GIC Services, LLC v. Freightplus (USA) Inc.
ORDER AND REASONS denying 280 MOTION Relief from Judgment . Signed by Judge Lance M Africk on 10/27/2017.(blg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GIC SERVICES, L.L.C.
FREIGHTPLUS USA, INC.
ORDER AND REASONS
After a years-long voyage through the federal courts, the Fifth Circuit
“drop[ped] anchor at the same destination as the district court,” and the case came
to its end. 1 Notwithstanding, Industrial Maritime Carriers, LLC (“IMC”) invites 2
the Court to raise that anchor and amend the judgment in this matter pursuant to
Federal Rule of Civil Procedure 60(b). For the following reasons, the Court declines
to do so.
As the Fifth Circuit aptly summarized: “This case is about a tugboat and its
voyage across the Atlantic from Houston to Nigeria.” 3 After the tugboat arrived at
an unexpected port in Nigeria, a storm of litigation ensued. GIC Services, L.L.C.
(“GIC”) sued Freightplus USA, Inc. (“Freightplus”), which GIC had hired to arrange
for the tugboat’s transport to Nigeria. In turn, Freightplus sued IMC, which was
also involved in the tugboat’s transport.
R. Doc. No. 277, at 33.
R. Doc. No. 280.
3 R. Doc. No. 277, at 3.
Another section of this Court eventually concluded that Freightplus was
liable to GIC to the tune of $1,811,385.00 (plus prejudgment interest).
same time, that section concluded that IMC was liable to Freightplus to the tune of
“30% of the $1,811,385.00” (plus 30% of the prejudgment interest). 5
This case then made its way to the Fifth Circuit.
While the appeal was
pending, GIC and Freightplus informed the Fifth Circuit that they had reached a
settlement as to Freightplus’s liability to GIC. 6 According to IMC, the settlement
amount was $935,000.00. 7 (The case was also reassigned to this section during this
interim period. 8)
The Fifth Circuit proceeded to affirm the judgment in all respects relevant to
IMC’s present motion.
It upheld both the total amount of GIC’s damages
($1,811,385.00), as well as the apportionment of those damages between
Freightplus (70%) and IMC (30%). 9
Importantly, the Fifth Circuit stated IMC’s
obligation to Freightplus as “30 percent of the judgment in GIC’s favor.” 10
After the Fifth Circuit issued its opinion, IMC petitioned for panel
rehearing. 11 In its petition, IMC argued, in part, that “[i]n no event should IMC
owe 30 percent of the $1.8 million judgment as this would represent an improper
R. Doc. No. 222 (second amended judgment).
6 See R. Doc. No. 277, at 6-7; see also R. Doc. No. 280-4 (notice of satisfaction of
judgment between GIC and Freightplus).
7 R. Doc. No. 280-1, at 4.
8 R. Doc. No. 272.
9 See R. Doc. No. 277, at 15-24.
10 Id. at 24 (emphasis added).
11 See R. Doc. No. 282-1.
windfall to Freightplus.” 12 According to IMC’s petition, “[i]f an indemnity theory
applies” to Freightplus’s claim against IMC, “IMC would owe to Freightplus 30
percent of what Freightplus actually paid”—namely, 30% of the settlement
On the other hand, “[i]f contribution applies, IMC would owe to
Freightplus any amount Freightplus paid over the 70 percent of the judgment it
owed to GIC (if anything).” 14
The Fifth Circuit denied IMC’s petition for rehearing. 15 IMC then filed the
indemnification and contribution that IMC asserted in its petition for rehearing. 16
Rule 60(b) provides that “[o]n motion and just terms, the court may relieve a
party or its legal representative from a final judgment, order, or proceeding” for
listed reasons. Fed. R. Civ. P. 60(b). IMC argues two of the reasons warrant relief
from the judgment that the Fifth Circuit affirmed on direct appeal. The first is Rule
60(b)(5): “the judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively is
no longer equitable.”
The second is Rule 60(b)(6): “any other reason that justifies relief.” However,
relief under Rule 60(b)(6) is available “only if extraordinary circumstances are
Id. at 17.
15 R. Doc. No. 282-2, at 2.
16 See generally R. Doc. No. 280-1.
present.” Hesling v. CSX Trans., Inc., 396 F.3d 632, 642 (5th Cir. 2005) (quoting
Am. Totalisator Co., Inc. v. Fair Grounds Corp., 3 F.3d 810, 815 (5th Cir. 1993))
(internal quotation marks omitted).
