STEMCOR USA INCORPORATED v. CIA SIDERURGICA DO PARA COSIPAR, ET AL.; DAEWOO INTERNATIONAL CORPORATION v. THYSSENKRUPP MANNEX GMBH; AMERICA METALS TRADING L.L.P., ET AL.
No. 16-30984
United States Court of Appeals, Fifth Circuit
July 11, 2018
Appeal from the United States District Court for the Eastern District of Louisiana
Before HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.
We grant Intervenor Plaintiff-Appellees’ Motion for Panel Rehearing and deny the Motion For Rehearing En Banc. We withdraw the prior opinion, 870 F.3d 370 (5th Cir. 2017), and substitute the following.
This case is a dispute between two creditors, each of which attached the same pig iron owned by America Metals Trading L.L.P. (“AMT“). Plaintiff-Appellant Daewoo International Corp. (“Daewoo“) sued AMT in the Eastern District of Louisiana, seeking an order compelling AMT to arbitrate and an attachment of the pig iron. Daewoo invoked both maritime attachment and the Louisiana non-resident attachment statute, which allows attachments in aid of any “action for a money judgment.”
The district court agreed with TKM and vacated Daewoo‘s attachment. Specifically, the district court found that because Daewoo‘s underlying suit sought to compel arbitration, it was not an “action for a money judgment” and therefore Daewoo could not receive a non-resident attachment writ. Daewoo appeals only the district court‘s conclusion that its Louisiana non-resident attachment writ was invalid. We affirm on slightly different grounds.
I
Daewoo is a South Korean trading company. In May 2012, Daewoo entered into a series of contracts with AMT for the purchase of pig iron, to be delivered in New Orleans. The sale contracts contained arbitration clauses. Although Daewoo made payments under the contracts, AMT never shipped the pig iron. TKM is a German company. Between June 2010 and February 2011, TKM entered into six contracts to purchase pig iron from AMT. AMT never delivered. In response to the breach of contract, TKM and AMT negotiated a
On December 14, 2012, Daewoo filed suit in the Eastern District of Louisiana, seeking attachment of AMT‘s pig iron on board the M/V Clipper Kasashio, and asserting maritime jurisdiction. The district court issued the attachment. On December 21, Daewoo amended its complaint to seek a writ of attachment under the Louisiana non-resident attachment statute. The writ was granted. On December 22, the U.S. Marshals Service served Daewoo‘s writ on the cargo, which was then anchored in Kenner Bend.
On December 28, 2012, TKM filed suit in Jefferson Parish state court seeking a writ of attachment over the same pig iron that Daewoo attached on December 22. TKM‘s state court writ of attachment was served on the cargo on December 29, 2012. TKM then moved to intervene in Daewoo‘s federal suit. TKM sought a federal writ of attachment over the pig iron, which was granted and served on the cargo on January 11.
That same day, all of the parties moved in federal court to sell the pig iron. The court approved the sale. The parties agreed that the proceeds of the sale would serve as substitute res, subject to TKM‘s jurisdictional attack on the federal attachments.
On May 9, 2016, TKM moved to vacate Daewoo‘s attachment.1 The district court agreed with TKM and vacated Daewoo‘s writ on August 4, 2016. With Daewoo‘s federal writ vacated, the first valid remaining writ was TKM‘s state court writ. Accordingly, the district court ordered that the proceeds from the pig-iron sale be transferred to the Jefferson Parish state court. On August 10, Daewoo moved to stay the district court‘s order, arguing that “[i]n the event that Daewoo‘s appeal is successful it would be difficult to retrieve the funds from the state court, assuming the state court has not already dispersed the funds, and would create serious issues of federal-state comity.” The district court denied the stay request because it was filed after the district court had sent the money to the Jefferson Parish state court.
II
The district court found federal subject matter jurisdiction under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “Convention“). We agree.
