and attached exhibits expressly acknowledge that the loan agreement was signed on July 19, 2005. See Am. Compl. ¶ 6 (“On the date 7/19/05, Plaintiff deposited $82,000.00 with Defendant[.]“); see Note at 1-3 (executed on July 19, 2005); Deed of Trust at 7 (executed on July 19, 2005). Therefore, even assuming that Option One, and somehow, by extension, HSBC, failed to make required disclosures, Ms. Thompson was required to bring her TILA claim, at the latest, within three years after the consummation of the loan agreement—that is, by July 19, 2008. See George v. Bank of Am., N.A., 821 F.Supp.2d at 301-02; Hancock v. Homeq Servicing Corp., 2007 WL 1238746, at *12. Because Ms. Thompson did not bring her TILA claim until 2010, the Court concludes that it is conclusively time-barred.
IV. CONCLUSION
For the foregoing reasons, the Court will grant HSBC‘s motion to dismiss Ms. Thompson‘s amended complaint [Dkt. No. 4]. An Order consistent with this Opinion shall issue this same day.
SO ORDERED.
David Ludwig, Dunlap Grubb & Weaver, PLLC, Leesburg, VA, Thomas Mansfield Dunlap, Dunlap, Grubb & Weaver, PLLC, Washington, DC, Kenechukwu C. Okoli, Law Offices of K.C. Okoli, P.C., New York, NY, for Defendants.
OPINION
PAUL L. FRIEDMAN, District Judge.
Before the Court is a “Rule 60(a) Motion to Correct Clerical Mistake or Mistake Arising from Oversight or Omission,” filed by plaintiff Continental Transfert Technique Limited (“Continental“). For the reasons stated below, the Court will grant the motion in part and hold the motion in abeyance in part.1
Continental brought this action under the Federal Arbitration Act,
The Court granted Continental‘s motion for summary judgment against the defendants—the Federal Government of Nigeria, the Attorney General of Nigeria, and the Minister of the Interior of Nigeria (collectively, “Nigeria“)—and entered an Order and Judgment confirming the arbitral award in its entirety and holding the U.K. judgment enforceable under the UFMJRA. See Continental Transfert Technique Ltd. v. Federal Government of Nigeria, 800 F.Supp.2d 161 (D.D.C.2011); Order and Judgment (Aug. 3, 2011) [Dkt. No. 46]. Continental subsequently filed the present motion asking the Court, pursuant to
The arbitral award confirmed by this Court held Nigeria liable to Continental for three separate monetary sums in different currencies: Nigerian naira, British pounds, and U.S. dollars. Am. Compl. ¶¶ 24-27; MSJ Ex. 4 (“Arb. Award“) at 50. Continental‘s first request is that the Court convert the British- and Nigerian-currency awards into U.S. dollars and combine all three figures to arrive at “a total U.S. dollar amount.” Mot. at 2.
Continental‘s second request is for an award of prejudgment interest. The Court‘s Order and Judgment confirming the arbitral award made no mention of prejudgment interest. Converting the foreign currencies and combining all three sums, as requested by Continental, would result in a total sum of $250,522,787.84. See Hankin Decl. ¶¶ 5-6. As noted, Continental is asking for an award of $423,184,115.29. The difference of $172,661,327.45 represents prejudgment interest, to which Continental maintains it is entitled, spanning the period from the date of the arbitral award to the date of this Court‘s Judgment confirming the award. See id. ¶¶ 7-8; Opp. at 2 (stating that Continental‘s request “will raise the Final Award from a total of about $250,000,000 to a judgment of more than $423,000,000, a difference of about $180,000,000 USD.“).
Finally, Continental also requests “applicable post-judgment interest” on the roughly $423 million specified above. See Mot. at 2.
A. Conversion of Awards in British and Nigerian Currencies to U.S. Dollars
The arbitral award found Nigeria liable to Continental for three separate amounts: (1) the primary award, in Nigerian naira in the amount of N29,660,166,207.48; (2) Continental‘s costs, in the amount of $247,500; and (3) any costs of the arbitration that Continental paid in excess of five percent of the total, which Continental and Nigeria agree amounts to £160,793.84.2 Continental‘s complaint did not request that the foreign currencies be converted into U.S. dollars, nor that the three separate award amounts then be combined into a single total figure. See Compl.; Am. Compl.
