### The Honorable Lyle E. Strom, United States District Judge 1 

### for the District of Nebraska. ___________ No. 96-1170

___________ Michael McCormack, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Nebraska. Citibank, N.A., a corporation; * National Bank of Commerce Trust * & Savings Association, a * corporation; First Westroads * Bank, a corporation, * * Appellees. *

__________ Submitted: September 11, 1996 Filed: November 5, 1996

__________ Before MAGILL, FLOYD R. GIBSON, and LAY, Circuit Judges.

___________ MAGILL, Circuit Judge.

Mich ael McCormack appeals the district court's order grantin g 1

summar yjudgment to three defendant banks: First Westroads Bank (Firs t Westroads), National Bank of Commerce Trust and Savings Association (NBC), and Citiba nk, N.A. (Citibank). McCormack, who filed this suit as th e subrogee of Acoustical Engineering, Inc. (Acoustical), alleges breach of contract and negligence by the defendant banks i n connection with a letter of credit and guarantee transaction. On appeal, McCormack argues tha t genuine issues of mat erial fact remain. He also argues that the district court

### -2-

committe d reversible error by failing to hold oral argument on th e defendant banks' summary judgment motion. We affirm.

I.

A.

This case involves a complex international transaction betwee n Acoust ical and Obaid & Almulla Construction Company (Obaid), a Saud i Ara biancorporation. At the heart of the matter are the questions o f whether the defendant banks breached their contr act with Acoustical or, in the alternative, breached a duty they owed to Acoustical.

Because t his is an appeal from a grant of summary judgment, we must view th e facts in the light most favorable to the nonmoving party. Se e Rifkin v. McDonell Douglas Corp. , 78 F.3d 1277, 1280 (8th Cir. 1996)

. Acc ordingly, viewed in the light most favorable to McCormack, the fact s that gave rise to this dispute are summarized below.

In Novem ber 1980, Acoustical entered into a contract with Obaid t o furnish ma terials and labor as part of the construction of an airpor t terminal in Riyadh, Saudi Arabia. As part of this agreement, Obai d required that Acoustical have a Saudi bank issue a performance guarantee to Obaid in the amount of 5% of the value of Acoustical's constructio n contract, or approximately $150,000. The performance guarantee was like
an insuran ce policy for Obaid; in the event that Acoustical failed t o perform under the agreement, Obaid could draw on the guarantee.

To arrange for the performance guara ntee, Acoustical contacted First Westroads, its local bank in Nebraska. Because First Westroads was unable to arr ange the guarantee directly, First Westroads contacted it s correspondent bank, NBC, which in turn

### Acoustical completed its work in June 1983. 2


### -3- contacted its correspondent bank, Citibank. Cit ibank ultimately contacted the Saudi American Ba nk (SAMBA), the Saudi bank that Acoustical and Obaid had chosen to issue the performance guarantee. SAMBAissued a performance guarantee to Obaid on behalf o f Acoustical. In suppo rt of this guarantee, Citibank issued a "clean sight credit" to SAMBA, see I Appellant's App. at 22, Ex. A; NBC agreed t o reimburse Citibank upon demand; and First Westroads agreed to reimburse NB C upondemand. For its part, Acoustical agreed to cover the amount of the guarantee as well as pay the fees charged by the banks for their services. In this way, the economic burden of a draw by Obaid on the performanc e guarantee would flow through the banks and would ultimately be borne b y Acoustical.

As part of their original understanding, Acoustical and Obaid ha d also agreed that the performance guarantee would be replaced by a maintenance guarantee upon completion of Acoustical's work. This second guarantee was to serve as a warranty for the wor k performed by Acoustical. Obaid c ould draw upon the maintenance guarantee if Acoustical did no t perfo rmnecessary repairs. The maintenance guarantee was to run for a period of fourteen mo nths from the date of the completion of Acoustical's work a nd was to be issued by a Saudi bank in the same amount as th e performance guarantee . It is this second guarantee that gave rise to the dispute now before us. In anticipation of the completion of Acoustical's performance on the construc tion contract, Acoustical and Obaid, with the help of Firs t 2 Westroads and NBC, began to negotiate the exact terms to be included in th e maint enance guarantee. Sometime before March 14, 1983, a draft of th e maintenance guarantee was completed. Significantly, both Acoustical and Obaid agreed that Obaid could not draw on the ma intenance guarantee unless Obaid first presented a "Certificate of Completion of the Works " (Certificate). The

### -4-

Certificate was also intended to signal the expiration of the prio r perf ormance guarantee and the start of the warranty period under th e maintenance guarantee.