For a federal court to have jurisdiction under the Convention two requirements must be met: (1) there must be an arbitration agreement or award that falls under the Convention, and (2) the dispute must relate to that arbitration agreement. These requirements flow from the text of two sections of the Convention. The explicit jurisdictional provision is Section 203, which gives federal courts jurisdiction over all “action[s] or proceeding[s] falling under the Convention.”
This two-step jurisdictional inquiry is consistent with case law interpreting the Convention. See, e.g., BP Expl. Libya Ltd. v. ExxonMobil Libya Ltd., 689 F.3d 481, 487 & n.4 (5th Cir. 2012) (finding jurisdiction where there was a covered arbitration agreement and the suit sought appointment of arbitrators); Borden, Inc. v. Meiji Milk Prods. Co., 919 F.2d 822, 826 (2d Cir. 1990) (holding that jurisdiction over preliminary injunction in aid of covered arbitration was proper because the remedy sought did not try to “bypass arbitration“); Sunkyong Eng‘g & Const. Co. v. Born, Inc., 149 F.3d 1174, 1998 WL 413537, at *5 (5th Cir. 1998) (unpublished) (“The FAA grants the United States district courts original federal question jurisdiction over arbitral awards and agreements to arbitrate that fall within the Convention.“); Venconsul N.V. v. Tim Int‘l. N.V., 03Civ.5387(LTS)(MHD), 2003 WL 21804833, at *3 (S.D.N.Y. Aug. 6, 2003) (”Borden has been interpreted as recognizing a court‘s power to entertain requests for provisional remedies in aid of arbitration even where the request for remedies does not accompany a motion to compel arbitration or to confirm an award.“).
Both jurisdictional requirements are met here. First, Daewoo‘s arbitration agreements with AMT are covered by the Convention. For an arbitration agreement to be covered by the Convention, four requirements must be met: (1) there must be an agreement in writing to arbitrate the dispute; (2) the agreement must provide for arbitration in the territory of a Convention signatory; (3) the agreement to arbitrate must arise out of a commercial legal relationship; and (4) at least one party to the agreement must not be an American citizen. See Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327, 339 (5th Cir. 2004); Sunkyong, 149 F.3d 1174, 1998 WL 413537, at *5; Sedco, Inc. v. Petroleos Mexicanos Mexican Nat‘l Oil Co. (Pemex), 767 F.2d 1140, 1144–45 (5th Cir. 1985). All four requirements are met here:
- There is an agreement in writing to arbitrate Daewoo and AMT‘s dispute.
- That agreement provides for arbitration in New York, and the United States is a signatory to the Convention.
-
The agreement arises out of a commercial relationship between Daewoo and AMT. - Both Daewoo and AMT are not American citizens.
Second, this suit is related to the AMT arbitration agreements because Daewoo seeks an attachment to facilitate the arbitration provided for in the AMT agreements. See Borden, 919 F.2d at 826 (“[T]he desire for speedy decisions in arbitration is entirely consistent with a desire to make as effective as possible recovery upon awards, after they have been made, which is what provisional remedies do.” (internal quotation marks and citation omitted)). Our decision in E.A.S.T., Inc. of Stamford v. M/V Alaia, 876 F.2d 1168 (5th Cir. 1989), strongly counsels towards recognizing subject matter jurisdiction based on the Convention to issue provisional remedies in aid of arbitration.2 The court in E.A.S.T., albeit in the context of a maritime attachment, found that the “the arrest of a vessel prior to arbitration is not inconsistent with the Convention.” Id. at 1173. And the court noted that the Convention “does not expressly forbid pre-arbitration attachment” and that pre-arbitration attachment “may ‘serve[] . . . as a security device in aid of arbitration.” Id. (alteration in original) (quoting Atlas Chartering Servs., Inc. v. World Trade
Grp., Inc., 453 F. Supp. 861, 863 (S.D.N.Y. 1978)).
