UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KAISER FOUNDATION HEALTH PLAN OF
THE MID-ATLANTIC STATES,
INCORPORATED,
Plaintiff-Appellee,

v.

                                                                  No. 98-1420
CLARY & MOORE, P.C.,
Defendant-Appellant,

and

MATTHEW A. CLARY, III,

Defendant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-94-1098-A)

Argued: December 1, 1998

Decided: January 14, 1999

Before ERVIN and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Judith Lynne Wheat, VENABLE, BAETJER, HOWARD
& CIVILETTI, Washington, D.C., for Appellant. Gary Miller Zink-
graf, FOLEY & LARDNER, Washington, D.C., for Appellee. ON
BRIEF: Samantha M. Williams, Damon W.D. Wright, VENABLE,
BAETJER, HOWARD & CIVILETTI, Washington, D.C., for Appel-
lant. Paul R. Monsees, Alan D. Rutenberg, FOLEY & LARDNER,
Washington, D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

At bench trial, defendant Clary & Moore, P.C., moved for judg-
ment as a matter of law following Kaiser Foundation's presentation
of its case. The district court granted the motion, and this court
reversed. On remand, the district court entered judgment for Kaiser,
before Clary & Moore had presented its evidence to the court. Clary
& Moore appeals the entry of judgment against it. We vacate and
remand.

I

On March 7, 1991, Kaiser won a $271,690.57 judgment against the
law firm of Clary, Lawrence, Lickstein & Moore, P.C. (Clary, Law-
rence). The law firm subsequently entered involuntary bankruptcy
without satisfying its debt to Kaiser. Kaiser then filed suit against the
firm of Clary & Moore, asserting that Clary & Moore should be held
responsible for the debt of Clary, Lawrence under several theories,
including successor liability. After Kaiser had put on its evidence at
a bench trial, Clary & Moore moved under Rule 52(c) for dismissal
of Kaiser's claims. See Fed. R. Civ. P. 52(c). The district court
granted Clary & Moore's motion on all counts and entered final judg-
ment as a matter of law for Clary & Moore.

Kaiser appealed the dismissal to this court. Kaiser Foundation
Health Plan v. Clary & Moore, 123 F.3d 201 (4th Cir. 1997). We

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reversed the district court's judgment. On remand, without further
consideration of the evidence, the district court entered judgment for
Kaiser, awarding it $411,100.24. This figure represented a judgment
of $271,690.57, plus interest.

Clary & Moore should have had the opportunity to present its evi-
dence. See International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, UAW v. Mack Trucks,
Inc., 917 F.2d 107, 110 (3d Cir. 1990). We vacate the district court's
judgment of February 18, 1998, and remand, not for a full retrial, but
for further proceedings before the district court where Clary & Moore
can present its case.

II

Title 28 U.S.C. § 1961(a) directs courts to calculate the rate of
postjudgment interest using the auction price of certain United States
Treasury bills at the auction immediately prior to the date of judg-
ment. Relying on information provided by Kaiser, the district court
based the applicable interest rate upon the auction price set on March
7, 1991, the same date as the date of judgment against Clary, Law-
rence. Because the statute dictates that the auction date "immediately
prior to the date of the judgment" governs, if Kaiser prevails on the
merits the applicable interest rate would be 6.21%, the rate set at the
auction of February 12, 1991. See 28 U.S.C.A. § 1961, Historical and
Statutory Notes (West Supp. 1998).

We vacate the judgment and remand the case for further proceed-
ings consistent with this opinion and for the district court's findings
and conclusions.

VACATED AND REMANDED

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