Transaero, Inc. v. La Fuerza Area Boliviana, an Instrumentality of the Repub. of Bolivia, a Foreign State, 24 F.3d 457 (2d Cir. 1994). · Go Syfert
Transaero, Inc. v. La Fuerza Area Boliviana, an Instrumentality of the Repub. of Bolivia, a Foreign State, 24 F.3d 457 (2d Cir. 1994). Cases Citing This Book View Copy Cite
91 citation events (54 in the last 25 years) across 19 distinct courts.
Strongest positive: Dorshanni J. Kelly, et al. v. Wells Fargo Home Mortgage, Inc. (almd, 2026-04-06)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Dorshanni J. Kelly, et al. v. Wells Fargo Home Mortgage, Inc. (3×) also: Cited as authority (rule), Cited "see"
M.D. Ala. · 2026 · quote attribution · 1 verbatim quote · confidence high
where . . . interest is owed as part of an underlying contractual obligation, unpaid interest becomes part of the principal for jurisdictional purposes.
examined Cited as authority (verbatim quote) Golden v. Gorno Bros
6th Cir. · 2005 · signal: see · quote attribution · 1 verbatim quote · confidence high
it seems clear under edwards v. bates county, 163 u.s. 269 (1896) that where, as here, interest is owed as part of an underlying contractual obligation, unpaid interest becomes part of the principal for jurisdictional purposes.
discussed Cited as authority (rule) The Bogoraz Law Firm v. Apogee Capital Fund 5, LLC
E.D.N.Y · 2025 · confidence medium
See Grunblatt v. UnumProvident Corp., 270 F. Supp. 2d 347, 349 (E.D.N.Y. 2003) (explaining that “[a]lthough 28 U.S.C. § 1332 specifically mandates the exclusion of interest in determining the amount in controversy, interest is nonetheless included when it is an essential ingredient of the principal claim,” like when interest is owed as part of an underlying contractual obligation); Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir. 1994) (same).
discussed Cited as authority (rule) Welch v. Bio-Reference Laboratories, Inc.
N.D.N.Y. · 2024 · confidence medium
Further, even assuming attorney fees and interest are recoverable under the settlement agreement, see In re Ciprofloxacin Hydrochloride Antitrust Litig., 166 F. Supp. 2d 740 (E.D.N.Y.2001) (“The Second Circuit has held that attorney’s fees may be used to satisfy the amount in controversy only where they are recoverable as of right pursuant to statute or contract.”); Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir. 1994) (explaining that when interest “is owed as part of an underlying contractual obligation[,]” it is “part of the principal for jurisdictional pu…
cited Cited as authority (rule) Akmal H. Sadikov
Bankr. S.D.N.Y. · 2024 · confidence medium
S.D.N.Y. 2001) (citing Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir. 1994)).
cited Cited as authority (rule) JDH Unlimited Inc v. Koehler
2d Cir. · 2023 · confidence medium
Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 459 (2d Cir. 1994), as amended on reh’g in part, 38 F.3d 648 (2d Cir. 1994).
discussed Cited as authority (rule) Elwell v. Raymond James Financial Services, Inc.
S.D.N.Y. · 2023 · confidence medium
For example, where “interest is owed as part of an underlying contractual obligation, unpaid interest becomes part of the principal for jurisdictional purposes.” Transaero, Inc. v. LaFuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir. 1994).
discussed Cited as authority (rule) Moskovits v. Bank of America, N.A.
2d Cir. · 2022 · confidence medium
Nonetheless, we conclude that the district court properly dismissed the claim since the amended complaint fails to plausibly allege “fraud which does or attempts to[] defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases.” Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 460 (2d Cir. 1994) (quoting Kupferman v. Consol.
discussed Cited as authority (rule) Colella v. the Republic of Argentina
2d Cir. · 2021 · confidence medium
We review for abuse of discretion a district court’s determination that conduct constitutes fraud upon the court, Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 459 (2d Cir. * The Clerk of the Court is directed to amend the caption as indicated above. 2 1994), and that a complaint should be dismissed as a sanction, Enmon v. Prospect Cap.
discussed Cited as authority (rule) Harper v. New York City Transit Authority
S.D.N.Y. · 2021 · confidence medium
Nov. 9, 2012) (quoting Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 460 (2d Cir. 1994)). “[F]raud upon the court as distinguished from fraud on an adverse party is limited to fraud which seriously affects the integrity of the normal process of adjudication.” Gleason v. Jandrucko, 860 F.2d 556, 559 (2d Cir. 1988) (internal quotation marks omitted).
