INGASEOSAS INTERNATIONAL CO., Petitioner-Appellant, v. ACONCAGUA INVESTING LTD., Respondent-Appellee.
No. 11-10914.
United States Court of Appeals, Eleventh Circuit.
July 5, 2012.
477 Fed. Appx. 955
As to Rembert‘s argument that her sentence was unreasonable, we review the reasonableness of a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). A district court is required to impose a sentence that is “sufficient, but not greater than necessary,” to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, and protect the public from future criminal conduct. See
After considering all these arguments at the sentencing hearing, the district court concluded that the guideline sentence was appropriate, because Rembert had significantly abused a position of trust. The court also expressed concern about the number of victims and the large amount of loss. Given that the district court considered the
For the reasons stated, we AFFIRM the district court.
Pedro J. Martinez-Fraga, Gustavo Jose Lamelas, Harout Jack Samra, DLA Piper LLP (US), Miami, FL, for Petitioner-Appellant.
John Henry Rooney, Jr., John H. Rooney, Jr., PA, Arturo Carlos Martinez, Dario A. Perez, Shutts & Bowen, LLP, Miami, FL, for Respondent-Appellee.
Before EDMONDSON and ANDERSON, Circuit Judges, and EDENFIELD,* District Judge.
PER CURIAM:
This is an appeal from the district court‘s order dismissing a petition to vacate an international arbitration award
IIC notified the BVI court of the vacatur proceedings, and in response to a request by IIC, the BVI court stayed the enforcement action for one week, until November 12, 2009. The BVI court‘s order stated that if IIC provided security in the amount of approximately $7 million, the stay “would continue until the determination of [IIC‘s] Motion to Vacate the Arbitration Award” in the district court.3 IIC chose not to pay the security and chose not to appeal the BVI court order requiring it. Accordingly, the stay was lifted, and on November 12, 2009, the BVI court entered an order granting AIL leave to enforce the final arbitral award and a judgment in favor of AIL and against IIC in the same terms as that award. IIC again opted not to appeal. On November 30, 2009, AIL filed in the district court its opposition to IIC‘s motion to vacate, as well as a cross-motion seeking confirmation of the award.
When IIC refused to pay the final judgment, AIL requested that the BVI court appoint liquidators for IIC in order to secure payment. IIC again moved for a stay of the BVI proceedings pending the vacatur action in the district court.4 On January 25, 2010, the BVI court declined to order a stay and appointed liquidators for IIC. IIC did not appeal the BVI court‘s denial of its second request for a stay or the court‘s appointment of liquidators.
On February 4, 2010, the district court held a status conference “to discuss how best to proceed on the cross-motions to vacate/confirm the arbitral award in this case.” The liquidators hired new, independent counsel who appeared at the status conference on their behalf.5 The liquidators’ counsel informed the district court of the liquidation, explaining that the liquidators needed time to evaluate the merits of IIC‘s petition to vacate the award in order to determine whether it would be worth the time, effort, and money to pursue IIC‘s claim. Accordingly, at the request of the liquidators and with the consent of all parties present, the district court stayed the case in order to allow the liquidators time to decide how to proceed. The district court‘s order explained that the case could be reopened by an appropriate motion from either party. Upon re-
I.
Ingaseosas International Co. (“IIC“) and Aconcagua Investing Ltd. (“AIL“) are both British Virgin Islands companies with principal places of business in the British Virgin Islands. In February of 2008, IIC agreed to sell AIL shares it owned in another British Virgin Islands corporation with Coca-Cola Bottling Company franchise rights. Their stock purchase agreement provided that IIC and AIL would resolve any disputes through a final, binding arbitration to be seated in Miami, Florida, and governed by New York law. The transaction contemplated by the stock purchase agreement did not close as planned. In October of 2008, claiming breach of contract, AIL initiated an arbitration proceeding against IIC in Miami; IIC, represented by counsel, filed a counterclaim with the arbitrator against AIL. The parties participated in an arbitration hearing. On August 20, 2009, the arbitrator issued his final award, requiring IIC to pay approximately $11 million to AIL within thirty days.
By the expiration of the thirty-day period, IIC had not paid AIL the amount required by the arbitration award. Therefore, on September 22, 2009, pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 (“New York Convention” or “Convention“), AIL applied
One of IIC‘s shareholders requested permission from the BVI court to assume control over the motion to vacate pending in the district court. The court denied this request, specifically noting that AIL “holds an unappealed judgment” that the court believed “creates an estoppel against the company in this jurisdiction.” According to the BVI court:
Even if the company did succeed in setting aside the award in Florida, it would still remain a judgment debtor here.... No reason is advanced why the fact that the award had been set aside in Florida should be capable of having any impact upon the judgment obtained here. Any suggestion that it might seems to me to be inconsistent with the principles underlying the enforcement of New York Convention awards.