At summary judgment, Continental‘s statement of undisputed material facts identified the exchange rates for British pounds and Nigerian naira that were in effect on the date of the arbitration award. Pl. Stmnt. Facts ¶ 16.3 Nigeria admitted the accuracy of those rates. Def. Stmnt. Facts ¶ 16. In addition, the proposed order that Continental submitted with its summary judgment motion granted judgment to Continental in a single dollar amount corresponding to the combined value of the three separate awards after conversion into U.S. currency. See Proposed Order at 1. But nowhere in Continental‘s motion did the company explain why it was entitled to conversion of the foreign currencies into U.S. dollars, or why it was entitled to have that conversion calculated using the exchange rates that were in effect at the time of the arbitration award. Nigeria‘s opposition was likewise silent on these matters—understandably so, because Continental did not seek this form of relief in its complaint and only obliquely sought it at summary judgment.
The Court‘s Order and Judgment in favor of Continental simply confirmed the arbitration award in its entirety and ordered the U.K. judgment enforceable; neither the Order and Judgment nor the accompanying Memorandum Opinion addressed conversion of the foreign currencies. Continental now asks the Court to convert those currencies and combine the resulting figures into a total U.S. dollar amount, a task that Continental characterizes as the correction of a mistake arising from oversight or omission. See Mot. at
Although Nigeria has admitted the accuracy of the exchange rates that were in place at the time of the June 2008 arbitral award, such an acknowledgment does not address whether Continental was entitled to conversion at the same exchange rates when Judgment was entered in this Court, over three years later. Because Continental never requested conversion of the foreign currencies in its complaint nor (explicitly) at summary judgment, the parties never addressed what exchange rate should apply were the Court to convert the foreign currencies into dollars. Consequently, the Court made no findings on this issue. See Continental Transfert Technique Ltd. v. Federal Government of Nigeria, 800 F.Supp.2d 161.
There may be little reason, in theory, for a court confirming a foreign arbitration award to deny a party‘s request to convert that award into U.S. currency. And it is quite possible that the exchange rates in place at the time of the arbitration award should later be given effect by the court when undertaking such a conversion. But the latter proposition, in particular, cannot be taken for granted. A substantial shift in the exchange rate of a foreign currency between the date of the arbitration award and the date of judgment could dramatically alter the real value in U.S. dollars of the arbitration award. Therefore Continental‘s entitlement to conversion of the foreign currencies at specific exchange rates implicates the true value of the judgment entered in its favor and thus the substance of its claim on the merits.
Because the parties did not address this issue in their summary judgment papers and because the Court‘s Memorandum Opinion says nothing about them, the corresponding silence of the Order and Judgment is neither a clerical error nor a mere oversight or omission within the meaning of
Nowhere at any stage of this case did the parties address Continental‘s right to have its foreign-currency awards converted into U.S. dollars at the exchange rates that were in effect when the arbitration award was issued. The Order and Judgment reflects no intent of the Court on that score, and converting the currencies at those rates now would require more than a “completely ministerial task” of “do[ing] the calculation and mak[ing] the amount official.” Kosnoski v. Howley, 33 F.3d 376, 379 (4th Cir.1994). Instead, it would require making a substantive determination about Continental‘s rights not previously rendered.
This conclusion does not necessarily mean that Continental‘s request is doomed. Continental filed its motion twenty days after the entry of Judgment, and the Court therefore could construe it as a
B. Prejudgment Interest
As explained above, Continental requests that the Court enter a corrected judgment of roughly $423 million, of which over $172 million constitutes prejudgment interest on the arbitration award, accruing from the date of that award until the date of this Court‘s Judgment. See Mot. at 3-4; Hankin Decl. ¶¶ 7-8. Continental maintains that the applicable prejudgment interest rate is eighteen percent. This rate, according to Continental, “was the rate utilized in the Award, was identified by the Amended Complaint and on summary judgment ... and was not objected to by Nigeria.” Mot. at 3-4. Much of that statement is misleading.5 And in any event, binding precedent prevents the Court from correcting its Judgment under
In Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989), the Supreme Court ruled that a postjudgment motion for discretionary prejudgment interest is properly regarded as a
The D.C. Circuit, like others, has applied Osterneck‘s dictum to hold that even where prejudgment interest is mandatory, a judgment that is silent about such interest cannot be altered to include it through
Continental‘s request is barred by Winslow and is not saved by the fact that, unlike the plaintiff in Winslow, Continental requested prejudgment interest in its complaint. Even if Winslow leaves any room for exceptions, the mere inclusion of a request for prejudgment interest in a complaint does not warrant such an exception, particularly where the request was not addressed in the parties’ summary judgment papers. “Even if a plaintiff includes a demand for pre-decision interest in its complaint, [s]uch requests obviously may be overlooked or denied, and the absence of a provision for [such] interest in any of the court‘s [orders] is entirely consistent with the hypotheses that the court either was unaware of the request or intended simply to deny it.” Paddington Partners v. Bouchard, 34 F.3d 1132, 1140 (2d Cir.1994) (quoting In re Frigitemp Corp., 781 F.2d at 328). “‘In either case, the failure of [a] Judgment to award such interest is an accurate reflection of the court‘s decision,’ and hence can not be corrected under Rule 60(a).” Id. (quoting In re Frigitemp Corp., 781 F.2d at 328).