discussed Cited as authority (rule) IP Global Investments America, Inc v. Body Glove IP Holdings, LP
C.D. Cal. · 2019 · confidence medium
When reviewing the effect of evidentiary error, courts 21 “begin with a presumption of prejudice . . . [t]hat . . . can be rebutted by a showing 22 that it is more probable than not that the jury would have reached the same verdict 23 even if the evidence had been admitted.” Estate of Barabin v. AstenJohnson, Inc., 740 24 F.3d 457, 465 (9th Cir. 2014) (quoting Jules Jordan Video, Inc. v. 144942 Can.
discussed Cited as authority (rule) In re Motors Liquidation Co.
Bankr. S.D.N.Y. · 2015 · confidence medium
Corp., 459 F.2d 1072, 1078 (2d Cir.1972) (Kupferman ”) (quotation marks omitted); accord Hadges, 48 F.3d at 1325 (quoting Kup ferman); Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 460 (2d Cir.1994) (“Transaero ”) on reh'g in part sub nom. 38 F.3d 648 (2d Cir.1994); Gleason v. Jandrucko, 860 F.2d 556, 558-59 (2d Cir.1988) (“Gleason ”); Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 702 (2d Cir.1972).
discussed Cited as authority (rule) Cyan Contracting Corp. v. National Grange Mutual Insurance
S.D.N.Y. · 2009 · confidence medium
Cirami, 563 F.2d at 32 (citing Ackermann v. United States, 340 U.S. 193, 199 , 71 S.Ct. 209 , 95 L.Ed. 207 (1950) and United States v. Kamhalias, 205 F.2d 331, 333 (2d Cir.1953)); Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir.1994). .
cited Cited as authority (rule) Westport Insurance v. Goldberger & Dubin, P.C.
2d Cir. · 2007 · confidence medium
The district court’s decision to deny a Rule 60(b) motion is reviewed for abuse of discretion, Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 459 (2d Cir.1994), and we find none here.
discussed Cited as authority (rule) MISSISSIPPI VETERANS HOME PURCHASE BOARD v. State Farm Fire & Casualty Co.
S.D. Miss. · 2007 · confidence medium
In Brown v. Webster, 156 U.S. 328 , 15 S.Ct. 377 , 39 L.Ed. 440 (1895), the Supreme Court distinguished between “interest as such,” which must not be taken into account when computing the amount in controversy, and interest “as an instrumentality in arriving at the amount of damages to be awarded on the principal demand.” Interest may be considered an element of damages when the “interest is owed as part of an underlying contractual *586 obligation.” Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir.1994).
discussed Cited as authority (rule) Grace v. Bank Leumi Trust Co.
2d Cir. · 2006 · confidence medium
Notably, a Rule 60(b)(6) motion requires "extraordinary circumstances,” which "typically do not exist where the applicant fails to move for relief promptly.” 12 Moore’s Federal Practice § 60.48[3][c]; Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 462 (2d Cir. 1994).
discussed Cited as authority (rule) Grace v. Bank Leumi Trust Company Of New York
2d Cir. · 2006 · confidence medium
Notably, a Rule 60(b)(6) motion requires "extraordinary circumstances," which "typically do not exist where the applicant fails to move for relief promptly." 12 MOORE'S FEDERAL PRACTICE § 60.48[3][c]; Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 462 (2d Cir. 1994).
discussed Cited as authority (rule) Terrance Golden v. Gorno Bros., Inc., D/B/A Gorno Ford (2×) also: Cited "see"
6th Cir. · 2005 · confidence medium
Rather, I believe that the phrase “exclusive of interests and costs” is more appropriately understood to refer to amounts such as pre-judgment interest and filing fees that parties incur during the litigation process. • See Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir.1994) (“It seems clear under Edwards [v. Bates County, 163 U.S. 269 , 16 S.Ct. 967 , 41 L.Ed. 155 (1896) ] that where, as here, interest is owed as part of an underlying contractual obligation, unpaid interest becomes part of the principal for jurisdictional purposes.”); Brainin v. Melikian, 396…
discussed Cited as authority (rule) Williams v. New York City Department of Corrections
S.D.N.Y. · 2003 · confidence medium
Plaintiff Cannot Raise a Rule 60(b)(6) Motion: The Second Circuit has explained that Rule 60(b)(6) is “a grand reservoir of equitable power to do justice in a particular case when relief is not warranted by the preceding clauses.” Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir.1994).
