Villoldo v. Computershare, Inc. , 821 F.3d 196 ( 2016 )

United States Court of Appeals
For the First Circuit
Nos. 15-1808; 15-2080
ALFREDO VILLOLDO, individually; GUSTAVO E. VILLOLDO,
individually, and as Administrator, Executor and Personal
Representative of the Estate of Gustavo Villoldo Argilagos,
Plaintiffs - Appellants/Cross-Appellees,
v.
FIDEL CASTRO RUZ, as an individual, and as an official,
employee, or agent of The Republic of Cuba; RAUL CASTRO RUZ, as
an individual, and as an official, employee, or agent of The
Republic of Cuba; THE MINISTRY OF INTERIOR, an agency or
instrumentality of The Republic of Cuba; THE ARMY OF THE
REPUBLIC OF CUBA, an agency or instrumentality of The Republic
of Cuba; THE REPUBLIC OF CUBA, a foreign state,
Defendants - Appellees,
COMPUTERSHARE, INC.,
Trustee - Appellee/Cross-Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Thompson, Circuit Judge,
Souter, Associate Justice,*
and Barron, Circuit Judge
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
Andrew C. Hall, with whom Hall, Lamb and Hall, P.A. was on
brief, for Plaintiffs-Appellants/Cross-Appellees.
Michael C. Gilleran, with whom Burns & Levinson, LLP was on
brief, for Trustee-Appellee/Cross-Appellant.
Benjamin M. Shultz, Attorney, Appellate Staff Civil Division,
United States Department of Justice, with whom Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Carmen M. Ortiz,
United States Attorney, Sharon Swingle, Appellate Staff, Civil
Division, United States Department of Justice, Lisa J. Grosh,
Assistant Legal Advisor, Department of State, of counsel, were on
brief, for The United States of America, amicus curiae.
May 12, 2016
BARRON, Circuit Judge. These cross-appeals arise from
the ongoing efforts by two brothers to satisfy a multi-billion
dollar judgment they won against the Republic of Cuba and other
Cuban parties. In the appeal that the brothers bring, they
challenge the District Court's ruling that certain assets they
seek to attach to satisfy that judgment are not the property of
the Cuban government and thus are not subject to attachment in
satisfaction of their judgment. The cross-appeal is brought by
the trustee who controls the assets in question. The trustee
challenges the District Court's denial of its motion for attorneys'
fees incurred in proceedings concerning whether it had to turn
over the assets in question to the brothers. We affirm the
District Court in both appeals.
I.
The primary legal dispute in this case concerns how the
law of foreign relations affects the attempted satisfaction of a
judgment. The judgment itself, however, is not at issue.
Nevertheless, because the circuitous route that led from that
judgment to these cross-appeals is relevant to the issues in
dispute, we begin by briefly retracing how we got from there to
here.
The brothers who are seeking to satisfy the judgment are
Alfredo and Gustavo Villoldo, each of whom moved from Cuba to the
United States in 1960. In 2008, they filed suit in Florida state
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court and named as defendants: Fidel Castro Ruz; Raul Castro Ruz;
the Republic of Cuba; the Cuban Ministry of the Interior; and the
Army of the Republic of Cuba (together, the "Cuban defendants").
The brothers' complaint alleged state-law causes of
action for economic loss, intentional infliction of emotional
distress, and wrongful death. The complaint alleged that after
Fidel Castro assumed power, on January 1, 1959, his government
began to target the Villoldos. In particular, the complaint
alleged that the targeting involved the following actions. Cuban
security forces threatened, beat, and arrested both brothers.
Cuban officials threatened Gustavo Villoldo Argilagos, the
brothers' father, and promised to kill the entire family unless
the brothers' father committed suicide and turned his property
over to the Cuban government. The Cuban government confiscated
Gustavo Villoldo Argilagos's land, company, and bank accounts
after he was found dead on February 16, 1959, apparently having
committed suicide. And the Cuban government continued to threaten
the brothers with assassination even after they fled Cuba for the
United States in 1960.
In 2011, a Florida court awarded the brothers a $2.79
billion judgment against the Cuban defendants on their state-law
claims. The judgment followed the defendants' default and a bench
trial on damages.
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Soon thereafter, the brothers sued the Cuban defendants
in the Southern District of New York, seeking recognition of the
Florida judgment under the Full Faith and Credit Clause of the
United States Constitution. U.S. Const. art. IV, § 1. The Cuban
defendants defaulted again, and the Southern District of New York
awarded the brothers a federal judgement in the amount of $2.79
billion, plus interest.
