d'Amico Dry d.a.c. v. Tremond Metals Corporation

Background

The dispute arose under a June 4, 2019 Booking Note concerning the carriage of part of a manganese-ore cargo from Itaqui, Brazil, to Tianjin, Xingang, China. d’Amico Dry began arbitration against Tremond seeking demurrage at the loading and discharge ports. Tremond appeared through counsel and asserted counterclaims.

On February 24, 2020, the arbitrator issued a Final Award in d’Amico Dry’s favor. d’Amico Dry then filed a petition and an amended petition in this Court seeking confirmation of that award. Those filings stated that the arbitrator had reserved jurisdiction to decide legal fees and costs and that a further award would be included in a later amended petition.

The arbitrator issued the Costs Award on September 7, 2020. d’Amico Dry did not promptly move to amend its petition, but it later filed a motion concerning recognition, confirmation, and enforcement of the arbitration award, along with the Final Award and Costs Award. The Court then asked d’Amico Dry to clarify whether it sought confirmation of both awards and whether it intended to amend its petition. d’Amico Dry moved for leave to file a Second Amended Petition seeking confirmation of both awards.

Arguments

Tremond opposed the motion. It argued that the proposed Second Amended Petition did not correct an identified procedural defect or other shortcomings in the earlier request for confirmation. Tremond also argued that it should be allowed to challenge the arbitrator’s alleged lack of impartiality, the arbitrator’s selection, and the amount of the costs. Tremond stated that it lacked the financial means to pay and that its assets were pledged to its bank.

Court’s analysis

Under Rule 15 of the Federal Rules of Civil Procedure, courts generally should allow a party to amend a pleading when justice requires. A court may deny leave for reasons such as futility, bad faith, undue delay, or unfair prejudice.

Judge John P. Cronan found no compelling reason to deny the amendment. The court concluded that the amendment did not appear futile and that Tremond had not explained why the proposed petition remained procedurally deficient. The court also found no undue delay or unfair prejudice. d’Amico Dry’s earlier filings had indicated that a petition concerning the costs award would follow; its later filings referred to both awards and included copies of both; and Tremond had already opposed the amended petition and raised many of the issues it said it needed to address.

To avoid possible prejudice, the court allowed Tremond to file an opposition addressing the Costs Award specifically and any other matters concerning the Second Amended Petition. Tremond did not need to repeat arguments already made, because the court would consider those arguments when deciding d’Amico Dry’s request to confirm both awards.

Disposition

The court granted d’Amico Dry’s motion to amend. Tremond was ordered to file its opposition by April 30, 2021, and d’Amico Dry could file a reply by May 7, 2021. The order permitted further pleadings but did not decide whether the Final Award or Costs Award should be confirmed.