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

Background

Douglas A. Kelley, in his capacity as trustee of the BMO Litigation Trust, moved to clarify or amend the judgment entered on June 26, 2023. He asked the court to add specified prejudgment interest and costs to the judgment and to determine when post-judgment interest would begin accruing. BMO Harris Bank N.A., as successor to M&I Marshall and Ilsley Bank, opposed some aspects of the motion but did not oppose adding some prejudgment interest or the requested costs.

The court explained that Federal Rule of Civil Procedure 60(a) allows correction of a clerical mistake or an omission when the correction accurately reflects a decision the court already made. Rule 59(e), by contrast, governs requests to change a judgment based on a legal or factual error or newly discovered evidence, and relief is available only in extraordinary circumstances. The court applied the rule it found appropriate to each request.

Prejudgment Interest Before the Verdict

Kelley requested $483,811,735.41 in prejudgment interest on $484,209,716 in compensatory damages, calculated from November 14, 2012, through the jury’s November 8, 2022 verdict. The court found that Kelley had previously requested interest beginning November 15, 2012, not November 14. Because the request for the additional day raised a new argument rather than correcting an omission in the court’s prior decision, the court treated it under Rule 59(e) and denied that portion.

The court granted the request as to $483,679,075.22 in prejudgment interest and denied it as to $132,660.19 attributable to November 14, 2012.

Interest for November 9, 2022

Kelley asked for one additional day of prejudgment interest, at a 10% rate, for November 9, 2022, when judgment was entered on the verdict. The court denied the request. Under 28 U.S.C. § 1961(a), post-judgment interest is calculated from the date judgment is entered. Because judgment was entered on November 9, 2022, post-judgment interest began that day, and the same day could not also carry prejudgment interest.

Costs

Kelley submitted a bill of costs for $109,600.29. BMO Harris did not object to the bill of costs under the applicable local rule and did not argue that the costs were excessive or otherwise unavailable. The court ordered that the costs be added to the judgment.

Post-Judgment Interest on Prejudgment Interest and Costs

Kelley asked the court to calculate 4.74% post-judgment interest on the total award, including prejudgment interest and costs, beginning November 9, 2022. The court rejected that request in part because it was a new argument governed by Rule 59(e), not a clarification under Rule 60(a).

Relying on the Eighth Circuit’s decision in Travelers Property Casualty Insurance Co. of America v. National Union Insurance Co. of Pittsburgh, Pennsylvania, the court held that post-judgment interest applies to prejudgment interest only from the date the prejudgment interest is awarded. The court therefore amended the judgment to provide for 4.74% interest on the jury’s award from November 9, 2022, and on the total award including prejudgment interest and costs from June 26, 2023. Interest is to be computed daily and compounded annually until the total award is paid.

Disposition

The court ordered that Kelley’s motion to clarify the judgment was granted in part and denied in part. The judgment was amended to add $483,679,075.22 in prejudgment interest, $109,600.29 in costs, and the specified post-judgment interest.