Kelley v. BMO Harris Bank N.A., as successor to M&I Marshall and IIsley Bank

Background

Douglas A. Kelley, acting as trustee of the BMO Litigation Trust, moved to clarify or amend a judgment entered in the case. He asked the court to add particular amounts of prejudgment interest and costs and to specify when post-judgment interest would begin. BMO Harris Bank opposed some parts of the motion but did not oppose adding some prejudgment interest or the requested costs.

Legal framework

The court explained that Federal Rule of Civil Procedure 60(a) permits correction of a clerical mistake or an omission so the judgment accurately reflects a decision the court already made. Rule 59(e), by contrast, governs requests to amend a judgment based on a claimed legal or factual error or newly discovered evidence. Rule 59(e) cannot be used to raise new arguments that could have been made earlier, and relief is available only in extraordinary circumstances.

Pre-verdict prejudgment interest

Kelley sought $483,811,735.41 in prejudgment interest calculated from November 14, 2012, through the jury’s verdict. The court found that Kelley had previously requested interest beginning November 15, 2012, rather than November 14. Because the request for the additional day raised a new argument, the court treated it under Rule 59(e) and denied it.

The court granted the request for the previously sought amount of $483,679,075.22 in pre-verdict interest and denied the request for the additional $132,660.19 attributable to November 14, 2012.

Interest for November 9, 2022

Kelley also requested one additional day of prejudgment interest for November 9, 2022, when the court entered judgment on the jury’s November 8 verdict. The court denied that request. Under 28 U.S.C. § 1961(a), post-judgment interest begins on the date judgment is entered. Because judgment was entered on November 9, 2022, that day was subject to post-judgment interest rather than prejudgment interest.

Costs

Kelley had submitted a bill of costs totaling $109,600.29. BMO Harris had not objected to the bill under the applicable local rule and did not argue in this motion that the costs were excessive or otherwise unavailable. The court therefore directed that the costs be added to the judgment.

Post-judgment interest on prejudgment interest and costs

Kelley asked the court to apply the 4.74% post-judgment interest rate to the entire award, including prejudgment interest and costs, beginning November 9, 2022. The court treated this as a new Rule 59(e) argument rather than a clarification under Rule 60(a).

Relying on Eighth Circuit precedent, the court held that post-judgment interest applies to prejudgment interest only from the date the prejudgment interest is awarded. The judgment was therefore amended to provide for 4.74% interest on the jury’s award from November 9, 2022, and on the award plus prejudgment interest and costs from the date of the prejudgment-interest award. The order’s numbered provision refers to June 26, 2022, for the latter date, while the analysis identifies June 26, 2023, and the opinion’s surrounding discussion also refers to June 26, 2023.

Disposition

The court ordered that Kelley’s motion to clarify the judgment was GRANTED in part and DENIED in part. It amended the judgment to add $483,679,075.22 in prejudgment interest, $109,600.29 in costs, and post-judgment interest calculated daily and compounded annually under the timing described above.