                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
__________________________________
                                    )
NANKO SHIPPING, USA, et al.,        )
                                    )
            Plaintiffs,             )
                                    )
      v.                            )    Civil Action No. 14-1301 (RMC)
                                    )
ALCOA, INC., et al.,                )
                                    )
            Defendants.             )
_________________________________   )

                                              OPINION

                 Nanko Shipping Guinea seeks reconsideration of the dismissal of this case. It

does not assert new evidence or a change in law, but argues that the Court committed clear error

and that reversal is required to avoid manifest injustice. Because there was no error or injustice,

the motion will be denied.

                                             I. FACTS 1

                 In 1963, the Republic of Guinea (Guinea) and Harvey Aluminum Company of

Delaware (Halco) formed the Compagnie des Bauxites de Guinee (CBG) and entered into the

CBG Convention, a contract for the development of bauxite mining, processing, and shipping in

Guinea. Second Am. Compl. [Dkt. 14-1] (SAC) at 1-2; see Mot. to Dismiss [Dkt. 7], Ex. A

(Convention) [Dkt. 7-2].2 Article 9 of the Convention gave Guinea a qualified right to ship 50%

of the bauxite produced by CBG:

                 The Government [of Guinea] reserves the right, inasmuch as it does
                 not adversely affect the sale of bauxite, to have the exported tonnage
                 load[illegible] a proportion [of] which shall not exceed fifty percent

1
    More detailed facts are set forth in the June 5, 2015 Opinion. See Op. [Dkt. 22].
2
    CBG is a corporation owned 49% by Guinea and 51% by Halco. SAC at 2 (introduction).

                                                   1
                 on ships operating under the Guinean flag or an assimilated flag, or
                 on ships chartered by the Government on the international shipping
                 market, the above being, however, under the express condition that
                 the freight tariffs practiced are lower or equal to those which are
                 quoted at that particular time on the international shipping market
                 for identical conditions for the freight and the shipping routes
                 considered.

Convention, Art. 9.

                 Decades later, in 2011, Guinea entered into a Technical Assistance Agreement

with Nanko Shipping Guinea. Under the terms of the Technical Assistance Agreement, Guinea

allegedly authorized Nanko Shipping Guinea to exercise Guinea’s shipping rights under Article 9

of the Convention. 3 SAC ¶¶ 3, 4, 20, 72. Nanko Shipping Guinea contends that the Technical

Assistance Agreement made Nanko Shipping Guinea a third party beneficiary to the Convention.

Id.

                 Nanko Shipping Guinea is owned by Nanko Shipping USA and Mori Diane. Id.

¶ 3. Mr. Diane is President and sole shareholder of both Nanko Shipping Guinea and Nanko

Shipping USA. Id. Nanko Shipping Guinea, Nanko Shipping USA, and Mr. Diane (collectively,

Plaintiffs) brought this suit against Alcoa, Inc. and its affiliate, Alcoa World Alumina LLC

(collectively, Alcoa), alleging that Alcoa refused to implement and effectuate Nanko Shipping

Guinea’s shipping rights. Id. ¶ 63; Am. Compl. [Dkt. 10-1] ¶ 63. 4 Plaintiffs alleged that (1)

Alcoa breached Plaintiffs’ third party beneficiary rights and (2) Alcoa discriminated against

Plaintiffs based on Mr. Diane’s race in violation of 42 U.S.C. § 1981, which prohibits race



3
    Neither party has filed a copy of the Technical Assistance Agreement.
4
  Because Plaintiffs argued that their proposed Second Amended Complaint overcame the
deficiencies identified in Alcoa’s motion to dismiss the Amended Complaint, the Court focused
on the Second Amended Complaint as Plaintiffs’ best attempt to state a claim. See Op. [Dkt. 22]
at 1.

                                                  2
discrimination in contracting. Mr. Diane is a Black American and Nanko Shipping Guinea is a

Black-owned company. SAC ¶¶ 77-91; Am. Compl. ¶¶ 64-76.

               Alcoa moved to dismiss, primarily because it cannot be liable for breaching the

Convention (the source of Nanko Shipping Guinea’s third party rights) when it was not a party to

the Convention. In response, Plaintiffs asserted that Alcoa is the alter ego of Halco, a party to

the Convention, and Plaintiffs sought to file a Second Amended Complaint to add Halco as a

defendant. Plaintiffs also sought to add, among other claims, a claim for conspiracy to

discriminate under 42 U.S.C. § 1985.

