Mendes Junior Int'l v. Banco Do Brasil, Docket No. 99-7639

• Citation: 215 F.3d 306
• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-7639
• Parties: (2nd Cir. 2000) MENDES JUNIOR INTERNATIONAL COMPANY, Plaintiff-Appellant, v. BANCO DO BRASIL, S.A. and BB LEASING COMPANY, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 306

215 F.3d 306 (2nd Cir. 2000)

MENDES JUNIOR INTERNATIONAL COMPANY, Plaintiff-Appellant, v. BANCO DO BRASIL, S.A. and BB LEASING COMPANY, Defendants-Appellees.

Docket No. 99-7639

August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: February 16, 2000

Final submissions February 23, 2000

Decided: June 16, 2000

Appeal from a July 1998 judgment of the United States District Court for the Southern District of New York, Robert L. Carter, Judge, dismissing complaint on ground of forum non conveniens, see 15 F.Supp.2d 332 (1998). Appeal dismissed for lack of appellate jurisdiction. [Copyrighted Material Omitted] MICHAEL LESCH, New York, New York (Stephen H. Orel, Geoffrey H. Coll, LeBoeuf, Lamb, Greene & MacRae, New York, New York, on the brief), for Plaintiff-Appellant.

FRANCIS S. L. WANG, San Francisco, California (Michael Welch, Wang & Wang, San Francisco, California, on the brief), for Defendants-Appellees.

Before: KEARSE, WALKER, and POOLER, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Mendes Junior International Company ("Mendes") seeks review of a final judgment entered in the United States District Court for the Southern District of New York on July 2, 1998 ("July 2, 1998 Judgment"), Robert L. Carter, Judge, dismissing its complaint for declaratory and monetary relief from defendant Banco do Brasil, S.A. ("Banco"), and BB Leasing Company ("BB Leasing"), for breach of contract, estoppel, and breaches of various duties under New York law. The district court granted defendants' motion to dismiss the complaint on the ground of forum non conveniens, noting, inter alia, that Mendes is a Cayman Islands corporation whose principal place of business is in Brazil, that Banco is a Brazilian corporation whose principal place of business is in Brazil, that BB Leasing is a subsidiary of Banco, and that the controversy arises out of Banco's financing of Mendes construction projects in Iraq. See 15 F.Supp.2d 332 (1998). On appeal, Mendes contends principally that the district court abused its discretion in weighing the factors on which a forum non conveniens decision is to be based. If we were to reach the merits of the appeal, we would affirm substantially for the reasons stated in the district court's opinion. However, for the reasons that follow, we conclude that there was no valid extension of Mendes's time to appeal from the July 2, 1998 Judgment and that its notice of appeal, filed May 28, 1999, was therefore untimely. We accordingly dismiss the appeal for lack of appellate jurisdiction.

I. BACKGROUND

Beginning in the 1970s, Mendes, in a joint venture with a subsidiary of a Brazilian government-owned oil company, entered into construction contracts with the government of Iraq in which Mendes's services were, in part, bartered for Iraqi oil in order to help Brazil meet its oil needs and alleviate its currency problems. Mendes obtained financing from Banco, a commercial bank whose majority owner is the government of Brazil; Banco later refinanced Mendes's debts through a sale and lease-back transaction with Banco subsidiary BB Leasing, a Cayman Islands corporation that has offices in New York. In another refinancing, Mendes obtained additional loans from Banco, which required Mendes to obtain a special war-risk insurance policy from Instituto de Resseguros do Brasil ("IRB"), which is majority-owned by the Brazilian government, to repay Banco if Mendes were unable to do so. Mendes also assigned its payment claims against Iraq to Banco.

Following Iraq's invasion of Kuwait in 1990 and the ensuing United Nations embargo, neither Mendes nor Banco was able to obtain payment for Mendes's services from the government of Iraq. Mendes brought the present action against Banco and BB Leasing in New York state court, alleging that Banco had defaulted on its obligations to collect from IRB or from the government of Iraq on behalf of Mendes. Banco, invoking its status as an agency or instrumentality of the Brazilian government, removed the action to federal court, premising jurisdiction on the Foreign Sovereign Immunities Act, see 28 U.S.C. §§1441(d), 1603 (1994). Defendants then moved to dismiss for lack of personal and subject matter jurisdiction, failure to state a claim on which relief can be granted, and forum non conveniens.

