Argentine Republic v. National Grid PLC.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided March 11, 2011
No. 10-7093
ARGENTINE REPUBLIC,
APPELLANT
v.
NATIONAL GRID PLC,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00248)
John P. Gleason was on the briefs for appellant.
Fernando O. Koatz entered an appearance.
Elliot Friedman and Alexander A. Yanos were on the
brief for appellee. Paul L. Yde entered an appearance.
Before: TATEL and BROWN, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed PER CURIAM.
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PER CURIAM: On November 3, 2008, an arbitration panel,
convened pursuant to a Bilateral Investment Treaty between
Argentina and the United Kingdom, determined that
Argentina had violated the treaty by implementing several
emergency measures in response to that nation’s financial
crisis. The panel found Argentina liable to National Grid Plc,
which had been operating in Argentina under the auspices of
the treaty, for some $53 million plus costs and interest. On
November 13, 2008, Argentina received a copy of the
arbitration award, thus starting the three month clock for it to
serve notice of a motion to vacate or modify the award
pursuant to the Federal Arbitration Act (FAA). See 9 U.S.C. §
12 (“Notice of a motion to vacate, modify, or correct an
award must be served upon the adverse party or his attorney
within three months after the award is filed or delivered.”);
see also 9 U.S.C. § 10 (setting forth circumstances in which a
court may vacate an arbitral award). On February 6, 2009,
Argentina filed such a motion with the district court, and on
February 10, three days before the February 13 deadline, it
filed a motion to extend time to serve notice. The latter
motion relied on Federal Rule of Civil Procedure 6(b)(1),
which provides that:
When an act may or must be done within a
specified time, the court may, for good cause,
extend the time: (A) with or without motion or
notice if the court acts, or if a request is made,
before the original time or its extension expires; or
(B) on motion made after the time has expired if
the party failed to act because of excusable
neglect.
Argentina argued that it would be impossible to complete
service of notice within the three month period because
National Grid was headquartered in the United Kingdom, and,
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under the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial
Matters, proper service in the U.K. required using a central
governmental authority.
On February 19, six days after the February 13 deadline,
Argentina and National Grid filed a joint stipulation with the
district court in which National Grid “agree[d] to accept
service of process of the Petition filed by [Argentina], without
waiving any defenses that [National Grid] has in this action,
including but not limited to defenses based on the timing of
service.” Subsequently, in light of the stipulation, the district
court dismissed as moot the motion to extend. It then issued a
final judgment denying the motion to vacate the arbitral
award as untimely and granting National Grid’s cross-motion
to confirm the award. Argentine Republic v. Nat’l Grid Plc,
No. 1:09-cv-00248, order at 3–4 (D.D.C. June 7, 2010)
(included at J.A. 1453–54).
Argentina now appeals, arguing that National Grid
forfeited its timeliness defense and that the district court erred
in treating its motion to extend as moot and in ultimately
finding service to be untimely. Argentina also argues that the
district court erred in granting the confirmation motion
without first giving Argentina the opportunity to raise
defenses available under the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (“Convention”).
See 9 U.S.C. §§ 201–208 (codifying the Convention); § 207
(directing the district court to grant confirmation motions
“unless it finds one of the grounds for refusal or deferral of
recognition or enforcement of the award specified in the said
Convention”).
As a threshold matter, we reject Argentina’s argument
that National Grid has forfeited its timeliness defense.
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National Grid expressly preserved this defense in the joint
stipulation and then raised it in its first responsive pleading.
Contrary to Argentina’s argument, National Grid had no
obligation to raise its timeliness defense via a Rule 12(b)
motion to dismiss. See Fed. R. Civ. P. 12(h)(1) (affirmative
defenses may be raised through a Rule 12(b) motion or in the
first responsive pleading).
Moving on to the merits of the timeliness defense, we
review the district court’s denial of the motion to vacate de
novo. Webster v. A.T. Kearney, Inc., 507 F.3d 568, 571 (7th
Cir. 2007). Aside from the untimely joint stipulation, the only
record evidence of service of notice is Argentina’s motion to
extend time to serve. If the district court abused its discretion
by not granting the motion, then it erred in finding service to
be untimely. See Smith v. District of Columbia, 430 F.3d 450,
457 (D.C. Cir. 2005) (“We review the district court’s
decisions under Rule 6(b) for abuse of discretion.”). But if it
did not abuse its discretion, dismissal was proper.