The brothers then sought to execute the federal
judgment, including by pursuing assets located in Massachusetts
and allegedly owned by the Cuban government. So, as part of that
quest, on May 17, 2013, the brothers registered the New York
federal judgment in the District of Massachusetts. And on June 6,
2013, the District Court authorized the brothers to seek
attachment. The brothers then served a subpoena on Computershare,
Inc., a transfer agent located in Canton, Massachusetts.
The subpoena sought information about any securities
accounts controlled by Computershare that were blocked pursuant to
the Cuban Assets Control Regulations, 31 C.F.R. Subt. B, ch. V,
pt. 515, the Cuba sanctions regime. The brothers hoped to identify
accounts that Cuba owns. Computershare produced a chart
identifying 383 accounts that had been blocked by the Cuban
sanctions regime, which had been opened by 70 different
individuals.
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Having received that information, the brothers, in
December of 2013, filed an ex parte motion in the District Court
for a turnover order against Computershare. The brothers' motion
argued that the accounts identified by Computershare had been
opened in the 1950s by Cuban nationals, but had since become the
property of Cuba by operation of a Cuban confiscatory law. Thus,
the brothers argued that the accounts are subject to attachment in
light of the federal judgment from New York. The brothers
requested that the District Court (a) find the accounts subject to
attachment and execution; (b) allow the issuance of a trustee
summons to Computershare; and (c) establish a procedure to notify
potential parties in interest.
The District Court granted the motion, established a
detailed notice protocol, and set January 31, 2014, as the deadline
for any interested party to file an objection. The District Court
also ordered Computershare to turn over the accounts of any non-
objecting parties by February 7, 2014.
Following the District Court's ruling, the brothers
served Computershare with a trustee summons. Computershare filed
a trustee answer shortly afterwards. Computershare contended that
the accounts at issue contained three different types of assets:
shares of common stock held by physical stock certificates
("certificated shares"); shares of common stock held
electronically ("book shares"); and cash. Computershare asserted
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that it could turn over the cash and the book shares but that it
could hand over the certificated shares only if the brothers
provided a surety bond and the Court made a finding that the
original shares were deemed "lost, stolen or wrongfully taken."
Following the passing of the January 31, 2014 objection
deadline -- by which time only one objection had been filed -- the
District Court, on February 12, 2014, issued a follow-on turnover
order. This order required Computershare to turn over the book
and cash assets within 60 days. The order did not address the
certificated shares. The order also stated that the District Court
would set a briefing schedule for the objecting party.
Another flurry of motions followed the February 12
order. As relevant here, Computershare at this point argued for
the first time -- in its briefing regarding whether it should be
given extra time to comply with the February 12 order -- that the
blocked accounts should not be considered the property of Cuba.
The United States then filed a statement of interest that also
argued that the accounts should not be considered the property of
Cuba. The brothers responded that the February 12 turnover order
was a final judgment and thus that the District Court lacked the
authority to revisit it.
The District Court, however, determined that the
February 12 order was not a final judgment. Then, on July 7, 2015,
the District Court ruled that -- contrary to the conclusion it had
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reached in its original turnover order -- the blocked assets were
not the property of the Cuban government, denied the brothers'
pending motions, and dismissed the case.
That day, the District Court entered both its memorandum
and order as well as a document entitled "Order of Dismissal,"
which read: "In accordance with the Court’s Memorandum and Order
dated 7/7/15, it is hereby ORDERED that the above-entitled action
be and hereby is dismissed." Three days later, the brothers
appealed from the dismissal.
On July 31, 2015 -- 24 days after the dismissal --
Computershare filed a motion seeking attorneys' fees.
Computershare argued that the motion was timely because the July
7 "Order of Dismissal" did not satisfy the separate document
requirement set forth in Federal Rule of Civil Procedure 58 and so
had not started Federal Rule of Civil Procedure 54's 14-day clock
for moving for attorneys' fees.
The District Court denied Computershare's motion. The
District Court ruled that the July 7 order was a final judgment
that satisfied Rule 58's separate document rule and that
"Computershare ha[d] not shown good cause or excusable neglect for
failing to make a fee request within the required period."
Computershare cross-appeals from that denial.
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II.
The threshold issue is whether the District Court had
the authority to revisit its initial determination that Cuba owned
the assets subject to the February 12 turnover order. The parties
agree that the District Court did have such authority if the
February 12 order was not a final judgment. And so the dispute
turns on whether it was. We conclude that it was not.
