ELGARD CORPORATION v. BRENNAN CONSTRUCTION

3:93CV1776(DFM).

2005 | Cited 0 times | D. Connecticut | September 30, 2005

RULING ON PLAINTIFF'S MOTIONS FOR JUDGMENT

This diversity case emanates from a payment dispute in a bridgeconstruction project. The case is on remand from the Court ofAppeals for the Second Circuit. See Elgard Corp. v. BrennanConst. Co., 388 F.3d 30 (2d Cir. 2004). Pending before the courtare the plaintiff's "motion for judgment in accordance withmandate of Second Circuit and motion for supplemental judgment"(doc. #104) and "motion for entry of judgment under Rule 54(b)."(Doc. #112.)

I. Background

On September 2, 1993, pursuant to a 1992 contract, the plaintiff, a subcontractor, commenced this action against thedefendants Brennan Construction Company ("Brennan"), a generalcontractor, and its surety, American Insurance Company("American"), seeking payment of $107,445, plus interest, costsand attorney's fees. On September 7, 1993, Elgard filed asettlement offer in the amount of $105,000 pursuant toConnecticut's "Offer of Judgment" statute, Conn. Gen. Stat. §52-192a. On February 7, 1997, during the litigation, Brennan paidthe plaintiff $107,445 and specified that it was to be used aspayment of the principal. Elgard cashed the check. Interest andattorney's fees remained at issue and the litigation continued.On September 27, 1999, after a bench trial, the court issued adecision finding the defendants liable to the plaintiff underConn. Gen. Stat. § 49-42.1 The court: (1) awarded Elgard$78,001.28 in statutory interest2 on the principal of$107,445 pursuant to Conn. Gen. Stat. § 49-42; (2) deniedElgard's claim for interest on the $78,001.28; (3) deniedElgard's claim for offer-of-judgment interest pursuant to Conn.Gen. Stat. § 52-192a because the amount recovered ($78,001.28) did not exceed the plaintiff's offer of judgment;and (4) denied Elgard's request for attorney's fees on the groundthat the defendants' estoppel defense was not without substantialbasis in fact or law.

On appeal, the Second Circuit affirmed the trial court'sjudgment as to liability and the court's award of $78,001.28.However, the Court of Appeals vacated that part of the judgmentin which the district court denied interest on the $78,001.28 anddenied offer-of-judgment interest. The Court of Appeals reversedthe trial court's denial of attorney's fees. The Court of Appealsheld that the district court "should have awarded Elgard$78,001.28 in accumulated contract interest plus prejudgmentinterest on that unpaid amount pursuant to § 49-42 of$37,113.90,3 for a total award of $115,115.18." ElgardCorp. v. Brennan Const. Co., 388 F.3d 30, 36 (2d Cir. 2004).Concomitantly, the court found that Elgard was entitled tooffer-of-judgment interest. The Court of Appeals held that"[s]ince Elgard was entitled to a $115,115.18 judgment — wellabove the $105,000 settlement offered in 1993 — it is entitled tooffer-of-judgment interest in the amount of $83,791.24."4Id. at 37. As a final matter, the Court of Appeals reversed thetrial court's denial of Elgard's request for attorney's feesbecause it concluded that American and Brennan's defense had no substantialbasis in fact and the plaintiff had a manifest basis forattorney's fees under § 49-42. Id. at 38. On December 21, 2004,the mandate issued, providing in pertinent part: On consideration whereof, it is hereby ORDERED, ADJUDGED and DECREED that the judgment of said District Court be and it hereby is AFFIRMED in part, REVERSED in part and VACATED and REMANDED in part in accordance with the opinion of this Court.(Doc. #103.) Following the return of the mandate, the plaintiffdid not file with the Second Circuit any request that it awardpost judgment interest.

II. The Plaintiff's Requests

The plaintiff's motions raise issues regarding the award ofpost judgment and offer-of-judgment interest. On May 5, 2005, thecourt ordered supplemental briefing on these issues. (Doc. #118.)

