EPAC Technologies, Inc. v. Thomas Nelson, Inc.
ORDER: Plaintiff EPAC Technologies, Inc.'s motion for prejudgment interest 1142 is DENIED. Signed by Magistrate Judge Alistair Newbern on March 31, 2021. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(AN)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
EPAC TECHNOLOGIES, INC.,
Case No. 3:12-cv-00463
Chief Judge Waverly D. Crenshaw, Jr.
Magistrate Judge Alistair E. Newbern
PUBLISHING, INC., f/k/a THOMAS
Plaintiff EPAC Technologies, Inc., filed a motion seeking prejudgment and post-judgment
interest on the jury’s compensatory damages award of $3,000,000 and reasonable attorney’s fees
and costs. 1 (Doc. No. 1142.) Defendant Thomas Nelson, Inc., opposed EPAC’s motion for
prejudgment interest as untimely and not warranted under the relevant legal standards, but did not
oppose the award of post-judgment interest under 28 U.S.C. § 1961(a). (Doc. No. 1145.) EPAC
has since filed a receipt of payment documenting that Thomas Nelson has paid it $3,130,067.71 in
satisfaction of the compensatory damages judgment and post-judgment interest. (Doc. No. 1157.)
Accordingly, all that remains for the Court’s decision is EPAC’s motion for an award of
discretionary prejudgment interest available under Tenn. Code. Ann. § 47-14-123. For the reasons
that follow, EPAC’s motion for prejudgment interest will be denied.
A determination of EPAC’s reasonable attorney’s fees and costs remains pending and will
be determined by separate order.
EPAC’s Motion is Untimely Under Rule 59(e)
In the federal courts, “a postjudgment motion for discretionary prejudgment interest
constitutes a motion to alter or amend the judgment under Rule 59(e).” Osterneck v. Ernst &
Whinney, 489 U.S. 169, 175 (1989). Any motion under Rule 59(e) must be made “no later than 28
days after the entry of the judgment.” Fed. R. Civ. P. 59(e). That period may not be enlarged by a
court. Keith v. Bobby, 618 F.3d 594, 599 (6th Cir. 2010).
In finding consideration of motions for prejudgment interest under Rule 59(e) appropriate,
the Supreme Court noted, first, that the issues raised by these motions are not wholly collateral
to—and may be “intertwined in a significant way with”—a court’s determination of the merits and
the extent of damages. Osterneck, 489 U.S. at 175–76. Because the time to file a notice of appeal
does not begin to run until a timely Rule 59(e) motion has been resolved, see Fed. R. App. P.
4(a)(4), considering prejudgment interest under that rule ensures that “an appellate court will have
the benefit of the district court’s plenary findings with regard to factual and legal issues subsumed
in the decision to grant discretionary prejudgment interest, such as the wrongfulness of the
defendant’s conduct and the plaintiff’s full damages, as well as other matters of equity bearing on
the merits of the litigation.” Id. at 177. This, in turn, “helps further the important goal of avoiding
piecemeal appellate review of judgments.” Id. These provisions and Rule 59(e) strict time
limitation “work to implement the finality requirement of 28 U.S.C. § 1291 by preventing the filing
of an effective notice of appeal until the District Court has had an opportunity to dispose of all
motions that seek to amend or alter what otherwise might appear to be a final judgment.” Id. at
The Court must therefore first address whether EPAC’s motion is timely under the strict
provisions of Rule 59(e). Judgment was entered in this case on January 28, 2019 (Doc. No. 1061),
when the jury returned its verdict. Thomas Nelson then filed a renewed motion for judgment as a
matter of law and for a new trial (Doc. No. 1083). The Court stayed execution of the judgment
until fourteen days after entry of a final non-appealable judgment (Doc. No. 1088). On July 1,
2019, the Court granted in part and denied in part Thomas Nelson’s motion, granting judgment as
a matter of law on EPAC’s fraudulent concealment claim and accompanying punitive damages.
(Doc. No. 1126, PageID# 23790.) The Court stated that “[a] revised judgment will be entered for
EPAC only on the MSA [breach of contract] claim in the amount of $3,000,000 as found by the
jury.” (Id.) In an accompanying order, the Court stated that “[a]n amended judgment will enter.”
(Doc. No. 1127, PageID# 23791.)
EPAC filed its motion for prejudgment interest on August 25, 2020 (Doc. No. 1142), 575
days after the Court’s initial judgment and 421 days after the Court’s ruling on Thomas Nelson’s
post-judgment motions. EPAC asserts that its motion is nonetheless timely because, it argues, no
final judgment has yet been entered in this case. In support, it points to the Court’s statements in
its July 1, 2019 opinion and order that an amended judgment would enter.
EPAC is correct that the Court did not enter the separate judgment contemplated by Federal
Rule of Civil Procedure 58 following its July 1, 2019 order. But the “sole” purpose of Rule 58’s
separate-document requirement is “to clarify when the time for appeal . . . begins to run,” and the
requirement may be waived by the parties where a separate document “has accidentally not been
entered.” Bankers Tr. Co. v. Mallis, 435 U.S. 381, 384 (1978); see also Whittington v. Milby, 928
F.3d 188, 192 (6th Cir. 1991) (allowing waiver of separate-document requirement where district
court clearly evidenced its intent that the order be the final judgment, the judgment is recorded on
the clerk’s docket, and the appellee did not object to appeal from the order). EPAC acknowledged
that the Court’s July 1, 2019 order was its final judgment by filing its notice of appeal from that
order on July 30, 2019 (Doc. No. 1128) and raising no objection to Thomas Nelson’s cross-appeal.
Because EPAC filed its motion for prejudgment interest 421 days after July 1, 2019, its motion is
untimely under Rule 59(e).