When "an action presents more than one claim for relief,"
or involves multiple parties, Rule 54(b) applies. Fed. R. Civ. P.
54(b). And, under that Rule, an order "that adjudicates fewer
than all the claims or the rights and liabilities of fewer than
all the parties does not end the action as to any of the claims or
parties and may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties' rights
and liabilities." Id.
The February 12 turnover order did not resolve the
brothers' claims against the certificated shares or the claim
against any accounts owned by the objecting party. Therefore,
under Rule 54(b), that order was not a final judgment.
The brothers make only one argument against this
conclusion. They argue that Rule 54(b) should not apply to post-
judgment collection proceedings such as this one. Otherwise, they
contend, trustees may be forced to turn over assets before they
would be able to appeal the turnover order.
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Notably, the trustee in this case does not argue that
Rule 54(b) must be so read in order to protect the interests of
trustees. And for good reason. Nothing in the text or history of
Rule 54 supports the brothers' construction of the Rule. Nor, as
far as we are aware, does any precedent. Moreover, the argument
fails on its own terms. Under Rule 54(b), district courts "may
direct entry of a final judgment as to one or more, but fewer than
all, claims or parties . . . if the court expressly determines
that there is no just reason for delay." Thus, a trustee faced
with a turnover order can move to have the order certified as
final, even if the turnover of other assets remains to be
adjudicated. See id.
Because the February 12 turnover order was not a final
judgment, the District Court was entitled to revisit it. We thus
must address whether the District Court erred in dismissing the
case on the ground that the accounts Computershare possessed were
not owned by Cuba and so not subject to attachment in satisfaction
of the New York judgment.
III.
There is no dispute that if the accounts subject to the
initial turnover order are the property of Cuba, then they are
subject to attachment, even though the Foreign Sovereign Immunity
Act generally immunizes "foreign state[s]" in United States
courts, 28 U.S.C. § 1604, and protects the property of foreign
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states from attachment and execution. Id. § 1609. The reason is
that an exception to the general rule regarding foreign sovereign
immunity applies to cases related to terrorism, see id. §§ 1605A;
1610(a)(7); see also Terrorism Risk Insurance Act of 2002 ("TRIA"),
Pub. L. No. 107-297, 116 Stat. 2322, 2337 (codified in relevant
part at 28 U.S.C. § 1610 note), and there is no dispute that this
exception would apply here.
Thus, the key question for us is whether the accounts
are the property of Cuba. The answer depends on foreign relations
law, and, in particular, the scope of what is known as the "act of
state" doctrine. Under that doctrine, "the act within its own
boundaries of one sovereign State becomes a rule of decision for
the courts of this country." W.S. Kirkpatrick & Co., Inc. v.
Envir. Tectonics Corp., Int'l., 493 U.S. 400, 406 (1990) (quoting
Ricaud v. Am. Metal Co., 246 U.S. 304, 310 (1918)(ellipses
omitted)); see also Banco Nacional de Cuba v. Sabbatino, 376 U.S.
398, 416 (1964).
There is, however, "a well-established corollary to the
act of state doctrine, the so-called 'extraterritorial
exception.'" Tchacosh Co., Ltd. v. Rockwell Int'l Corp., 766 F.2d
1333, 1336 (9th Cir. 1985). Under that exception, "when property
confiscated is within the United States at the time of the
attempted confiscation, our courts will give effect to acts of
state 'only if they are consistent with the policy and law of the
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United States.'" Republic of Iraq v. First Nat'l City Bank, 353
F.2d 47, 51 (2d Cir. 1965) (Friendly, J.).
The brothers contend that the assets at issue are
Cuba's -- although the accounts were opened by individual Cuban
nationals -- by reason of a confiscatory law that Cuba enacted in
September of 1959, Law 568.1 The brothers contend that Law 568
requires Cuban nationals to repatriate to Cuba any assets held
abroad and provides that failure to repatriate those assets results
in nationalization of the assets. And the brothers contend that,
under the act of state doctrine, Law 568 must be given effect, as
that law, by its terms, confiscates the assets in question because
they are located abroad. In consequence, the brothers argue that
the blocked accounts are the property of the Cuban government.
We may assume the brothers' interpretation of Law 568 is
sound -- although the United States contends that it is not. And
that is because we conclude that, in light of the extraterritorial
exception to the act of state doctrine, Law 568 should not be given
effect with respect to the assets at issue.