In its "motion for judgment in accordance with mandate ofSecond Circuit and motion for supplemental judgment," theplaintiff seeks an award of $200,235.50 in offer-of-judgmentinterest. (Doc. #104 at 5.) According to Elgard, it should beawarded offer-of-judgment interest on $275,090.18 (the aggregateof $78,001.28 and $37,113, amounts determined by the SecondCircuit, and the plaintiff's attorney's fees of $159,975 at thetrial level).5 Elgard claims it is entitled to a judgmentin the amount of $475,325.68 ($275,090.18 + $200,235.50).

The plaintiff next requests that this proposed judgment of$475,325.68 be supplemented by, inter alia, post judgmentinterest from September 30, 1999 until the date the court entersthe judgment.6 (Doc. #104 at 6.)

In the plaintiff's "Motion for Entry of Judgment under Rule54(b)," the plaintiff claims that the September 30, 1999 judgmentshould be modified to reflect $198,906.42, an aggregate of theamounts to which the Court of Appeals found it wasentitled.7 The plaintiff further requests that theproposed modified judgment be supplemented to provide for postjudgment interest as of September 30, 1999. (Doc. #112.)

The defendant agrees that the plaintiff is entitled to$198,906.42 as set forth by the Court of Appeals but objects tothe plaintiff's claims that it is entitled to post judgmentinterest as of September 30, 1999 and offer-of-judgment interestin excess of that specified by the Court of Appeals. III. Discussion

The court first considers the issue of post judgment interest.Under 28 U.S.C. § 1961(a),8 a plaintiff is entitled topost judgment interest calculated as of the "date of the entry ofthe judgment. . . ." "Such relief is `designed to compensate theplaintiff for the delay it suffers from the time damages arereduced to an enforceable judgment to the time the defendant paysthe judgment.'" Goodrich Corp. v. Town of Middlebury,311 F.3d 154, 178 (2d Cir. 2002) (quoting Andrulonis v. United States,26 F.3d 1224, 1230 (2d Cir. 1994)). "[P]ost-judgment interestcommences from the date a judgment is ascertained in a meaningfulway." Id.

It is undisputed that the plaintiff is entitled to postjudgment interest pursuant to 28 U.S.C. § 1961. The partiesdisagree, however, as to the date from which post judgmentinterest should be calculated. The plaintiff argues that it isentitled to post judgment interest as of September 30, 1999, thedate the trial court entered judgment, on all of the monies towhich the Second Circuit found the plaintiff was entitled. Thedefendants disagree and contend that "[b]ecause the SecondCircuit did not provide instructions regarding post judgment interest, Rule 37(b)requires the award of post judgment interest to run from noearlier than the date of the Second Circuit's decision, not fromthe date of [the] original judgment in September 1999."9(Doc. #119 at 11.)

Rule 37 of the Federal Rules of Appellate Procedure provides: (a) When the Court Affirms. Unless the law provides otherwise, if a money judgment in a civil case is affirmed, whatever interest is allowed by law is payable from the date when the district court's judgment was entered. (b) When the Court Reverses. If the court modifies or reverses a judgment with a direction that a money judgment be entered in the district court, the mandate must contain instructions about the allowance of interest.

