Appeal from an order of the United States District Court for the Southern District of New York (Haight, Judge) granting appellee's motion under Fed. R. Civ. P. 60(a) to amend a judgment and order of the district court. Affirmed.
Before: CARDAMONE, PIERCE, and MINER, Circuit Judges.
This case presents the issue of whether a district court may amend a consent order and judgment pursuant to Fed. R. Civ. P.60(a) after it has been affirmed on appeal. Because we hold that the court (Charles S. Haight, Judge) had jurisdiction to grant appellee's Rule 60(a) motion under this court's ruling in Marc Rich & Co., A.G. v. United States, 739 F.2d 834 (2d Cir. 1984), we affirm. Familiarity with the facts as stated in prior opinions concerning the instant litigation is assumed, see 500 F. Supp. 787 (S.D.N.Y. 1980), aff'd, 650 F.2d 408 (2d Cir. 1981); 362 F. Supp. 735 (S.D.N.Y. 1973) , aff'd, 496 F.2d 533 (2d Cir. 1974) (per curiam), and they will be repeated only briefly here.
Prior to 1965, plaintiff-appellant Panama Processes, S.A. (PPSA), together with a subsidiary of defendant-appellee Cities Service Company (Cities), and Celanese Corporation formed a Brazilian corporation, Companhia Petroquimica Brasileira - Copebras (Copebras). In 1965, the Cities' subsidiary acquired Celanese Corporation's share in Copebras to become a majority shareholder. PPSA claims that it accepted this restructuring and its subsequent minority shareholder status only because of a letter agreement signed by the Cities' subsidiary which set forth future investment and dividend policies of Copebras. In 1970 the subsidiary was merged into Cities, its corporate parent.
Subsequently, Copebras announced plans to borrow money which, until repayment, would restrict its payable dividends. PPSA claimed that this would violate the 1965 letter agreement and sought a declaratory judgment. The suit was dismissed by the United States District Court for the Southern District of New York (Gurfein, Judge) on the ground that the declaration sought was limited to the binding nature of the contract and would not resolve the issue of its interpretation. 362 F. Supp. at 738.
In 1979, PPSA filed another complaint in the United States District Court for the Southern District of New York (Haight, Judge), which alter gave rise to this appeal claiming that Cities breached the 1965 agreement and its fiduciary duty as majority shareholder of Copebras by employing manipulative accounting devices and through its investment policies. Judge Haight conditionally dismissed the complaint on the ground of forum non conveniens. After a careful review of the relevant factors, the district court concluded that Brazil and not New York was an appropriate forum for the action. 500 F. Supp. at 792-801. In 1980, under the court's direction, Cities filed a consent agreement which the district court retitled a Consent Judgment and Order (Consent Judgment) stating, in relevant part, that Cities:
(1) Consents to personal jurisdiction over it by any court located in the Republic of Brazil which has appropriate subject matter jurisdiction with respect to the claims raised by plaintiff Panama Processes, S.A., against defendant Cities Service Company in the complaint filed in the within action and agrees to contest on their merits any such claims raised by plaintiff in any such court;
(2) Agrees to waive any statute of limitations defense with respect to any such claims based upon facts or events which have arisen since the commencement of the within action in this Court; and
(3) Agrees to pay any final judgment which may be rendered against it in favor of Panama Processes, S.A., upon such claims by such Braziliancourt, provided, however, that such agreement does not prevent Cities Service Company from pursuing any and all remedies by way of appeal which might be available to it under the statutes and regulations prevailing in the Brazilian court system.
Instead of bringing an action in Brazil, PPSA sued Cities in a state court in Oklahoma, which is Cities" principal place of business. In an order dated March 15, 1982, that court denied Cities' forum non conveniens motion stating that the court did not consider the New York district court's holding to mandate litigation only in Brazil and that the dismissal in New York was "conclusive only as to the availability of New York as a forum."
Pursuant to Fed. R. Civ. P. 60(a), (b)(5) and (b)(6), Cities then moved before Judge Haight to amend the 1980 Consent Judgment to limit the waiver of the statute of limitations to an action brought in Brazil only. In an memorandum opinion and order dated April 8, 1985, the district court, pursuant to Rule 60(a), amended paragraph two of the Consent Judgment to read that Cities:
Agrees to waive any statute of limitations defense in any subsequent action which may be filed against it by plaintiff in Brazil with respect to any such claims based upon facts or events which have arisen ...