               The Court denied the motion to amend the complaint as futile and dismissed the

case, finding that Nanko Shipping USA and Mr. Diane lacked standing and that Plaintiff had

failed to join an indispensable party, the Republic of Guinea. See Op. at 6-10. The Court

explained that (1) Nanko Shipping Guinea’s claim for breach of third party beneficiary rights

under the Technical Assistance Agreement was a claim to enforce Guinea’s right to ship bauxite

under the Convention, and (2) Nanko Shipping Guinea’s § 1981 claim that Alcoa and Halco

discriminatorily failed to enforce the Technical Assistance Agreement was a claim to enforce

Guinea’s rights under the Convention because the Technical Assistance Agreement conveyed

shipping rights derived from and defined by the Convention. Id. at 9-10. To resolve this case on

the merits, the Court would have been required to construe the Convention and the parameters of

Guinea’s rights and duties under the Convention. Because the Court’s interpretation of the

Convention could impair or impede Guinea’s right to protect its interests under the Convention,

Guinea was a necessary and indispensable party to this suit. Upon deciding that the Republic of

Guinea was a necessary party that could not be joined due to its sovereign immunity, see 28

U.S.C. § 1604, the Court decided that it could not “in equity and good conscience” proceed



                                                 3
among the existing parties, see Fed. R. Civ. P. 19(b), and the case was dismissed. See Fed. R.

Civ. P. 12(b)(7) (permitting dismissal for failure to join an indispensable party). In so deciding,

it emphasized that Nanko Shipping Guinea has an adequate remedy for resolution of its claims––

through arbitration mandated by the Convention. Op. at 10.

                Because the § 1981 claim was dismissed, the § 1985 claim that was based on the

§ 1981 claim also was dismissed. Op. at 11. Section 1985 permits a private cause of action for

conspiracy to violate a federal right, but it does not itself create any substantive rights. Weaver v.

Gross, 605 F. Supp. 210, 213 n.5 (D.D.C. 1985) (citing United Bhd. of Carpenters & Joiners,

463 U.S. 825, 833 (1983)). Nanko Shipping Guinea’s § 1985 claim was a claim for conspiracy

to violate § 1981. When the § 1981 claim was dismissed, the derivative § 1985 claim also had to

be dismissed.

                Nanko Shipping Guinea seeks reconsideration and reinstatement of the §§ 1981

and 1985 claims. See Mot. for Recons. [Dkt. 25]; Reply [Dkt. 30]. Alcoa opposes. See Opp’n

[Dkt. 29].

                                     II. LEGAL STANDARD

                Motions for reconsideration are governed by Federal Rule of Civil Procedure

59(e). They are discretionary and need not be granted unless the court finds that there is “an

intervening change of controlling law, the availability of new evidence, or the need to correct a

clear error or prevent manifest injustice.” Messina v. Krakower, 439 F.3d 755, 758 (D.C. Cir.

2006) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). The motion is not

“simply an opportunity to reargue facts and theories upon which a court has already ruled.” New

York v. United States, 880 F. Supp. 37, 38 (D.D.C. 1995). Nor is it an avenue for a “losing party

. . . to raise new issues that could have been raised previously.” Kattan v. Dist. of Columbia, 995

F.2d 274, 276 (D.C. Cir. 1993).
                                                  4
               Nanko Shipping Guinea does not base its motion on new evidence or a change in

law. Instead, Nanko Shipping Guinea argues that the Court committed clear error and that

reversal is required to avoid manifest injustice. Manifest injustice is an exceptionally narrow

concept. See Slate v. ABC, 12 F. Supp. 3d 30, 34 (D.D.C. 2013). It must entail more than just a

clear and certain prejudice to the moving party and must entail a result that is fundamentally

unfair in light of governing law. Id. at 35-36. A “final judgment must be ‘dead wrong’ to

constitute clear error.” Lardner v. FBI, 875 F. Supp. 2d 49, 53 (D.D.C. 2012) (quoting Parts &

Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988)).

                                         III. ANALYSIS

               Nanko Shipping Guinea asserts that the “court’s erroneous interpretation of

applicable law creates manifest injustice,” see Mot. for Recons. at 3, and the asserted “erroneous

interpretation” is the Court’s finding that Guinea is an indispensable party. Nanko Shipping

Guinea argues that Guinea is not required as a party in this case and that the Court cannot make a

determination about Guinea’s indispensability without discovery. Nanko Shipping Guinea does

not present any new arguments or evidence to support its argument that Guinea is not an

indispensable party. As the Court held previously, Nanko Shipping Guinea’s claims would

require the Court to interpret the Convention, which might impair or impede Guinea’s rights,

making Guinea an indispensable party. Discovery would not change this.