According to Fed.R.App. 37(a), when a court of appealsaffirms a money judgment in a civil case, post judgment interestaccrues from the date the judgment was entered in the districtcourt, just as if no appeal has been taken. 16A Wright, Miller &Cooper, Federal Practice and Procedure § 3983, at 629 (3d ed.1999) ("Wright & Miller"). If a judgment is modified or reversedwith a direction that a money judgment be entered in the district court, Rule 37(b) provides that the mandate must containinstructions about the allowance of post judgment interest. 16AWright & Miller § 3983, at 629; Smith v. National R.R. PassengerCorp., 856 F.2d 467, 472-73 (2d Cir. 1988). "If the mandate ofthe court of appeals says nothing about interest, despite thecommand of Rule 37, it will be assumed that interest commencesfrom the date of entry of the appellate court judgment." 16AWright & Miller § 3983, at 635. See also 20A James Wm. Moore etal., Moore's Federal Practice § 337.12[3] (3d ed. 2000) ("If themandate is silent about interest . . . the district court onremand has no choice but to begin post judgment interest withentry of the postremand judgment.") See Briggs v. PennsylvaniaR.R. Co., 334 U.S. 304, 306 (1948). "Since the rule directs thatthe matter of interest be disposed of by the mandate, in caseswhere interest is simply overlooked, a party who conceiveshimself entitled to interest from a date other than the date ofentry of judgment in accordance with the mandate should beentitled to seek recall of the mandate for determination of thequestion. Fed.R.App.P. 37 advisory committee's note." NewEngland Ins. Co. v. Healthcare Underwriters Mut. Ins. Co.,352 F.3d 599, 604 (2d Cir. 2003); 16A Wright & Miller § 3938, at 635;20A Moore's Federal Practice at § 337.12[3]. See, e.g.,Loughman v. Consol-Pennsylvania Coal Co., 6 F.3d 88, 96 n. 5(3rd Cir. 1993) ("we have the authority to recall our mandate soas expressly to provide for the awarding of post-judgment interest"); Reaves v. Ole Man River Towing, Inc.,761 F.2d 1111, 1112 (5th Cir. 1985) (district court acted properly in notawarding post judgment interest where remand was silent; uponmotion, the Court of Appeals amended its mandate to allowinterest from the date of the district court's first decision).Rule 37 "gives appellate courts discretion to decide the issue ona case-by-case basis." Smith v. Nat'l R.R. Passenger Corp.,856 F.2d 467, 473 (2d Cir. 1988).

The plaintiff argues that Fed.R.App.P. 37 does not governthe issue of post judgment interest in this case because themandate does not direct the entry of a particular money judgment.It cites as support Westinghouse Credit Corp. v. D'Urso,371 F.3d 96 (2d Cir. 2004).

The plaintiff's reliance on Westinghouse is unavailing. Inthe initial appeal in Westinghouse, the Second Circuit vacatedthe district court's judgment that the defendant was entitled torecoupment and setoff and remanded the case for furtherproceedings. On remand, the district court awarded post judgmentinterest as of the date of the district court's initial judgment.In the second appeal, the Second Circuit vacated and remanded,holding that the district's court initial judgment was notascertained in a meaningful way so as to trigger post judgmentinterest. Rule 37 was not relevant to the Court of Appeals'determination regarding the date the district court should have awarded post judgment interest: By their terms Rule 37(b) and the underlying Briggs limitation on district court power apply only when the mandate directs the district court to enter a money judgment. . . . [W]e believe there must be at least some indication that the mandate is directing the entry of a particular money judgment. In the absence of such an indication, the district court should not be barred from awarding interest on its own since doing so would not deviate from the mandate.Westinghouse, 371 F.3d 96, 103-04 (emphasis in original). Rule37(b) did not apply because the Second Circuit's mandate did notdirect the district court to enter a money judgment. Instead, themandate vacated the district court's initial judgment andremanded "for further proceedings in accordance with the opinionof this Court." Id. at 104. The Second Circuit explained thatalthough "it is clear that the effect of the mandate and opinionwas to ensure that the district court would ultimately enter amoney judgment in favor of Westinghouse, neither documentsuggested what the amount of the judgment should be. . . ." Id.That is not the situation here. In this case, the SecondCircuit's decision clearly specified that the district courtenter a particular money judgment — $198,906.42 plus attorney'sfees. The Court of Appeals did not indicate when post judgmentinterest should commence. As a result, pursuant toFed.R.App.P. 37, the district court is without authority to award postjudgment interest as of September 30, 1999. See Roboserve,Inc. v. Kato Kagaku Co., Ltd., 942 F. Supp. 1199 (N.D. Ill.1996) (district court did not have authority to grant plaintiff's request for post judgment interest wheremandate was silent); Indu Craft, Inc. v. Bank of Baroda, 87CIV. 7379, 1995 WL 479516, at *3 (S.D.N.Y. Aug. 10, 1995)(declining to award plaintiff interest where mandate was silent).

