Canon Latin America, Inc. v. Lantech (CR), S.A.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12026 ELEVENTH CIRCUIT
JUNE 10, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 05-20297-CV-STB
CANON LATIN AMERICA, INC.,
Plaintiff-Appellant,
versus
LANTECH (CR), S.A.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 10, 2010)
Before TJOFLAT, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Canon Latin America, Inc. (“Canonlat”) appeals the
district court’s denial of Canonlat’s (1) petition for further relief, pursuant to 28
U.S.C. § 2202; (2) alternative motion for permission to amend again its amended
complaint; and (3) motion to reopen the case. No reversible error has been shown;
we affirm.
The background of this case is set out in our opinion in Canon Latin
America, Inc. v. Lantech (CR), S.A., 508 F.3d 597 (11th Cir. 2007) (“Canon I”),
reversing the district court’s grant of a permanent injunction barring Defendant
Lantech (C.R.), S.A. (“Lantech”) from proceeding with its claims against Canonlat
in Costa Rica. Very briefly stated, Lantech brought suit against Canonlat in Costa
Rica claiming that Canonlat had breached Costa Rican law when it terminated
Lantech’s Costa Rican distributorship. Canonlat filed suit against Lantech in the
Southern District of Florida for declaratory and injunctive relief; Canonlat sought
to bar Lantech from proceeding with its Costa Rican suit. Canonlat based its
entitlement to injunctive relief on a forum selection and choice of law clause in the
distributorship agreement; that clause provided that the agreement was to be
governed by Florida law, and Lantech agreed:
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THAT ALL SUITS COMMENCED BY DISTRIBUTOR
AGAINST CANONLAT UPON ANY AND ALL
CAUSES OF ACTION, WHETHER OR NOT SUCH
CAUSES OF ACTION HAVE ARISEN UNDER THIS
AGREEMENT AND REGARDLESS OF THE LEGAL
THEORY ... SHALL BE BROUGHT EXCLUSIVELY
IN A STATE OR FEDERAL COURT SITUATED
WITHIN THE STATE OF FLORIDA.
We concluded that the threshold requirements for issuing an anti-suit
injunction were not satisfied; we vacated the injunction and remanded the case for
dismissal in accordance with our opinion.
After remand, on 16 September 2008, the district court ordered and adjudged
the case closed. Some three months later, Canonlat petitioned for further relief
pursuant to Fed.R.Civ.P. 57 and 28 U.S.C. § 2201. Canonlat argued that Lantech
should be declared liable for Canonlat’s attorney fees and costs incurred in
defending itself against Lantech’s wrongfully filed suit in Costa Rica.
Alternatively, Canonlat moved pursuant to Fed.R.Civ.P. 15 for permission to
amend its amended complaint to state a cause of action for damages arising from
Lantech’s continuing violation of the forum selection clause. And on 13 January
2009, Canonlat moved to reopen the case.1
The district court noted that the alternative bases for relief advanced by
1
As of 13 January 2009, the district court had administratively closed the case but had not
yet entered a final judgment.
3
Canonlat each sought the same end: to permit a claim to go forward to recover
damages from having to defend the litigation in Costa Rica -- damages incurred as
a result of our order in Canon I permitting the Costa Rican case to proceed. The
district court concluded that it would be inconsistent with our mandate in Canon I
to allow Canonlat the requested relief.
The district court noted further that Canonlat could have -- and should have
-- sought amendment to state its claim for damages stemming from breach of the
forum selection clause long ago in the litigation. Because the Costa Rican suit pre-
dated the instant suit, the “damages” began to accrue even before the instant suit
was filed. No claim for damages attributable to the forum-selection-clause breach
was set out in the complaint or amended complaint. And, the district court, more
than one and one-half years before, had told Canonlat that the amended complaint
set out no damage claim for the forum-selection-clause breach. Nonetheless
Canonlat made no effort to amend to add such a claim at that time.
Even if we were to accept Canonlat’s position that no preclusive
inconsistency exists between the mandate in Canon I and the relief it now seeks (a
matter about which we express no opinion) and even if we were to accept that
Canonlat’s motions were procedurally proper (again, a matter about which we
express no opinion), we see no abuse of discretion in the district court’s denial of
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relief. The district court’s denial was well within its discretion: Canonlat’s belated
effort to recover its litigation expenses comes too late. Canonlat failed to plead
these claims at the outset; it failed again to include these claims in their amended
complaint. Canonlat did seek such damages in its motion for summary judgment
for declaratory and injunctive relief; but the district court order entered on 19 July
2007 refused this relief because the amended complaint included no claim for these
damages. Canonlat still failed to seek amendment for yet another one and a half
years; only after the case was closed administratively did Canonlat seek to amend.
On these facts we cannot say the district court abused its discretion.2 See Smith v.
Duff and Phelps, Inc., 5 F.3d 488, 493 (11th Cir. 1993) (finding no abuse of
discretion where litigant waited too long to seek leave to amend after notice that
claim was defective).
AFFIRMED.
2
We note also that Canonlat offers no good cause for their delay.
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