The court pointed out that nobody had suggested that the granting of AIL‘s enforcement application was flawed. In sum, the BVI court was unwilling to allow IIC‘s shareholder to prosecute the motion to vacate in the district court because, “even on the assumption that, contrary to the advice received by the joint liquidators, the motion will succeed, ... that [motion] would have no impact on [AIL‘s] status as a judgment creditor.”6 Nevertheless, in order to ensure no prejudice to IIC‘s position in the district court, the BVI court directed the liquidators not to discontinue the vacatur proceedings.
Despite IIC‘s resistance,7 the liquidators were able to collect sufficient funds to cover AIL‘s judgment. As noted above, after refusing to sell the bottling company stock to AIL, thus breaching the contract with AIL, IIC sold the stock to a third party. The liquidators were able to consummate that sale, and the liquidators received from the new purchaser sufficient funds to pay off IIC‘s $11 million liability to AIL, thereby satisfying the BVI court judgment. After the judgment was paid, IIC was taken out of liquidation, as the company turned out to be solvent. At that point, IIC‘s administration was returned to its board of directors.
Subsequently, on December 7, 2010, IIC moved to reopen the vacatur proceedings in the district court. AIL opposed reopening the case and filed a cross-motion to dismiss the petition to vacate the award. AIL argued that the district court was without subject matter jurisdiction to consider the vacatur motion and that IIC was engaging in futile post-arbitration litigation. On January 13, 2011, the district court held a hearing on IIC‘s motion to reopen the case. The court lifted the stay; however, on February 10, 2011, it granted AIL‘s motion to dismiss. The court held that, although it would have had jurisdiction over a motion to enforce the award,
We affirm the district court‘s dismissal of this case, although we rely upon a different ground. We conclude that events have transpired such that the district court is unable to grant IIC effective relief, and thus the case is moot. See C & C Prods., Inc. v. Messick, 700 F.2d 635, 636 (11th Cir.1983) (“If later events preclude the grant of effective relief, the appeal must be dismissed as moot.“); In re Club Assocs., 956 F.2d 1065, 1069 (11th Cir.1992) (“Central to a finding of mootness is a determination by an appellate court that it cannot grant effective judicial relief.“).
After AIL filed a motion to confirm and enforce the arbitration award in the BVI court, IIC initiated the instant action in the district court by filing a motion to vacate the award. Subsequent thereto, however, the BVI court provided an opportunity for IIC to stay the enforcement proceedings pending the results of the district court action, upon posting bond. After IIC failed to post bond, the BVI court proceeded and enforced the award, reduced it to a judgment in favor of AIL, and appointed liquidators of IIC who liquidated the assets of IIC and then paid the judgment in full. IIC, which was represented by counsel throughout all the proceedings before the arbitrators and before the BVI court, never appealed the BVI court‘s decisions.8 Thus, subsequent to the filing of IIC‘s motion to vacate and during the pendency of the instant action, the BVI court enforced the arbitral award at issue by entering a final, unappealed judgment against IIC and in favor of AIL, and that judgment—which incorporated the terms of the arbitration award—was fully satisfied by IIC.
Although the mootness question was litigated in the district court and briefed in the initial briefing on appeal, and despite intensive questioning at oral argument and an opportunity for additional, supplementary briefing in this Court, IIC has failed to cite any precedent or authority that would enable the district court to provide effective relief under the circumstances. After extensive research, we too have found no such precedent. To the contrary, our research uncovered the following case which holds that a party cannot idly stand by and allow an arbitration award to be confirmed and then seek to the vacate same. The Second Circuit decision in The Hartbridge, 57 F.2d 672 (2d Cir.1932) (before L. Hand, Swann, and Augustus Hand, Circuit Judges) held:
As we understand the statute a motion to confirm puts the other party to his objections. He cannot idly stand by, allow the award to be confirmed and judgment thereon entered, and then move to vacate the award just as though no judgment existed.... After judgment we think the award can be vacated only if the judgment can be, and to vacate the judgment an adequate excuse must be shown for not having presented objections to the award when the motion to confirm was heard.
