Villoldo v. Computershare, Inc.

2016 | Cited 0 times | First Circuit | May 12, 2016

United States Court of Appeals For the First Circuit

Nos. 15-1808; 15-2080

ALFREDO VILLOLDO, individually; GUSTAVO E. VILLOLDO, individually, and as Administrator, Executor and Personal Representative of the Estate of Gustavo Villoldo Argilagos,

Plaintiffs - Appellants/Cross-Appellees,


FIDEL CASTRO RUZ, as an individual, and as an official, employee, or agent of The Republic of Cuba; RAUL CASTRO RUZ, as an individual, and as an official, employee, or agent of The Republic of Cuba; THE MINISTRY OF INTERIOR, an agency or instrumentality of The Republic of Cuba; THE ARMY OF THE REPUBLIC OF CUBA, an agency or instrumentality of The Republic of Cuba; THE REPUBLIC OF CUBA, a foreign state,

Defendants - Appellees,


Trustee - Appellee/Cross-Appellant.


[Hon. Timothy S. Hillman, U.S. District Judge]


Thompson, Circuit Judge, Souter, Associate Justice,* and Barron, Circuit Judge

* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

Andrew C. Hall, with whom Hall, Lamb and Hall, P.A. was on brief, for Plaintiffs-Appellants/Cross-Appellees. Michael C. Gilleran, with whom Burns & Levinson, LLP was on brief, for Trustee-Appellee/Cross-Appellant. Benjamin M. Shultz, Attorney, Appellate Staff Civil Division, United States Department of Justice, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Carmen M. Ortiz, United States Attorney, Sharon Swingle, Appellate Staff, Civil Division, United States Department of Justice, Lisa J. Grosh, Assistant Legal Advisor, Department of State, of counsel, were on brief, for The United States of America, amicus curiae.

May 12, 2016

BARRON, Circuit Judge. These cross-appeals arise from

the ongoing efforts by two brothers to satisfy a multi-billion

dollar judgment they won against the Republic of Cuba and other

Cuban parties. In the appeal that the brothers bring, they

challenge the District Court's ruling that certain assets they

seek to attach to satisfy that judgment are not the property of

the Cuban government and thus are not subject to attachment in

satisfaction of their judgment. The cross-appeal is brought by

the trustee who controls the assets in question. The trustee

challenges the District Court's denial of its motion for attorneys'

fees incurred in proceedings concerning whether it had to turn

over the assets in question to the brothers. We affirm the

District Court in both appeals.


The primary legal dispute in this case concerns how the

law of foreign relations affects the attempted satisfaction of a

judgment. The judgment itself, however, is not at issue.

Nevertheless, because the circuitous route that led from that

judgment to these cross-appeals is relevant to the issues in

dispute, we begin by briefly retracing how we got from there to


The brothers who are seeking to satisfy the judgment are

Alfredo and Gustavo Villoldo, each of whom moved from Cuba to the

United States in 1960. In 2008, they filed suit in Florida state

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court and named as defendants: Fidel Castro Ruz; Raul Castro Ruz;

the Republic of Cuba; the Cuban Ministry of the Interior; and the

Army of the Republic of Cuba (together, the "Cuban defendants").

The brothers' complaint alleged state-law causes of

action for economic loss, intentional infliction of emotional

distress, and wrongful death. The complaint alleged that after

Fidel Castro assumed power, on January 1, 1959, his government

began to target the Villoldos. In particular, the complaint

alleged that the targeting involved the following actions. Cuban

security forces threatened, beat, and arrested both brothers.

Cuban officials threatened Gustavo Villoldo Argilagos, the

brothers' father, and promised to kill the entire family unless

the brothers' father committed suicide and turned his property

over to the Cuban government. The Cuban government confiscated

Gustavo Villoldo Argilagos's land, company, and bank accounts

after he was found dead on February 16, 1959, apparently having

committed suicide. And the Cuban government continued to threaten

the brothers with assassination even after they fled Cuba for the

United States in 1960.

In 2011, a Florida court awarded the brothers a $2.79

billion judgment against the Cuban defendants on their state-law

claims. The judgment followed the defendants' default and a bench

trial on damages.

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Soon thereafter, the brothers sued the Cuban defendants

in the Southern District of New York, seeking recognition of the

Florida judgment under the Full Faith and Credit Clause of the

United States Constitution. U.S. Const. art. IV, § 1. The Cuban

defendants defaulted again, and the Southern District of New York

awarded the brothers a federal judgement in the amount of $2.79

billion, plus interest.

