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MTB BANK v. FEDERAL ARMORED EXPRESS

January 6, 1997

MTB BANK, Plaintiff,
v.
FEDERAL ARMORED EXPRESS, INC., Defendant. FEDERAL ARMORED EXPRESS, INC., Third-Party Plaintiff, v. MGH ENTERPRISES, a Texas general partnership, and MOSES GOLDBERG, individually, and d/b/a MGH ENTERPRISES, and d/b/a HOUSE OF MONEY, Third-Party Defendant.



The opinion of the court was delivered by: SAND

 I.

 BACKGROUND

 MTB is a commercial bank which engages in the sale of precious metals. Beginning in 1982, MTB engaged in sales of gold bullion and coins to MGH Enterprises ("MGH"), a firm located in Laredo, Texas. At issue in this action are two orders for gold placed by MGH in May, 1993: the first order was placed on May 14, 1993 (the "May 14 shipment"), with a contract price of $ 949,997.50, and the second was placed on May 18, 1993 (the "May 18 shipment"), with a price of $ 929,378. The total price for the two shipments was $ 1,879,375.50.

 MTB and MGH agreed that the gold would be shipped to MGH's bank, the Laredo branch of the International Bank of Commerce ("IBC"). IBC was to hold the gold until MGH had paid the purchase price to MTB. However, Federal, which shipped the gold, released the gold directly to MGH's agents rather than delivering the gold to IBC. MGH never paid the full purchase price for the shipments.

 In June, 1993, MTB commenced an action in Texas state court against MGH and its general partner, Moses Goldberg, seeking to recover the payments for the two shipments. That action was settled. Goldberg filed for bankruptcy shortly thereafter.

 In August, 1993, MTB commenced an action in this Court against Federal, alleging that Federal had misdelivered the gold by transporting it to MGH's agents rather than to IBC. This Court granted summary judgment to MTB on the issue of Federal's liability, and ordered that the damages to be paid by Federal be offset by any amounts paid to MTB by MGH for the May 14 and May 18 shipments. See MTB Bank, 1996 U.S. Dist. LEXIS 11208, 1996 WL 445358 at *4-*10.

 Now before the Court is MTB's motion for summary judgment as to damages. The central question is the extent to which various payments made by MGH to MTB should be allocated to the May 14 and May 18 shipments, and therefore offset against the damages to be paid by Federal. MTB contends that the Texas settlement is determinative of this issue, because it represents a valid agreement between a debtor and a creditor as to the allocation of payments. Federal contends that the issue is one which requires a trial. MTB also seeks to recover attorney's fees expended in pursuing the Texas action and in asserting claims in Goldberg's bankruptcy proceedings.

 For the reasons set forth below, we agree with MTB that the Texas settlement is determinative as to the extent to which payments made by MGH to MTB should be allocated to the May 14 and May 18 shipments, and hence the settlement dictates the amount by which the damages owed by Federal are to be offset. However, we deny MTB's request for summary judgment as to attorney's fees.

 II.

 DISCUSSION

 The Texas settlement set MGH's remaining liability to MTB for the May 14 and May 18 shipments at $ 1,440,762.30, *fn1" plus attorney's fees and prejudgment interest. See DiBenedetto Aff. Dated Oct. 7, 1996 Ex. H. MTB therefore contends that Federal's liability to MTB should equal $ 1,440,762.30. MTB seeks this amount, minus $ 18,448.26 recovered by MTB in Goldberg's bankruptcy distribution, plus attorney's fees in the amount of $ 109,869.28 *fn2" sustained by MTB during the Texas action and the bankruptcy proceedings. Thus, MTB seeks summary judgment in the total amount of $ 1,532,183.32. See DiBenedetto Reply Aff. Dated Nov. 14, 1996 P 6.

 We will proceed by first addressing whether the Texas settlement is dispositive as to the amount remaining due from MGH to MTB on the May 14 and May 18 shipments. We will ...


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