Indeed, E.A.S.T.‘s reasoning mirrors the reasoning of courts that have found subject matter jurisdiction under the Convention to order state-law provisional remedies. Like the court in E.A.S.T., those courts reason that “nothing in the Convention divests federal courts of jurisdiction to issue provisional remedies . . . such as an attachment, when appropriate in international arbitrations.” Bahrain Telecomms. Co. v. Discoverytel, Inc., 476 F. Supp. 2d 176, 181 (D. Conn. 2007); see also China Nat‘l Metal Prods. Imp./Exp. Co. v. Apex Dig., Inc., 155 F. Supp. 2d 1174, 1180 (C.D. Cal. 2001) (“Rather than conflicting with
Applying E.A.S.T. and the cases that follow it, the Convention grants jurisdiction over Daewoo‘s request for an attachment. Like the plaintiff in E.A.S.T., Daewoo sought to attach the pig iron in order to facilitate arbitration and increase its chance of recovering on any award. Because Daewoo sought attachment to bring about a covered arbitration—that is, because Daewoo‘s suit related to a covered arbitration agreement—this court has subject matter jurisdiction.4
III
The parties dispute whether Louisiana‘s non-resident attachment statute allows for attachment in aid of arbitration. The district court held that it does not. With great respect for the district court, and cognizant of the lack of instructional case law and limited briefing on this issue below, we decline to adopt a categorical approach to this question. Louisiana‘s non-resident attachment statute allows for attachment in aid of suits to confirm monetary arbitration awards. Moreover, because Louisiana law allows for attachment in aid of yet-to-be-brought actions, non-resident attachment may be available in aid of arbitration when an eventual confirmation suit is contemplated. Nevertheless, we affirm the district court‘s vacatur because Daewoo did not strictly comply with the attachment statute‘s procedural requirements.
As always, statutory interpretation begins with “the plain language and structure of the statute.” Coserv Ltd. Liab. Corp. v. Sw. Bell Tel. Co., 350 F.3d 482, 486 (5th Cir. 2003); see also Arabie v. CITGO Petroleum Corp., 89 So. 3d 307, 312 (La. 2012) (“[A]ccording to the general
Louisiana case law supports this interpretation. In de Lavergne v. de Lavergne, 244 So. 2d 698 (La. App. 4th Cir. 1971), a Louisiana court of appeals was asked to decide whether a suit for alimony was an “action for a money judgment” within the meaning of Article 3542. The court concluded that it was, reasoning:
A proceeding for alimony is a suit for judgment ordering the payment of money just as any other suit which has for its object the recovery of money in damages or in enforcement of any obligation to pay a sum of money whether liquidated or not. The difference is that in a judgment ordering the payment of a sum of money as alimony or for child support in addition to the ordinary remedies available to the judgment creditor for execution, there is the additional remedy of a contempt proceeding and the imposition of a penalty for noncompliance with the court‘s order. We must reject the argument of appellants that the additional remedy makes the action something other than one for a money judgment.
Id. at 704. The de Lavergne court‘s analysis aligns with the plain meaning of Article 3542. That is, the de Lavergne court first asked whether a suit for alimony sought an order compelling the payment of money. Id. Noting, however, that an alimony suit allowed for more than just a payment of money—because an alimony proceeding allowed “the additional remedy of a contempt proceeding and the imposition of a penalty for noncompliance with the court‘s order“—the court asked whether the additional remedy converted alimony into “something other” than an action “for a money judgment.” Id. The court concluded that it did not because the additional contempt remedy was intended to make the money judgment more effective. Id.