The court turns next to the issue of offer-of-judgmentinterest. The plaintiff claims that it is entitled to $200,235.50in offer-of-judgment interest. (Doc. #104 at 5.) The SecondCircuit held that the plaintiff was entitled to offer-of-judgmentinterest in the amount of $83,791.24. The Court of Appealsdetermined this figure by calculating the interest on $115,115.18($78,001.28 plus $37,113.90) from September 7, 1993 to September30, 1999. Elgard Corp. v. Brennan Const. Co., 388 F.3d 30, 37(2d Cir. 2004). The plaintiff's request that it be awarded anoffer-of-judgment in excess of that expressly determined by theSecond Circuit is beyond this court's authority. It is wellestablished that "an inferior court has no power or authority todeviate from the mandate issued by an appellate court." Briggsv. Pennsylvania R. Co., 334 U.S. 304, 306 (1948).

IV. Conclusion

For these reasons, the plaintiff's requests for post judgmentand offer-of-judgment interest as set forth in its "motion forjudgment in accordance with mandate of Second Circuit and motionfor supplemental judgment" (doc. #104) are denied. Theplaintiff's "motion for entry of judgment under Rule 54(b)" (doc.#112) is granted in part and denied in part. The plaintiff's request thata modified judgment be entered in the amount of $198,906.42 isgranted. The plaintiff's request that the court award it postjudgment interest as of September 30, 1999 is denied as is theplaintiff's claim that it is entitled to offer-of-judgmentinterest in an amount different than that specified in the SecondCircuit's opinion.

SO ORDERED.

RULING ON PLAINTIFF'S MOTIONS FOR JUDGMENT

This diversity case emanates from a payment dispute in a bridgeconstruction project. The case is on remand from the Court ofAppeals for the Second Circuit. See Elgard Corp. v. BrennanConst. Co., 388 F.3d 30 (2d Cir. 2004). Pending before the courtare the plaintiff's "motion for judgment in accordance withmandate of Second Circuit and motion for supplemental judgment"(doc. #104) and "motion for entry of judgment under Rule 54(b)."(Doc. #112.)

I. Background

On September 2, 1993, pursuant to a 1992 contract, the plaintiff, a subcontractor, commenced this action against thedefendants Brennan Construction Company ("Brennan"), a generalcontractor, and its surety, American Insurance Company("American"), seeking payment of $107,445, plus interest, costsand attorney's fees. On September 7, 1993, Elgard filed asettlement offer in the amount of $105,000 pursuant toConnecticut's "Offer of Judgment" statute, Conn. Gen. Stat. §52-192a. On February 7, 1997, during the litigation, Brennan paidthe plaintiff $107,445 and specified that it was to be used aspayment of the principal. Elgard cashed the check. Interest andattorney's fees remained at issue and the litigation continued.On September 27, 1999, after a bench trial, the court issued adecision finding the defendants liable to the plaintiff underConn. Gen. Stat. § 49-42.1 The court: (1) awarded Elgard$78,001.28 in statutory interest2 on the principal of$107,445 pursuant to Conn. Gen. Stat. § 49-42; (2) deniedElgard's claim for interest on the $78,001.28; (3) deniedElgard's claim for offer-of-judgment interest pursuant to Conn.Gen. Stat. § 52-192a because the amount recovered ($78,001.28) did not exceed the plaintiff's offer of judgment;and (4) denied Elgard's request for attorney's fees on the groundthat the defendants' estoppel defense was not without substantialbasis in fact or law.