The Court concludes that neither of these reasons is applicable in this case. 17
First, Rule 60(b)(5) is facially inapplicable. The relevant judgment—IMC’s liability
to Freightplus for 30% of $1,811,385.00—has not been “satisfied, released, or
discharged,” nor has any “earlier judgment” on which this judgment was based
“been reversed or vacated.” Fed. R. Civ. P. 60(b)(5). Further, Rule 60(b)(5)’s third
and final clause—“applying [the judgment] prospectively is no longer equitable”—
only “provides relief from a final judgment when it is no longer equitable that the
judgment shall have prospective application . . . .” Bailey v. Ryan Stevedoring Co.,
Inc., 894 F.2d 157, 160 (5th Cir. 1990). The judgment contested in this instance,
however, “has no prospective effect.” Id. (citing Cook v. Birmingham News, 618
F.2d 1149 (5th Cir. 1980)); cf. Agostini v. Felton, 521 U.S. 203 (1997) (applying Rule
60(b)(5) in the context of a permanent injunction); Rufo v. Inmates of Suffolk Cty.
Jail, 502 U.S. 367 (1992) (same in the context of a consent decree). Rather, it is “a
In its opposition to the present motion, Freightplus raises the mandate rule, a
specific application of the law of the case doctrine. See R. Doc. No. 282, at 1-6;
United States v. Matthews, 312 F.3d 652, 657 (5th Cir. 2002). This rule is not
jurisdictional, but rather “a discretionary practice” subject to certain exceptions.
Matthews, 312 F.3d at 657. Because the mandate rule is not jurisdictional, the
Court chooses to resolve the motion instead on the Rule 60(b) grounds asserted by
IMC, which are the only bases offered by IMC to justify relief from the judgment.
Freightplus also raises the issue of timeliness. See R. Doc. No. 282, at 8-9.
As with Freightplus’s mandate rule argument, this issue need not be addressed to
resolve the motion.
present remedy for a past wrong.”
Cook, 618 F.2d at 1152 (internal quotation
IMC is also unable to avail itself of relief via Rule 60(b)(6). The Fifth Circuit
“has consistently held that relief under 60(b)(6) is mutually exclusive from relief
available under [Rules 60(b)(1)-(5)].” Hesling, 396 F.3d at 642 (citing Transit Cas.
Co. v. Sec. Trust Co., 441 F.2d 788, 792 (5th Cir. 1971)). Thus, “[t]he reason for
relief set forth under 60(b)(6) cannot be the reason for relief sought under another
subsection of 60(b).” Id. (citing Hess v. Cockrell, 281 F.3d 212, 215 (5th Cir. 2002)).
In its motion, IMC asserts identical reasons as justification for relief under
both Rules 60(b)(5) and (6). 18 This fact alone is fatal to IMC’s attempt to use Rule
60(b)(6) to convince the Court to revisit the judgment. Cf. Bailey, 894 F.3d at 160
(“Bailey also cannot rely on the catch-all clause of Rule 60(b)(6), for that rule cannot
be invoked when relief is sought under one of the other grounds enumerated in Rule
circumstances” that are a predicate to relief under Rule 60(b)(6). Id. (quoting Am.
Totalisator Co., 3 F.3d at 815) (internal quotation marks omitted). Another section
of this Court found IMC liable to Freightplus for 30% of GIC’s loss. The Fifth
Circuit upheld the finding.
IMC nevertheless contends that Freightplus’s negotiation of a favorable
settlement for itself while the appeal was pending entitles it either to a total
See generally R. Doc. No. 280-1.
discharge from, or a substantial discount on, its liability to Freightplus.
presented this argument to the Fifth Circuit in a petition for rehearing, and it
denied the petition. The Court will follows its lead.
The Court will make one last port of call before it disembarks. The Court
cannot help but suspect that IMC is seeking to enlist the Court in a mission to
amend the Fifth Circuit’s opinion in this case. It goes without saying, however, that
the Court—as a federal district court—does not possess such remarkable powers.
Cf. Legendre v. Huntington Ingalls Inc., No. 17-2162, 2017 WL 2881324, at *2 n.5
(E.D. La. July 6, 2017) (Africk, J.) (citing J.R.R. Tolkien, The Fellowship of the Ring
bk. 1, ch. 3 (1954)) (“Do not meddle in the affairs of Wizards, for they are subtle and
quick to anger.”).
IT IS ORDERED that the motion is DENIED.
New Orleans, Louisiana, October 27, 2017.
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
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