Filed: Oct. 15, 2015
Latest Update: Mar. 02, 2020
Summary: 14-2752-cv (L) Cedar Petrochemicals, Inc. v. Dongbu Hannong Chem. Co. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATAB
Summary: 14-2752-cv (L) Cedar Petrochemicals, Inc. v. Dongbu Hannong Chem. Co. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABA..
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14‐2752‐cv (L)
Cedar Petrochemicals, Inc. v. Dongbu Hannong Chem. Co.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 15th day of October, two thousand fifteen.
PRESENT: DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
KATHERINE B. FORREST,
District Judge.*
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CEDAR PETROCHEMICALS, INC.,
Plaintiff‐Appellant‐Cross‐Appellee,
v. 14‐2752‐cv (Lead)
14‐2890‐cv (XAP)
DONGBU HANNONG CHEMICAL CO., LTD.,
Defendant‐Cross‐Claimant‐Appellee‐Cross‐Appellant,
KUMHO P&B CHEMICALS, INC.,
Defendant‐Cross‐Defendant.
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* The Honorable Katherine B. Forrest, of the United States District Court for the Southern
District of New York, sitting by designation.
FOR PLAINTIFF‐APPELLANT: JOHN T. LILLIS, Nathan T. Williams, Kennedy
Lillis Schmidt & English, New York, New
York.
FOR DEFENDANT‐APPELLEE: ROBERT A. WEINER, Michael R.
Huttenlocher, McDermott Will & Emery LLP,
New York, New York.
Appeal from a judgment and order of the United States District Court for
the Southern District of New York (Nathan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment and order of the district court are
AFFIRMED.
Appellant Cedar Petrochemicals, Inc. (ʺCedarʺ) appeals from the district
courtʹs entry of judgment, after a four‐day bench trial, in favor of Defendant Dongbu
Hannong Chemical Co., Ltd. (ʺDongbuʺ) and against Cedar, as well as from the district
courtʹs order denying Cedarʹs motion for reconsideration. We assume the partiesʹ
familiarity with the underlying facts, procedural history of the case, and issues on
appeal.
This suit arises from a May 17, 2005 contract between Cedar and Dongbu
for the sale of 2,000 metric tons of phenol, to be delivered F.O.B. Ulsan, Korea. On May
21, 2005, the phenol was loaded on Dongbuʹs nominated vessel, the Green Pioneer. On
May 24, 2005, the Green Pioneer arrived at Ulsan and the phenol was transferred to
Cedarʹs nominated vessel, the Bow Flora. The Bow Flora then set sail for Rotterdam.
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On or about July 19, 2005 the Bow Flora arrived in Rotterdam and the quality of the
phenol was tested, revealing that the color was off‐specification. The test results
regarding the damaged phenol were provided to Ertisa, S.A. (ʺErtisaʺ), the ultimate
purchaser of the phenol, and Ertisa made a claim for the chemicals through its
insurance broker.
Cedar initially brought suit in Korean court against the owners and
operators of the Green Pioneer, as well as one of the phenol testing companies. After
withdrawing that action, Cedar brought the instant suit against Dongbu on May 24,
2006, alleging that Dongbu had delivered non‐conforming liquid phenol. The parties
agreed that to demonstrate liability, Cedar had to prove by a preponderance of the
evidence that the phenol was damaged before it was transferred to the Bow Flora.
Because the damage did not manifest itself ‐‐ despite the testing of samples in transit ‐‐
until it was offloaded in Rotterdam, Cedar argued what its expert called the ʺseedingʺ
theory of injury. According to this theory, the phenol was damaged, imperceptibly,
while still in Dongbuʹs control. That initial injury, via a slowly unfurling free radical
chain reaction, was finally detected as off‐specification phenol in Rotterdam.
The district court was not persuaded by the seeding theory, and by
Opinion dated October 21, 2013, following a bench trial, found that Cedar failed to
prove by a preponderance of the evidence that Dongbu breached its contract by
providing injured phenol.
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On appeal, Cedar alleges that the district court (1) abused its discretion by
prohibiting Cedar from outlining its seeding theory of phenol injury in its post‐trial
memorandum and subsequently ruling against the seeding theory without the benefit
of the proposed briefing, (2) clearly erred in entering judgment in favor of Dongbu after
finding that Cedar failed to show that the phenol was already injured when delivered,
and (3) abused its discretion in declining to reach the merits of Cedarʹs motion for
reconsideration. On cross‐appeal, Dongbu contends that the district court abused its
discretion in declining to sanction Cedar for filing its motion for reconsideration.
1. Post‐Trial Memorandum and Motion for Reconsideration
Cedar claims that the district court abused its discretion in prohibiting
them from explaining the seeding theory in Cedarʹs post‐trial memorandum. Cedar
further contends that the district court abused its discretion in deciding that the seeding
theory was contradicted by Cedarʹs own evidence, Cedar Exhibits 70A‐70P (the
ʺLiteratureʺ).
The district court, however, did not deny Cedar the opportunity to argue
its seeding theory. At the conclusion of the bench trial, the district court ordered the
parties to submit final proposed findings of fact and conclusions of law, as well as a
memorandum of law. Specifically, the district court asked that the proposed findings
and conclusions be keyed to the trial record and address the primary question of when
and where the phenol was damaged. And Cedar did, in fact, address the seeding
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theory in its submissions. Additionally, though Cedar submitted direct testimony in
the form of declarations of its experts Martin East and John Minton, neither was able to
demonstrate at trial how the Literature supported the seeding theory.
