GIC Services, LLC v. Freightplus (USA) Inc.

Filing 221

ORDER AND REASONS granting in part and denying in part 191 Motion to Alter or Amend the Amended Judgment; granting in part and denying in part 198 Motion to Alter or Amend the Original Judgment and the Amended Judgment as set forth in document. Signed by Judge Helen G. Berrigan on 9/24/2015. (kac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GIC SERVICES, LLC

CIV. A. 13-6781

VERSUS

SECTION “C”

FREIGHTPLUS (USA), INC.

HON. HELEN BERRIGAN

ORDER AND REASONS
This matter comes to the Court, on the Rule 59(e) motions to alter or amend a
judgment by defendant Freightplus (USA), Inc. (“Freightplus”) and third-party defendant
Industrial Maritime Carriers, L.L.C. (“IMC”). See Rec. Docs. 191 and 198. For the
reasons articulated more fully below, the Court GRANTS IN PART and DENIES IN
PART each motion. Accordingly, the Court further amends its amended judgment (Rec.
Doc. 190) to reflect a damage award to GIC of $1,811,385 against Freightplus, with
prejudgment interest of 5% per annum. Furthermore, the Court reaffirms IMC’s
obligation to indemnify Freightplus for 30% of GIC’s damage award plus any associated
prejudgment interest on that 30% portion of the award. Finally, the Courts amends its
judgment to reflect that IMC will not have to pay for any percentage of Freightplus’
attorneys’ fees incurred in defending GIC’s suit.
I. Facts and Procedural History
Plaintiff GIC Services, LLC (“GIC”) brought suit against Freightplus for breach
of contract seeking damages for the mistaken delivery of its tugboat the M/V REBEL

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(“REBEL”) to Warri, Nigeria, rather than Lagos, Nigeria. See Rec. Doc. 1. Freightplus
subsequently filed a third-party complaint against IMC, claiming IMC was liable for
indemnity and/or contribution for any losses or damages sustained by GIC due to IMC’s
default, negligence, carelessness, or omissions. See Rec. Doc. 60. IMC then asserted a
counterclaim against Freightplus and the REBEL for unpaid freight charges owed for
carriage of the REBEL. See Rec. Doc. 93. Before trial, the Court denied IMC’s motion to
dismiss Freightplus’ indemnity claim, noting that two theories of tort indemnity liability
possibly applied to IMC. See Rec. Doc. 91 at 6–8.
After a two-day trial, the Court found Freightplus liable to GIC for $1,860,985.
Rec. Doc. 186. The Court stated that “[p]rejudgment interest shall be calculated at a rate
of 5% from January 17, 2013 to the date of judgment.” See id. at 23. The Court in turn
ruled that IMC was obligated to indemnify 30% of Freightplus’ liability to GIC for
“mistakenly recording the REBEL’s port of discharge as Warri and failing to correct the
port of discharge when it became known to its agent that the REBEL was actually
contracted to discharge at Lagos.” Id. at 23–24. Furthermore, the Court ruled that
Freightplus was entitled to collect from IMC 30% of its attorneys’ fees spent in defending
GIC’s suit. See id. Finally, the Court ruled that IMC was entitled to recover unpaid
freight from Freightplus. See id.
Freightplus’ Rule 59(e) motion asks the Court to alter the quantum of GIC’s
damages and clarify IMC’s obligation to pay prejudgment interest on its indemnity
obligation to Freightplus. Rec. Doc. 191. IMC’s Rule 59(e) motion likewise asks the
Court to alter the quantum of GIC’s damages; however, it also asks that the Court revoke
IMC’s obligation to pay 30% of Freightplus’ attorneys’ fees. See Rec. Doc. 198.