The brothers then sought to execute the federal

judgment, including by pursuing assets located in Massachusetts

and allegedly owned by the Cuban government. So, as part of that

quest, on May 17, 2013, the brothers registered the New York

federal judgment in the District of Massachusetts. And on June 6,

2013, the District Court authorized the brothers to seek

attachment. The brothers then served a subpoena on Computershare,

Inc., a transfer agent located in Canton, Massachusetts.

The subpoena sought information about any securities

accounts controlled by Computershare that were blocked pursuant to

the Cuban Assets Control Regulations, 31 C.F.R. Subt. B, ch. V,

pt. 515, the Cuba sanctions regime. The brothers hoped to identify

accounts that Cuba owns. Computershare produced a chart

identifying 383 accounts that had been blocked by the Cuban

sanctions regime, which had been opened by 70 different


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Having received that information, the brothers, in

December of 2013, filed an ex parte motion in the District Court

for a turnover order against Computershare. The brothers' motion

argued that the accounts identified by Computershare had been

opened in the 1950s by Cuban nationals, but had since become the

property of Cuba by operation of a Cuban confiscatory law. Thus,

the brothers argued that the accounts are subject to attachment in

light of the federal judgment from New York. The brothers

requested that the District Court (a) find the accounts subject to

attachment and execution; (b) allow the issuance of a trustee

summons to Computershare; and (c) establish a procedure to notify

potential parties in interest.

The District Court granted the motion, established a

detailed notice protocol, and set January 31, 2014, as the deadline

for any interested party to file an objection. The District Court

also ordered Computershare to turn over the accounts of any non-

objecting parties by February 7, 2014.

Following the District Court's ruling, the brothers

served Computershare with a trustee summons. Computershare filed

a trustee answer shortly afterwards. Computershare contended that

the accounts at issue contained three different types of assets:

shares of common stock held by physical stock certificates

("certificated shares"); shares of common stock held

electronically ("book shares"); and cash. Computershare asserted

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that it could turn over the cash and the book shares but that it

could hand over the certificated shares only if the brothers

provided a surety bond and the Court made a finding that the

original shares were deemed "lost, stolen or wrongfully taken."

Following the passing of the January 31, 2014 objection

deadline -- by which time only one objection had been filed -- the

District Court, on February 12, 2014, issued a follow-on turnover

order. This order required Computershare to turn over the book

and cash assets within 60 days. The order did not address the

certificated shares. The order also stated that the District Court

would set a briefing schedule for the objecting party.

Another flurry of motions followed the February 12

order. As relevant here, Computershare at this point argued for

the first time -- in its briefing regarding whether it should be

given extra time to comply with the February 12 order -- that the

blocked accounts should not be considered the property of Cuba.

The United States then filed a statement of interest that also

argued that the accounts should not be considered the property of

Cuba. The brothers responded that the February 12 turnover order

was a final judgment and thus that the District Court lacked the

authority to revisit it.

The District Court, however, determined that the

February 12 order was not a final judgment. Then, on July 7, 2015,

the District Court ruled that -- contrary to the conclusion it had

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reached in its original turnover order -- the blocked assets were

not the property of the Cuban government, denied the brothers'

pending motions, and dismissed the case.

That day, the District Court entered both its memorandum

and order as well as a document entitled "Order of Dismissal,"

which read: "In accordance with the Court’s Memorandum and Order

dated 7/7/15, it is hereby ORDERED that the above-entitled action

be and hereby is dismissed." Three days later, the brothers

appealed from the dismissal.

On July 31, 2015 -- 24 days after the dismissal --

Computershare filed a motion seeking attorneys' fees.

Computershare argued that the motion was timely because the July

7 "Order of Dismissal" did not satisfy the separate document

requirement set forth in Federal Rule of Civil Procedure 58 and so

had not started Federal Rule of Civil Procedure 54's 14-day clock

for moving for attorneys' fees.

The District Court denied Computershare's motion. The

District Court ruled that the July 7 order was a final judgment

that satisfied Rule 58's separate document rule and that

"Computershare ha[d] not shown good cause or excusable neglect for

failing to make a fee request within the required period."

Computershare cross-appeals from that denial.

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The threshold issue is whether the District Court had

the authority to revisit its initial determination that Cuba owned

the assets subject to the February 12 turnover order. The parties

agree that the District Court did have such authority if the

February 12 order was not a final judgment. And so the dispute

turns on whether it was. We conclude that it was not.

