Panama Processes, S.A. v. Cities Service Co.Panama Processes, S.A. v. Cities Service Co.
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This case presents the issue of whether a district court may amend a consent order and judgment pursuant to
BACKGROUND
Prior to 1965, plaintiff-appellant Panama Processes, S.A. (PPSA), together with a subsidiary of defendant-appellee Cities Service Company (Cities), and Celanese Corporation formed a Brazilian corporation, Com-panhia Petroquímica Brasileira — Copebras (Copebras). In 1965, the Cities’ subsidiary acquired Celanese Corporation’s share in Copebras to become a majority shareholder. PPSA claims that it accepted this restructuring and its subsequent minority shareholder status only because of a letter
Subsequently, Copebras announced plans to borrow money which, until repayment, would restrict its payable dividends. PPSA claimed that this would violate the 1965 letter agreement and sought a declaratory judgment. The suit was dismissed by the United States District Court for the Southern District of New York (Gurfein, Judge) on the ground that the declaration sought was limited to the binding nature of the contract and would not resolve the issue of its interpretation. 362 F.Supp. at 738.
In 1979, PPSA filed another complaint in the United States District Court for the Southern District of New York (Haight, Judge), which later gave rise to this appeal, claiming that Cities breached the 1965 agreement and its fiduciary duty as majority shareholder of Copebras by employing manipulative accounting devices and through its investment policies. Judge Haight conditionally dismissed the complaint on the ground of forum non conve-niens. After a careful review of the relevant factors, the district court concluded that Brazil and not New York was an appropriate forum for the action. 500 F.Supp. at 792-801. In 1980, under the court’s direction, Cities filed a consent agreement which the district court retitled a Consent Judgment and Order (Consent Judgment) stating, in relevant part, that Cities:
(1) Consents to personal jurisdiction over it by any court located in the Republic of Brazil which has appropriate subject matter jurisdiction with respect to the claims raised by plaintiff Panama Processes, S.A., against defendant Cities Service Company in the complaint filed in the within action and agrees to contest on their merits any such claims raised by plaintiff in any such court;
(2) Agrees to waive any statute of limitations defense with respect to any such claims based upon facts or events which have arisen since the commencement of the within action in this Court; and
(3) Agrees to pay any final judgment which may be rendered against it in favor of Panama Processes, S.A., upon such claims by such Brazilian court, provided, however, that such agreement does not prevent Cities Service Company from pursuing any and all remedies by way of appeal which might be available to it under the statutes and regulations prevailing in the Brazilian court system.
Instead of bringing an action in Brazil, PPSA sued Cities in a state court in Oklahoma, which is Cities’ principal place of business. In an order dated March 15, 1982, that court denied Cities’ forum non conveniens motion stating that the court did not consider the New York district court’s holding to mandate litigation only in Brazil and that the dismissal in New York was “conclusive only as to the availability of New York as a forum.”
Pursuant to
Agrees to waive any statute of limitations defense in any subsequent action which may be filed against it by plaintiff in Brazil with respect to any such claims based upon facts or events which have arisen since the commencement of the within action in this Court.
(Emphasis added). The court stated that its “understanding and intent was that the phrase ‘any such claims’ in paragraph (2) is derived from, and mirrors, the phrase ‘any such claims raised by plaintiff in any such court’ in paragraph (1), which in turn refers to claims asserted in the courts of Brazil— and nowhere else.” Thus, the court granted Cities motion to amend the statute of limitations waiver provision in the Consent Judgment “to make the implicit explicit
On appeal, PPSA contends that the district court lacked the jurisdiction and authority to amend the Consent Judgment because it had been affirmed by this court, and that even if jurisdiction were present, the error alleged by appellee’s motion was not within the purview of
For the following reasons, we reject appellant’s contentions and affirm the holding of the April 8, 1985 memorandum opinion and order of the district court.
DISCUSSION
PPSA first contends that the district court had no jurisdiction to amend the statute of limitations condition in the Consent Judgment because this court affirmed that Judgment on appeal. Appellant argues that the district court had no power to entertain a
This court’s decision in Marc Rich, 739 F.2d 834, makes clear that the fact that a judgment has been reviewed on the appellate level does not preclude action pursuant to an appropriate
This court affirmed the district court’s action and held that
Appellant seeks to distinguish Marc Rich on the ground that there were further proceedings to be conducted in the district court in that case, while here there are no such proceedings. See id. (no leave to amend required after appeal “ ‘particularly ... where [there are] further proceedings [in] the district court’”) (quoting 6A J. Moore, Moore’s Federal Practice ¶ 60.08[3] at 4073 (2d ed. 1971)). PPSA also claims that Marc Rich is inapposite because the appellate court only decided the issue of personal jurisdiction and not the length of time of the contempt order. Appellant argues that here, by contrast, the Second Circuit panel “recited and considered” the conditions imposed on the dismissal.