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Accordingly, before the Court are three issues raised on Rule 59(e) motions. First,
whether the Court correctly awarded damages of $1,860,985 to GIC. Second, whether
IMC must pay prejudgment interest on its indemnity liability to Freightplus. And third,
whether the Court correctly ordered IMC to pay 30% of Freightplus’ attorneys’ fees.
II. Standard of Review
Rule 59(e) motions call “into question the correctness of a judgment.” Templet v.
HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004) (internal quotation omitted). Such
motions are not “the proper vehicle for rehashing evidence, legal theories, or arguments
that could have been offered or raised before the entry of judgment.” Id. at 479. Indeed,
reconsideration of a judgment after entry is an “extraordinary remedy that should be used
sparingly” Id. “Alteration or amendment of a decision under Rule 59(e) is proper upon
the movant's showing of: (1) an intervening change of controlling law; (2) the availability
of new evidence; and/or (3) the need to correct a clear and manifest error of fact or law.”
M/G-T Services Inc. v. Turn Service Inc., 2002 WL 27765 *2 (E.D.La. 2002) (internal
quotation omitted). While a district court exercises considerable discretion when
responding to a motion for reconsideration, it has the judicial imperative to strike a
balance between the need to bring litigation to a close and the need to “render just
decisions on the basis of all the facts.” Templet, 367 F.3d at 479.
III. Discussion
A. GIC’s Damages
Freightplus and IMC contend that the Court erred in determining GIC’s damages
in two ways. First, that the Court erred by relying upon the email correspondence in Trial
Exhibit 65 to determine the cost of shipping the REBEL from Warri to Lagos and the

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Visifi invoice in Trial Exhibit 101 to determine the cost of storing, securing, and
releasing the REBEL in Warri. 1 Second, that the Court miscalculated the total sum of
damages based off the rates stated in the Visifi invoice. As discussed below, the Court is
not convinced that its reference to the two exhibits was in error; however, the Court did
miscalculate the total sum of GIC’s damages based on those exhibits and so amends its
judgment accordingly.
i.

Exhibit 65

Exhibit 65 is an email chain including emails from Freightplus, an attorney for
GIC, and a carrier Yacht Path. In the chain, the attorney for GIC states that “[m]y client
has informed me that his cost to transport the Tugboat to Lagos will cost $55,985.00. The
expenses for the clearing agent is $5,600.00.” Id. The exhibit was included in the Pretrial
Order by Freightplus, without any apparent objection before or at trial by either
Freightplus or IMC. See Rec. Doc. 177 at 40; see also Trial Tr., May 11 & 12, 2015. IMC
argues that the Court’s reference to these figures to determine the cost of transporting the
REBEL amounts to reliance on inadmissible evidence per Rule 408 and would instead
have the Court determine transportation costs by reference to the deposition of a Yacht
Path employee admitted at trial. See Rec. Doc. 198-2 at 4–5; see also Trial Ex. 125 at
124–25. Particularly in the absence of a Rule 408 objection before or after trial, 2 the
Court is not convinced it was clear and manifest error to reference Trial Exhibit 65 to

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Freightplus’ Rule 59(e) motion challenges only the Court’s reliance on Trial Exhibit 101, while IMC’s
subsequently filed Rule 59(e) motion challenges the use of both Trial Exhibit 101 and 65. See Rec. Docs.
191-1 and 198-2 at 4–5.
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Besides the general instruction that Rule 59(e) is not “the proper vehicle for rehashing evidence, legal
theories, or arguments that could have been offered or raised before the entry of judgment,” the Court is
unaware of binding precedent regarding waiver of Rule 408. Templet, 367 F.3d at 479. The Ninth Circuit’s
decision in NMB Air Operations Corp. v. McEvoy, however, supports the conclusion that a party
challenging admissibility under Rule 408 must raise the objection before or at trial. 194 F.3d 1317, 3
(Table) (9th Cir. 1999).

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determine the cost of transporting the REBEL from Warri to Lagos. Accordingly, the
Court will not alter its judgment as to damages for transporting the REBEL.
ii.