When "an action presents more than one claim for relief,"

or involves multiple parties, Rule 54(b) applies. Fed. R. Civ. P.

54(b). And, under that Rule, an order "that adjudicates fewer

than all the claims or the rights and liabilities of fewer than

all the parties does not end the action as to any of the claims or

parties and may be revised at any time before the entry of a

judgment adjudicating all the claims and all the parties' rights

and liabilities." Id.

The February 12 turnover order did not resolve the

brothers' claims against the certificated shares or the claim

against any accounts owned by the objecting party. Therefore,

under Rule 54(b), that order was not a final judgment.

The brothers make only one argument against this

conclusion. They argue that Rule 54(b) should not apply to post-

judgment collection proceedings such as this one. Otherwise, they

contend, trustees may be forced to turn over assets before they

would be able to appeal the turnover order.

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Notably, the trustee in this case does not argue that

Rule 54(b) must be so read in order to protect the interests of

trustees. And for good reason. Nothing in the text or history of

Rule 54 supports the brothers' construction of the Rule. Nor, as

far as we are aware, does any precedent. Moreover, the argument

fails on its own terms. Under Rule 54(b), district courts "may

direct entry of a final judgment as to one or more, but fewer than

all, claims or parties . . . if the court expressly determines

that there is no just reason for delay." Thus, a trustee faced

with a turnover order can move to have the order certified as

final, even if the turnover of other assets remains to be

adjudicated. See id.

Because the February 12 turnover order was not a final

judgment, the District Court was entitled to revisit it. We thus

must address whether the District Court erred in dismissing the

case on the ground that the accounts Computershare possessed were

not owned by Cuba and so not subject to attachment in satisfaction

of the New York judgment.


There is no dispute that if the accounts subject to the

initial turnover order are the property of Cuba, then they are

subject to attachment, even though the Foreign Sovereign Immunity

Act generally immunizes "foreign state[s]" in United States

courts, 28 U.S.C. § 1604, and protects the property of foreign

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states from attachment and execution. Id. § 1609. The reason is

that an exception to the general rule regarding foreign sovereign

immunity applies to cases related to terrorism, see id. §§ 1605A;

1610(a)(7); see also Terrorism Risk Insurance Act of 2002 ("TRIA"),

Pub. L. No. 107-297, 116 Stat. 2322, 2337 (codified in relevant

part at 28 U.S.C. § 1610 note), and there is no dispute that this

exception would apply here.

Thus, the key question for us is whether the accounts

are the property of Cuba. The answer depends on foreign relations

law, and, in particular, the scope of what is known as the "act of

state" doctrine. Under that doctrine, "the act within its own

boundaries of one sovereign State becomes a rule of decision for

the courts of this country." W.S. Kirkpatrick & Co., Inc. v.

Envir. Tectonics Corp., Int'l., 493 U.S. 400 , 406 (1990) (quoting

Ricaud v. Am. Metal Co., 246 U.S. 304 , 310 (1918)(ellipses

omitted)); see also Banco Nacional de Cuba v. Sabbatino, 376 U.S.

398 , 416 (1964).

There is, however, "a well-established corollary to the

act of state doctrine, the so-called 'extraterritorial

exception.'" Tchacosh Co., Ltd. v. Rockwell Int'l Corp., 766 F.2d

1333 , 1336 (9th Cir. 1985). Under that exception, "when property

confiscated is within the United States at the time of the

attempted confiscation, our courts will give effect to acts of

state 'only if they are consistent with the policy and law of the

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United States.'" Republic of Iraq v. First Nat'l City Bank, 353

F.2d 47 , 51 (2d Cir. 1965) (Friendly, J.).

The brothers contend that the assets at issue are

Cuba's -- although the accounts were opened by individual Cuban

nationals -- by reason of a confiscatory law that Cuba enacted in

September of 1959, Law 568.1 The brothers contend that Law 568

requires Cuban nationals to repatriate to Cuba any assets held

abroad and provides that failure to repatriate those assets results

in nationalization of the assets. And the brothers contend that,

under the act of state doctrine, Law 568 must be given effect, as

that law, by its terms, confiscates the assets in question because

they are located abroad. In consequence, the brothers argue that

the blocked accounts are the property of the Cuban government.

We may assume the brothers' interpretation of Law 568 is

sound -- although the United States contends that it is not. And

that is because we conclude that, in light of the extraterritorial

exception to the act of state doctrine, Law 568 should not be given

effect with respect to the assets at issue.