United States courts have often given effect under the
act of state doctrine to foreign sovereigns' nationalizations of
assets that are located within their own territories at the time
of confiscation. See, e.g., Sabbatino, 376 U.S. at 417-18, 439.
1 The brothers cite both Law 567 and Law 568, but Law 567
appears to be of little relevance to this case.
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Indeed, "[a] confiscation decree . . . is the very archetype of an
act of state." Republic of Iraq, 353 F.2d at 50. But the rule is
different when the nationalization purports to confiscate assets
that are located in the United States at the time that they are
putatively taken.
Normally, "our courts will not give extraterritorial
effect to a confiscatory decree of a foreign state, even where
directed against its own nationals." Maltina Corp. v. Cawy
Bottling Co., 462 F.2d 1021, 1025 (5th Cir. 1972) (internal
quotation marks omitted, collecting cases). After all, United
States law and policy -- as evidenced by the Fifth Amendment of
the United States Constitution -- does not support the taking of
private property without just compensation. See e.g., Republic of
Iraq, 353 F.2d at 51-52.
There might be reason to make an exception to this
exception if this were a case in which the executive branch was
urging us to give extraterritorial effect in this country to the
foreign nation's confiscatory law. See, e.g., United States v.
Pink, 315 U.S. 203, 213-14, 234 (1942); United States v. Belmont,
301 U.S. 324 (1937); see also Republic of Iraq, 353 F.2d at 52.
But the government is not urging us to do so. Nor is the executive
branch even simply silent on the matter. Compare Banco Nacional
de Cuba v. Chem. Bank of N.Y., 658 F.2d 903, 909 (2d Cir. 1981)
(giving effect to an extraterritorial taking when the United States
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apparently did not weigh in and no party asked the Court not to
recognize the confiscation) with Republic of Iraq, 353 F.2d at 52
& n.5 (declining to give effect to an extraterritorial taking even
when the United States expressly disclaimed an interest in the
case). Rather, the United States is urging us not to give
extraterritorial effect to Law 568, and we are aware of no
precedent for giving extraterritorial effect to a foreign nation's
confiscatory law when our own government opposes doing so.
As a general matter, we are required to accord some
deference to the executive's position concerning the application
of the act of state doctrine, see First Nat'l City Bank v. Banco
Nacional de Cuba, 406 U.S. 759, 764-67 (1972) (the opinions
cumulatively reflecting eight votes indicate that the view of the
executive is due substantial weight), especially given "[t]he
Court's more recent justification for the doctrine," which
emphasizes that it is "an expression of the domestic separation of
powers." Estados Unidos Mexicanos v. DeCoster, 229 F.3d 332, 340
n.11 (1st Cir. 2000) (citing W.S. Kirkpatrick & Co. Inc., 493 U.S.
at 404 (noting that the act of state doctrine reflects "'the strong
sense of the Judicial Branch that its engagement in the task of
passing on the validity of foreign acts of state may hinder' the
conduct of foreign affairs" (quoting Sabbatino, 376 U.S. at 423))).
And here the government contends that adhering to the
extraterritorial exception to the act of state doctrine furthers
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United States foreign policy interests by enabling the government
to use the blocked assets at issue in connection with ongoing
negotiations with Cuba on matters of foreign affairs. As the
government points out, if we were to decline to adhere to the
extraterritorial exception to the act of state doctrine, Cuba would
gain the benefit -- through the reduction of the amount Cuba owes
on the judgment against it -- of assets of Cuban nationals that
are located in the United States and that have been frozen by the
executive branch pursuant to discretion granted by Congress to
impose sanctions in order "to curtail the flow of hard currency to
Cuba."2 See Regan v. Wald, 468 U.S. 222, 243 (1984).
The brothers do contend that TRIA -- in making an
exception to foreign sovereign immunity -- embodies a policy in
favor of allowing victims of terrorism to collect on judgments.
But TRIA only tells us that the property that is owned by a foreign
state should be used to pay such judgments. See Heiser v. Islamic
Republic of Iran, 735 F.3d 934, 938-39 (D.C. Cir. 2013). Nothing
in the text or legislative history of TRIA suggests that the
extraterritorial exception to the act of state doctrine should be
2 The brothers argue that the Fifth Amendment does not apply
to prevent foreign governments from taking the property of its own
citizens, but that is beside the point. See Republic of Iraq, 353
F.2d at 52.
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disregarded so that certain assets become the property of the
foreign country.3 See id.