In a le tter dated March 14, 1983, Acoustical again asked its loca l bank, F irst Westroads, to arrange for the maintenance guarantee to b e issued by SAMBA, the Saudi bank that Acoustical and Obaid had once again chosen. This request initiated a process similar to the one used for the earlie r performance guarantee: First Westroads enlisted the aid of it s correspondent bank, NBC, which in turn contacted its correspondent bank, Citibank, which in turn contacted SAMBA.

To support the maintenance guarantee, First Westroads agreed t o reimburse NBC on demand for any draws that NBC was required to pay t o Citibank. NBC in turn agreed to reimburse Citibank on demand for any draw s that Citibank was required to pay to SAMBA. NBC also requested in a March 21, 1983 telex that Citibank again issue a "clean sight credit" in favor of SAMBA, as it had previously done for the perf ormance guarantee, so that SAMBAcould be reimbursed for any draws made by Obaid on the maintenance guarantee. See I Appellant's App. at 16, Ex. 4. Finally, for its part, Acoustical agreed to cover the amount of the guarantee as well as pay the banks for their services.

Th roughout the process of arranging the maintenance guarantee, th e version of this guarantee drafted by Acoustical and Obaid was forwarded to eachof the defendant banks in the chain and was ultimately passed along to SAMBA. Included in this document was the fol lowing language pertaining to the effectiveness of the maintenance guarantee:

THI S GUARANTEE BECOMES VALID AND SHALL TAKE EFFECT ONLY UPO N THE ISSUANCE OF A CERTIFICATE OF COMPLETION OF THE WORKS, B Y OBAID AND ALMULLA CONSTRUCTION COMPANY LTD.

### -5-

I Appellant's App. at 17, Ex. 2. This document also called for Citibank to issue the guarante e, even though Acoustical had specifically asked for SAMBA to issue the guarantee in its March 14 letter to First Westroads.

OnApril 11, 1983, SAMBA telexed Citibank to request certai n clarifications and changes. This request was th en relayed to NBC. On May 13, 1983, NBC in turn relayed SAMBA's request to First Westroads and t o Acoustical's president, Gerald E. Carlson, via telex. This May 13 telex is crucial to understanding the dispute between McCormack and the defendan t banks.

Inkeeping with Acoustical's March 14 letter, the telex requeste d acknow ledgement that SAMBA, not Citibank, was to issue the maintenanc e guarantee. The telex also relayed SAMBA's request that certain language be added to the guarantee--two portions of which are relevant here. The first portion pertained to the Certificate and to SAMBA's request for a "clean credit" to be issued by Citibank:

SAUDI A MERICAN BANK WILL BE NOTIFIED BY OBAID AND AL MULLA H THA T CERTIFICATE OF COMPLETION HAS BEEN ISSUED AND THAT TH E GUAR ANTEE IS IN FULL FORCE ACKNOWLEDGED BY .M/S ACOUSTICA L ENGINEERING REQUIRED. PLEASE ISSUE A CLEAN CREDIT IN OUR FAVOR IN THE FOLLOWING FORMAT ENABLING US TO ISSUE THE GUARANTEE.
I Appellant's App. at 16, Ex. 6. The second por tion also pertained to the letter of credit to be issued by Citibank to SAMBA:

IN CONSIDERATION OF YOUR ISSUING YOUR GUARANTEE IN FAVOR

### -6- OF OBAID . . . WE IRREVOCABLY AND UNCONDITIONALLY C ONFIRM THAT, UPON RECEIPT OF YOUR FIR ST WRITTEN DEMAND, WE WILL PAY YOU THE AMOUNT DEMANDED NOT EXCE EDING THE LIMIT SET FORTH HEREIN, EACH DEMAND BY YOU SHALL BE E ITHER IN THE FORM OF A TESTED TELEX OR A LETTER, IN EITHER CASE STATING THAT YOU HAVE BEEN CALLED UPON TO PAY OR HOLD VALUE FORTHE AMOUNT UNDER YOUR ABOVE MENTIONED GUARANTEE . . . .

Id. Finally, the May 13 telex advised Carlson: "PLEASE MAKE SURE YO U UNDERSTAND ALL OF THE POINTS OF THE AMENDMENT", id. , and requested tha t Carlso nand First Westroads sign the bottom of the telex in order t o "[CONFIRM THEIR] AUTHORIZATION TO AMEND THE CREDIT." Id.

Unsure of what this language meant, Carlson first turned t o McCormack, who was Acoustical's lawyer at the time. McCormack advise d Carlson to ask NBC for advice. When asked for advice, NBC told Carlso n that the amendments were essentially administrative changes. Evidently, Carlson believed that this assurance meant that none of the defendant bank s would be o bligated to pay unless a Certificate of Completion had bee n issue d by Obaid. Acting on behalf of Acoustical, Carlson approved th e term s of the May 13 telex in writing on May 26, 1983. First Westroad s approved the changes as well.
After receiving this approval, SAMBA issued the maintenance gua rantee and Citibank issued a letter of credit in SAMBA' s favor as provided in the May 13 telex. Acoustical later approved in writ ing a series of amendments that extended the expiration date of both SAMBA' s guarantee and Citibank's letter of credit.