In an opinion dated June 29, 1998, and reported at 15 F.Supp.2d 332, familiarity with which is assumed, the district court granted Mendes's motion to dismiss on the ground of forum non conveniens. Weighing the factors set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947), the court found, inter alia, that private-interest factors did not particularly favor either side; but it concluded that public-interest factors weighed heavily in favor of having the action tried in Brazil rather than in New York, especially given that Banco is an agency of the Brazilian government, and that the Brazilian government had "promoted and engineered Mendes['s] relationship with Iraq in order to secure a reliable source of oil imports," 15 F.Supp.2d at 340; see also id. ("The Brazilian government even negotiated directly with Iraq when difficulties arose in Mendes['s] performance of the original contract."). The court provided that the dismissal could be set aside if Brazil proved unwilling to accept jurisdiction over Mendes's claims or if defendants refused to waive jurisdictional defenses and any statute-of-limitations defense not available to them when Mendes commenced the present action.

Final judgment dismissing the action was entered on July 2, 1998. There followed a series of postjudgment motions for substantive and procedural relief.

A. The Postjudgment Motions and Orders

On July 15, 1998, Mendes wrote to the district court requesting, inter alia, a stay of its time to appeal and an extension of its time to move for reconsideration. In an order entered on July 23, 1998 ("July 23, 1998 Order"), the court granted those motions as follows:

Upon the application of plaintiff, as contained in the letter dated July 15, 1998 from Michael Lesch, Esq., for an extension of time to move to reconsider the Court's order dated June 29, 1998, docketed by the Clerk on July 1 [sic], 1998, that granted defendants' motion to dismiss; ...and for a stay of plaintiff's time to appeal; it is hereby

ORDERED that the time for plaintiff to serve a motion to reconsider is extended to August 11, 1998; and it is further

....

ORDERED that pursuant to Fed. R. App. P. 4(a)(5), the time for plaintiff to file a notice of appeal from this Court's order dismissing the complaint is stayed until the later of August 11, 1998 or thirty days after determination of plaintiff's motion to reconsider.

On August 11, 1998, Mendes filed its motion pursuant to Rule 6.3 of the Local Rules for the Southern District ("Local Rule 6.3") for reconsideration of the dismissal of the complaint.

In the meantime, on July 16, 1998, Banco had filed a motion seeking an award of attorneys' fees from Mendes, based on a loan agreement provision. On September 29, 1998, Mendes sent the district court a letter noting the pendency of Mendes's and Banco's respective motions for reconsideration and attorneys' fees, and requesting

[f]or the sake of efficiency, and the prevention of needless multiple appeals ... that the Court enter an order pursuant to Fed. R. Civ. P. 58 that treats the motion for attorneys' fees as having been filed under Rule 54(d)(2), which applies to post-judgment motions for attorneys' fees, and that said motion has [sic] "the same effect under Rule 4(a)(4) of the Federal Rules of Appellate Procedure as a timely motion under Rule 59."

(Letter from Michael Lesch, Esq., to Judge Robert L. Carter, dated September 29, 1998, at 1 (quoting Fed. R. Civ. P. 58).) In response, the court issued an order dated September 30, 1998 ("September 30, 1998 Order"), stating as follows:

In light of the judgment of the court, entered July 2, 1998, and the pendency of both plaintiff's motion for reconsideration, served August 11, 1998, and of defendants' motion for attorneys' fees, filed July 16, 1998; and further in light of the fact that defendants' motion for attorneys' fees was timely filed pursuant to Fed. R. Civ. P. 54(d)(2); and good cause shown, it is hereby

ORDERED that pursuant to Fed R. Civ. P. 58, defendants' motion for attorneys' fees have the same effect under Fed. R. App. P. 4(a)(4) as a timely motion under Rule 59.

By order dated April 19, 1999, the district court denied Mendes's motion for reconsideration. By order dated May 3, 1999, the district court denied Banco's motion for attorneys' fees.

B. The Appeal

The final judgment having been entered on July 2, 1998, Mendes's time to appeal would ordinarily have expired on August 3, 1998. See Fed. R. App. P. 4(a)(1) (fixing a 30 day period in which to appeal in a civil case in which the federal government is not a party); Fed. R. App. P. 26(a) (when last day of the period falls on a Saturday, a Sunday, or a legal holiday, the period ends instead on the next business day that is not a Saturday, Sunday, or legal holiday). Mendes filed its notice of appeal on May 28, 1999.

At oral argument of the appeal, this Court raised questions with respect to appellate jurisdiction. Our concerns centered principally on whether the district court's July 23, 1998 Order could expand the normal 30-day period for appeal by extending Mendes's time to move for reconsideration; and, if not, with the consequence that Mendes's appeal time expired on August 3, 1998, whether the court could revive Mendes's time to appeal by means of the September 30, 1998 Order. Since the time limit for filing a notice of appeal is "'"mandatory and jurisdictional,"'" Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam) (quoting Browder v. Director, Department of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960))), we ...