Opinion
01 Civ. 2946 (DLC), 01 Civ. 7670 (DLC).
January 20, 2005
ORDER
On August 31, 2004, this Court issued two Opinions and Orders pertaining to the above-captioned cases: one granting Bank of New York's ("BNY") motion for summary judgment with respect to the breach of contract claim brought against it by Kingdom 5-KR-41, Ltd. ("Kingdom"), and the other granting the motion of Star Cruises PLC and Arrasas Ltd. (collectively "Star") for summary judgment with respect to the unjust enrichment claim brought against Star by Kingdom. Having granted these two motions, this Court also issued an August 31 Order dismissing four other motions, including Star's motion for summary judgment regarding BNY's cross-claims against Star and NCL's motion for summary judgment with respect to BNY's third-party claims against it, as moot. Both of the above-captioned cases were closed by the Clerk of Court on September 10, 2004. On September 8, 2004, this Court endorsed Star's motion for summary judgment against BNY in 01 Civ. 2946, indicating that the motion had been granted despite having already dismissed the motion as moot. Pursuant to this memo endorsement, on September 15, the Clerk of Court granted Star's motion for summary judgment as against BNY.
On September 24, 2004, BNY moved, pursuant to Fed.R.Civ.P. 59(e) and/or 60, to alter or amend the above-described judgments on the grounds that this Court overlooked BNY's non-contingent claims "affirmatively seeking damages suffered directly by the Bank as a result of the wrongful conduct" of Star and NCL. Given this, BNY argues that this Court neither intended to close the above-captioned cases nor meant to grant Star's motion for summary judgment as against BNY.
In opposition to the instant motion, Star and NCL refute BNY's characterization of the Court's closing of the cases, asserting that "[t]he Court, in closing these cases, obviously agreed" with the positions taken by Star and NCL in their motions for summary judgment. Star and NCL concede that NCL did not move for summary judgment on BNY's contractual indemnification claim against NCL to the extent that BNY prevailed in its dispute with Kingdom. They assert, however, that if this Court amends its prior judgments to enable BNY to pursue its contractual indemnification claim against NCL, Star and NCL should also be allowed to pursue a contractual indemnification claim against BNY. For its part, Kingdom "takes no position with respect to [BNY's] motion" but requests that if the Court revives any of BNY's third-party claims or cross-claims, "the Court should enter a partial final judgment against Kingdom pursuant to Fed.R.Civ.P. 54(b) so as to permit Kingdom to pursue, without further delay, its appeal of the Court's dismissal of all Kingdom's claims in this action."
Rule 59(e) "does not prescribe specific grounds for granting a motion to alter or amend an otherwise final judgment." Munafo v. Metro. Transit Auth., 381 F.3d 99, 105 (2d Cir. 2004). Within the Second Circuit, "district courts may alter or amend judgment to correct a clear error of law or prevent manifest injustice." Id. (citation omitted). Rule 59(e) also allows courts to "rectify their own mistakes in the period immediately following entry of judgment." White v. Dep't of Employment Sec., 455 U.S. 445, 450 (1982).
With respect to BNY's cross-claims against Star, BNY is correct that this Court overlooked BNY's non-contingent claims for damages stemming from Star's allegedly wrongful conduct. Therefore, it is hereby
ORDERED that BNY's motion for reconsideration is granted; that 01 Civ. 2946 and 01 Civ. 7670 are reopened; that any rulings in 01 Civ. 2946 will continue to govern any parallel motions made in 01 Civ. 7670, as has been the custom in this litigation; and that the September 8, 2004 endorsement of Star's motion for summary judgment against BNY in 01 Civ. 2946 is vacated.
In seeking to revive its cross-claims against Star, BNY has not identified in either its moving brief or its reply what damages it seeks other than attorneys' fees and costs. Nor did BNY, in its opposition to Star's summary judgment motion in 01 Civ. 2946 and to Star and NCL's summary judgment motion in 01 Civ. 7670, explain what damages, aside from attorneys' fees and costs, it is seeking from Star.