In Septem

ber 1985, SAMBA honored a draw by Obaid on the maintenance guarantee, despite the fact that Obaid had not issued

### McCormack originally named SAMBA as one of the defendants. 3 

### SAMBA filed a motion to dismiss on jurisdictional grounds and this motion was granted by the district court. McCormack does not challenge this decision.
-7- a Certif icate. After Acoustical was unsuccessful in obtaining a n 3 injunction, each of the defendant banks in turn honored their respective obligations to reimbu rse the next bank in the chain. First Westroads, as the bank at the end of the chain, then looked to Acoustical for payment. When Acoustical could not meet its obligations, First Westroads foreclosed
on security that had earlier been pledged by Acoustical, Carlson, Carlson' s wife and McCormack. Acoustical was later dissol ved on April 16, 1987, via a certificate issued by the Nebraska Secretary of State for nonpayment of taxes.

B.

The procedural history of this case is almost as complex as th e underlying facts. McCormack, as subrogee of Aco ustical, filed the instant act ionin September 1989 seeking damages from the defendant banks unde r various theories of breach of contract and negligence.

Upon a m otion by the defendant banks, the district court dismisse d McCormack's cause of action. McCormack v. Citib ank , No. 89-0-574 (D. Neb. Apr. 30, 1990). On a ppeal, this Court in McCormack v. Citibank , 979 F.2d 643 (8th Cir. 1992), reversed the district court.
In December 1992 and again in January 1993, the defendant banks filed several motions to dismiss or, in the alternative, for summary judgment. These motions were denied. On March 17, 1995, the defendant banks filed yet anoth er motion for summary judgment. Included in this motion was a req uest for oral argument. McCormack filed affidavits and documents i n opposition to this motion on

### -8-

April 6, 1995, but did not request oral argument . The district court then filed a decision gran ting summary judgment on September 25, 1995, without first holding oral argument.

On Oct ober 5, 1995, McCormack brought a motion for relief fro m judgment under Fed. R . Civ. P. 60(b)(2) or, in the alternative, for a new trial under Fed. R. Civ. P. 59(a) or, in the alternative, to alter or amen d
a judgment under Fed. R. Civ. P. 59(e). The district court denied these motions and McCormack now appeals.

II.

McCormack posits two alternative theories as to why the distric t court erred in granting summary judgment. He argues that genuine issues of material fact remain because the terms of the letter of credit issued byCitibank were ambiguous or, in the alternative, because the defendant banks breached a duty they owed to Acoustical.

On appeal , we review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Farm Credit S ervs. v. Arkansas , 76 F.3d 961, 962 (8th Cir. 1996), pet. for cert. filed , 64 U.S.L.W. 3808 (U.S. May 22, 1996) (No. 95-1918). Summary judgment is appropriate only where the r ecord presents "no genuine issue as to any mater ial fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 5 6(c); see also Farm Credit Servs. , 76 F.3d at 962. If no rational trier of fact could find for the nonmoving party, then summary judgment is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986).

We have jurisdiction in this action pursuant to 12 U.S.C. § 63 2 (1994). As determined by the district court, Ne braska law applies in this action. See Summ. J. Mem. Op. at 7.

### -9- Under Nebraska law, a letter of credit or credit is defined as "a n engagement by a bank or other person made at the request of a customer and of a kind . . . that the issuer will honor drafts or other demands fo r payment upon compliance with the conditions specified in the credit." Neb

. Rev. Stat. U.C.C. § 5-103(1)(a) (1995). There are two fundamental types of letters of credit: documentary and clean. To draw on a documentar y letter of credit, the beneficiary of that credit must present the issuing bank with whatever documentation that is called for by the express terms of the credit. John F. Dolan, The Law of Letters of Credit § 2.04, at 2-1 4 (3d ed. 1996); Burton V. McCullogh, Letters of Credit § 1.01[1] (1996)

. Incontrast, to draw on a clean letter of credit, the beneficiary mus t merely demand payment; no documentation, other than perhaps a writte n demand fo r payment, is required. McCullogh, supra , § 1.01[1]. A sigh t credit is a letter of credit that, like a clean letter of credit, calls fo r the i ssuer to honor a beneficiary's draft, or demand for payment, upo n presentation of that draft. Dolan, supra , § 1.02[1].

