Thec International-Hamdard Cordova Group-Nazari Constr. Co. v. Cohen Mohr, LLP
Thec International-Hamdard Cordova Group-Nazari Constr. Co. v. Cohen Mohr, LLP
Opinion of the Court
This matter is before the Court on the plaintiffs' Motion to Vacate Judgment Pursuant to Fed. R. Civ. P. 60(b)(6) ("Pls.' Mot."), ECF No. 44, which seeks to vacate the Court's dismissal of the above-captioned matter pursuant to the plaintiffs' notice of voluntary dismissal and to instead dismiss this case for lack of subject-matter jurisdiction, see generally Pls.' Mot. at 1; Defendant Cohen Mohr LLP's Motion for Leave to File a Sur-Reply ("Cohen Mohr's Mot."), ECF No. 50; the Motion of Defendants Abdul Hadi Rakin and THEC International Corporation for Leave to File a Sur-Reply ("Rakin & THEC's Mot."), ECF No. 51; and the Plaintiffs' Motion for Sanctions ("Pls.' Sanctions Mot."), ECF No. 57. Upon careful consideration of the parties' submissions,
I. BACKGROUND
On November 3, 2015, the plaintiffs, THEC International-Hamdard Cordova Group-Nazari Construction Company, Ltd. Joint Venture ("THN Joint Venture"), the Hamdard Cordova Group (the "Hamdard Group"), and the Nazari Construction Company, Ltd. (the "Nazari Company"), initiated this cause of action against two of the named defendants, Cohen Mohr, LLP ("Cohen Mohr") and Abdul Hadi Rakin ("Rakin"), asserting multiple common law claims based on an alleged diversion of an approximate $3.6 million payment that the plaintiffs purportedly earned for services performed in conjunction with a road construction project in Afghanistan. See Complaint for Fraud[,] Conversion[,] Civil Conspiracy[,] Negligence[,] Tortious Interference With the Contract[, and] Breach of Fiduciary Duty ("Compl.") at 1, ECF No. 2; see also Pls.' Mot. at 1. Later, the plaintiffs amended their Complaint in part to name the THEC International Corporation ("THEC"), a company owned by Rakin, see Pls.' Mem. at 1-2, as an additional defendant and to assert, among others allegations, additional claims of conversion, breach of fiduciary duty, and breach of contract, see First Amended Complaint for Declaratory Judgment, Conversion, Breach of Fiduciary Duty, Breach of Contract, Tortious Interference with Contract, Civil Conspiracy, Breach of the Standard of Care, and Breach of the Standard of Conduct ("Am. Compl.") at 1, ECF No. 18.
Thereafter, each defendant moved to dismiss the plaintiffs' Amended Complaint *5on both jurisdictional and procedural grounds. See generally Defendant Abdul Hadi Rakin's Motion to Dismiss ("Rakin's Mot."), ECF No. 21; defendant Cohen Mohr LLP's Motion to Dismiss Amended Complaint and Memorandum of Points and Authorities in Support Thereof ("Cohen's Mot."), ECF No. 23; Defendant THEC International Corporation's Motion to Dismiss ("THEC's Mot."), ECF No. 34. Specifically, the defendants argued that the Court lacked subject-matter jurisdiction because the case involved "an entity with Virginia citizenship [ ] suing another entity with Virginia citizenship as well as an individual with a Virginia domicile," and "[d]iversity jurisdiction, therefore, di[d] not exist." See, e.g., Memorandum of Points and Authorities of Defendant Abdul Hadi Rakin in Support of His Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) ("Rakin's Mem.") at 12. Consequently, because "the pleadings and the record d[id] not reveal whether complete diversity exist[ed] between the parties," Order at 6 (Apr. 29, 2016), ECF No. 37, the Court denied without prejudice each of the defendants' motions to dismiss, see id. at 8-9, and required the parties to conduct jurisdictional discovery "limited to the question of whether complete diversity exist[ed]," id. at 9. However, before the close of the parties' limited jurisdictional discovery, on June 27, 2016, the plaintiffs filed a notice on the docket, voluntarily dismissing this case without prejudice. See generally Notice of Voluntary Dismissal Pursuant to Fed. R. Civ. P[.] 41(a)(1)(A)(i) ("Pls.' Dismissal"). The following day, the Court dismissed this matter without prejudice and closed the case. See Minute Order (June 28, 2016).