2. The Seeding Theory of Phenol Injury
Cedar argues that the district court clearly erred in holding that Cedar
failed to meet its burden in proving that the phenol was already injured upon delivery
by Dongbu. ʺIn reviewing a judgment entered after a bench trial, we accept the district
courtʹs findings of fact unless they are clearly erroneous.ʺ Ortho Pharm. Corp. v.
Cosprophar, Inc., 32 F.3d 690, 693 (2d Cir. 1994). The factfinderʹs choice between two
permissible views of the evidence cannot be clearly erroneous. Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 574 (1985).
Cedar argues that (1) the parties stipulated that phenol discolors
gradually, as opposed to rapidly or instantaneously as the district court found, (2) the
Literature supports the seeding theory, (3) the Literature illustrates that the phenol
could not have discolored rapidly or instantaneously due to the quantities of
contaminates, oxidizing agents, and catalysts, (4) Cedarʹs expert never actually
conceded that the Literature contradicted the seeding theory, (5) testimony on blending
supported the seeding theory, and (6) differences in the phenolʹs storage and carriage
conditions and sampling timing limited the ability of the quality‐inspection regime to
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generate the kind of data the district court suggested would be consistent with the
seeding theory.
We have conducted an independent review of the record and conclude
that the district court did not clearly err. The trial judge properly assessed the
credibility of the witnesses and drew reasonable inferences from the evidence before it.
The district court held that the seeding theory could not explain the results of the post‐
shipment tests of the phenol, and that it was unsupported by the scientific literature
provided by the parties. Specifically, the district court found that Cedarʹs experts were
not credible, and that they failed to account for the fact that the ʺpeaks and valleysʺ in
the test results did not comport with the linear degradation anticipated by the seeding
theory. App. at 768‐69; see Krist v. Kolombos Rest. Inc., 688 F.3d 89, 95 (2d Cir. 2012) (ʺIt is
within the province of the district court as the trier of fact to decide whose testimony
should be credited.ʺ).
The district courtʹs decision in favor of Dongbu, that the phenol was not
injured before it crossed the rails of the Bow Flora, was amply supported by the record.
3. Cedarʹs Motion for Reconsideration
Cedar also appeals the district courtʹs June 30, 2014 denial of its motion to
amend the findings of fact and alter the judgment under Federal Rules of Civil
Procedure 52(b) and 59(e) (ʺmotion for reconsiderationʺ). We review a district courtʹs
denial of a motion for reconsideration for abuse of discretion. RJE Corp. v. Northville
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Indus. Corp., 329 F.3d 310, 316 (2d Cir. 2003). ʺThe standard for granting such a motion
is strict, and reconsideration will generally be denied unless the moving party can point
to controlling decisions or data that the court overlooked ‐‐ matters, in other words, that
might reasonably be expected to alter the conclusion reached by the court.ʺ Shrader v.
CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
The district court did not abuse its discretion in denying Cedarʹs motion
for reconsideration. Only after the district court had found in favor of Dongbu and
rejected the seeding theory did Cedar try to connect the Literature to its theory of the
phenol degradation. Cedar purported, in its motion for reconsideration, to provide a
ʺcritical readingʺ of the Literature to show why the district courtʹs findings were wrong.
But the proper time for such a critical reading was trial. Cedar failed to point to
decisions or data that the district court had ʺoverlooked.ʺ Id.
4. Sanctions
On cross‐appeal, Dongbu contends that the district court erred in
declining to sanction Cedar for filing its motion for reconsideration, which, Dongbu
alleges, revived positions that relied on expert conclusions from its previously
withdrawn supplemental report, expanded on these conclusions by making inferences
based on the previously withdrawn supplemental report, submitted and relied on
documents that were not disclosed during discovery, and asserted a ʺtrend analysisʺ
theory that had not previously been disclosed or offered.
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We review a district courtʹs decision regarding sanctions for abuse of
discretion. Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 333 (2d Cir. 1999). This
deferential standard is in recognition of the premise that ʺthe district court is better
situated than the court of appeals to marshal the pertinent facts and apply the fact‐
dependent legal standard that informs its determination as to whether sanctions are
warranted.ʺ Id. (internal quotation marks omitted).
The district court described Cedarʹs motion for reconsideration as
ʺborderline frivolous,ʺ but declined to sanction Cedar because ʺ[p]laintiff has not
previously been sanctioned or warned regarding the possibility of sanctions in this
action.ʺ App. at 954. Dongbu argues that Cedar was ʺwarnedʺ because it did in fact
have notice, in accordance with Federal Rule of Civil Procedure 11, and that in response
to that notice Cedar informed Dongbu that it would not be withdrawing its
reconsideration motion. Despite the Rule 11 notice, it was within the sound discretion
of the trial judge to deny sanctions based on lack of warning from the district court, lack
of previous sanctions, as well the other ʺpertinent facts.ʺ Schlaifer Nance, 194 F.3d at 333.
* * *
We have considered all of Cedar and Dongbuʹs remaining arguments and
find them to be without merit. Accordingly, we AFFIRM the judgment and order of the
district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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