And other sections of Louisiana law that refer to money judgments have similarly been interpreted to refer to judicial proceedings seeking judgments of money damages. See Flowers v. S. Reg‘l Physician Servs. Inc., 247 F.3d 229, 233 n.4 (5th Cir. 2001) (“[A]s a matter of statutory interpretation, in determining the meaning of a particular statutory provision, it is helpful to consider the interpretation of other statutory provisions that employ the same or similar language.“). For example, Civil Code Article 3501 sets forth the prescriptive period for “money judgments“: “A money judgment rendered by a trial court of this state is prescribed by the lapse of ten years . . . .” Courts interpreting Article 3501 have found that orders for “the payment of a sum of money” are money judgments, see, e.g., Eikert v. Beebe, 188 So. 3d 1129, 1131 (La. App. 2d Cir. 2016), but that orders directing a party to take an action are not money judgments, see, e.g., Liquidator of Clinton & P.H.R. Co. v. Whitaker, 22 La. Ann. 209, 209 (1870) (“The judgment directs the liquidator to discharge a duty attached to his office. It is not a money judgment.“); Williams v. Perry, 436 So. 2d 1268, 1269 (La. App. 1st Cir. 1983) (judgment of partition is not a money judgment). Courts interpreting Code of Civil Procedure Article 2291 have similarly defined “money judgment.” Article 2291 provides “[a] judgment for the payment of money may be executed by a writ of fieri facias directing the seizure and sale of property of the judgment debtor.” The Article has been interpreted to distinguish between orders for the payment of money and orders directing a party to take an action. See, e.g., Madere v. Madere, 660 So. 2d 1205, 1205 (La. 1995) (order of partition “did not create” a money judgment); Lindy Invs., III, L.P. v. Shakertown Corp., 631 F. Supp. 2d 815, 821 & n.13 (E.D. La. 2008) (suit seeking declaration that condition precedent for payment was met was not a suit for money judgment).
Based on this definition of “action for a money judgment,” we agree with the district court that a suit to compel arbitration (like this suit) is not directly an action for a money judgment. A motion to compel arbitration seeks an order requiring a party to take an action—namely, to arbitrate the dispute. Accordingly, a suit seeking to compel arbitration is not an “action for a money judgment,” and Daewoo‘s suit seeking to compel arbitration cannot underlie a Louisiana non-resident attachment writ. On the arguments raised by Daewoo, its appeal ends here.
We further take the opportunity to note that Louisiana law provides, in limited circumstances, that an attachment may issue before the suit underlying the attachment is filed. Article 3502 of the Louisiana Code of Civil Procedure provides:
A writ of attachment . . . may issue before the petition is filed, if the plaintiff obtains leave of court and furnishes the affidavit and security provided in Article 3501. In such a case the petition shall be filed on the first judicial day after the issuance of the writ of attachment . . . unless for good cause shown the court grants a longer delay.
Article 3502 allows for the possibility of attachments in suits like this one. In Louisiana, arbitral awards are convertible into money judgments in confirmation proceedings. See, e.g., Matherne v. TWH Holdings, L.L.C., 136 So. 3d 854, 860 (La. App. 1st Cir. 2013) (“A confirmed arbitration award is considered to be a valid and final judgment for purposes of res judicata.“);
requirements of Article 3502 and (2) shows good cause for a pre-petition attachment, which will usually require showing that arbitration is likely to result in a confirmation suit and also showing a need for an immediate attachment (which may include an inquiry into the imminence of the arbitration or confirmation suit).
Although Daewoo‘s briefs did not rely on Article 3502 as a reason to reverse the district court, our independent review of the record confirms that Daewoo did not satisfy step one. Because attachment is a “harsh” remedy, the Louisiana statutes “providing for a Writ of Attachment . . . must be strictly and literally complied with.” Barnett Marine, Inc. v. Van Den Adel, 694 So. 2d 453, 458 (La. App. 5th Cir. 1997); accord Yorkwood Sav. & Loan Ass‘n v. Thomas, 379 So. 2d 798, 799 (La. App. 4th Cir. 1980). Failure to do so renders a granted writ a “nullity.” Lee v. Lee, 38 So. 2d 66, 69 (La. 1948). The record does not disclose that Daewoo strictly and literally complied with Article 3502‘s requirements. We see no indication that Daewoo invoked Article 3502 when it sought a writ, that the district court granted Daewoo permission to file a petition on “the first judicial day after the issuance of the writ,” or that the district court made the good-cause finding to permit a later filing.