In its bid for attorneys' fees and costs, BNY relies on the "tort of another" exception to the traditional American rule, under which each party must bear his own costs. The "tort of another" exception provides that a party is entitled to recover "reasonable compensation for loss of time, attorneys fees, and other expenditures thereby suffered or incurred," where such party, as the result of another's tort, "has been required to act in the protection of his interests by bringing or defending an action against a third person." See Restatement (Second) of Torts § 914 (1979). The "tort of another" exception, however, does not apply where "it appears that a defendant, in part at least, is defending himself against claims of his own wrongdoing." Greene v. Emersons Ltd., NO. 76 Civ. 2178-CSH, 1985 WL 1989, at *2 (S.D.N.Y. June 28, 1985). Given this,
IT IS FURTHER ORDERED that Star's motion for summary judgment on BNY's fraudulent concealment and negligent misrepresentation cross-claims is granted to the extent that BNY seeks attorneys' fees and costs under the "tort of another" doctrine, and that the remainder of the motion is dismissed as moot.
BNY is also correct that this Court overlooked BNY's non-contingent claims for damages stemming from NCL's allegedly wrongful conduct. Again, however, BNY has failed to specify, either through its submissions in the instant motion or in its opposition to NCL's motion for summary judgment in 01 Civ. 2946 and to Star and NCL's joint motion for summary judgment in 01 Civ. 7670, what kind of damages it seeks from NCL aside from attorneys' fees and costs. In its opposition to NCL's summary judgment motion, BNY incorporated by reference arguments made in opposition to Star's summary judgment motion. At least one of the pages of BNY's opposition to Star's motion for summary judgment that BNY incorporated in its opposition to NCL's summary judgment motion mentions BNY's intent to seek non-contingent damages, including attorneys' costs and fees, from Star due to Star's wrongful conduct. Therefore,
IT IS FURTHER ORDERED that to the extent that BNY seeks damages from NCL under the "tort of another" exception, NCL's motion for summary judgment in 01 Civ. 2946 is granted, and that the remainder of the motion is dismissed as moot.
BNY's opposition to NCL's summary judgment motion, however, explicitly preserved its claim for attorneys' fees and costs in its discussion of its contractual indemnification claim against NCL. BNY contends its contractual indemnification claim against NCL, which is premised on Section 5.08 of the Deposit Agreement, should survive even though Kingdom's claims against BNY were entirely dismissed. Having found unpersuasive BNY's argument that the August 31 Opinions necessarily moot NCL's own contractual indemnification claim against BNY,
IT IS FURTHER ORDERED that NCL's countermotion under Rule 60(b), Fed.R.Civ.P., to revive its contractual indemnification claim is also granted.
In the hope that BNY and NCL can resolve their claims for indemnification against one another, BNY and NCL are directed immediately to contact Magistrate Judge Kevin Nathaniel Fox, to whom these cases were previously referred, to schedule settlement discussions. If these discussions do not produce a settlement,
IT IS FURTHER ORDERED that the following schedule will govern BNY and NCL's cross-motions for summary judgment on their contractual indemnification claims:
— BNY's motion in support of summary judgment shall be due on March 4, 2005;
— NCL's opposition and cross motion shall be due on March 25;
— BNY's reply and opposition to NCL's cross-motion shall be due on April 15; and
— NCL's reply shall be due on April 22.
In a related vein,
IT IS FURTHER ORDERED that NCL's request for additional discovery is denied.
To the extent that BNY is found following this motion practice to have a right to recover attorneys' fees and costs, NCL's application for discovery as to the "reasonableness" of those fees may be renewed at that time. Additionally, to the extent that any party believes that this Order overlooks or misconstrues any issues raised within their briefs on the Rules 59(e) and 60 motion or to the extent that a party objects to the schedule set herein,
IT IS FURTHER ORDERED that such party should send a letter of no more than two pages to this Court within five days.
Finally, Kingdom's request for a partial final judgment under Fed.R.Civ.P. 54(b) must be considered "in light of the goal of judicial economy as served by the `historic federal policy against piecemeal appeals.'" O'Bert ex rel. Estate of O'Bert v. Vargo, 331 F.3d 29, 41 (2d Cir. 2003) (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980)). As the Second Circuit has recently noted, courts' power to enter a partial final judgment should "be exercised sparingly," and a partial final judgment should be "granted only if there exists some danger of hardship or injustice through delay which would be alleviated by immediate appeal."Vargo, 331 F.2d at 41 (citation omitted). Kingdom has not shown that it would suffer any hardship or injustice that would necessitate an immediate appeal; accordingly,
IT IS FURTHER ORDERED that Kingdom's request for a partial final judgment pursuant to Rule 54(b) is denied.
SO ORDERED.