Nanko Shipping, USA v. Alcoa, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
NANKO SHIPPING, USA, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 14-1301 (RMC)
)
ALCOA, INC., et al., )
)
Defendants. )
_________________________________ )
OPINION
Nanko Shipping Guinea seeks reconsideration of the dismissal of this case. It
does not assert new evidence or a change in law, but argues that the Court committed clear error
and that reversal is required to avoid manifest injustice. Because there was no error or injustice,
the motion will be denied.
I. FACTS 1
In 1963, the Republic of Guinea (Guinea) and Harvey Aluminum Company of
Delaware (Halco) formed the Compagnie des Bauxites de Guinee (CBG) and entered into the
CBG Convention, a contract for the development of bauxite mining, processing, and shipping in
Guinea. Second Am. Compl. [Dkt. 14-1] (SAC) at 1-2; see Mot. to Dismiss [Dkt. 7], Ex. A
(Convention) [Dkt. 7-2].2 Article 9 of the Convention gave Guinea a qualified right to ship 50%
of the bauxite produced by CBG:
The Government [of Guinea] reserves the right, inasmuch as it does
not adversely affect the sale of bauxite, to have the exported tonnage
load[illegible] a proportion [of] which shall not exceed fifty percent
1
More detailed facts are set forth in the June 5, 2015 Opinion. See Op. [Dkt. 22].
2
CBG is a corporation owned 49% by Guinea and 51% by Halco. SAC at 2 (introduction).
1
on ships operating under the Guinean flag or an assimilated flag, or
on ships chartered by the Government on the international shipping
market, the above being, however, under the express condition that
the freight tariffs practiced are lower or equal to those which are
quoted at that particular time on the international shipping market
for identical conditions for the freight and the shipping routes
considered.
Convention, Art. 9.
Decades later, in 2011, Guinea entered into a Technical Assistance Agreement
with Nanko Shipping Guinea. Under the terms of the Technical Assistance Agreement, Guinea
allegedly authorized Nanko Shipping Guinea to exercise Guinea’s shipping rights under Article 9
of the Convention. 3 SAC ¶¶ 3, 4, 20, 72. Nanko Shipping Guinea contends that the Technical
Assistance Agreement made Nanko Shipping Guinea a third party beneficiary to the Convention.
Id.
Nanko Shipping Guinea is owned by Nanko Shipping USA and Mori Diane. Id.
¶ 3. Mr. Diane is President and sole shareholder of both Nanko Shipping Guinea and Nanko
Shipping USA. Id. Nanko Shipping Guinea, Nanko Shipping USA, and Mr. Diane (collectively,
Plaintiffs) brought this suit against Alcoa, Inc. and its affiliate, Alcoa World Alumina LLC
(collectively, Alcoa), alleging that Alcoa refused to implement and effectuate Nanko Shipping
Guinea’s shipping rights. Id. ¶ 63; Am. Compl. [Dkt. 10-1] ¶ 63. 4 Plaintiffs alleged that (1)
Alcoa breached Plaintiffs’ third party beneficiary rights and (2) Alcoa discriminated against
Plaintiffs based on Mr. Diane’s race in violation of 42 U.S.C. § 1981, which prohibits race
3
Neither party has filed a copy of the Technical Assistance Agreement.
4
Because Plaintiffs argued that their proposed Second Amended Complaint overcame the
deficiencies identified in Alcoa’s motion to dismiss the Amended Complaint, the Court focused
on the Second Amended Complaint as Plaintiffs’ best attempt to state a claim. See Op. [Dkt. 22]
at 1.
2
discrimination in contracting. Mr. Diane is a Black American and Nanko Shipping Guinea is a
Black-owned company. SAC ¶¶ 77-91; Am. Compl. ¶¶ 64-76.
Alcoa moved to dismiss, primarily because it cannot be liable for breaching the
Convention (the source of Nanko Shipping Guinea’s third party rights) when it was not a party to
the Convention. In response, Plaintiffs asserted that Alcoa is the alter ego of Halco, a party to
the Convention, and Plaintiffs sought to file a Second Amended Complaint to add Halco as a
defendant. Plaintiffs also sought to add, among other claims, a claim for conspiracy to
discriminate under 42 U.S.C. § 1985.