Although Article 3502 allows parties to seek an Article 3542 attachment before commencing confirmation proceedings,
We AFFIRM.
JAMES E. GRAVES, JR., Circuit Judge, dissenting:
I would conclude that the underlying action seeking to compel arbitration here is clearly an “action for a money judgment” under Louisiana‘s non-resident attachment statute. See
As the majority acknowledges, Daewoo has made it clear from the outset that it would be pursuing a money judgment. The “nature, character, or origin of the claim” just happens to be arbitration.
Rather than properly concluding that the district court erred, the majority instead concludes that “[t]he record does not disclose that Daewoo
strictly and literally complied with Article 3502‘s requirements.” Saying, “[w]e see no indication that Daewoo invoked Article 3502 when it sought a writ, that the district court granted Daewoo permission to file a petition ‘on the first judicial day after the issuance of the writ,’ or that the district court made the good-cause finding to permit a later filing.
Notwithstanding the lack of exceptional circumstances, I disagree with the majority‘s analysis of and conclusion that Daewoo failed to comply with the procedural requirements of Article 3502 of the Louisiana Code of Civil Procedure. As Daewoo asserts in its response to the petition for rehearing, the statute allows the court to grant a longer delay and Daewoo‘s application was based on an affidavit stating that it would be filing for arbitration within 30 days. Additionally, as Daewoo asserts, longstanding Louisiana law permits only the party whose assets were attached to raise procedural challenges to the attachment.
In Gilkerson-Sloss Commission Co. v. Bond, 11 So. 220 (La. 1892)2, the Supreme Court of Louisiana said:
On the first point urged by the interveners it is elementary that in an attachment suit the intervener will not be permitted to urge defenses personal to the defendants. The formality and regularity of the proceedings, the rightful issuing of the attachment, in the absence of fraud and collusion between plaintiff and defendants, are matters pertaining exclusively to the
defendant. The intervener is limited to the assertion of his own rights, to show that the property attached is his; that he has a superior privilege on it, or, as alleged in this case, the plaintiffs and defendants perpetrated a fraud in the issuing of the attachment in order to defeat his pursuit of the property. He has nothing to do with the irregularity of the affidavit, the insufficiency of the attachment bond, and other irregularities in the proceedings.
Id. at 221. See also Gen‘l Motors Acceptance Corp. v. Jordan, 65 So. 2d 627 (La. Ct. App. 1st Cir. 1953) (“All of o[u]r jurisprudence on this point shows a long standing and well-defined rule that an intervenor must take the case as he finds it, and he is not allowed to retard the progress of the main action.“). Id. at 629; Fleming v. Shields, 21 La. Ann. 118, 119-20 (1869) (“In the absence of fraud and collusion, the intervenor will not be permitted to urge defenses which are personal to the defendant.“); and West v. His Creditors, 8 Rob. 123, 128 (La. 1844) (“An intervenor who claims property in controversy between other parties, cannot interfere therein any further than to prove his right to the property. He cannot contest the plaintiff‘s claim against the defendant, nor urge any irregularities in the suit.“). This court, in Berger v. First Federal Savings and Loan Association of Warner Robbins, Ga., 824 F.2d 400, 402 (5th Cir. 1987), recognized the holding from Gilkerson-Sloss, cited above, that “wrongful attachment may not be raised by intervenor.” Also, in Fisher v. Jordan, 116 F.2d 183, 185 (5th Cir. 1940), this court prohibited such a collateral attack on an attachment.