IIC does not dispute the fact that the BVI court had jurisdiction to confirm and
IIC does argue that it was agreed that New York law would govern and the arbitration would take place in Miami, and does point out that the Miami district court would therefore be considered a court of “primary jurisdiction.”11 IIC then vaguely suggests that, even under the unique circumstances of this case, as the primary jurisdiction, the district court has authority to simply ignore the previous judgment of the BVI court and order effective relief notwithstanding. However, IIC has cited no case or other authority which stands for such a proposition. Our research has found none. We see nothing in the language of the Convention which suggests such a proposition. To the contrary, Article VI of the Convention expressly contemplates a situation where a court of secondary jurisdiction has a pending motion to enforce an arbitration award, and where an application to set aside the award is made to a primary-jurisdiction court. In that situation, the Convention provides that the secondary-jurisdiction court “may, if it considers it proper” stay its proceedings, and may condition such a stay upon the provision of bond. See Con-
It is true that the Convention “envisions multiple proceedings that address the same substantive challenges to an arbitral award.” Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 367 (5th Cir.2003). Because of this, we can imagine cases where a court of primary jurisdiction could provide effective relief by vacating an arbitral award notwithstanding an inconsistent previous decision of a secondary-jurisdiction court enforcing the award. For example, if a secondary-jurisdiction court raced to a judgment to confirm and 12 enforce an award, if the party seeking to vacate the award in a primary-jurisdiction court was not given the opportunity to post bond and stay the enforcement proceedings in a secondary-jurisdiction court, or if the jurisdiction of the primary-jurisdiction court is otherwise usurped by a secondary-jurisdiction court, we acknowledge that a much more persuasive argument could be made and that a different outcome could be warranted. We need not—and we do not—address such a case.12 As noted above, the facts of the instant case are the polar opposite of any such persuasive case. The facts here are unique, involving a party, IIC, who repeatedly failed to protect its rights in the BVI court, and who, after determining that the prospects of success on its motion to vacate were “exceedingly low,” actually encouraged the precedence of the BVI court proceedings (consenting to a stay in the district court, the effect of which was to allow the proceedings in the BVI court to take precedence). As in The Hartbridge, IIC simply stood idly by. 57 F.2d at 673. We cannot conclude that the fact that the district court is a court of primary jurisdiction—without more—demonstrates that there could be effective judicial relief in this case.
In attempting to demonstrate how a district court order vacating the award could provide effective relief, IIC makes a vague and conclusory assertion that, if IIC “were to decline to return the Award proceeds upon a vacatur by the Trial Court following a remand from this Court, [IIC] could seek in the BVI court an annulment of the [British Virgin Islands] judgment.”13 IIC fails to cite any precedent or authority in
Even if this appeal is not technically moot, we hold that it should be treated as such for prudential reasons. See Jordan v. Sosa, 654 F.3d 1012, 1033 (10th Cir.2011) (“Even if we were to conclude that [the plaintiff‘s] claims could survive our constitutional-mootness inquiry, we would bar those claims on prudential-mootness grounds.“); United States v. (Under Seal), 757 F.2d 600, 603 (4th Cir.1985) (“Passing the possibly difficult conceptual question of whether the appeal has been mooted in constitutional case or controversy terms, we conclude that, in any event, we should treat it as moot for prudential reasons.“). Pursuant to the doctrine of prudential mootness, we may exercise our discretion and decline to grant declaratory relief in the context of a controversy that has become “so attenuated that considerations of prudence and comity ... counsel the court to stay its hand, and to withhold relief it has the power to grant.” Chamber of Commerce v. U.S. Dep‘t of Energy, 627 F.2d 289, 291 (D.C.Cir.1980). The critical question becomes “whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief.” Int‘l Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 915 (3d Cir.1987). As one of our sister circuits
Where it is so unlikely that the court‘s grant of declaratory judgment will actually relieve the injury, the doctrine of prudential mootness—a facet of equity—comes into play. This concept is concerned, not with the court‘s power under Article III to provide relief, but with the court‘s discretion in exercising that power. Declaratory relief, like other forms of equitable relief, is discretionary.... Where it is uncertain that declaratory relief will benefit the party alleging injury, the court will normally refrain from exercising its equitable powers.
Penthouse Int‘l, Ltd. v. Meese, 939 F.2d 1011, 1019-20 (D.C.Cir.1991) (citations omitted).
Even if IIC were somehow able to persuade the district court on remand to vacate the award at issue, we cannot see how an order from that court would provide IIC with any meaningful relief. First, it is uncertain how IIC would attempt to proceed in the event that it obtained a vacatur judgment from the district court. As a result of its own litigation decisions, IIC finds itself in this unique situation in which any effective relief is so remote. IIC has cited no authority in support of its conclusory assertion that a vacatur would enable it to seek relief in the BVI court; and it is only by our own research that we have discovered commentators opining that it is theoretically possible for a party who obtains a vacatur of an already-enforced and satisfied Convention award to return to the enforcing court and file some type of restitution action.16 See Ali v. Cangemi, 419 F.3d 722, 724 (8th Cir.2005) (en banc) (concluding that case was “prudentially moot in light of the myriad of uncertainties“). More importantly, it is extremely unlikely—if not impossible—that IIC would be able to actually remedy its alleged injury by undoing the consequences of the final, unappealed (and fully satisfied) judgment of the BVI court.17 As
III.
For the foregoing reasons, under the particular and unique facts of the instant case, we cannot conclude that the district court can provide effective relief to IIC. We therefore hold that the case is moot.
AFFIRMED.