On appeal, the Second Circuit affirmed the trial court'sjudgment as to liability and the court's award of $78,001.28.However, the Court of Appeals vacated that part of the judgmentin which the district court denied interest on the $78,001.28 anddenied offer-of-judgment interest. The Court of Appeals reversedthe trial court's denial of attorney's fees. The Court of Appealsheld that the district court "should have awarded Elgard$78,001.28 in accumulated contract interest plus prejudgmentinterest on that unpaid amount pursuant to § 49-42 of$37,113.90,3 for a total award of $115,115.18." ElgardCorp. v. Brennan Const. Co., 388 F.3d 30, 36 (2d Cir. 2004).Concomitantly, the court found that Elgard was entitled tooffer-of-judgment interest. The Court of Appeals held that"[s]ince Elgard was entitled to a $115,115.18 judgment — wellabove the $105,000 settlement offered in 1993 — it is entitled tooffer-of-judgment interest in the amount of $83,791.24."4Id. at 37. As a final matter, the Court of Appeals reversed thetrial court's denial of Elgard's request for attorney's feesbecause it concluded that American and Brennan's defense had no substantialbasis in fact and the plaintiff had a manifest basis forattorney's fees under § 49-42. Id. at 38. On December 21, 2004,the mandate issued, providing in pertinent part: On consideration whereof, it is hereby ORDERED, ADJUDGED and DECREED that the judgment of said District Court be and it hereby is AFFIRMED in part, REVERSED in part and VACATED and REMANDED in part in accordance with the opinion of this Court.(Doc. #103.) Following the return of the mandate, the plaintiffdid not file with the Second Circuit any request that it awardpost judgment interest.

II. The Plaintiff's Requests

The plaintiff's motions raise issues regarding the award ofpost judgment and offer-of-judgment interest. On May 5, 2005, thecourt ordered supplemental briefing on these issues. (Doc. #118.)

In its "motion for judgment in accordance with mandate ofSecond Circuit and motion for supplemental judgment," theplaintiff seeks an award of $200,235.50 in offer-of-judgmentinterest. (Doc. #104 at 5.) According to Elgard, it should beawarded offer-of-judgment interest on $275,090.18 (the aggregateof $78,001.28 and $37,113, amounts determined by the SecondCircuit, and the plaintiff's attorney's fees of $159,975 at thetrial level).5 Elgard claims it is entitled to a judgmentin the amount of $475,325.68 ($275,090.18 + $200,235.50).

The plaintiff next requests that this proposed judgment of$475,325.68 be supplemented by, inter alia, post judgmentinterest from September 30, 1999 until the date the court entersthe judgment.6 (Doc. #104 at 6.)

In the plaintiff's "Motion for Entry of Judgment under Rule54(b)," the plaintiff claims that the September 30, 1999 judgmentshould be modified to reflect $198,906.42, an aggregate of theamounts to which the Court of Appeals found it wasentitled.7 The plaintiff further requests that theproposed modified judgment be supplemented to provide for postjudgment interest as of September 30, 1999. (Doc. #112.)

The defendant agrees that the plaintiff is entitled to$198,906.42 as set forth by the Court of Appeals but objects tothe plaintiff's claims that it is entitled to post judgmentinterest as of September 30, 1999 and offer-of-judgment interestin excess of that specified by the Court of Appeals. III. Discussion

The court first considers the issue of post judgment interest.Under 28 U.S.C. § 1961(a),8 a plaintiff is entitled topost judgment interest calculated as of the "date of the entry ofthe judgment. . . ." "Such relief is `designed to compensate theplaintiff for the delay it suffers from the time damages arereduced to an enforceable judgment to the time the defendant paysthe judgment.'" Goodrich Corp. v. Town of Middlebury,311 F.3d 154, 178 (2d Cir. 2002) (quoting Andrulonis v. United States,26 F.3d 1224, 1230 (2d Cir. 1994)). "[P]ost-judgment interestcommences from the date a judgment is ascertained in a meaningfulway." Id.

