UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA QATAR NATIONAL BANK , : : P laintif f, :

: v. : Civil Action No. 06-1307 (G K) : WINMAR , INC., : : Defendan t and Th ird-P arty P laintif f , : ____________________________________: : WINMAR , INC., : : Thi rd-P arty P laintif

f an d Coun ter - : Claim Defendan t, : : v. : : AL JAZEERA INTERNATIONAL, : : Thi rd-P arty D efendan t and Coun ter - : Claim P laintif

f. :

MEMORAN DUM OP INION There are seven moti ons pending at t his time. They are : (1) W inmar’s Moti on for Order 1
to Strike For g ed Stipul ation Presented to the Court by L eslie H. Wiesenfelder of Dow L ohnes, PL L C [Dkt. No. 148], (2) Motion of Gar nishe es Al J azeer a International (USA), Inc. (“A l J azeer a Int. (USA)) and Peninsula Production Company (“Peninsula” ) to Vac ate Orde rs for L ack of Finality of Un derlying J udg ment [Dkt. No. 156], (3) Emerg ency Motion of Al J azeer a Int. to Quash All Outstanding Writs of Attachment on J udg ment and St a y Any F u r th e r E n f o r c ement Procee dings [Dkt. No. 147] , (4 ) Qa t ar National Bank’s (“Qatar Bank” ) Mot ion to Enter J udg ment of C ondemnation

There is also pending Winm ar ’s Am en d ed Mot ion for Attorney s’ Fees and Costs. 1 That Motion, which is of a v er y differ ent nature than the seven motions being dealt with in this Orde r, will be dec ided as soon as possible.or, in the Alternative, to Confirm L ien [Dkt. No. 151], (5) Qatar Ba nk’s Motion to Enforc e Writ of Ex ecution [Dkt. No. 164], (6) Winm ar’ s Motion for J udg ment Aga i n s t Gar nishees for Fa ilure to Answer Interrog atories [Dkt. No. 165], and (7) Qatar Ba nk’s Motion to Quash Writ of Attachment [Dkt. No. 189]

. On Dec ember 19, 2011, the Court he ld a leng thy Motions He aring , and discussed what pra ct i ca l eff

ects differ ent ruling s by the Court may have on this very complicated postjudgme nt situation. Be cause th er e is an Emerg ency Motion pending , and beca use all parties are anxious to have these Motions resolved quickly , the Court is issuing this final Orde r with only very brief r efe renc es to applica ble ca se law a

nd a ver y abbre viated stateme nt of its reasons. 2 1. Winm ar’ s Motion to Strike For g ed S tipulation Presented to the C o u rt by L eslie H. Wiesenfelder of Dow L ohnes, PL L C is granted for the following rea sons, as well as those set forth orally at the Motions Hear ing. The document filed by Al J azeer a Int. and labeled a “Joi nt Stipul ation” is very misleading

. Acc ording to Bla ck’s L aw Dictionary , a “stipulation” is a “voluntary ag ree ment betwee n opposing parties.” I d. at 1500 (9th ed. 2009). On its fac e, the J oint Stip u l at i o n states that Winm ar and Al J azeer a I nt. ag ree d on the amount of the super sedea s bond to be posted by Al J azeer a. Al J azeer a has concede d, howeve r, t hat W inmar di d not, in fac t, consent to the bond amount. Moreover, t he word “joint” also connotes that the parties have ag ree d to the document being fi l ed

. Al J azeer a’s “Joi nt Sti pulation” was ne ither “joint” nor a “stipulation.” I t should never have bee n filed. Al J azeer a’s Opposition to the Motion consistently ref err ed to the “Joi nt Stipul ation” as a “P roposed Stipul ation,” as if that was the title of the document filed. That ref ere n ce t o o wa s

As counsel know from other ruling s in this ca s e, t h e Court usually issues fairly 2 detailed opinions. Howeve r, it is neither prac tical nor helpful for the parties to follow that proce dure at this tim e. -2-misleading

. Nowher e does the “Joi nt Stipul ation” indicate that it was mere ly a proposed stipulation.