discussed Cited as authority (rule) Grunblatt v. UnumProvident Corp.
E.D.N.Y · 2003 · confidence medium
See Brown v. Webster, 156 U.S. 328, 330 , 15 S.Ct. 377 , 39 L.Ed. 440 (1895) (holding that interest claimed by the plaintiff was properly calculated in the amount in controversy where the interest is a “principal demand” rather than an “accessory demand”); Transaero, Inc. v. La Fuerza Area Boliviano, 24 F.3d 457, 461 (2d Cir.1994) (“[Wjhere ... interest is owed as part of an underlying contractual obligation, unpaid interest becomes part of the principal for jurisdictional purposes.”); Brecher v. Great Eastern (Bermuda) Ltd., 1992 WL 96345 , at *3-4 (S.D.N.Y.
discussed Cited as authority (rule) Buxbaum v. Deutsche Bank Ag
S.D.N.Y. · 2003 · confidence medium
The party seeking relief under Rule 60(b)(6) must also demonstrate a showing of “extraordinary circumstances.” See Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir.1994); DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir.1994); Mendell v. Gollust, 909 F.2d 724, 731 (2d Cir.1990), aff'd, 501 U.S. 115 , 111 S.Ct. 2173 , 115 L.Ed.2d 109 (1991).
cited Cited as authority (rule) Bradlees Stores, Inc. v. St. Paul Fire & Marine Insurance (In Re Bradlees Stores, Inc.)
Bankr. S.D.N.Y. · 2003 · confidence medium
See Fed.R.Civ.P. 60(b)(6); Transaero, Inc. v. La Fuerza Area Boliviano, 24 F.3d 457, 461 (2d Cir.1994).
cited Cited as authority (rule) Oneida Indian Nation of New York v. County of Oneida
N.D.N.Y. · 2003 · confidence medium
April 15, 2002) (quoting Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir.1994)) (other citation omitted).
discussed Cited as authority (rule) Cobell v. Norton
D.D.C. · 2002 · confidence medium
In both instances, the concept of fraud on the court "embraces that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases presented for adjudication.” Transaero v. La Fuerza Area Boliviana, 24 F.3d 457, 460 (2d Cir.1994) (internal quotation marks omitted).
discussed Cited as authority (rule) Roberts v. Chandaleur Homes, Inc.
S.D. Miss. · 2002 · confidence medium
The Second Circuit has concluded, based on Edwards , that where “interest is owed as part of an underlying contractual obligation, unpaid interest becomes part of the principal for jurisdictional purposes.” Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2nd Cir.1994).
discussed Cited as authority (rule) In Re Drew v. Tidwell, Movant. Drew v. Tidwell, Movant-Appellant
2d Cir. · 2002 · confidence medium
Although the grounds for such an appeal are normally quite limited, see Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 459 (2d Cir.1994), and do not provide an occasion for asserting grounds that were available to be raised on appeal, see Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir.1986), we will not pause to explore the circumstances concerning Tidwell’s unsuccessful attempt to appeal the District Court’s disbarment order, and instead will consider the merits of Tidwell’s claim that the entry of that order violated due process requirements for lack of notice and hearing, eithe…
discussed Cited as authority (rule) Velez v. Vassallo
S.D.N.Y. · 2002 · confidence medium
Relief under Rule 60(b)(6) in particular is available only in “extraordinary circumstances.” Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir.1994) (quoting Ackermann v. United States, 340 U.S. 193, 199 , 71 S.Ct. 209, 212 , 95 L.Ed. 207 (1950)).
discussed Cited as authority (rule) In Re AMC Realty Corp.
Bankr. S.D.N.Y. · 2001 · confidence medium
While the scope of Rule 60(b)(6) has been “variously interpreted,” Nemaizer, 793 F.2d at 63 , ranging from “extremely meager” to a “grand reservoir,” see id. and cases cited therein, its underlying purpose is “to do justice in a particular case when relief is not warranted by the preceding clauses.” Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir.1994).
discussed Cited as authority (rule) Gazes v. DelPrete (In Re Clinton Street Food Corp.)
Bankr. S.D.N.Y. · 2000 · confidence medium
Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1325 (2d Cir.1995); Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 460 (2d Cir.1994), cert. denied, 520 U.S. 1240 , 117 S.Ct. 1843 , 137 L.Ed.2d 1047 (1997); Gleason v. Jandrucko, 860 F.2d 556, 558 (2d Cir.1988); Kupferman v. Consolidated Research & Mfg.
discussed Cited as authority (rule) Partnership Placements, Inc. v. Landmark Insurance
D.C. · 1998 · confidence medium
