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DHL Project & Chartering Ltd. v. Newlead Holding Ltd.

United States District Court, S.D. Georgia, Savannah Division

September 13, 2017

DHL PROJECT & CHARTERING LIMITED, Plaintiff,
v.
NEWLEAD HOLDINGS LTD.; NEWLEAD SHIPPING S.A.; NEWLEAD BULKERS S.A.; NEWLEAD CASTELLANO LTD.; GRAND VENETICO INC.; and NEWLEAD VENETICO LTD., Defendants.

          ORDER

          J.RANDAL HALL, CHIEF JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA

         Before the Court is Plaintiff DHL Project & Chartering Limited's ("DHL") Motion for Reconsideration of Vacatur of Attachment and to Reinstate Attachment in Reduced Amount. (Doc. 27.) After a careful review of the relevant filings and law and the evidence properly before the Court, DHL's motion is DENIED.

         I. BACKGROUND [1]

         On May 25, 2016, upon the filing of DHL's verified complaint in the present action, the Court entered an order directing the issuance of process for maritime attachment and garnishment of the M/V Newlead Castellano, IMO No. 9686338 (the "Vessel") . (Docs. 1, 2.) On October 14, 2016, Ray Capital Inc., Oppenheim Capital Ltd., Cheyenne Holdings Ltd., and Labroy Shiptrade Limited (collectively, the "Interested Parties") filed a motion to vacate DHL's attachment pursuant to Rule E(4) (f) of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure, which the Court granted on November 18, 2016. (Docs. 16, 24.) In addition to vacating the Order directing the issuance of process of martitime attachment and garnishment of the Vessel, the Court ordered DHL to show cause by no later than December 5, 2016 as to why the present case should not be dismissed for lack of jurisdiction. (Doc. 24, at 15.) On December 5, 2016, DHL filed its present motion for reconsideration.

         Subsequent to the Court's vacatur of DHL's attachment of the Vessel, there have been several developments worthy of mention. First, on December 1, 2016, DHL and non-party Zheijiang Materials Industry Fuel Group Co., Ltd. (the "Sub-Charterer") entered into a "confidential settlement agreement" whereby, inter alia, DHL is obligated to the Sub-Charterer in the amount of $250, 000.00.[2] (Doc. 27-1, ¶¶ 14(c), 24.) Second, on February 22, 2017, DHL filed a "Motion for Entry of Final Judgment, " wherein it states that it has entered into a settlement agreement dated February 17, 2017 (the "Settlement Agreement") with Defendant Newlead Castellano Ltd. ("NCL") with regards to the claims made by DHL in the instant action, whereby, inter alia, NCL is obligated to DHL in the amount of $2, 371, 491.15 and has consented to the personal jurisdiction of this Court.[3] (Doc. 33; see also Settlement Agreement, Ray Capital lnc.f et al. v. M/V Newlead Castellano, IMO No. 9686338, et al., Case No. 4:16-CV-093 (S.D. Ga.) (the "Ray Action"), Doc. 118-1 at 4-14, ¶¶ 2 & 2(C); Power Decl., Ray Action, Doc. 118-1 at 1-2, ¶ 2.) Third, on March 20, 2017, the Court granted summary judgment in favor of the Interested Parties in the Ray Action and ordered NCL to show cause as to why its counterclaim for wrongful arrest against the Interested Parties should not be dismissed. (Ray Action, Doc. 116.) Fourth, On March 30, 2017, DHL filed a renewed motion to intervene in the Ray Action, which includes a response to the Court's order to show cause originally directed at NCL as well as a request that the Court reconsider its grant of summary judgment in favor of the Interested Parties. (Ray Action, Doc. 118.) Finally, on July 6, 2017, the United States Court of Appeals for the Eleventh Circuit issued its mandate vacating this Court's Order denying DHL's intervention in the Ray Action and "remand[ed] the case to [this Court] to proceed as it sees fit in light of the current status of the case." (Ray Action, Doc. 126, at 3; Ray Action, Doc. 127.)

         II. DISCUSSION

         A party may seek to alter or amend a judgment in a civil case within twenty-eight days after the entry of the judgment.[4]Fed. R. Civ. P. 59(e). Because reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly, a movant must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. Bostic v. Astrue, No. 1:12-CV-082, 2012 WL 3113942, at *1 (S.D. Ga. July 31, 2012). A Rule 59(e) motion may not be used "to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment, '' as "the only grounds for granting a Rule 59(e) motion are newly-discovered evidence or manifest errors of law or fact." Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (quotations omitted). "Rule 59(e) is not a vehicle for rehashing arguments already rejected by the court or for refuting the court's prior decision." Bostic, 2012 WL 3113942, at *1 (quoting Wendy's Int'l v. Nu-Cape Const., Inc., 169 F.R.D. 680, 686 (M.D. Ga. 1996)).