Before the Court could grant prejudgment interest, moreover, it would need to determine the interest rate to which Continental is entitled. Because prejudgment interest “is an element of [plaintiff‘s] com-
As with respect to Continental‘s first request, however, the Court can construe Continental‘s request for prejudgment interest as having been advanced under
Continental‘s reply appears to concede this point, and tellingly cites nothing in the arbitration award or the U.K. judgment that mentions post-award interest. Instead, Continental‘s reply raises two entirely new arguments: that U.S. courts routinely grant prejudgment interest in actions to confirm arbitration awards under the New York Convention, and that such interest is mandatory in this case under
Even if Continental‘s new arguments about its original entitlement to prejudgment interest have merit, neither party has addressed how the company‘s present request for such interest fares under the strict standards of Rule 59(e). Furthermore, Nigeria has not had an opportunity to respond to the new arguments raised for the first time in Continental‘s reply about the basis for its purported right to prejudgment interest. The Court therefore concludes that supplemental briefing on these two questions is warranted, and it will hold in abeyance Continental‘s request for prejudgment interest until the parties have completed such briefing.
C. Postjudgment Interest
Continental also seeks an award of postjudgment interest, see Mot. at 2, which it requested in its complaint and in the proposed order that accompanied its motion for summary judgment. See Am. Compl. at 11; Compl. at 8; Proposed Order at 1.
In contrast to prejudgment interest, the award of which generally “is subject to the discretion of the court and equitable considerations,” Oldham v. Korean Air Lines Co., Ltd., 127 F.3d 43, 54 (D.C.Cir.1997) (quoting Motion Picture Ass‘n of Amer., Inc. v. Oman, 969 F.2d 1154, 1157 (D.C.Cir.1992)), postjudgment interest is mandated by
Interest shall be allowed on any money judgment in a civil case recovered in a district court.... Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment. The Director of the Administrative Office of the United States Courts shall distribute notice of that rate and any changes in it to all Federal judges.
Significantly for present purposes, postjudgment interest lacks the qualities of prejudgment interest that prevent the latter from being obtained through
Indeed, postjudgment interest has been awarded on attorney‘s fees and costs themselves, see Air Separation, Inc. v. Underwriters at Lloyd‘s of London, 45 F.3d 288, 290 (9th Cir.1995), highlighting the extent to which such interest “rais[es] issues wholly collateral to the judgment in the main cause of action.” Osterneck v. Ernst & Whinney, 489 U.S. at 175. See First State Bank of Monticello v. Ohio Cas. Ins. Co., 555 F.3d 564, 572 (7th Cir.2009) (“‘[P]rejudgment interest, unlike post-judgment interest, normally is considered an element of the judgment itself, that is, of the relief on the merits.‘“) (emphasis added); Matter of Stoecker, 5 F.3d 1022, 1026-27 (7th Cir.1993) (“Postjudgment interest, however, is compensation for delay in the collection of the judgment, and is therefore collateral, like the award of attorney‘s fees.“); United States v. Entze, No. 05-0030, 2006 WL 931863, at *3 (D.N.D. Jan. 9, 2006) (“There is a difference between prejudgment inter-
Nigeria challenges Continental‘s request for postjudgment interest in only the most cursory fashion: it simply points out that the Court did not award such interest in the Judgment and contends, without explanation, that doing so would have contradicted the arbitration award and the U.K. judgment. See Opp. at 5. Because Continental was statutorily entitled to an award of postjudgment interest, and because making this determination now does not require the Court to revisit the merits of Continental‘s claim, the Court‘s failure to provide for such interest can be characterized as a “mistake arising from oversight or omission.”
The Court will not enter a corrected Judgment, however, until the matters discussed in the first two sections of this Opinion have been briefed by the parties and resolved by the Court.
III. CONCLUSION
For the foregoing reasons, Continental‘s motion will be granted in part and held in abeyance in part. An Order consistent with this Opinion shall issue this same day.
SO ORDERED.
PAUL L. FRIEDMAN
UNITED STATES DISTRICT JUDGE