Concurrent with the filing of their notice of the voluntary dismissal of this matter, the plaintiffs initiated arbitration proceedings against THEC in the International Court of Arbitration of the International Chamber of Commerce ("ICC"). See Cohen Mohr's Opp'n, Exhibit ("Ex.") A (International Chamber of Commerce-International Court of Arbitration, Request for Arbitration ("ICC Request for Arbitration") ). In March 2017, the plaintiffs also filed a cause of action against Cohen Mohr in the Superior Court of the District of Columbia ("Superior Court"). See id., Ex. B (The plaintiffs' Complaint in the Superior Court of the District of Columbia ("Superior Court Complaint") ). On June 25, 2017, "the ICC proceedings were dismissed for lack of jurisdiction ... [, and] the Tribunal awarded THEC almost 100% of its fees and costs incurred in the arbitration." Rakin & THEC's Opp'n at 4; see also id., Ex. 2 (ICC International Court of Arbitration, Case No. 22065/RD/MK ("ICC Arbitration Award") ) at 35 (ordering the plaintiffs to pay THEC $87,558.79 in legal costs related to the arbitration proceedings). In the Superior Court proceedings, defendant Cohen Mohr filed a motion seeking costs and a stay of those proceedings under Superior Court Local Rule 41(d)
After briefing of the plaintiffs' motion to vacate was completed, each defendant requested that this Court permit them to file sur-replies given their shared position that the plaintiffs' replies to their oppositions raised new arguments. See, e.g., Cohen Mohr's Sur-Reply Mot. at 1. On September 6, 2017, the plaintiffs filed on the docket a status update, indicating that on August 31, 2017, the Superior Court denied defendant Cohen Mohr's motion for costs and to stay that litigation. See Pls.' Status Update, Ex. 1 (Omnibus Order of the Superior Court of the District of Columbia) at 16. The plaintiffs also reiterated in their status update their request for relief under Rule 60(b)(6), contending that the ICC's "dismissal of the [plaintiffs] arbitration creates a new, additional imperative for the Court to vacate the voluntary dismissal and substitute an Order of Dismissal noting its ab initio lack of subject[-]matter jurisdiction." See id. at 1 (citation omitted). In addition, on October 26, 2017, the plaintiffs filed a motion for sanctions in this case against the defendants for alleged misconduct, see generally Pls.' Sanctions Mot., which the parties have now fully briefed.
II. STANDARDS OF REVIEW
A. Motion for Leave to File a Sur-Reply
A court will grant a motion for leave to file a sur-reply if "the party making the motion would be unable to contest matters presented to the court for the first time in the opposing party's reply." Lewis v. Rumsfeld,
B. Motion to Vacate Judgement
Federal Rule of Civil Procedure 60(b)(6)"grants federal courts broad authority to relieve a party from a final *7judgment 'upon such terms as are just.' " Salazar ex rel. Salazar v. District of Columbia,
C. Motion for Sanctions
Under " [Federal Civil Procedure] Rule 11 [,] sanctions may be imposed where a party files a pleading, motion[,] or other paper with the court for an improper purpose, that is unwarranted by existing law, [ ] that is lacking evidentiary support," Henok v. Chase Home Fin., LLC,
Additionally, Federal Rule of Civil Procedure 37 permits "a court to impose sanctions for a party's failure to cooperate during the course of discovery." Davis v. D.C. Child & Family Servs. Agency,
III. ANALYSIS
A. The Defendants' Motions for Leave to File a Sur-reply
Each defendant requests leave to file a sur-reply. Defendants Rakin and THEC contend that the "[p]laintiffs' repl[y] contain[s] inappropriate and baseless personal attacks on [their] counsel and make several blatant misrepresentations of the facts and the procedural history of this dispute." Rakin & THEC's Mot. at 1. Defendant *8Cohen Mohr argues that "the [plaintiffs' r]eply raises several new arguments, including that [it] has 'strenuously been urging' the result sought by [the p]laintiffs, [ ] that [it] is in 'unity' with [the p]laintiffs' position regarding the appropriate procedural posture of this case," and "suggestions that [it] misrepresented facts or somehow violated the rules of this Court." Cohen Mohr's Mot. at 1. However, "a sur[-]reply is not justified to correct 'an alleged mischaracterization.' " United States v. Sum of $70,990,605,