United States courts have often given effect under the

act of state doctrine to foreign sovereigns' nationalizations of

assets that are located within their own territories at the time

of confiscation. See, e.g., Sabbatino, 376 U.S. at 417-18, 439.

1 The brothers cite both Law 567 and Law 568, but Law 567 appears to be of little relevance to this case.

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Indeed, "[a] confiscation decree . . . is the very archetype of an

act of state." Republic of Iraq, 353 F.2d at 50. But the rule is

different when the nationalization purports to confiscate assets

that are located in the United States at the time that they are

putatively taken.

Normally, "our courts will not give extraterritorial

effect to a confiscatory decree of a foreign state, even where

directed against its own nationals." Maltina Corp. v. Cawy

Bottling Co., 462 F.2d 1021 , 1025 (5th Cir. 1972) (internal

quotation marks omitted, collecting cases). After all, United

States law and policy -- as evidenced by the Fifth Amendment of

the United States Constitution -- does not support the taking of

private property without just compensation. See e.g., Republic of

Iraq, 353 F.2d at 51-52.

There might be reason to make an exception to this

exception if this were a case in which the executive branch was

urging us to give extraterritorial effect in this country to the

foreign nation's confiscatory law. See, e.g., United States v.

Pink, 315 U.S. 203 , 213-14, 234 (1942); United States v. Belmont,

301 U.S. 324 (1937); see also Republic of Iraq, 353 F.2d at 52.

But the government is not urging us to do so. Nor is the executive

branch even simply silent on the matter. Compare Banco Nacional

de Cuba v. Chem. Bank of N.Y., 658 F.2d 903 , 909 (2d Cir. 1981)

(giving effect to an extraterritorial taking when the United States

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apparently did not weigh in and no party asked the Court not to

recognize the confiscation) with Republic of Iraq, 353 F.2d at 52

& n.5 (declining to give effect to an extraterritorial taking even

when the United States expressly disclaimed an interest in the

case). Rather, the United States is urging us not to give

extraterritorial effect to Law 568, and we are aware of no

precedent for giving extraterritorial effect to a foreign nation's

confiscatory law when our own government opposes doing so.

As a general matter, we are required to accord some

deference to the executive's position concerning the application

of the act of state doctrine, see First Nat'l City Bank v. Banco

Nacional de Cuba, 406 U.S. 759 , 764-67 (1972) (the opinions

cumulatively reflecting eight votes indicate that the view of the

executive is due substantial weight), especially given "[t]he

Court's more recent justification for the doctrine," which

emphasizes that it is "an expression of the domestic separation of

powers." Estados Unidos Mexicanos v. DeCoster, 229 F.3d 332 , 340

n.11 (1st Cir. 2000) (citing W.S. Kirkpatrick & Co. Inc., 493 U.S.

at 404 (noting that the act of state doctrine reflects "'the strong

sense of the Judicial Branch that its engagement in the task of

passing on the validity of foreign acts of state may hinder' the

conduct of foreign affairs" (quoting Sabbatino, 376 U.S. at 423))).

And here the government contends that adhering to the

extraterritorial exception to the act of state doctrine furthers

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United States foreign policy interests by enabling the government

to use the blocked assets at issue in connection with ongoing

negotiations with Cuba on matters of foreign affairs. As the

government points out, if we were to decline to adhere to the

extraterritorial exception to the act of state doctrine, Cuba would

gain the benefit -- through the reduction of the amount Cuba owes

on the judgment against it -- of assets of Cuban nationals that

are located in the United States and that have been frozen by the

executive branch pursuant to discretion granted by Congress to

impose sanctions in order "to curtail the flow of hard currency to

Cuba."2 See Regan v. Wald, 468 U.S. 222 , 243 (1984).

The brothers do contend that TRIA -- in making an

exception to foreign sovereign immunity -- embodies a policy in

favor of allowing victims of terrorism to collect on judgments.

But TRIA only tells us that the property that is owned by a foreign

state should be used to pay such judgments. See Heiser v. Islamic

Republic of Iran, 735 F.3d 934 , 938-39 (D.C. Cir. 2013). Nothing

in the text or legislative history of TRIA suggests that the

extraterritorial exception to the act of state doctrine should be

2 The brothers argue that the Fifth Amendment does not apply to prevent foreign governments from taking the property of its own citizens, but that is beside the point. See Republic of Iraq, 353 F.2d at 52.

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disregarded so that certain assets become the property of the

foreign country.3 See id.