We thus decline to deviate in this case from the general
rule that United States courts will not give extraterritorial
effect to a foreign state's confiscatory law. See Williams &
Humbert Ltd. v. W. & H. Trade Marks (Jersey) Ltd., 840 F.2d 72, 75
(D.C. Cir. 1988); United Bank Ltd. v. Cosmic Int'l, Inc., 542 F.2d
868, 872–877 (2d Cir. 1976); Menendez v. Saks & Co., 485 F.2d 1355,
1364 (2d. Cir. 1973), rev'd on other grounds, Alfred Dunhill of
London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976); Maltina,
462 F.2d at 1027; Republic of Iraq, 353 F.2d at 51–52; Tabacalera
Severiano Jorge, S. A. v. Standard Cigar Co., 392 F.2d 706, 716
3 The brothers' reliance on the Supreme Court's recent
decision in Bank Markazi v. Peterson, 136 S.Ct. 1310 (2016), is
misplaced. In that case, the Court upheld a statute, 22 U.S.C.
§ 8772, which Congress passed in order to make certain specific
assets subject to attachment in order to satisfy terrorism related
judgments against Iran, regardless of whether those same assets
would have been attachable under TRIA. Id. at 1317. But neither
the act of state doctrine, nor the extraterritorial exception to
it, were at issue in that case, and nothing about the Court's
decision upholding Congress's authority to make those assets
attachable remotely suggests that TRIA itself reflects Congress's
intent that an exception to the extraterritorial exception to the
act of state doctrine should be created. If anything, the fact
that Congress specifically intervened to make certain that the
assets at issue in Bank Markazi could be attached cautions against
reading TRIA itself to manifest a similarly specific intention
regarding the assets at issue in this case.
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(5th Cir. 1968). We therefore affirm the District Court's ruling
and dismissal of the case.4
IV.
We turn now to Computershare's cross-appeal. At issue
is the District Court's denial of Computershare's motion to extend
its time to file a motion for attorneys' fees.
Under Rule 54, a motion seeking an award of attorneys'
fees must be made "no later than 14 days after the entry of
judgment." Fed. R. Civ. P. 54(d)(2)(B)(i). And that clock begins
to run when the separate document required by Rule 58 is issued.
See United Auto. Workers Local 259 Social Sec. Dept. v. Metro Auto
Ctr., 501 F.3d 283, 287 (3d Cir. 2007). "Although Rule 58 does
not require that a separate judgment use any particular words or
form of words . . . . the judgment should be self-sufficient,
complete, and describe the parties and the relief to which the
party is entitled." Mullane v. Chambers, 333 F.3d 322, 336 (1st
Cir. 2003).
As we have said, Computershare filed its motion for
attorneys' fees on July 31, 2015 -- 24 days after the order of
4 Because we decide the case on this ground, we need not
address the alternative argument made by Computershare and the
United States that the "penal law rule" provides a separate ground
for declining to give effect to Law 568. See United States v.
Federative Republic of Brazil, 748 F.3d 86, 92 (2d Cir. 2014).
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dismissal was entered. For that reason, the District Court denied
it as untimely.
Computershare argues on appeal that this denial was
erroneous, because, Computershare contends, the 14-day clock never
started running. Computershare contends that is so because the
July 7 "Order of Dismissal" did not satisfy the separate document
rule and thus did not start the clock for filing a motion for
attorneys' fees. In the alternative, Computershare argues that
the District Court abused its discretion by refusing to grant
Computershare a ten-day extension to file its motion for attorneys'
fees. Finally, Computershare separately argues that it should be
able to request attorneys' fees now, as it does not have a judgment
charging or discharging it as trustee, but will once this Court
passes on the case. We address each of these arguments in turn.
A.
Computershare first argues that the July 7 order was not
a separate document under Rule 58 -- and thus did not trigger Rule
54's 14-day clock for seeking attorneys' fees -- because the July
7 order was not labeled "judgment." But this Court has previously
rejected the argument that an order must be so labelled to
constitute a separate document under Rule 58, see Mirpuri v. ACT
Mfg., Inc., 212 F.3d 624, 628 (1st Cir. 2000), and many other
circuits have, too. See LeBoon v. Lancaster Jewish Community
Center Ass'n, 503 F.3d 217, 224 (3d Cir. 2007); Bourg v.
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Continental Oil Co., 192 F.3d 127, 1999 WL 684161, at *2 (5th Cir.
1999) (unpublished); Grun v. Pneumo Abex Corp., 163 F.3d 411, 422
& n.8 (7th Cir. 1998).