B. The Plaintiffs' Motion to Vacate Judgment Pursuant to Rule 60(b)(6)
"To obtain relief under [ Rule 60(b)(6) ], a party must file its motion within a 'reasonable time' and demonstrate 'extraordinary circumstances justifying the reopening of a final judgment.' " United States v. Philip Morris USA Inc.,
Initially, the plaintiffs' "motion cannot succeed because it was not brought in a reasonable time." Darby v. Shulkin,
Additionally, this Circuit has repeatedly held that "it would be an abuse of discretion to rule that a Rule 60(b)(6) motion is not filed within a reasonable time without finding that the movant's delay has prejudiced the non-moving party." Philip Morris USA Inc.,
Even if the plaintiffs' motion was timely, they have not met their heavy burden under Rule 60(b)(6) of showing that extraordinary circumstances warrant relief. Significantly, the plaintiffs do not allege any extraordinary circumstances. See generally Pls.' Mem. Rather, they assert only that they would suffer prejudice if the Court denies their requested Rule 60(b)(6) relief. See id. at 9 (arguing that they "should not be punished and should not *11have the door to the Superior Court ... barred because they attempted to conserve this Court's time and resources by entering a voluntary dismissal"). But, as the defendants correctly note, see, e.g., Cohen Mohr's Opp'n at 8, the plaintiffs' decision to voluntarily dismiss this action was strategic, compare Pls.' Dismissal (filed on June 27, 2016), with Cohen Mohr's Opp'n, Ex. A (Request for Arbitration) (filed June 27, 2016) at 2, and this Circuit "has emphasized that Rule 60(b)(6) 'should be only sparingly used' and may not 'be employed simply to rescue a litigant from strategic choices that later turn out to be improvident,' " Salazar,
C. The Plaintiffs' Motion for Sanctions
Because of the defendants' alleged misconduct during the initial stages of this litigation and throughout jurisdictional discovery, the plaintiffs now "request that the Court impose sanctions upon [the d]efendants to include attorney's fees, costs, and penalties in an amount to be determined by the Court after supplemental briefing by [the p]laintiffs." Pls.' Sanctions Mot. at 1. Specifically, the plaintiffs contend that counsel for defendants Rakin and THEC "refus[ed] to meet and confer regarding the conflicting representations of the citizenship of [ ] 'THEC International' and 'THEC Internal Corporation,' " or for "mandatory arbitration." Pls.' Sanctions Mem at 1. Additionally, the plaintiffs represent that counsel for Cohen Mohr "refus[ed] ... to provide initial disclosures or participate in discovery ordered by the Court,"
"Although [ Rule 37 ] does not establish any express time limits within which a motion for sanctions must be filed, unreasonable delay may render such a motion untimely." Long v. Howard Univ.,
The plaintiffs' motion for sanctions under Rule 11 fares no better. As support for their demand for sanctions under Rule 11, counsel for the plaintiffs argues that counsel for defendant Cohen Mohr misrepresented the Court's April 29, 2016 Order in its opposition to the plaintiffs' motion to vacate the plaintiffs' voluntary dismissal. See Pls.' Sanctions Mem. at 2. But, the Court's review of the challenged language does not permit it to find that defendant Cohen Mohr's counsel improperly mischaracterized the Court's April 29, 2016 Order. See Pls.' Cohen Mohr Reply at 1 (comparing the challenged language to the Court's language in its April 29, 2016 Order).
IV. CONCLUSION
In sum, the Court denies the defendants' motions for leave to file sur-replies because *13they seek to respond to arguments for which they have already been afforded an opportunity to address. Furthermore, because the plaintiffs have not met their heavy burden of showing that they are entitled to Rule 60(b)(6) relief, the Court also denies their motion to vacate. Finally, because the plaintiffs did not promptly seek sanctions once they became aware of the defendants' alleged misconduct, the Court denies their motion for sanctions as untimely.
SO ORDERED this 16th day of March, 2018.