We thus decline to deviate in this case from the general

rule that United States courts will not give extraterritorial

effect to a foreign state's confiscatory law. See Williams &

Humbert Ltd. v. W. & H. Trade Marks (Jersey) Ltd., 840 F.2d 72 , 75

(D.C. Cir. 1988); United Bank Ltd. v. Cosmic Int'l, Inc., 542 F.2d

868 , 872–877 (2d Cir. 1976); Menendez v. Saks & Co., 485 F.2d 1355 ,

1364 (2d. Cir. 1973), rev'd on other grounds, Alfred Dunhill of

London, Inc. v. Republic of Cuba, 425 U.S. 682 (1976); Maltina,

462 F.2d at 1027; Republic of Iraq, 353 F.2d at 51–52; Tabacalera

Severiano Jorge, S. A. v. Standard Cigar Co., 392 F.2d 706 , 716

3 The brothers' reliance on the Supreme Court's recent decision in Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016), is misplaced. In that case, the Court upheld a statute, 22 U.S.C. § 8772, which Congress passed in order to make certain specific assets subject to attachment in order to satisfy terrorism related judgments against Iran, regardless of whether those same assets would have been attachable under TRIA. Id. at 1317. But neither the act of state doctrine, nor the extraterritorial exception to it, were at issue in that case, and nothing about the Court's decision upholding Congress's authority to make those assets attachable remotely suggests that TRIA itself reflects Congress's intent that an exception to the extraterritorial exception to the act of state doctrine should be created. If anything, the fact that Congress specifically intervened to make certain that the assets at issue in Bank Markazi could be attached cautions against reading TRIA itself to manifest a similarly specific intention regarding the assets at issue in this case.

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(5th Cir. 1968). We therefore affirm the District Court's ruling

and dismissal of the case.4


We turn now to Computershare's cross-appeal. At issue

is the District Court's denial of Computershare's motion to extend

its time to file a motion for attorneys' fees.

Under Rule 54, a motion seeking an award of attorneys'

fees must be made "no later than 14 days after the entry of

judgment." Fed. R. Civ. P. 54(d)(2)(B)(i). And that clock begins

to run when the separate document required by Rule 58 is issued.

See United Auto. Workers Local 259 Social Sec. Dept. v. Metro Auto

Ctr., 501 F.3d 283 , 287 (3d Cir. 2007). "Although Rule 58 does

not require that a separate judgment use any particular words or

form of words . . . . the judgment should be self-sufficient,

complete, and describe the parties and the relief to which the

party is entitled." Mullane v. Chambers, 333 F.3d 322 , 336 (1st

Cir. 2003).

As we have said, Computershare filed its motion for

attorneys' fees on July 31, 2015 -- 24 days after the order of

4 Because we decide the case on this ground, we need not address the alternative argument made by Computershare and the United States that the "penal law rule" provides a separate ground for declining to give effect to Law 568. See United States v. Federative Republic of Brazil, 748 F.3d 86 , 92 (2d Cir. 2014).

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dismissal was entered. For that reason, the District Court denied

it as untimely.

Computershare argues on appeal that this denial was

erroneous, because, Computershare contends, the 14-day clock never

started running. Computershare contends that is so because the

July 7 "Order of Dismissal" did not satisfy the separate document

rule and thus did not start the clock for filing a motion for

attorneys' fees. In the alternative, Computershare argues that

the District Court abused its discretion by refusing to grant

Computershare a ten-day extension to file its motion for attorneys'

fees. Finally, Computershare separately argues that it should be

able to request attorneys' fees now, as it does not have a judgment

charging or discharging it as trustee, but will once this Court

passes on the case. We address each of these arguments in turn.


Computershare first argues that the July 7 order was not

a separate document under Rule 58 -- and thus did not trigger Rule

54's 14-day clock for seeking attorneys' fees -- because the July

7 order was not labeled "judgment." But this Court has previously

rejected the argument that an order must be so labelled to

constitute a separate document under Rule 58, see Mirpuri v. ACT

Mfg., Inc., 212 F.3d 624 , 628 (1st Cir. 2000), and many other

circuits have, too. See LeBoon v. Lancaster Jewish Community

Center Ass'n, 503 F.3d 217 , 224 (3d Cir. 2007); Bourg v.

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Continental Oil Co., 192 F.3d 127 , 1999 WL 684161 , at *2 (5th Cir.

1999) (unpublished); Grun v. Pneumo Abex Corp., 163 F.3d 411 , 422

& n.8 (7th Cir. 1998).