“The concept embraces ‘that species of fraud which does, or attempts to, defile the court itself ....”’ Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 460 (2d Cir.1994) (citation omitted), cert. denied, 513 U.S. 1150 , 115 S.Ct. 1101 , 130 L.Ed.2d 1068 (1995).
discussed Cited as authority (rule) Clarendon National Insurance v. TIG Reinsurance Co.
S.D.N.Y. · 1998 · confidence medium
Transaero, Inc. v. La Fuerza Area Boliviano, 24 F.3d 457, 461 (2d Cir.1994) (quoting Moore’s Federal Practice f 60.27[2], at 295, 273 (2d ed.1993)); see Radack v. Norwegian America Line Agency, Inc., 318 F.2d 538, 543 (2d Cir.1963) (explaining that “the rule should be liberally construed when substantial justice will thus be served”).
discussed Cited as authority (rule) Outen v. Baltimore County
D. Maryland · 1998 · confidence medium
E.g., Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 460 (2nd Cir.1994); see also Weese v. Schukman, 98 F.3d 542, 552-53 (10th Cir.1996); First Nat’l Bank of Louisville v. Lustig, 96 F.3d 1554, 1573 (5th Cir. 1996).
cited Cited as authority (rule) In re Asbestos Litigation
S.D.N.Y. · 1997 · confidence medium
Transaero, Inc. v. La Fuerza Area Boliviano, 24 F.3d 457, 461 (2d Cir.1994); Fustok v. Conticommodity Services, Inc., 122 F.R.D. 151, 157 (S.D.N.Y.1988) aff'd 873 F.2d 38 (1989).
discussed Cited as authority (rule) Weitzman v. Stein
S.D.N.Y. · 1995 · confidence medium
Rule 60(b)(1) permits a court to reheve a party of an order because of “mistake, inadvertence, surprise, or excusable neglect.” Rule 60(b)(6) is a catchall provision that permits a court to grant a Rule 60(b) motion for “any ... reason justifying rehef.” “Clause (6) provides ‘a grand reservoir of equitable power to do justice in a particular case when rehef is not warranted by the preceding clauses [of Rule 60(b) ].’” Transaero v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir.1994) (quoting 7 Moore’s Federal Practice ¶ 60.27[2] (2d ed. 1993)).
discussed Cited as authority (rule) Widmer-Baum v. Chandler-Halford
N.D. Iowa · 1995 · confidence medium
Where relief from the judgment is sought under the “catch-all” ground provided by FedR.Civ.P. 60(b)(6), relief is still available only in “extraordinary circumstances,” even though the clause “provides ‘a grand reservoir of equitable power to do justice in a particular case when relief is not warranted by the preceding clauses.’ ” Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir. 1994) (quoting 7 Moore’s Federal Practice ¶ 60.27[2], at 295 (2d ed.1993)); but see Information Sys. & Networks Corp., 994 F.2d at 796 (concluding that extraordinary circumstanc…
discussed Cited as authority (rule) George Hadges, William M. Kunstler v. Yonkers Racing Corp.
2d Cir. · 1995 · confidence medium
However, “the type of fraud necessary to sustain an independent action attacking the finality of a judgment is narrower in scope than that which is-sufficient for relief by timely motion.” Id. (citing Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 244-46 , 64 S.Ct. 997, 1000-01 , 88 L.Ed. 1250 (1944)). “ ‘[Fjraud upon the court’ as distinguished from fraud on an adverse party is limited to fraud which seriously affects the integrity of the normal process of adjudication.” Gleason, 860 F.2d at 559 (citations omitted); Transaero, Inc. v. La Fuerza Area Boliviano, 24 F.3d…
cited Cited as authority (rule) Paddington Partners v. Jean-Louis Bouchard, Herbert A. Denton, Econocom Finance Nv Econocom International N v. Jeffries & Company, Inc.
2d Cir. · 1994 · confidence medium
Transaero, Inc. v. La Fuerza Area Boliviano, 24 F.3d 457, 459 (2d Cir.1994) (Rule 60(b)); Esquire Radio & Elecs., Inc. v. Montgomery Ward & Co., 804 F.2d 787, 796 (2d Cir.1986) (Rule 60(a)).
cited Cited "see" Daane v. Ryder Truck Rental, Inc.
S.D.N.Y. · 2023 · signal: see · confidence high
See Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir. 1994), on reh’g in part sub nom,.
discussed Cited "see" In Re: Lehman Brothers Holdings Inc.
S.D.N.Y. · 2022 · signal: see · confidence high
See Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir.), on reh’g in part 38 F.3d 648 (2d Cir. 1994) (holding that an adversary’s “up-front submission of [the] documentary evidence [on which a party had based its claim of fraud to the district court] fundamentally undermines [the party’s] claim of fraud on the court”).
discussed Cited "see" Bonham v. Aranas
D. Nev. · 2019 · signal: see · confidence high