It is undisputed that the plaintiff is entitled to postjudgment interest pursuant to 28 U.S.C. § 1961. The partiesdisagree, however, as to the date from which post judgmentinterest should be calculated. The plaintiff argues that it isentitled to post judgment interest as of September 30, 1999, thedate the trial court entered judgment, on all of the monies towhich the Second Circuit found the plaintiff was entitled. Thedefendants disagree and contend that "[b]ecause the SecondCircuit did not provide instructions regarding post judgment interest, Rule 37(b)requires the award of post judgment interest to run from noearlier than the date of the Second Circuit's decision, not fromthe date of [the] original judgment in September 1999."9(Doc. #119 at 11.)

Rule 37 of the Federal Rules of Appellate Procedure provides: (a) When the Court Affirms. Unless the law provides otherwise, if a money judgment in a civil case is affirmed, whatever interest is allowed by law is payable from the date when the district court's judgment was entered. (b) When the Court Reverses. If the court modifies or reverses a judgment with a direction that a money judgment be entered in the district court, the mandate must contain instructions about the allowance of interest.

According to Fed.R.App. 37(a), when a court of appealsaffirms a money judgment in a civil case, post judgment interestaccrues from the date the judgment was entered in the districtcourt, just as if no appeal has been taken. 16A Wright, Miller &Cooper, Federal Practice and Procedure § 3983, at 629 (3d ed.1999) ("Wright & Miller"). If a judgment is modified or reversedwith a direction that a money judgment be entered in the district court, Rule 37(b) provides that the mandate must containinstructions about the allowance of post judgment interest. 16AWright & Miller § 3983, at 629; Smith v. National R.R. PassengerCorp., 856 F.2d 467, 472-73 (2d Cir. 1988). "If the mandate ofthe court of appeals says nothing about interest, despite thecommand of Rule 37, it will be assumed that interest commencesfrom the date of entry of the appellate court judgment." 16AWright & Miller § 3983, at 635. See also 20A James Wm. Moore etal., Moore's Federal Practice § 337.12[3] (3d ed. 2000) ("If themandate is silent about interest . . . the district court onremand has no choice but to begin post judgment interest withentry of the postremand judgment.") See Briggs v. PennsylvaniaR.R. Co., 334 U.S. 304, 306 (1948). "Since the rule directs thatthe matter of interest be disposed of by the mandate, in caseswhere interest is simply overlooked, a party who conceiveshimself entitled to interest from a date other than the date ofentry of judgment in accordance with the mandate should beentitled to seek recall of the mandate for determination of thequestion. Fed.R.App.P. 37 advisory committee's note." NewEngland Ins. Co. v. Healthcare Underwriters Mut. Ins. Co.,352 F.3d 599, 604 (2d Cir. 2003); 16A Wright & Miller § 3938, at 635;20A Moore's Federal Practice at § 337.12[3]. See, e.g.,Loughman v. Consol-Pennsylvania Coal Co., 6 F.3d 88, 96 n. 5(3rd Cir. 1993) ("we have the authority to recall our mandate soas expressly to provide for the awarding of post-judgment interest"); Reaves v. Ole Man River Towing, Inc.,761 F.2d 1111, 1112 (5th Cir. 1985) (district court acted properly in notawarding post judgment interest where remand was silent; uponmotion, the Court of Appeals amended its mandate to allowinterest from the date of the district court's first decision).Rule 37 "gives appellate courts discretion to decide the issue ona case-by-case basis." Smith v. Nat'l R.R. Passenger Corp.,856 F.2d 467, 473 (2d Cir. 1988).

The plaintiff argues that Fed.R.App.P. 37 does not governthe issue of post judgment interest in this case because themandate does not direct the entry of a particular money judgment.It cites as support Westinghouse Credit Corp. v. D'Urso,371 F.3d 96 (2d Cir. 2004).