         Here, DHL has failed to demonstrate newly discovered evidence, manifest errors of law or fact, or any other reason that would justify a finding that the Court should amend, alter, or otherwise grant DHL relief from the Order vacating DHL's attachment of the Vessel and its substitute res. Because all of the "new developments of fact" upon which DHL relies concern post-attachment developments (see Doc. 27, at 5-6), they are not valid bases for reinstating the attachment. See Dannebrog Rederi AS v. M/Y True Dream, 146 F.Supp.2d 1307, 1311 (S.D. Fla. 2001) (In determining whether a writ of attachment under Rule B should issue, "[t]he court's inquiry must focus on the facts known at the time of the attachment." (citing W. Bulk Carriers (Australia), Pty. Ltd. v. P.S. IntTl, Ltd., 762 F.Supp. 1302, 1307 (S.D. Ohio 1991))); see also Transamerica Leasing Inc. v. Amazonica, No. 97-0556-CB-S, 1997 WL 834554, at *2 (S.D. Ala. June 26, 1997) ("When a defendant challenges the validity of an attachment, the burden is on the plaintiff to prove there was reasonable grounds for issuing the writ. In making its determination on this issue, the Court's inquiry must focus on the facts known at the time of the attachment." (citations omitted)); but c. f. Linea Naviera de Cabotaje, C.A. v. Mar Caribe de Navigacion, C.A., 1999 WL 33218589, at *4 (M.D. Fla. Nov. 17, 1999) (courts may consider evidence presented at post-arrest hearing that was not presented at time of original arrest to determine whether reasonable grounds existed to arrest vessel) .

         Furthermore, DHL's assertion that the Court erred in finding that DHL failed to demonstrate a valid prima facie admiralty claim against Defendants is nothing more than a thinly-veiled attempt to refute the Court's reasoning for vacating its attachment and to rehash DHL's previously-rejected arguments. (Compare Doc. 21, at 8-10; with Doc. 27, at 5-6.) Indeed, the Court has already heard, thoroughly considered, and rejected the very argument DHL now raises; while DHL argues that its complaint alleges a direct - as opposed to contingent -breach of contract claim against the relevant Defendants, [5] the paragraphs of its complaint on which it relies[6] for such argument are the exact paragraphs that this Court explicitly found to state only a contingent breach of contract claim for which attachment under Rule B is not available.[7] (See Doc. 24, at 9-15.) In sum, because "a claim for indemnity does not accrue until a plaintiff has actually made a payment to the third party" under English law[8] and DHL had not made a payment to the Sub-Charterer nor alleged a direct breach of contract claim against Defendants at the time it sought attachment, DHL's claims against Defendants were unripe and vacatur of DHL's attachment was proper. See Bottiglieri Pi Navigazione SPA v. Tradeline LLC, 293 F.App'x 36, 37 (2d Cir. 2008) (upholding vacatur of attachment where plaintiff's indemnity claim was unripe under English law because plaintiff had yet to incur liability to third party); see also Blue Whale Corp. v. Grand China Shipping Dev. Co., 722 F.3d 488, 495 (2d Cir. 2013) ("Admiralty law provides the remedy; substantive law defines the right to the remedy. Assessing the prima facie validity of a claim is a substantive inquiry that should be governed by the relevant substantive law. By contrast, whether a claim sounds in admiralty is a procedural question, the answer to which supplies the source of a court's subject matter jurisdiction."). DHL therefore has failed to demonstrate any error in the Court's Order vacating attachment that would affect that ruling or otherwise necessitate its reversal.[9]

         III. CONCLUSION

         Upon the foregoing and due consideration, DHL's Motion for Reconsideration of Vacatur of Attachment and to Reinstate Attachment in Reduced Amount (doc. 27) is DENIED. Moreover, the Court continues to have serious concerns regarding its jurisdiction over the present case. Accordingly, DHL shall show cause by no later than Friday, September 29, 2017, why DHL's claims against Defendants Newlead Shipping S.A., Newlead Castellano Ltd., Grand Venetico Inc., and Newlead Venetico Ltd. should not be dismissed for lack of jurisdiction.[10]

         ORDER ENTERED.

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