The majority does not conclude that there was fraud and collusion here, and the cases cited by the majority are easily distinguished. In Barnett Marine, Inc. v. Van Den Adel, 694 So. 2d 453, 458 (La. App. 5th Cir. 1997), the matter involved the defendants whose assets were attached, not an intervenor. The majority also cites Yorkwood Sav. & Loan Ass‘n v. Thomas, 379 So. 2d 798, 799 (La. App. 4th Cir. 1980), and Lee v. Lee, 38 So. 2d 66, 69 (La. 1948), but, again, those cases did not involve an intervenor. The majority argues that Daewoo somehow forfeited the right to rebut any argument that it did not procedurally comply with Article 3502 even though TKM waived the very issue of Daewoo‘s procedural compliance by never raising it. That argument is illogical. The majority offers no authority for its statement that “forfeiture principles also work against the dissent‘s contention that ‘Louisiana law permits only the party whose assets were attached to raise procedural challenges to the attachment.‘” Instead, the majority concedes that “[t]his argument implicates statutory, not constitutional, standing” and then cites Board of Mississippi Levee Commissioners v. Environmental Protection Agency, 674 F.3d 409, 417 (5th Cir. 2012), for the proposition that, “[u]nlike constitutional standing, prudential standing arguments may be
Regardless, Daewoo did not fail to raise any constitutional or procedural argument in its initial brief. Daewoo also did not raise any new issue in its reply brief. Instead, Daewoo merely provided additional authority regarding the issues it raised in its initial brief. Moreover, Daewoo was not aware of its need to address TKM‘s lack of standing to raise a procedural challenge to the attachment as the dispositive issue until the majority decided the appeal on
this procedural issue rather than the issues actually raised or decided in the district court. This is particularly so when TKM still maintains that it is not challenging whether Daewoo complied with the procedural requirements.
TKM asserts on rehearing that the standing argument is “undiscerning” and argues that the language from Gilkerson “that he has a superior privilege,” quoted above, gives it standing to raise a procedural challenge to the attachment. Gilkerson-Sloss, 11 So. At 221. Notwithstanding that the referenced language in no way confers standing to raise a procedural challenge to Daewoo‘s attachment, TKM then asserts that, under Fleming, it is not asserting a procedural irregularity. Instead, TKM argues that it is attacking the “very availability of an Article 3541 attachment” because the action “is not for a money judgment.”4 However, as the majority concedes, this is an action for which article 3541 attachment is proper, thus, TKM‘s argument is defeated. Further, like the majority, TKM fails to distinguish any of the cases on point and does not argue there was fraud and collusion.
For these reasons, I would vacate the judgment of the district court and remand. Accordingly, I respectfully dissent.
Notes
subject matter. Any error in granting or designing relief does not go to the jurisdiction of the court. CRT Capital Grp. v. SLS Capital, S.A., 63 F. Supp. 3d 367, 374–75 (S.D.N.Y. 2014) (internal quotations marks, citations, and alterations omitted). Simply put, the question of what remedies are available in a Convention suit is distinct from the question of jurisdiction. The majority also cites various other cases to support its propositions that “constitutional standing, unlike statutory standing, is unwaivable” and that this court should decline to address the merits of a constitutional argument not raised in the initial brief. See Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787 (5th Cir. 2011); see also Flex Frac Logistics, L.L.C. v. N.L.R.B., 746 F.3d 205, 208 (5th Cir. 2014); and United States v. Scroggins, 599 F.3d 433 (5th Cir. 2010). But none of these cases address the issue which is raised here.[n]othing in § 206 or § 207 limits the subject matter jurisdiction of federal courts. These sections merely identify the remedies that federal courts may grant, and do not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts. . . . To grant the remedies provided in those sections, the Court must first determine that it has jurisdiction ....
Treating §§ 206 and 207 as jurisdictional provisions confuses the subject matter jurisdiction of federal courts with their remedial authority. Although jurisdiction is a word of many . . . meanings, there is a difference between the two. The nature of the relief available after jurisdiction attaches is, of course, different from the question whether there is jurisdiction to adjudicate the controversy . . . . The breadth or narrowness of the relief which may be granted under federal law . . . is a distinct question from whether the court has jurisdiction over the parties and the