Al J azeer a Int. a

rgues that the Court w as, howeve r, awa re of the proposed nature of the stipulation beca use counsel for Al J azeer a notified Chambers that counsel for Winm ar had n o t agr ee d to the bond amount. I t is true that, both befor e and afte r the Court signe d the J oint Stipul ation, counsel for Al J azeer a Int. called Chambers with this information. Howeve r, beca use of the misleading nature of the J oint Stipul ation heading , and the fac t that t h e C o u rt u n derstood that counsel had been in neg otiations ove r the bond amount, the Court surmised that they wer e close to r esolving the issue, and that ther e wa s basic agree ment -- whic h there was not -- to the filing of a super sedea s bond. Moreove r, rathe r than telephoning Chambers, counsel for Al J azeer a Int. should have immediately filed a motion withdrawing the J oint Stipul ation or reque sting its vaca tur afte r the J oint Stipul ation had bee n signe d by the Court. For these rea sons, the J oint Stipul ation shall be struck, Winm ar’ s Motion is granted , and the superse deas bond, issued on November 21, 2011, is nul l and void beca use it was issued on the basis of inac curate information. 2. Two g arnishee s, Pe n in s u la a n d A l J azeer a Int. (U.S.A.), have filed a Motion to Vacate Orde rs for L ac k of Finality of Under lying J udg ment. That Motion is granted for the following

rea sons. First, the Court conclude s that Winm ar’ s claim that the g arnishee s lack standing is w ithout merit. See W ei n i n ger v . Castro, 462 F. Supp. 2d 457, 473 (S.D.N.Y. 2006); Har ring ton v. Hollingswor

th, C.A. No. 89C-J L 3, 1996 WL 769635, at * 2-3 (De l. Super. Ct. Dec

. 20, 1996); Fe d. R. Civ. P. 60; Fe d. R. Civ. P. 54(b); D.C. Code § 16-551; see Gra ce v. Ba nk L eumi Trust Co. of New York, 443 F .3d 180, 188 (2d. Cir. 2006); Quande r v. Dow, 721 A .2d 977, 978 (D.C. 1998).

-3-Second, despite the filing of an app ea l b y Al J azeer a Int. with the Court of Appea ls, this

Court conclude s that it has jurisdiction. Robertson v. Cartinhour, 691 F. Supp. 2d 65, 74-75 (D.D.C. 2010). In McKe sson HB OC, Inc. v. I slamic Rep. of Iran, 315 F. Supp. 2d 63, 65-66 (D.D.C. 2004), the District Court conclude d that “[i] t is settled that notice of appea l from an unappea lable order does not divest the District Court of jurisdiction,” and supporting case s cited there in. See also McManus

v. District of Columbi a, 545 F. Supp. 2d 129, 133-34 (D.D.C. 2008). Be cause this Court conclude s, 3 for the rea sons stated, infra , that its Orde r of September 29, 20 1 0 an d its Orde r of September 28, 2011 wer e not final order s, Al J azeer a’s appea ls of the Orde rs wer e invalid under 28 U.S.C. § 1291, which provide s for the a

ppeal of only “all fina l decisions” of the District Court. Third, the Court now turns to the question of whether its Orde rs of September 29, 2010, and September 28, 2011, w ere “fina l judgments” pursuant to 28 U.S.C. § 1291. I f not, then they wer e “unappe alable,” and as non-final judgme nts, no post -j u d gm ent writs could be filed; if they wer e final judgme nts, the n the appea ls taken by Winm ar wer e prope r, and all the post-judgme nt a ctions Winm ar took to secur e its judgme nts wer e proper . The two g arnishee s who are the moving parties in this Motion argue that the Orde rs of September 29, 2010 and September 28, 2011 wer e not final beca use two issues were undecide d: the amount of attorney s’ fee s provided for under the contra ct and a c lear

decision on Al Jaz eer a Int.’s counter -cla ims ag ainst Wi nmar. There is no question that “[a]n execution ordinarily may issue only upon a final judgme nt.” Redding & Co., Inc. v. Russwine Constr. Co., 417 F.2d 7 2 1 , 727 (D.C. Cir. 1969). See also S emi nole Nation of Okla. v. Norton, No. 01-5418, 2002 WL 1364249 at *1 (D.C. Cir. M ay 2 4 , 2002). In order to de cide whether a district c ourt’s order is a final decision, it must be dete rmined