The plaintiff's reliance on Westinghouse is unavailing. Inthe initial appeal in Westinghouse, the Second Circuit vacatedthe district court's judgment that the defendant was entitled torecoupment and setoff and remanded the case for furtherproceedings. On remand, the district court awarded post judgmentinterest as of the date of the district court's initial judgment.In the second appeal, the Second Circuit vacated and remanded,holding that the district's court initial judgment was notascertained in a meaningful way so as to trigger post judgmentinterest. Rule 37 was not relevant to the Court of Appeals'determination regarding the date the district court should have awarded post judgment interest: By their terms Rule 37(b) and the underlying Briggs limitation on district court power apply only when the mandate directs the district court to enter a money judgment. . . . [W]e believe there must be at least some indication that the mandate is directing the entry of a particular money judgment. In the absence of such an indication, the district court should not be barred from awarding interest on its own since doing so would not deviate from the mandate.Westinghouse, 371 F.3d 96, 103-04 (emphasis in original). Rule37(b) did not apply because the Second Circuit's mandate did notdirect the district court to enter a money judgment. Instead, themandate vacated the district court's initial judgment andremanded "for further proceedings in accordance with the opinionof this Court." Id. at 104. The Second Circuit explained thatalthough "it is clear that the effect of the mandate and opinionwas to ensure that the district court would ultimately enter amoney judgment in favor of Westinghouse, neither documentsuggested what the amount of the judgment should be. . . ." Id.That is not the situation here. In this case, the SecondCircuit's decision clearly specified that the district courtenter a particular money judgment — $198,906.42 plus attorney'sfees. The Court of Appeals did not indicate when post judgmentinterest should commence. As a result, pursuant toFed.R.App.P. 37, the district court is without authority to award postjudgment interest as of September 30, 1999. See Roboserve,Inc. v. Kato Kagaku Co., Ltd., 942 F. Supp. 1199 (N.D. Ill.1996) (district court did not have authority to grant plaintiff's request for post judgment interest wheremandate was silent); Indu Craft, Inc. v. Bank of Baroda, 87CIV. 7379, 1995 WL 479516, at *3 (S.D.N.Y. Aug. 10, 1995)(declining to award plaintiff interest where mandate was silent).

The court turns next to the issue of offer-of-judgmentinterest. The plaintiff claims that it is entitled to $200,235.50in offer-of-judgment interest. (Doc. #104 at 5.) The SecondCircuit held that the plaintiff was entitled to offer-of-judgmentinterest in the amount of $83,791.24. The Court of Appealsdetermined this figure by calculating the interest on $115,115.18($78,001.28 plus $37,113.90) from September 7, 1993 to September30, 1999. Elgard Corp. v. Brennan Const. Co., 388 F.3d 30, 37(2d Cir. 2004). The plaintiff's request that it be awarded anoffer-of-judgment in excess of that expressly determined by theSecond Circuit is beyond this court's authority. It is wellestablished that "an inferior court has no power or authority todeviate from the mandate issued by an appellate court." Briggsv. Pennsylvania R. Co., 334 U.S. 304, 306 (1948).

IV. Conclusion

For these reasons, the plaintiff's requests for post judgmentand offer-of-judgment interest as set forth in its "motion forjudgment in accordance with mandate of Second Circuit and motionfor supplemental judgment" (doc. #104) are denied. Theplaintiff's "motion for entry of judgment under Rule 54(b)" (doc.#112) is granted in part and denied in part. The plaintiff's request thata modified judgment be entered in the amount of $198,906.42 isgranted. The plaintiff's request that the court award it postjudgment interest as of September 30, 1999 is denied as is theplaintiff's claim that it is entitled to offer-of-judgmentinterest in an amount different than that specified in the SecondCircuit's opinion.

SO ORDERED.

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