National Grid argues that the district court could not, as a
matter of law, have granted the motion because Rule 6(b) may
not be used to extend periods of time dictated by statute. We
agree. Every court to have considered this question has held
that Rule 6(b) may be used only to extend time limits imposed
by the court itself or by other Federal Rules, but not by
statute. For example, the Sixth Circuit reasoned that Rule
6(b), on its face, applies only to “procedural steps . . . taken
‘by these rules or by a notice given thereunder by order of
court.’ ” U.S. ex rel. Tenn. Valley Auth. v. Easement & Right-
of-Way 100 Feet Wide and 747 Feet Long Over Certain Land
in Cumberland Cnty., Tenn., 386 F.2d 769, 771 (6th Cir.
1967) (quoting the pre-2007 version of Rule 6(b)); see also
O’Malley v. Town of Egremont, 453 F. Supp. 2d 240, 247 (D.
Mass. 2006); Parker v. Marcotte, 975 F. Supp. 1266, 1269
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(C.D. Cal. 1997), rev’d on other grounds, 198 F.3d 254 (9th
Cir. 1999); Vill. Improvement Ass’n of Doylestown, Pa. v.
Dow Chem. Co., 655 F. Supp. 311 (E.D. Pa. 1987); 4B
Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc.
Civ. § 1165 (“Federal Rule 6(b) governs the enlargement of
time periods prescribed by the federal rules or by an order of
the district court. The rule does not apply to time periods set
out in statutes.”). To be sure, the language of Rule 6(b) on
which the Sixth Circuit relied, i.e., the specific reference to
time periods set out in the Federal Rules or by court order,
was eliminated in the 2007 restyling of the Rules. The current
language merely requires that “When an act may or must be
done within a specified time, the court may, for good cause,
extend the time.” But the 2007 revision was meant to be
stylistic only, so the pre-revision language remains relevant.
See Fed. R. Civ. P. 6(b), 2007 Amendment (“The language of
Rule 6 has been amended as part of the general restyling of
the Civil Rules to make them more easily understood and to
make style and terminology consistent throughout the rules.
These changes are intended to by stylistic only.”); see also
Potter v. Astrue, No. 7:07-CV-70-BO, 2008 WL 4610234(E.D.N.C.) (Oct. 16, 2008) (unpublished) (construing the
current language of Rule 6 consistently with the prior
language).
We see three reasons for following the lead of the other
courts that have addressed this issue. First, like the Sixth
Circuit, we believe that Rule 6(b)’s pre-2007 text clearly
limits the rule’s application to deadlines established by other
Federal Rules and by court orders. Second, a comparison of
the current Rule 6(b) with Rule 6(a), which governs methods
for computing time, supports this reading. Rule 6(a) expressly
applies to statutory time periods, suggesting by negative
implication that Rule 6(b), which contains no parallel
specification, does not. Finally, where Congress has set out a
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specific deadline that courts have consistently construed to
prohibit extension on equitable grounds, we think that it
would be incongruous to allow courts to circumvent the
congressional directive through the use of Rule 6(b). See Vill.
Improvement Ass’n of Doylestown, 655 F. Supp. at 315(refusing to use Rule 6(b) to extend the time limit prescribed
in 28 U.S.C. § 1446(b) for motions to remove to federal
court). As National Grid points out, courts have consistently
interpreted the FAA notice provision to create a strict
deadline. See, e.g., Dalal v. Goldman Sachs & Co., 541 F.
Supp. 2d 72, 76 (D.D.C. 2008), aff’d, 575 F.3d 725 (D.C. Cir.
2009) (noting that there are neither common law nor statutory
exceptions to the three month deadline).
We therefore hold that Rule 6(b) may not be used to
extend statutory time limits. Accordingly, the district court
had no authority to grant Argentina’s motion to extend time to
serve notice and therefore acted within its discretion in
treating the motion as moot. Absent any evidence whatsoever
of timely service of notice, we affirm the district court’s
dismissal of Argentina’s motion to vacate the arbitral award.
Turning to Argentina’s claim that the district court erred
by granting the cross-motion to confirm the arbitral award
without giving Argentina the opportunity to raise defenses
afforded to it by the Convention, we agree with National Grid
that Argentina had ample opportunity to raise these defenses
in its Opposition to the Cross Motion Seeking Confirmation
of the Award. Confirmation proceedings under the
Convention are summary in nature, and the court must grant
the confirmation unless it finds that the arbitration suffers
from one of the defects listed in the Convention. Zeiler v.
Deitsch, 500 F.3d 157, 164 (2nd Cir. 2007) (noting that the
party opposing confirmation has the high burden of
establishing that one of the defects exists). Because Argentina
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made no attempt to raise those defects in the district court, we
affirm the grant of National Grid’s cross-motion for
recognition of the arbitral award.
So ordered.