See Docket No. 61 at 4. 1 The case law cited by Plaintiff provides for contempt-like ancillary proceedings when a litigant’s misconduct renders the “judicial machinery [unable to] perform in the usual manner.” 3]) See Cobell v. Norton, 226 F. Supp. 2d 1, 24 (D.D.C. 2002) (quoting Transaero v. La Fuerza Area 4} Boliviana, 24 F.3d 457, 460 (2d Cir. 1994)), vacated, 334 F.3d 1128 (D.C.
discussed Cited "see" Salsberg v. Trico Marine Services, Inc. (In Re Trico Marine Services, Inc.)
Bankr. S.D.N.Y. · 2007 · signal: accord · confidence high
In short, neither perjury nor nondisclosure, by itself, amounts to anything more than fraud involving injury to a single litigant. *60 860 F.2d at 559-60 (emphasis added); accord Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 460 (2d Cir.1994), cert. denied, 520 U.S. 1240 , 117 S.Ct. 1843 , 137 L.Ed.2d 1047 (1997); New Card, Inc. v. Glenns, No. 00 Civ. 4756(RMB), 2004 WL 540417 , at *3 n. 4 (S.D.N.Y.
discussed Cited "see" Chalupowski v. Berry
1st Cir. · 2005 · signal: see · confidence high
See Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 462 (2d Cir.1994) (stating that a Rule 60(b) motion based on lack of notice may be denied where there is no prejudice to substantial rights).
cited Cited "see" United States v. Property, Parcel of Francisco Aguilar, Claimant-Appellant
2d Cir. · 2003 · signal: see · confidence high
See Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 459 (2d Cir.1994).
examined Cited "see" Transaero, Inc. v. La Fuerza Aerea Boliviana (5×)
2d Cir. · 1998 · signal: see · confidence high
See Transaero I, 24 F.3d at 459-60 .
examined Cited "see" Transaero, Inc. v. La Fuerza Aerea Boliviana (5×)
2d Cir. · 1998 · signal: see · confidence high
See Transaero I, 24 F.3d at 459-60 .
cited Cited "see" Edward Antoine v. Atlas Turner, Inc., Royal Insurance Company of Canada Canadian General Insurance Company and Federal Insurance Company
6th Cir. · 1995 · signal: see · confidence high
See Transaero, Inc. v. La Fuerza Area Boliviano, 24 F.3d 457, 462 (2d Cir.1994) (lack of notice under FSIA does not automatically mean a judgment should be reopened).
discussed Cited "see" Transaero, Inc. v. La Fuerza Aerea Boliviana (2×)
D.C. Cir. · 1994 · signal: see · confidence high
See Transaero, Inc. v. La Fuerza Aerea Boliviana, 24 F.3d 457 (2d Cir.1994). 1 II.
discussed Cited "see, e.g." Mantis Transportation v. Kenner
E.D.N.Y · 2014 · signal: see also · confidence medium
Mar. 3, 2003), aff'd, 88 Fed.Appx. 454 (2d Cir.2004) (quoting Gleason, 860 F.2d at 559 ); see also Transaero, Inc. v. La Fuerza Area Boliviano, 24 F.3d 457, 460 (2d Cir.1994) (holding that fraud on the court involves far more than an injury to an individual litigant, but rather is fraud which seriously affects the integrity of the normal process of adjudication). “[W]hen a movant seeks to set aside a judgment on the basis of fraud on the court, he ‘must show that the conduct complained of prevented [him] from fully and fairly presenting his case.’ ” State St.
discussed Cited "see, e.g." MacE v. Domash
D.D.C. · 2008 · signal: see also · confidence medium
Grunblatt v. UnumProvident Corp., 270 F.Supp.2d 347, 349 (E.D.N.Y.2003) (citing Brown v. Webster, 156 U.S. 328, 330 , 15 S.Ct. 377 , 39 L.Ed. 440 (1895)); see also Transaero, Inc. v. LaFuerza Area Boliviana, 24 F.3d 457, 461 (2d Cir.1994) (“[Wjhere ... interest is owed as part of an underlying contractual obligation, unpaid interest becomes part of the principal for jurisdictional purposes.”).
discussed Cited "see, e.g." GreatAmerica Leasing Corp. v. Rohr-Tippe Motors, Inc.
N.D. Iowa · 2005 · signal: see also · confidence medium
See Brown v. Webster, 156 U.S. 328, 330 , 15 S.Ct. 377 , 39 L.Ed. 440 (1895) (distinguishing between “interest as such and the use of an interest calculation as an instrumentality in arriving at the amount of damages to be awarded on the principal demand”); see also Transaero, Inc. v. La Fuerza Area Boliviano, 24 F.3d 457, 461 (2d.
Retrieving the full opinion text from the archive…
TRANSAERO, INC., Plaintiff-Appellee,
v.
LA FUERZA AREA BOLIVIANA, an Instrumentality of the Republic of Bolivia, a Foreign State, Defendant-Appellant
1063, Docket 93-7903.
Court of Appeals for the Second Circuit.
May 19, 1994.
24 F.3d 457
1994 U.S. App. LEXIS 11618
Ronald N. Cobert, Washington, DC (Grove, Jaskiewicz and Cobert, Andrew M. Danas, of counsel), for plaintiff-appellee., Gregory B. Craig, Washington, DC (Williams & Connolly, James W. Shannon, Jr., of counsel), for defendant-appellant.
Lasker, Newman, Van Graafeiland Lasker.
Cited by 59 opinions  |  Published
LASKER, District Judge:

The Air Force of the Republic of Bolivia (“BAF”) appeals from a decision of the United States District Court for the Eastern District of New York, Jacob Mishler, Judge, which denied its motion for relief under Rule 60(b) of the Federal Rules of Civil Procedure from a default judgment entered against it on April 28, 1989.-

The appeal from the order denying Rule 60(b) relief brings up for review only the denial of the motion and not the merits of the underlying default judgment. Branum v. Clark, 927 F.2d 698, 704 (2d Cir.1991). The standard for review is abuse of discretion. Id. For the reasons discussed below, we conclude that there was no abuse, but we remand for the limited purpose of assessing the mathematical accuracy of the default award to Transaero, Inc.

BACKGROUND

The action arises out of the alleged breach of a credit agreement between Transaero, a supplier of aircraft parts, and the Bolivian Air Force entered in May 1981. For a number of years before May 1981, Transaero had been selling aircraft parts to BAF, but had been experiencing delays in payment on outstanding invoices averaging six to twelve months. As a result, the present agreement was drafted to require BAF to pay 1.76% monthly interest (21% per year) on all purchases not paid within 120 days of shipment. By April 14,1982, the Bolivian Air Force had accumulated an outstanding principal balance of $598,115.76.

On September 8, 1988, despite intervening payments by the Bolivian Air Force totalling $648,115.76, Transaero filed suit to collect $983,696.60 for outstanding principal and interest. The Bolivian Air Force failed to answer the complaint or to enter an appearance at a hearing scheduled by Judge Mishler for March 30, 1989 which resulted in an inquest on damages. [1] On April 28,1989, the Clerk of the Court entered a default judgment for Transaero in the amount requested. On May 12, 1993, over four years later, BAF[*460] moved to set aside the default judgment under Rule 60(b). On August 12, 1993, Judge Mishler denied the motion.

DISCUSSION

BAF’s primary argument on appeal is based on the so-called saving clause of Rule 60(b) which provides that “[tjhis rule does not limit the power of a court ... to set aside a judgment for fraud upon the court.” BAF argues that there has been' a fraud on the court in this case because Transaero’s counsel allegedly submitted a fraudulent affidavit in support of the 1989 motion for entry of the default judgment’and the district court relied on the false statements made there in granting the motion.

BAF also argues that the default judgment should be set aside under clause (4) of Rule 60(b) which provides that, within a reasonable time from the time of judgment, “[o]n motion and upon such terms as are just, the court may reheve a party ... from a judgment [where] the judgment is void.” Fed. R.Civ.P. 60(b)(4). The basis for this claim is BAF’s contention that the district court lacked subject matter jurisdiction to enter the default judgment because Transaero’s claim was not first submitted to compulsory arbitration, which, BAF maintains, was required in this case by the Local Rules of the Eastern District of New York.

Finally, BAF argues that the default judgment should be set aside under the catch-all clause of Rule 60(b) which provides for relief for “any other reason justifying relief from the operation of the judgment.” Fed. R.Civ.P. 60(b)(6). BAF claims that Rule 60(b)(6) relief is warranted because of the district court’s alleged failure to comply with section 1608(e) of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602-11 (1994), which prohibits default judgments against foreign states unless the claimant establishes the right to relief by evidence satisfactory to the court and requires a copy of any default judgment to be sent to the foreign state. BAF also points out the disfavor with which courts view default' judgments, especially those against foreign sovereigns. First Fidelity Bank, N.A. v. Government of Antigua & Barbuda-Permanent Mission, 877 F.2d 189, 196 (2d Cir.1989).

The Claim of Fraud on the Court.

BAF points to a string of representations made by Transaero’s counsel in his affidavit in support of the 1989 motion for entry of the default judgment which, BAF maintains, were fraudulent. BAF charges that the.affidavit falsely labelled Transaero’s claim as one for principal and interest, when it was really for interest only; sought compound interest in violation of New York law; claimed interest for a longer period, at a higher rate and on a greater amount than authorized by the credit agreement and New York law; and sought judgment on a breach of contract claim, even though it was time-barred.