Of c ourse, a

court a lway s has jurisdiction to decide its jurisdiction. 3 -4-whether it is a decision that “ends the litigation on the merits and leave s nothing for the court to do

but execute the judg ment.” Catlin v. United States, 324 U.S. 229, 233 (1945)). In Budinich v. Be cton Di ck i n s o n and Co., 486 U.S. 196,199 (1988), the Supreme Court addre ssed the question of “whe ther a decision on the merits is a ‘final decision’ as a matter of fede ral law under § 1291 when the rec overa bility of amounts of attorney s’ fee s for the litigation rema ins to be deter mined.” In a detailed analy sis of that qu es t i o n , J ustice Scalia noted that “[a] question

rema ining to be decide d afte r an order ending litigation on the merits does not preve nt finality if its resolution will not alter the order or moot or revise decisions embodied in t h e o rd er . ” I d. Whil e acknow ledg ing that the Court had “all but held that an attorney ’s fee s deter minat i on fits this descr iption,” J ustice Scalia explained that the Court’s holding “wa s based on our conclusion that a reque st for attorney ’s fee s under § 1988 raises leg al i s sues ‘collate ral to’ and ‘sepa rate from’ the decision on the merits.” I d. at 199-200. J ustice Scalia rec og nized that “the fore g oing discussion is

u l t i m at el y question-beg g ing, howeve r, since it assumes that the order to which the fee issue was collater al was an order ending litigatio n o n t he merits. I f one wer e to reg ard the demand for attorney ’s fee s itself as part of the merits, the analy sis would not apply

. The merits would then not have be en conc luded, and § 1291 f inality would not exi st.” I d. at 200 (e mphasis in origina l). Thus, the question in this case i s wh et h er t h e demand for attorney s’ fee s was “par t of the merits” of Plaintiff’s claim. In Winm ar’ s Third-Party Complaint Ag ainst Third-Party Def endant Al J azeer a Int. [Dkt. No. 19], it alleg es, in Count 2, brea ch of contra ct based upon Al J azeer a’s failure to pay all amounts due and owing to Winm ar un d er t h e co n trac t. ¶ 37 (empha sis added)

. In its R eq u es t fo r Relief, Winm ar pray s that “upon final judgme nt, it has judgme nt ag ainst Al J azeera International in an amount in e x cess of $474,677, plus r easona ble attorne y s’ fee s, costs, expenses,

-5-pre- and post-judgme nt interest

. . . .” Thus, it is clea r that in its actua l Complaint ag ainst Al J azeer a International, Winm ar itself reque sted that attorney s’ fee s b e i n cluded in the “fina l judgme nt” it seeks. In addition, it is signific ant that in the Orde r of September 29, 2010, which wa s t h e fi nal opinion on the merits afte r the bench trial, the Court did include ruling s on pre- judgme nt and postjudgme nt interest, both of which w ere included in Winmar’s prayer f or re lief. Finally , the contra ctual provision upon which W i n mar rests its claim for attorney s’ fee s, 4 Section 4.6.3 rea ds as follows:

In any action or proceed i n g b rought by the Contractor [W inmar] to enfor ce any provision of t h i s agr eeme nt or wher e any provision is validly asser

ted as a d ef

en s e, the Contractor shall be entitled to rec over rea sonable attorney s’ fee s in addition to its cost s and expenses and any

other available r emedy

. In Carolina Power & L ight Co. v. Dy neg y Marke ting and Trade , 415 F.3d 354, 360 (4th Cir. 2005), the Four

th Circuit discussed Budinich at leng th, and noted that the attorney s’ fee claim in that

case was based on the plaintiff’s preva iling party status, wher eas in this case , the attorney s’ fee claim

was based on a contra ctual provision. Given that signific ant differ ence , the Four th Circuit rea soned that “a claim for leg al costs based on a contra ctual provision that is not limit ed to expenses incurre d during the underlying litigation is an element of damag es to be proved at trial under the substantive law g overning the action.” I d. at 356. The Four th Circuit then conclude d that the judgme nt on the merits in its case was not a ppeala ble beca use “whe n a contra ct provides for an awa rd of attorney s’ fee s or l eg al costs, not as costs to the pre vailing pa rty [as in Budinich], the gra

nt or denial of such

an aw ard is a substantive issue that must be addresse d befor e appe al is taken. I d. at 362.

There is no dispute among the parties that this is the rele vant contra ctual provision. 4 -6-The fac ts of this case fit square ly within the principle enunciated in California Power & L ight

Co. in that § 4.6.3 of t he C ont ra ct i s n o t re s t ricted to instances in which W inmar i s a “preva iling party .” Instead, the Contract entitles Winm ar to rea sonable attorney s’ fee s whene ver Winm ar sues “to enfor ce any provision of this Agree ment, or wher e any provision is validly asser ted as a defe nse.” There is no require ment in § 4.6.3 that Winm ar be a “preva iling par ty” or inde ed that a dispute be broug ht in a judicial proce eding

. 5 For the fore g oing rea sons, the Court conclude s that the attorney s’ fee s soug ht in this case are

an integ ral part of the underlyin g s u b stantive claim and there fore there was no final judgme nt beca use that issue was not decide d. Carolina Power & L ight, 415 F.3d at 359 (“[A] n u n re s o l v ed claim for substantive attorney s’ fee s u n d er the complaint does preve nt the entry of judgme nt”) (empha sis in orig inal). There fore , the Motion of Peninsula Production Co. and Al J azeer a Int. (USA), Inc. to Vac ate Or ders f or L ack of

Finality of Unde rlying Judgme nt is granted

. 3. Given the ruling , it f ollows tha

t the Emerg ency

Motion of Al J azeer a Int. (USA) to Quash All Outstanding Writs of Attachment on J udg ment and Stay Any Fu rt her Enforc ement Procee dings, the Motions of Qatar Ba nk to Enter J udg ment of Condemnation or, in the Alternative, to Confir m L ien, Motion to Enforc e Writ of Execution, and Motion to Quash Writ of Attachment,

as well as Winm ar’ s Motion for Entry of J udg ment Ag ainst Gar nishees for Fa ilure to Answer Interrog atories must all be denied

. I t is only if the underlying judgme nts ag ainst Al J azeer a are final th at the subsequent execution order s of various varie ties which h av e b een filed are valid. See Int’l Controls Corp. v.

For example, there is nothing in § 4.6.3 to prec lude Winm ar from seeking mediation 5 or ar bitration to resolve the dispute. -7-Vesc o, 535 F.2d 742, 745 (2d Cir. 1976). In other words, “[a] wr it of execution is invalid if based

upon a judgme nt that was not final when the writ was issued, and the fac t that the judgme nt beca me final [l ater ] cannot lend life to the invalid writ,” Am. J ur. 2d Ex ecutions § 57 (2011); “Since the validity of any g arnishment judgme nt rests u p o n the finality of the underly ing debt judgme nt

. . . entry of a judgme nt in the g arnishment proce eding is not authorized befor e th e j u d gm ent in the underlying de bt suit becomes final.” I d. § 580. In sum, since the underlying Orde rs of September 29, 2010, and September 28, 2011, are not final, all the outstanding writs of attachme nts, execution, and g arnishment are invalid and there fore there is no need to g rant the pending Motions to Quash, Enter J udg men t o f C o n d em n ation or Confirm L ien, Enfor ce Writ of Execution, and Entry of Judgment.

Dec ember

21, 2011 /s/ Glady s Kessler United States District J udg e Copies via ECF t o all couns el of recor d

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