               Nanko Shipping Guinea also contends that the Court can avoid the indispensable

party analysis altogether if it looks no further than the Technical Assistance Agreement. But it is

not possible to resolve any question regarding the nature and extent of Nanko Shipping Guinea’s

rights under the Technical Assistance Agreement without analyzing the Convention from which

such rights flowed. The Technical Assistance Agreement passed Guinea’s rights under the

Convention to Nanko Shipping Guinea. The Convention is the source of Guinea’s rights, a fact
                                                 5
recognized by Nanko Shipping Guinea when it asserts that the Technical Assistance Agreement

gave Nanko Shipping Guinea third party beneficiary rights under the Convention. See SAC ¶¶ 3,

4, 20, 72. To decide whether Nanko Shipping Guinea has third party rights, and to determine the

nature and extent of these rights, necessitates an examination of the Convention to determine the

nature and scope of the Guinea’s shipping rights the first place. Similarly, to determine whether

Defendants discriminated against Nanko Shipping Guinea in violation of § 1981 by refusing to

implement Nanko Shipping Guinea’s shipping rights compels an analysis of the Convention to

determine what the shipping rights are.

               Nanko Shipping Guinea further complains that the Court noted that Nanko

Shipping Guinea has an alternative remedy, in that it could proceed to arbitration. Op. at 10 &

n.7. The Convention requires that disputes relating to it be arbitrated. See Convention, Art. 13

(“Conciliation and arbitration shall apply . . . to all disputes which in any way are connected with

this Agreement and with any legal instruments and legal relationships which might be a

consequence thereof . . .”). 5 Nanko Shipping Guinea contends that it cannot be forced to

arbitrate because it did not expressly agree to the terms of the Convention. Whether arbitration

is mandatory for Nanko Shipping Guinea or not is beside the point. The case was dismissed

because Guinea is a necessary and indispensable party to a resolution of Nanko Shipping

Guinea’s claims, and the Court could not in equity and good conscience proceed among the

existing parties––particularly when Nanko Shipping Guinea has an adequate remedy in

arbitration. See Op. at 9-10.




5
 The interpretation of an unambiguous contract is a question of law for the court. U.S. On
Behalf of Dep’t of Labor v. Ins. Co. of N. Am., 131 F.3d 1037, 1042 (D.C. Cir. 1997). The
arbitration clause is unambiguous.

                                                 6
               In addition to dismissing the case for failure to join an indispensable party, the

Court also dismissed the § 1981 claim for failure to state a claim. In its motion for

reconsideration, Nanko Shipping Guinea insists that its allegation that Alcoa discriminated

against Nanko Shipping Guinea based on race was sufficient. However, § 1981 “can be violated

only by purposeful discrimination.” Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S.

375, 391 (1982). It does not cover unintentional disparate treatment. Ayissi-Etoh v. Fannie Mae,

712 F.3d 572, 576 n.1 (D.C. Cir. 2013). To plead intentional discrimination, “plaintiff cannot

merely invoke his race in the course of a claim’s narrative and automatically be entitled to pursue

relief. Rather, plaintiff must allege some facts that demonstrate that race was the reason for

defendant's actions.” Bray v. RHT, Inc., 748 F. Supp. 3, 5 (D.D.C. 1990); see also Mesumbe v.

Howard Univ., 706 F. Supp. 2d 86, 92 (D.D.C. 2010). In Mesumbe, the court dismissed a § 1981

claim for failure to plead intentional discrimination, where the plaintiff alleged only that he was

African and that similarly situated students of different ethnic backgrounds were treated better.

706 F. Supp. 2d at 92. Nanko Shipping Guinea has not alleged any facts to support its claim that

Alcoa intentionally discriminated against Nanko Shipping Guinea due to race. Because Nanko

Shipping Guinea failed to allege an actionable claim under § 1981, the claim was dismissed.

Further, because the § 1981 claim was the linchpin for the § 1985 claim, the failure to state a

claim under § 1981 also meant that Nanko Shipping Guinea failed to state a claim for conspiracy

under § 1985. Both claims were dismissed properly under Federal Rule of Civil Procedure

12(b)(6).

                                       IV. CONCLUSION

                Nanko Shipping Guinea has not pointed to new evidence or any change in the

law, and it has not demonstrated clear error or manifest injustice. Accordingly, Nanko Shipping



                                                 7
Guinea’s motion for reconsideration [Dkt. 25] will be denied. A memorializing Order

accompanies this Opinion.



Date: August 6, 2015                                             /s/
                                                  ROSEMARY M. COLLYER
                                                  United States District Judge




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