Fraud on the court is “fraud which seriously affects the’integrity of the normal process of adjudication.” Gleason v. Jandrucko, 860 F.2d 566, 559 (2d Cir.1988). It involves “far more than an injury to an individual litigant” or “a ease of a judgment obtained [simply] with the aid of a witness who, on the basis of after-discovered evidence, is believed possibly to have been guilty of perjury.” Id. (citations omitted) (alteration in original). The concept embraces “that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases presented for adjudication.” Kupferman v. Consolidated Research & Mfg. Corp., 459 F.2d 1072, 1078 (2d Cir.1972) (quoting 7 Moore’s Federal Practice ¶ 60.33, at 515 (1971 ed.)).

The representations by plaintiffs counsel specified above did not constitute a fraud on the court. For example, Transaero had a good faith basis for believing that BAF had acknowledged Transaero’s entitlement to compound interest because BAF failed to make timely objections to Transaero’s invoices and had made partial payments on its debt in 1984 and 1986. Similarly, Transaero had a good faith basis for believing that its breach of contract claim was not time-barred when it filed suit in September 1988, since the limitations period was not obviously triggered until[*461] BAF repudiated the payments Transaero claimed under the credit agreement in April 1987 — well within the four year limitations period governing the sale of goods under the U.C.C. Finally, as discussed below in the section on BAF’s claim under Rule 60(b)(4), there is no merit to BAF’s claim that, because Transaero’s claim was for interest only, the district court lacked jurisdiction to enter the default judgment.

Moreover, BAF has presented no evidence of bad faith or dishonesty by Transaero’s counsel. Indeed, as the district court points out in its opinion below, all the documentary evidence on which BAF now bases its claim of fraud on the court was submitted to the district court itself by Transaero’s counsel in connection with the very motion for entry of the default judgment. The up-front submission of this documentary evidence fundamentally undermines BAF’s claim of fraud on the court. BAF’s response to this point — that a busy district judge cannot be expected to sort through a disorganized record — is unpersuasive.

The Rule 60(b) (k) Claim.

The Local Rules of the Eastern District of New York, where the default judgment was entered, require the Clerk of the Court to “designate and process for compulsory arbitration all civil cases ... wherein money damages only are being sought in an amount not in excess of $100,000.00 exclusive of interest and costs.” N.Y. Rules of Court, App. C § 3(A), at 797 (McKinney 1994). BAF argues that, since Transaero’s claim is one for interest only, the claim ought to have been submitted to arbitration pursuant to the local rule. BAF maintains that, because the case was not arbitrated as allegedly required, the case was not ripe for review and the district court lacked subject matter jurisdiction to decide it. Hence, according to BAF, the judgment is void and should be set aside under Rule 60(b)(4) of the Federal Rules of Civil Procedure.

Invoices submitted by Transaero to the Bolivian Air Force show that Transaero applied the Air Force’s last payment to the outstanding principal debt and that, apparently, from that time on, BAF owed interest only. In Edwards v. Bates County, 163 U.S. 269, 16 S.Ct. 967, 41 L.Ed. 155 (1896), the Supreme Court held that, for purposes of calculating the adequacy of the amount in controversy for diversity jurisdiction under a predecessor statute to 28 U.S.C. § 1332(a), the circuit court should have included the value of the matured interest coupons attached to the bonds issued by the defendant. The Supreme Court stated that “when the interest evidenced by a coupon has become due and payable the demand based upon the promise contained in such coupon is no longer a mere incident of the principal indebtedness represented by the bond, but becomes really a principal obligation.” Id. at 272, 16 S.Ct. at 969.

It seems clear under Edwards that where, as here, interest is owed as part of an underlying contractual obligation, unpaid interest becomes part of the principal for jurisdictional purposes. We see no reason to treat such interest differently for purposes of determining the scope of compulsory arbitration under the Local Rules of the Eastern District of New York and conclude that arbitration was not required in this case.

The Rule 60(b)(6) Claim.

Clause (6) provides “a grand reservoir of equitable power to do justice in a particular case when relief is not warranted by the preceding clauses.” 7 Moore’s Federal Practice ¶ 60.27[2], at 295 (2d ed. 1993). In a proper case, it is to be “liberally applied.” Id. at 273. Nevertheless, relief under Rule 60(b)(6) is available only in “extraordinary circumstances.” Ackermann v. United States, 340 U.S. 193, 199, 71 S.Ct. 209, 212, 95 L.Ed. 207 (1950).

BAF argues that such circumstances exist in this case because of the district court’s alleged failure to comply with the requirements of Section 1608(e) of the Foreign Sovereign Immunities Act which provides that:

No judgment by default shall be entered by a court of the United States or of a State against a foreign state ... or an agency or instrumentality of a foreign state, unless the claimant establishes his claim or riactory to the court. A copy of any such default judgment shall be sent to[*462] the foreign state or political subdivision in the manner prescribed for service in this section.

28 U.S.C. § 1608(e). BAF contends first that Transaero failed to “establish [its] claim or right to relief by evidence satisfactory to the court” and second that, despite the notice requirement of section 1608(e), it was not informed of the default judgment until almost three years after the judgment was entered.