We must reject appellant’s efforts to so distinguish its case and we decline to adopt appellant’s proposal that a district
We further reject the appellant’s formulation that the appellate court in Marc Rich did not rule on the issue amended while the appellate court here did consider the statute of limitations condition. In the first appeal in Marc Rich, the panel primarily considered the issue of the court’s jurisdiction to issue the contempt order; however, that opinion also noted that “the coercive fine of $50,000 per day did not constitute an abuse of the district court’s discretion.” Marc Rich & Co., A.G. v. United States, 707 F.2d 663, 670 (2d Cir.), cert. denied, 463 U.S. 1215, 103 S.Ct. 3555, 77 L.Ed.2d 1400 (1983). Similarly, the appellate court in reviewing the Consent Judgment here primarily discussed the propriety of the forum non conveniens dismissal; in referring to the district court’s order, the court merely noted the conditions of dismissal. See Panama Processes, 650 F.2d at 414. Thus, appellant’s assertion that the court considered the conditions on appeal either explicitly or implicitly is without foundation. While it is true that issues considered and disposed of by an appellate court on appeal cannot thereafter be altered by a district court, see Briggs v. Pennsylvania R. Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 1040, 92 L.Ed. 1403 (1948); Eutectic Corp., 597 F.2d at 34; Gulf Coast Building and Supply Co. v. International Brotherhood of Electrical Workers, 460 F.2d 105, 107 (5th Cir.1972), it may consider matters not explicitly or implicitly decided, Cirami, 563 F.2d at 32-33; see Standard Oil Co. v. United States, 429 U.S. 17, 18, 97 S.Ct. 31, 32, 50 L.Ed.2d 21 (1976) (per curiam). We therefore reject the contention that the district court was without jurisdiction to amend the Consent Judgment.
The district court’s amendment was properly within the scope of
In this case, it is clear that the court intended the statute of limitations waiver to apply only to an action brought in Brazil. This conclusion is butressed by a review of the court’s opinion which extensively compares Brazil to New York as a forum for purposes of discovery; location of the evidence; the nature of appellant’s claims; the respective communities’ interest in the litigation; the difficulty of applying Brazilian law; the enforceability of the judgment; the fact that such a judgment would involve the court in continuous monitoring of the operations of a foreign corporation; and the minimal contacts of New York with the litigation. See Panama Processes, 500 F.Supp. at 792-99. While the court was not oblivious to the interest of Oklahoma in the litigation, see id. at 797, 799, the court focused most of its attention in weighing the factors of a forum non conveniens dismissal on Brazil as the alternative forum. It is in this context that we must view the Consent Judgment which mirrors the court’s own language as set forth in a supplemental opinion and order. See id. at 802.
Moreover, it is evident from the face of the Consent Judgment itself that the statute of limitations waiver in paragraph two refers to an action filed in Brazil as delineated in the other two paragraphs of the Judgment. In addition, the district court clearly contemplated that the case would be tried in Brazil or that the parties would return to seek reinstatement of the action in New York. This is further evidence that the district court intended the waiver of the statute of limitations to apply to a suit in Brazil. See id. at 801 (“The complaint will be dismissed on the basis of forum non conveniens, on condition that Cities consents to the jurisdiction of the Brazilian courts, and consistent with that consent, contests the issues on the merits. If it should subsequently appear that Cities has failed to abide by that condition, Panama may apply for reinstatement of the action here.” (Emphasis added)). Unlike the cases cited by the appellant, the court has not amended its order to include an afterthought. See, e.g., Briggs, 334 U.S. at 306, 68 S.Ct. at 1040 (post-judgment interest); Hoffman v. Celebrezze, 405 F.2d 833, 834 (8th Cir.1969) (deleted interest provision under
Finally, we agree with appellee that there is no bar to limiting a statute of limitations waiver to a particular forum found to be more convenient. See, e.g., Calavo, 632 F.2d at 968; Schertenleib v. Traum, 589 F.2d 1156, 1163, 1166 (2d Cir. 1978); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 449 (2d Cir.1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 781, 46 L.Ed.2d 485 (1976); Abouchalache v. Hilton International Co., 464 F.Supp. 94, 99 (S.D.N.Y. 1978), affd mem. sub nom. Collins v. Hilton International Co., 628 F.2d 1344 (2d Cir.1980).
We hold that the district court had the authority to amend the Consent Judgment under
Affirmed.