Computershare also argues that the July 7 "Order of
Dismissal" was not a separate document under Rule 58 because it
was not "self-contained." Computershare rests this contention on
the fact that the order referred to the District Court's Memorandum
and Order entered the same day. But here, one need not refer to
the Memorandum and Order to determine the terms of the dismissal,
as the July 7 order on its face makes clear that the case is
dismissed. Thus, the Seventh Circuit's decision in Massey Ferguson
Div. of Varity Corp. v. Gurley, 51 F.3d 102, 104-05 (7th Cir.
1995), is of no help to Computershare. In that case, it was
necessary to refer to the district court's related opinion to
determine in which part the motion in question was granted and in
which part it was denied. Id. The District Court thus correctly
concluded that the July 7 "Order of Dismissal" constituted a
separate document under Rule 58.
B.
We turn then to Computershare's contention that -- if
the July 7 order was a separate document -- the District Court
abused its discretion by refusing to allow Computershare to file
the motion for attorneys' fees ten days late. The District Court
declined to allow the late filing because "Computershare ha[d] not
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shown good cause or excusable neglect for failing to make a fee
request within the required period."
The only reason Computershare gives for its lateness
here is the misunderstanding of its counsel. But, "[o]nly in 'rare
cases' have we found that a district court abused its discretion
in refusing to grant an extension of time." Cortes-Rivera v. Dep't
of Corrs. & Rehab. of Com. of P.R., 626 F.3d 21, 26 (1st Cir. 2010)
(quoting Perez-Cordero v. Wal-Mart P.R., 440 F.3d 531, 534 (1st
Cir. 2006)). And generally those cases have involved circumstances
in which "a litigant was 'reasonably surprised' by a court's
deadline or 'the events leading to the contested decision were
unfair.'" Id. (quoting Perez-Cordero, 440 F.3d at 534). We thus
cannot say that the District Court abused its broad discretion by
refusing to excuse Computershare's lateness on this ground.
Rivera-Almodovar v. Instituto Socioeconomico Comunitario, Inc.,
730 F.3d 23, 27 (1st Cir. 2013) ("[A] lawyer's 'inattention or
carelessness,' without more, 'normally does not constitute
excusable neglect.'" (quoting Dimmitt v. Ockenfels, 407 F.3d 21,
24 (1st Cir. 2005)).
C.
Finally, Computershare asks for permission "to file a
fee application with this Court for its fees incurred in the
District Court." Computershare relies on the Massachusetts
trustee process statute. Under that statute, a trustee process
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defendant (such as Computershare) is entitled to costs, including
attorneys' fees, when it is "adjudged a trustee" (when it has
assets subject to attachment) or "discharged" (when it does not).
See Mass. Gen. Laws ch. 246 §§ 69, 70.
Computershare argues that the District Court's dismissal
of the case did not itself "discharge" Computershare.
Computershare thus argues that, because it has not yet been either
adjudged a trustee or discharged, its request for attorneys' fees
was "premature" and thus that it should be allowed to seek
attorneys' fees now.
This argument fails, however, on Computershare's own
logic. Computershare has not explained how the affirmance of a
judgment it agrees did not discharge it now would discharge it.
Nor has Computershare explained how we, as an appellate court,
could consider a request for discharge in the first instance,
without such a request having been presented first to the District
Court. And, finally, Computershare does not purport to be
appealing from the District Court's dismissal order on the ground
that the District Court erred in not ordering discharge as
Computershare requested. Nor could Computershare do so, as it did
not timely file a notice of appeal from the dismissal. See 28
U.S.C. § 2107; Fed. R. App. P. 4; Bowles v. Russell, 551 U.S. 205(2007) ("This Court has long held that the taking of an appeal
within the prescribed time is 'mandatory and jurisdictional.'"
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(quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 61
(1982) (per curium))).5
V.
For the foregoing reasons, the District Court's order and
judgment of dismissal and denial of Computershare's motion for
attorneys' fees are affirmed.
5 In its cross-appeal reply brief Computershare argues
in the alternative -- and contrary to the position that it takes
in its opening brief -- that the District Court's dismissal of the
case did "implicitly discharge[] Computershare." Computershare
thus argues that it is due attorneys' fees even at this late date.
Computershare makes no argument, however, that, if the District
Court's order had discharged it, it was entitled to more than the
14 days Rule 54 provides to file its motion for attorneys' fees.
And, in any event, new arguments may not be raised for the first
time in a reply brief. See Rivera–Muriente v. Agosto–Alicea, 959
F.2d 349, 354 (1st Cir. 1992).
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