The purpose of the evidentiary requirement of section 1608(e) is to assure that foreign sovereigns, who sometimes are slow to respond to legal action, are protected from unfounded claims. See Marziliano v. Heckler, 728 F.2d 151, 157-58 (2d Cir.1984) (attributing this rationale to the identical requirement for judgments against the United States under Fed.R.Civ.P. 55(e)). However, no such concerns exist in this ease because Judge Mishler held an inquest on the question of damages, and his Order of April 21, 1989, directing entry of the default judgment, determined specifically that the complaint “state[d] a cause of action, based on breach of contract,” the claim “f[ell] within the ‘commercial activities’ exception to the Foreign Sovereign Immunities Act” and was “supported by the proof submitted.”

Nor, in the circumstances of this case, does the fact that BAF did not learn of the entry of the default judgment for several years constitute “extraordinary circumstances” justifying Rule 60(b)(6) relief. “Lack of notice [of a judgment] does not ipso facto mean that a judgment can or should be reopened” and “granting of such motions should be considered only where lack of notice has operated to prejudice a substantial right or remedy that would otherwise be available.” Badack v. Norwegian Am. Line Agency, Inc., 318 F.2d 538, 542-43 (2d Cir.1963).

In the case at hand, the delay of notice of the default judgment did not “operatef] to prejudice a substantial right or remedy.” It is true that, as a result of the passage of time since entry of the default judgment, BAF cannot now seek relief under subsections (1), (2) and (3) of Rule 60(b) because these provisions cannot be invoked more than one year after entry of judgment. However, it is not true that, but for the notice delay; BAF could have asserted a timely claim under any one of these subsections.

The Affidavit of General Dardo Gomez Garcia states that “[p]rior to February 28, 1992, the Bolivian Air Force was not aware that ... a Default Judgment had been entered” against BAF and the implication is plain that, from that date forward, BAF was aware of the default judgment. However, BAF did not make its Rule 60(b) motion until over one year later in May 1993. Accordingly, even if BAF had received prompt notice of the default judgment, BAF’s potential claims under subsections (1), (2) or (3) would still have been time barred because BAF sat on its hands for over a year.

Finally, relying on First Fidelity Bank, N.A. v. Government of Antigua & Barbuda-Permanent Mission, 877 F.2d 189, 196 (2d Cir.1989), BAF argues that the default judgment should be set aside under Rule 60(b)(6) because “default judgments are disfavored, especially those against foreign sovereigns.” Id. at 196. It is true that the First Fidelity Bank court stated that “[c]ourts go to great lengths ... to permit [default] judgments against foreign sovereigns to be set aside.” Id. But First Fidelity Bank was a distinctly different case than the one at hand. The issue in First Fidelity Bank was the extent to which the foreign sovereign defendant was bound by the actions of its ambassador to the United Nations and whether the district court had jurisdiction in the circumstances. This was a ease which had “serious implications for the relationships between the United States and all foreign states that send duly accredited ambassadors to head their diplomatic missions in this country.” Id. at 196-97 (Newman, J., dissenting). The case before us is fundamentally an ordinary contract dispute which has no such profound implications.

Although we conclude that the district court properly denied BAF’s Rule 60(b) application, there remain two questions raised by BAF as to the accuracy of the interest calculation on which the award to Transaero[*463] was based, neither of which has been specifically answered by Transaero. First, BAF contends in its brief on appeal that interest cannot have accrued against it for 86 months — as Transaero claimed in the complaint — because a period of 86 months allegedly would have commenced before BAF made its first purchase from Transaero on June 22, 1981. Second, BAF presents evidence on this motion that Transaero’s interest calculations were incorrect and ranged from 20.99% per year to 26.34% per year. (Barker Aff. ¶ 18). We remand for the limited purpose of assessing the factual accuracy of the two claims described above and, if necessary, recalculating the award to Tran-saero accordingly.

CONCLUSION

The district court did not abuse its discretion in denying BAF’s application to set aside the default judgment under Rule 60(b) of the Federal Rules of Civil Procedure. We remand for the limited purpose of re-examining the mathematical accuracy of the award to Transaero. Transaero’s application for damages, including attorneys’ fees and costs on appeal, is denied.

1

. It is BAF's position that it defaulted because it lacked proper notice of Transaero’s complaint and of the hearing. Judge Mishler found to the contrary in his Opinion of April 21, 1989 directing entry of the default judgment and so did the late Judge Revercomb in a separate proceeding in the District Court of the District of Columbia. BAF’s appeal of Judge Revercomb's Order of September 25, 1992 is now pending in the Circuit Court for the District of Columbia.