09-3478-cv
Mendes Junior Int’l Co. v. Banco do Brasil

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY
M UST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE
NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 1st day of October, two thousand and ten.

Present:        ROSEMARY S. POOLER,
                PETER W. HALL,
                          Circuit Judges.
                MARK R. KRAVITZ,*
                          District Judge.

_____________________________________________________

MENDES JUNIOR INTERNATIONAL COMPANY,

                                              Plaintiff-Appellant,

                          -v-                                        09-3478-cv

BANCO DO BRASIL S.A., BB LEASING COMPANY,


                                              Defendants-Appellees.



Appearing for Appellee:         Jay Safer, Locke Lord Bissell & Liddell, LLP, New York, N.Y.

Appearing for Appellant:        David Zaslowsky, Baker & Mckenzie, LLP, New York, N.Y.
                                (Donald J. Hayden, Robert F. Kohlman, Effie D. Silva, on the
                                brief).



        *
        The Honorable Mark R. Kravitz, United States District Court for the District of
Connecticut, sitting by designation.
        Appeal from the United States District Court for the Southern District of New York
(Carter, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Mendes International Company appeals from the July 22, 2009 opinion and order of the
United States District Court for the Southern District of New York denying its Fed. R. Civ. P.
60(b) motion to reinstate its complaint. The district court previously dismissed Mendes’
complaint in June 1998 on forum non conveniens grounds, with the condition that Mendes could
apply to reinstate the complaint if Brazil refused to exercise jurisdiction. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

        Mendes originally commenced a suit in New York State Supreme Court against
defendants Banco do Brasil, SA and BB-Leasing Company in 1996, seeking a declaratory
judgment and more than $800 million in damages based on the defendants’ alleged breaches of
contract, breaches of fiduciary duty and failure to perform on various loan obligations.
Defendants removed the case to federal court and moved to dismissed on the grounds of forum
non conveniens, arguing Brazil was a more appropriate forum. Mendes Junior Int’l Co. v. Banco
do Brasil, S.A., 15 F. Supp. 2d 332 (S.D.N.Y. 1998) (“Mendes I”). Judge Carter granted the
motion and dismissed the complaint for forum non conveniens on June 29, 1998. Id. He
conditioned the dismissal on (1) the courts of Brazil having jurisdiction to adjudicate the claims
asserted; (2) defendants agreeing to appear generally in any action asserting the present claims
filed against it by plaintiff in Brazil; and (3) defendants waiving jurisdictional defenses as well
as any statute of limitations defenses it did not have at the time the complaint was filed. Id. at
341.

         Five years later, on May 14, 2003, Mendes commenced an action in Brazil, but the
Brazilian courts declined to undertake jurisdiction. Mendes then moved to reinstate its action in
the Southern District. Judge Carter found that Mendes presented the Brazilian courts with a
complaint that differed materially from the one in the original action before him, including
identifying the parties differently and structuring the facts so as to minimize any contacts the
parties or the action had with Brazil. The district court based its conclusion on several key ways
the Brazilian complaint differed from the American complaint, including (i) suing a different
entity - Banco do Brasil S/A Cayman branch, rather than Banco do Brasil S/A, a Brazilian
corporation; (ii) characterizing itself as a company without any authority to act in Brazil; and
(iii) asserting there were no contacts with Brazil.

        Mendes brought its motion to reinstate pursuant to Fed. R. Civ. P. 60(b)(6), which allows
a court to vacate a previous order. We review the denial of a Rule 60(b)(6) motion for abuse of
discretion. Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009). It is clear that Rule 60(b)(6) is
“properly invoked only when there are extraordinary circumstances justifying relief” or “when
the judgment may work an extreme and undue hardship.” Nemaizer v. Baker, 793 F.2d 58, 63
(2d Cir. 1986). The burden of proof is on the party seeking relief from the judgment. Pichardo
v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004).

                                                 2
        Under this standard and with the burden on Mendes, it cannot be said that the district
court abused its discretion in finding Mendes failed to satisfy the conditions set forth for
reinstatement by the district court in the original decision. The record demonstrates the district
court neither committed an error of law nor of fact in its consideration of the Rule 60(b)(6)
motion. Because we need not proceed any further in our analysis to decide this case, we express
no opinion on the forum non conveniens arguments raised by the parties.

       Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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