The Court denied the motion to amend the complaint as futile and dismissed the
case, finding that Nanko Shipping USA and Mr. Diane lacked standing and that Plaintiff had
failed to join an indispensable party, the Republic of Guinea. See Op. at 6-10. The Court
explained that (1) Nanko Shipping Guinea’s claim for breach of third party beneficiary rights
under the Technical Assistance Agreement was a claim to enforce Guinea’s right to ship bauxite
under the Convention, and (2) Nanko Shipping Guinea’s § 1981 claim that Alcoa and Halco
discriminatorily failed to enforce the Technical Assistance Agreement was a claim to enforce
Guinea’s rights under the Convention because the Technical Assistance Agreement conveyed
shipping rights derived from and defined by the Convention. Id. at 9-10. To resolve this case on
the merits, the Court would have been required to construe the Convention and the parameters of
Guinea’s rights and duties under the Convention. Because the Court’s interpretation of the
Convention could impair or impede Guinea’s right to protect its interests under the Convention,
Guinea was a necessary and indispensable party to this suit. Upon deciding that the Republic of
Guinea was a necessary party that could not be joined due to its sovereign immunity, see 28
U.S.C. § 1604, the Court decided that it could not “in equity and good conscience” proceed
3
among the existing parties, see Fed. R. Civ. P. 19(b), and the case was dismissed. See Fed. R.
Civ. P. 12(b)(7) (permitting dismissal for failure to join an indispensable party). In so deciding,
it emphasized that Nanko Shipping Guinea has an adequate remedy for resolution of its claims––
through arbitration mandated by the Convention. Op. at 10.
Because the § 1981 claim was dismissed, the § 1985 claim that was based on the
§ 1981 claim also was dismissed. Op. at 11. Section 1985 permits a private cause of action for
conspiracy to violate a federal right, but it does not itself create any substantive rights. Weaver v.
Gross, 605 F. Supp. 210, 213 n.5 (D.D.C. 1985) (citing United Bhd. of Carpenters & Joiners,
463 U.S. 825, 833 (1983)). Nanko Shipping Guinea’s § 1985 claim was a claim for conspiracy
to violate § 1981. When the § 1981 claim was dismissed, the derivative § 1985 claim also had to
be dismissed.
Nanko Shipping Guinea seeks reconsideration and reinstatement of the §§ 1981
and 1985 claims. See Mot. for Recons. [Dkt. 25]; Reply [Dkt. 30]. Alcoa opposes. See Opp’n
[Dkt. 29].
II. LEGAL STANDARD
Motions for reconsideration are governed by Federal Rule of Civil Procedure
59(e). They are discretionary and need not be granted unless the court finds that there is “an
intervening change of controlling law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.” Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir.
2006) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). The motion is not
“simply an opportunity to reargue facts and theories upon which a court has already ruled.” New
York v. United States, 880 F. Supp. 37, 38 (D.D.C. 1995). Nor is it an avenue for a “losing party
. . . to raise new issues that could have been raised previously.” Kattan v. Dist. of Columbia, 995
F.2d 274, 276 (D.C. Cir. 1993).
4
Nanko Shipping Guinea does not base its motion on new evidence or a change in
law. Instead, Nanko Shipping Guinea argues that the Court committed clear error and that
reversal is required to avoid manifest injustice. Manifest injustice is an exceptionally narrow
concept. See Slate v. ABC, 12 F. Supp. 3d 30, 34 (D.D.C. 2013). It must entail more than just a
clear and certain prejudice to the moving party and must entail a result that is fundamentally
unfair in light of governing law. Id. at 35-36. A “final judgment must be ‘dead wrong’ to
constitute clear error.” Lardner v. FBI, 875 F. Supp. 2d 49, 53 (D.D.C. 2012) (quoting Parts &
Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988)).
III. ANALYSIS
Nanko Shipping Guinea asserts that the “court’s erroneous interpretation of
applicable law creates manifest injustice,” see Mot. for Recons. at 3, and the asserted “erroneous
interpretation” is the Court’s finding that Guinea is an indispensable party. Nanko Shipping
Guinea argues that Guinea is not required as a party in this case and that the Court cannot make a
determination about Guinea’s indispensability without discovery. Nanko Shipping Guinea does
not present any new arguments or evidence to support its argument that Guinea is not an
indispensable party. As the Court held previously, Nanko Shipping Guinea’s claims would
require the Court to interpret the Convention, which might impair or impede Guinea’s rights,
making Guinea an indispensable party. Discovery would not change this.