Computershare also argues that the July 7 "Order of

Dismissal" was not a separate document under Rule 58 because it

was not "self-contained." Computershare rests this contention on

the fact that the order referred to the District Court's Memorandum

and Order entered the same day. But here, one need not refer to

the Memorandum and Order to determine the terms of the dismissal,

as the July 7 order on its face makes clear that the case is

dismissed. Thus, the Seventh Circuit's decision in Massey Ferguson

Div. of Varity Corp. v. Gurley, 51 F.3d 102 , 104-05 (7th Cir.

1995), is of no help to Computershare. In that case, it was

necessary to refer to the district court's related opinion to

determine in which part the motion in question was granted and in

which part it was denied. Id. The District Court thus correctly

concluded that the July 7 "Order of Dismissal" constituted a

separate document under Rule 58.


We turn then to Computershare's contention that -- if

the July 7 order was a separate document -- the District Court

abused its discretion by refusing to allow Computershare to file

the motion for attorneys' fees ten days late. The District Court

declined to allow the late filing because "Computershare ha[d] not

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shown good cause or excusable neglect for failing to make a fee

request within the required period."

The only reason Computershare gives for its lateness

here is the misunderstanding of its counsel. But, "[o]nly in 'rare

cases' have we found that a district court abused its discretion

in refusing to grant an extension of time." Cortes-Rivera v. Dep't

of Corrs. & Rehab. of Com. of P.R., 626 F.3d 21 , 26 (1st Cir. 2010)

(quoting Perez-Cordero v. Wal-Mart P.R., 440 F.3d 531 , 534 (1st

Cir. 2006)). And generally those cases have involved circumstances

in which "a litigant was 'reasonably surprised' by a court's

deadline or 'the events leading to the contested decision were

unfair.'" Id. (quoting Perez-Cordero, 440 F.3d at 534). We thus

cannot say that the District Court abused its broad discretion by

refusing to excuse Computershare's lateness on this ground.

Rivera-Almodovar v. Instituto Socioeconomico Comunitario, Inc.,

730 F.3d 23 , 27 (1st Cir. 2013) ("[A] lawyer's 'inattention or

carelessness,' without more, 'normally does not constitute

excusable neglect.'" (quoting Dimmitt v. Ockenfels, 407 F.3d 21 ,

24 (1st Cir. 2005)).


Finally, Computershare asks for permission "to file a

fee application with this Court for its fees incurred in the

District Court." Computershare relies on the Massachusetts

trustee process statute. Under that statute, a trustee process

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defendant (such as Computershare) is entitled to costs, including

attorneys' fees, when it is "adjudged a trustee" (when it has

assets subject to attachment) or "discharged" (when it does not).

See Mass. Gen. Laws ch. 246 §§ 69, 70.

Computershare argues that the District Court's dismissal

of the case did not itself "discharge" Computershare.

Computershare thus argues that, because it has not yet been either

adjudged a trustee or discharged, its request for attorneys' fees

was "premature" and thus that it should be allowed to seek

attorneys' fees now.

This argument fails, however, on Computershare's own

logic. Computershare has not explained how the affirmance of a

judgment it agrees did not discharge it now would discharge it.

Nor has Computershare explained how we, as an appellate court,

could consider a request for discharge in the first instance,

without such a request having been presented first to the District

Court. And, finally, Computershare does not purport to be

appealing from the District Court's dismissal order on the ground

that the District Court erred in not ordering discharge as

Computershare requested. Nor could Computershare do so, as it did

not timely file a notice of appeal from the dismissal. See 28

U.S.C. § 2107; Fed. R. App. P. 4; Bowles v. Russell, 551 U.S. 205

(2007) ("This Court has long held that the taking of an appeal

within the prescribed time is 'mandatory and jurisdictional.'"

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(quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56 , 61

(1982) (per curium))).5


For the foregoing reasons, the District Court's order and

judgment of dismissal and denial of Computershare's motion for

attorneys' fees are affirmed.

5 In its cross-appeal reply brief Computershare argues in the alternative -- and contrary to the position that it takes in its opening brief -- that the District Court's dismissal of the case did "implicitly discharge[] Computershare." Computershare thus argues that it is due attorneys' fees even at this late date. Computershare makes no argument, however, that, if the District Court's order had discharged it, it was entitled to more than the 14 days Rule 54 provides to file its motion for attorneys' fees. And, in any event, new arguments may not be raised for the first time in a reply brief. See Rivera–Muriente v. Agosto–Alicea, 959 F.2d 349 , 354 (1st Cir. 1992).

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