EPAC’s Motion is Not Properly Considered Under Rule 60(b)
EPAC argues in the alternative that its motion for prejudgment interest be considered under
Rule 60(b) and found timely under that Rule’s more forgiving provision that a motion be made
“within a reasonable time.” Fed. R. Civ. P. (b)–(c). EPAC does not specify under which of the
three subsections of Rule 60(b) applying the “reasonable time” provision it brings its motion. 2 See
Fed. R. Civ. P. 60(b)(4)–(6). But, as Thomas Nelson points out, because EPAC does not argue that
the judgment is void or that it has been previously satisfied or invalidated or can no longer be
equitably applied, the Court may assume EPAC relies on Rule 60(b)(6), which addresses “any
other reason that justifies relief” from judgment. Fed. R. Civ. P. 60(b)(6).
Rule 60(b)(6) provides relief “only in exceptional and extraordinary circumstances,”
including “unusual and extreme situations where principles of equity mandate relief.” Jinks v.
AlliedSignal, Inc., 250 F.3d 381, 387 (6th Cir. 2001). Further, “relief under Rule 60(b) is
‘circumscribed by public policy favoring finality of judgments and termination of litigation.’” Blue
Diamond Coal Co. v. Trustees of UMWA Combined Ben. Fund, 249 F.3d 519, 524 (6th Cir. 2001)
(quoting Waifersong Ltd., Inc. v. Classic Music Vending, 976 F.2d 290, 292 (6th Cir. 1992)).
Although courts may consider motions for prejudgment interest under Rule 60(b)(6), the
circumstances in which they find awarding interest under Rule 60(b)(6) are also limited by these
considerations. See Jones v. UNUM Life Ins. Co. of Am., 223 F.3d 130, 138 (2d Cir. 2000) (holding
Motions made under Rule 60(b)(1)–(3) must be brought within one year of judgment. Fed.
R. Civ. P. 60(b)(1)–(3).
that, although motion for prejudgment interest was made under Rule 60(b)(6), it was properly
considered under Rule 59(e)); Paddington Partners v. Bouchard, 34 F.3d 1132, 1144 (2d Cir.
1994) (holding that, although Rule 60(b)(6) was an available means of seeking prejudgment
interest, court had erred in awarding it because the record did not support reopening the judgment
in the interests of justice); Scola v. Boat Frances, R., Inc., 618 F.2d 147, 154–55 (1st Cir. 1980)
(finding prejudgment interest “unavailable upon a belated motion under Rule 60(b)(6) except,
perhaps, in extraordinary circumstances”); Chicago & N.W. Ry. Co. v. Union Packing Co., 527
F.2d 592, 592 (8th Cir. 1976) (denying prejudgment interest under Rule 60(b)(6) where appellee
failed to show an exceptional situation entitling it to relief). But cf. Scotts Co. v. Cent. Garden &
Pet. Co., 403 F.3d 781, 792 (6th Cir. 2005) (finding district court did not abuse its discretion in
considering motion for prejudgment interest untimely under Rule 59(e) but timely under rule
The cases EPAC relies on do not compel the Court to apply Rule 60(b)(6) here. In Stafford
v. First Tennessee National Bank, the Sixth Circuit found that a motion for prejudgment interest
that was “not an original request, but only brought the district court’s attention to previously
requested relief,” was properly considered under Rule 60(b). 3 2000 WL 1359631, *10 (6th Cir.,
Sept. 14, 2000). In so finding, the court relied on Pogor v. Makita U.S.A., Inc., which found that a
motion for prejudgment interest was properly considered as a motion to correct a clerical mistake
in the original judgment under Rule 60(a) “where the language of the judgment awards interest as
required by law but leaves the actual calculations for later.” 135 F.3d 384, 388 (6th Cir. 1998).
The court further concluded that, “[w]hen a district court’s original judgment does not mention an
The court did not specify which of Rule 60(b)’s subsections it applied in reaching this
award of interest, then a later motion to fix interest would be governed by the rationale found in
Osterneck, as the motion would amount to an original request for interest” and be properly
considered under Rule 59(e). Id. Pogor thus does not support EPAC’s assertion that, “where
prejudgment interest was originally requested in the Complaint, application of Rule 60 is
appropriate.” (Doc. No. 1147, PageID# 23891.) Rather, Pogor “hold[s] that Rule 60(a) governs
postjudgment motions for prejudgment interest when the original judgment explicitly allows for
prejudgment interest but fails to specify the precise dollar value of interest, provided that the
amount can be calculated later with relative certainty.” McCalla v. Royal MacCabees Life Ins. Co.,
369 F.3d 1128, 1133 (9th Cir. 2004). That is not the circumstance here. The prejudgment interest
EPAC requests is discretionary and has not been “explicitly allowed” or otherwise addressed by
prior order. Id.
Extending Pogor and Rule 60(b) as EPAC asks the Court to do would undermine the goals
of finality and avoidance of piecemeal appeals that the Supreme Court prized in finding motions
for prejudgment interest best considered under Rule 59(e). So would allowing EPAC’s motion
long after this case has been considered and affirmed by the Court of Appeals. EPAC offers
nothing to persuade the Court that Rule 60(b)(6) should apply to its prejudgment interest motion.
For these reasons, the Court finds that EPAC’s motion for prejudgment interest (Doc. No.
1142) is properly considered under Rule 59(e). Because EPAC filed the motion well beyond the
twenty-eight-day period after judgment in which motions under Rule 59(e) are permitted, the
motion is untimely. It is, therefore, DENIED.
It is so ORDERED.
ALISTAIR E. NEWBERN
United States Magistrate Judge
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