In addition to the filings already identified, the Court considered the following submissions in rendering its decision: (1) the Memorandum of Points and Authorities in Support of Plaintiffs' Motion to Vacate Judgment Pursuant to Fed. R. Civ. P. 60 [ ](b)(6) ("Pls.' Mem."); (2) Defendant THEC International Corporation's and Abdul Hadi Rakin's Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion to Vacate Judgment ("Rakin & THEC's Opp'n"); (3) Defendant Cohen Mohr LLP's Opposition to Plaintiffs' Motion to Vacate Judgment Pursuant to Fed. R. Civ. P. 60 ( [b] )(6) ("Cohen Mohr's Opp'n"); (4) the Plaintiffs' Reply to Defendant Cohen Mohr LLP's Opposition to Plaintiffs' Motion to Vacate Judgment Pursuant To Fed. R. Civ. P. 60 ( [b] )(6) ("Pls.' Cohen Mohr Reply"); (5) the Plaintiffs' Reply to Defendant THEC International Corporation's and Abdul Hadi Rakin's Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion to Vacate Judgment ("Pls.' Rakin & THEC Reply"); (6) the Plaintiffs' Response to Defendant Cohen Mohr, LLP's Motion for Leave to File a Sur-Reply[ ] ("Pls.' Cohen Mohr Opp'n"); (7) the Plaintiffs' Response to Defendant[s] Rakin and THEC International Corporation's Motion for Leave to File a Sur-Reply[ ] ("Pls.' Rakin & THEC Opp'n"); (8) the plaintiffs' Status Update with Respect to Plaintiffs' Motion to Vacate Judgment Pursuant to Fed. R. Civ. P. 60(b)(6) ("Pls.' Status Update"); (9) Defendant Cohen Mohr LLP's Response to Status Update ("Cohen Mohr's Status Resp."); (10) the Memorandum of Points and Authorities in Support of Plaintiff's Motion for Sanctions ("Pls.' Sanctions Mem."); (11) Defendant[s] THEC International Corporation's and Abdul Hadi Rakin's Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Sanctions ("Rakin & THEC's Sanctions Opp'n"); (12) Defendant Cohen Mohr, LLP's Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Sanctions ("Cohen Mohr's Sanctions Opp'n"); (13) the Plaintiffs' Reply to Defendant Cohen Mohr, LLP's Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Sanctions ("Pls.' Cohn Mohr Sanctions Reply"); and (14) the Plaintiffs' Reply to Defendant[s] THEC International Corporation's and Abdul Hadi Rakin's Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Sanctions ("Pls.' Rakin & THEC's Sanctions Reply").
Rule 41(d) states,
If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court: (1) may order the plaintiff to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied."
D.C. Sup. Ct. Civ. R. 41(d).
The page numbers cited by the Court when referencing this Order of the Superior Court are the automatically-generated page numbers assigned by the Court's ECF system.
In addition, the defendants argues that the plaintiffs' replies to their oppositions were untimely filed in accordance with this Court's local rules. See, e.g., Cohen's Mohr's Mot. at 1 & n.1. Local Rule 7(d) provides that "[w]ithin seven days after service of the memorandum in opposition the moving party may serve and file a reply memorandum." LCvR 7(d). Thus, because the defendants filed their oppositions to the plaintiffs' motion to vacate on July 13, 2017, the plaintiffs had until July 20, 2017, to file their replies in support of their motion. However, the plaintiffs filed their replies on July 22, 2017, two days after the required deadline. See
In response to the plaintiffs' status update, defendant Cohen Mohr argues that "[the p]laintiffs' motion to vacate judgment is now moot" because the plaintiffs "were concerned about liability for costs and fees pursuant to Rule 41(d) in [ ] Superior Court," and "the Superior Court ... declined to award relief under Rule 41(d)." Cohen Mohr's Status Resp. at 2. Therefore, according to defendant Cohen Mohr, "the entire purpose for [the p]laintiffs running to this [C]ourt[ ] no longer exists, [and, the p]laintiffs' [m]otion [is now] moot."
In their motion, the plaintiffs cite dicta from Walter Kidde Portable Equipment, Inc. v. Universal Security Instruments, Inc.,
Based on the parties' submissions, the Court understands that much of the jurisdictional discovery has been conducted, and therefore, if the parties were to resume this litigation, the prejudice the defendants would suffer might be perceived as minimal. However, "prejudice is just one component of the reasonable time requirement, and lack of prejudice alone is not a reason for finding a motion timely." Carvajal,
Counsel for the plaintiffs also contends that defendant Cohen Mohr's counsel made an ad hominem attack against him in footnote 11 of its opposition to the plaintiffs' motion to vacate. See Pls.' Cohen Mohr Sanctions Reply at 1. The Court disagrees. While it is evident that tension exists between counsel, see generally
Because the Court finds the plaintiffs' motion for sanctions untimely, it need not consider the defendants' alternative arguments for why the motion should be denied.
This Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
Reference
- Full Case Name
- THEC INTERNATIONAL-HAMDARD CORDOVA GROUP-NAZARI CONSTRUCTION COMPANY, LTD. JOINT VENTURE v. COHEN MOHR, LLP
- Cited By
- 9 cases
- Status
- Published