Nanko Shipping Guinea also contends that the Court can avoid the indispensable
party analysis altogether if it looks no further than the Technical Assistance Agreement. But it is
not possible to resolve any question regarding the nature and extent of Nanko Shipping Guinea’s
rights under the Technical Assistance Agreement without analyzing the Convention from which
such rights flowed. The Technical Assistance Agreement passed Guinea’s rights under the
Convention to Nanko Shipping Guinea. The Convention is the source of Guinea’s rights, a fact
5
recognized by Nanko Shipping Guinea when it asserts that the Technical Assistance Agreement
gave Nanko Shipping Guinea third party beneficiary rights under the Convention. See SAC ¶¶ 3,
4, 20, 72. To decide whether Nanko Shipping Guinea has third party rights, and to determine the
nature and extent of these rights, necessitates an examination of the Convention to determine the
nature and scope of the Guinea’s shipping rights the first place. Similarly, to determine whether
Defendants discriminated against Nanko Shipping Guinea in violation of § 1981 by refusing to
implement Nanko Shipping Guinea’s shipping rights compels an analysis of the Convention to
determine what the shipping rights are.
Nanko Shipping Guinea further complains that the Court noted that Nanko
Shipping Guinea has an alternative remedy, in that it could proceed to arbitration. Op. at 10 &
n.7. The Convention requires that disputes relating to it be arbitrated. See Convention, Art. 13
(“Conciliation and arbitration shall apply . . . to all disputes which in any way are connected with
this Agreement and with any legal instruments and legal relationships which might be a
consequence thereof . . .”). 5 Nanko Shipping Guinea contends that it cannot be forced to
arbitrate because it did not expressly agree to the terms of the Convention. Whether arbitration
is mandatory for Nanko Shipping Guinea or not is beside the point. The case was dismissed
because Guinea is a necessary and indispensable party to a resolution of Nanko Shipping
Guinea’s claims, and the Court could not in equity and good conscience proceed among the
existing parties––particularly when Nanko Shipping Guinea has an adequate remedy in
arbitration. See Op. at 9-10.
5
The interpretation of an unambiguous contract is a question of law for the court. U.S. On
Behalf of Dep’t of Labor v. Ins. Co. of N. Am., 131 F.3d 1037, 1042 (D.C. Cir. 1997). The
arbitration clause is unambiguous.
6
In addition to dismissing the case for failure to join an indispensable party, the
Court also dismissed the § 1981 claim for failure to state a claim. In its motion for
reconsideration, Nanko Shipping Guinea insists that its allegation that Alcoa discriminated
against Nanko Shipping Guinea based on race was sufficient. However, § 1981 “can be violated
only by purposeful discrimination.” Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S.
375, 391 (1982). It does not cover unintentional disparate treatment. Ayissi-Etoh v. Fannie Mae,
712 F.3d 572, 576 n.1 (D.C. Cir. 2013). To plead intentional discrimination, “plaintiff cannot
merely invoke his race in the course of a claim’s narrative and automatically be entitled to pursue
relief. Rather, plaintiff must allege some facts that demonstrate that race was the reason for
defendant's actions.” Bray v. RHT, Inc., 748 F. Supp. 3, 5 (D.D.C. 1990); see also Mesumbe v.
Howard Univ., 706 F. Supp. 2d 86, 92 (D.D.C. 2010). In Mesumbe, the court dismissed a § 1981
claim for failure to plead intentional discrimination, where the plaintiff alleged only that he was
African and that similarly situated students of different ethnic backgrounds were treated better.
706 F. Supp. 2d at 92. Nanko Shipping Guinea has not alleged any facts to support its claim that
Alcoa intentionally discriminated against Nanko Shipping Guinea due to race. Because Nanko
Shipping Guinea failed to allege an actionable claim under § 1981, the claim was dismissed.
Further, because the § 1981 claim was the linchpin for the § 1985 claim, the failure to state a
claim under § 1981 also meant that Nanko Shipping Guinea failed to state a claim for conspiracy
under § 1985. Both claims were dismissed properly under Federal Rule of Civil Procedure
12(b)(6).
IV. CONCLUSION
Nanko Shipping Guinea has not pointed to new evidence or any change in the
law, and it has not demonstrated clear error or manifest injustice. Accordingly, Nanko Shipping
7
Guinea’s motion for reconsideration [Dkt. 25] will be denied. A memorializing Order
accompanies this Opinion.
Date: August 6, 2015 /s/
ROSEMARY M. COLLYER
United States District Judge
8