Exhibit 101

Exhibit 101 is an invoice from Visifi to GIC’s parent company, providing a
detailed breakdown of the costs for storing, securing, and releasing the REBEL in Warri.
Freightplus and IMC contend that the Exhibit was never properly authenticated at trial
and therefore the Court erred in using it to determine GIC’s damages. Rec. Docs. 191-1
and 198-2. Instead, Freightplus and IMC urge the Court to alter its judgment by
disregarding the Visifi invoice and instead referencing a “Provisional
Quotation/Proforma Bill for MV REBEL” issued by Julius Berger, the company charged
with storing the REBEL in Warri. See Rec. Docs. 191-1 at 6–7 and 198-2 at 8–9.
Before trial, counsel for Freightplus and IMC objected to the introduction of the
Visifi invoice on relevance and authentication grounds, as well as on the grounds that the
invoice was produced after the discovery cutoff date. See Rec. Doc. 177 at 35. The Court
overruled the objections as to relevancy and late production, but deferred as to
authentication. Rec. Doc. 167 at 3. In the final pretrial order, GIC stated that it anticipated
calling “any witness needed to authenticate any documents that cannot be agreed to by
stipulation.” Rec. Doc. 177 at 45. At trial, counsel for GIC called Godwin Ebolo, the
Managing Director of GIC’s parent company, as an authentication witness. The relevant
portion of the transcript reads as follows:
MR. BOONE: Your Honor, I’d like to call Mr. Godwin Ebolo as my
authentication federal witness.
MR. WALTERS: Your Honor, we would object to this witness testifying. He
was not listed in the pretrial order. To the extent that he’s called specifically for a
Rule 901 authentication, we will stipulate, and I think –
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MR. WAGUESPACK: We’ll stipulate as well, Your Honor.
MR. BOONE: All right. And that’s all he was going to testify to, nothing
substantive, just to authenticate those document that Freightplus and IMC both
objected to, which are the three contracts and the agency agreement.
THE COURT: All right. So do we have a stipulation?
MR. WALTERS: Yes. As far as Freightplus, yes.
MR. WAGUESPACK: As far as IMC as well.
THE COURT: Okay.
Well, sir, you can go home.
Oh, you still want to call him?
MR. WALTERS: He’s been excused.
MR. BOONE: Oh, wait.
MR. WALTERS: We stipulated to authentication. There’s no -- if that’s the
only purpose he would be testifying.
MR. BOONE: Yeah. He’s testifying for authentication.
MR. WALTERS: We’ve stipulated to authentication.
MR. BOONE: Oh, you have?
MR. WALTERS: Yes.
MR. BOONE: Oh, all right. I’m sorry. I heard you wrong.
MR. WALTERS: No.
MR. BOONE: Okay.
THE COURT: So you can go home.
Trial Tr., 19–20, May 12,2015. IMC and Freightplus contend that GIC’s counsel
specifically limited the purpose of calling the witness by stating “just to authenticate
those document that Freightplus and IMC both objected to, which are the three contracts
and the agency agreement.” This argument fails to account for the fact that counsel for
both Freightplus and IMC apparently proffered a blanket Rule 901 authentication
stipulation for Godwin Ebolo’s testimony before GIC’s counsel then responded regarding
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the documents to be authenticated. Acknowledging that counsel for each side could have
been more exact in what they were attempting to convey to the Court, the Court fairly
took the intent of counsel for Freightplus and IMC to be to stipulate as to authentication
generally. Stipulating as such to the authentication testimony of the Managing Director
for GIC’s parent company—the company that received the Visifi invoice—amounted to
waiver of the earlier authentication objection to the Visifi invoice. Therefore, the Court
did not err in referencing the Visifi invoice when determining GIC’s damages.
As to the Court’s use of the Visifi invoice rather than the Julius Berger invoice,
the Court is unconvinced that it was clear and manifest error to find the Visifi invoice a
more credible foundation for determining GIC’s damages than the provisional quotation
provided by Julius Berger. The Court rejects Freightplus’ argument that, because the
Court rejected GIC’s claim for the lost profits of its parent company on the grounds that it
did not have standing to seek recovery of such lost profits, the Court therefore should not
have relied on any evidence stemming from GIC’s parent company regarding the costs
associated with the misdelivery of the REBEL. See Rec. Docs. 186 at 23 and 216 at 5–6.
It is reasonable to assume that GIC’s parent would be involved with recovering the
REBEL from Warri and receive invoices related to such efforts. The Court therefore
reaffirms that the Visifi invoice provides a sufficiently credible and detailed summary of
the costs of releasing the REBEL from storage in Warri.
iii.

Calculation of GIC’s Damages

Apart from its argument regarding the authenticity of the Visifi invoice,
Freightplus maintains that the Court erred in its calculation of GIC’s damages based on
the rates included in the invoice. See Rec. Doc. 191-1 at 5–6. The Court agrees. The

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Court incorrectly calculated the total number of days that passed between February 1,
2015, (the date up until which the Visifi invoice provides firm cost figures) and the date
upon which it entered its original judgment). Accordingly, an additional $289,600 for
storage and security (181 days at $1600 per day) should have been tacked on to the
$1,195,200 sum for storage and security listed in the Visifi invoice through January 31,
2015. This means that the correct total of GIC’s total damages is $1,811,385.
B. Prejudgment Interest
The Rule 59(e) motion of Freightplus asks that the Court clarify the terms of its
award of prejudgment interest and the extent to which IMC is responsible for any such
interest. A district court exercises its “sound discretion” when determining prejudgment
interest. Krummel v. Bombardier Corp., 206 F.3d 548, 573 (5th Cir. 2000). The Court clarifies
that IMC is obligated to indemnify Freightplus for 30% of GIC’s damages including the
accrued 5% per annum prejudgment interest on that 30% portion of GIC’s damages.
C. Attorney’s Fees
IMC argues that the Court improperly ordered IMC to pay 30% of Freightplus’
attorneys’ fees. This is because the Court’s 30% indemnity award to Freightplus sounded
in comparative fault and therefore the award of attorneys’ fees was inappropriate under
Fifth Circuit precedent. See Rec. Doc. 198-2 at 9–11. IMC contends that the Fifth
Circuit’s decision in Odd Bergs Tankrederi A/S v. S/T Gulfspray, 650 F.2d 652 (5th Cir.
1981) precludes an award of attorneys’ fees as between defendants in any case of
defendants with shared fault. See Rec. Doc. 198-2 at 10–11. Odd Berg involved a
contribution claim by a separately sued tortfeasor against a joint tortfeasor where the two
tortfeasors had previously agreed on a proportional division of damages owed to a group

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of injured plaintiffs. See Odd Bergs, 650 F.2d at 653. The Odd Berg court reasoned that an
award of attorneys’ fees was not appropriate as between joint tortfeasors in a contribution
action, since “a tortfeasor defends against claims of its own negligence rather than the
negligence of others, and it will benefit directly from the defense.” Id. at 654.
Unlike Odd Bergs, Freightplus’ liability stemmed from a breach of contract, while
IMC was held liable to Freightplus on a tort-based indemnity theory. Rec. Docs. 186 and
91. However, the Court’s opinion did apportion fault as to GIC’s damages for

Freightplus’ indemnity claim, since Freightplus’ conduct in part led to its contract
liability, while IMC’s negligence frustrated efforts to correct the mistaken shipping
instructions. Rec. Doc. 186. Unconvinced that Odd Bergs necessarily commands a
particular outcome in this case, the Court nonetheless follows what it takes as the clear
policy of the decision and its companions to deny the award of attorneys’ fees except in
cases of faultless defendants or indemnity obligations covering the entirety of the
indemnified defendant’s liability. See Odd Berg, 650 F.2d at 654–55; see also Sea-Land
Service, Inc. v. Crescent Towing & Salvage Co., Inc., 42 F.3d 960, 963 (5th Cir. 1995)
(fees not recoverable “when proportionate fault and contribution are applied”).
The Court therefore will amend its judgment to vacate the order obligating IMC
to pay 30% of Freightplus’ attorneys’ fees.

Accordingly,
IT IS ORDERED that the defendant Freightplus’ Rule 59(e) motion is hereby
GRANTED IN PART AND DENIED IN PART to correct the total amount of GIC’s
damages from the incorrect total of $1,860,985 to the correct total of $1,811,385 and to
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clarify that IMC is obligated to indemnify Freightplus for 30% of GIC’s total damages
including the accrued prejudgment interest on that 30% portion of GIC’s damages. Rec.
Doc. 191.
IT IS FURTHER ORDERED that the third-party defendant IMC’s motion to alter
or amend the amended judgment is hereby GRANTED IN PART AND DENIED IN
PART to reflect the corrected amount of GIC’s damages listed in the paragraph
immediately above and to vacate its order obligating IMC to pay 30% of the attorneys’
fees incurred by Freightplus in defending this suit. Rec. Doc. 198.
New Orleans, Louisiana, this 24th day of September, 2015

________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

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