An iss uer of a letter of credit "must honor a draft or demand fo r payment which complies with the terms of the relevant credit . . . ." Neb

. Rev. Stat. U.C.C. § 5-114(1). Moreover, "[u]nless otherwise agreed a n issuer which has duly honored a draft or demand for payment is entitled to immediate reimbursement . . . ." Neb. Rev. Stat. U.C.C. § 5-114(3).

A.

McCormack argues that the terms of the letter of credit issued b y Citibank were ambiguous, and therefore, a genuin e issue of fact remains as to whether Citibank's letter of credit was documentary or clean. Accordin g to McCormack, the defendant banks should not have honored any draws made by Obaid because a Certificate of Completion of the Works was never issued

. The defendant banks counter that the letter of credit issued by Citibank was a clean

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letter of credit and that Citibank was consequen tly obligated to pay SAMBA upon demand regardless of whether a Certificate had been issued. Accordin g to the defendant bank s, the only party that was obligated to wait for the issuance of a Certificate, prior to releasing any funds, was SAMBA.

We recogn ize that the meaning of an unambiguous contract presents a question of law appropriate for summary judgment. See Michalski v. Bank of Am. Ariz. , 66 F.3d 993, 996 (8th Cir. 1995). "Conversely, th e interp retation of an ambiguous contract presents a question of fact , thereby precluding summary judgment." Id.

Under Nebraska law, the determination of whether a contract i s ambiguous is a matter of law. Kropp v. Grand Island Pub. Sch. Dist. No. 2 , 517 N.W.2d 113, 116 (Neb. 1994). A contract is only ambiguous "when th e in strument at issue is susceptible of two or more reasonable bu t conflicting interpret ations or meanings." Boyles v. Hausmann , 517 N.W.2d 610, 615 (Neb. 1994). However, "the fact that the parties have suggested opposing meanings of the disputed instrument does not necessarily compel the c onclusion that the instrument is ambiguous." Id. Moreover, "[a ] cont ract written in clear and unambiguous language is not subject t o interp retation or construction and must be enforced according to it s terms." C.S.B. Co. v. Isham , 541 N.W.2d 392, 396 (Neb. 1996).
Applying these standards to the facts before us, we find that th e terms o f the letter of credit issued by Citibank were clear an d
una mbiguous. In the May 13 telex, Acoustical's president, Carlson, wa s specifically notified that SAMBA had requested that Citibank "ISSUE A CLEA N CREDIT IN OUR FAVOR . . . ." I Appellant's App. at 16, Ex. 6. Moreover, Carlson was asked to, and did, approve the language of the letter of credi t to be issued by Citib ank. This language read as follows: "WE IRREVOCABLY AND UN CONDITIONALLY CONFIRM THAT, UPON RECEIPT OF YOUR FIRST WRITTE N DEMAND, W E WILL PAY YOU THE AMOUNT DEMANDED NOT EXCEEDING THE LIMIT SE T FORTH

### -11-

HEREIN. . . ." Id. The telex further provided that the written demand "SHALL BE EITHER IN THE FORM OF A TESTED TELEX O R A LETTER, IN EITHER CASE STATING THAT YOU HAVE BEEN CALLED UPON TO PAY ORHOLD VALUE FOR THE AMOUNT UNDER YOUR ABOVE MENTIONED GUARANTEE . . . ." Id.
The May 1 3 telex thus expressly calls for the issuance of a "clean" letter of credit by Citibank. In addition, the language of the proposed letter of credit, by calling for payment merely upon written demand, i s entirely consistent with a clean letter of credit and is wholl y inconsistent with a documentary letter of credit. Finally, the language nowhere mentions that a Certificate of Completion of the Works or any othe r specia l documentation must be presented before Citibank is obligated t o pay. Ins tead, the language obligates Citibank to pay upon receipt of a written demand in the form of a telex or letter.
Carlson expressly approved this lang uage in writing on May 26, 1983, after he was specific ally warned: "PLEASE MAKE SURE YOU UNDERSTAND ALL OF THE POINTS OF THE AMENDMENT." Id. As a result of his express writte n approval, the terms of the May 13 telex are prop erly considered as part of the letter of credit because all parties involved agreed to them. See Neb

. Rev. S tat. U.C.C. §§ 5-104(1), -106(2) (setting forth requirements fo r modifying letter of credit). McCormack, however , contends that the May 13 telexwas an addition to, and not an amendment of, the original draft of the maintenance guara ntee. He argues that, when these documents are read together, the May 13 telex is ambiguous.

McCormackcorrectly points out that the May 13 telex twice directed the parties to "add" additional terms to the Citibank letter of credit

. He also correctly notes that the original draft of the maintenanc e guarantee called for Citibank to issue a guarantee to Obaid and that the guarantee was to "TAKE EFFECT ONLY UPON THE ISSUANCE OF A CERTIFICATE OF COMPLETION OF THE WORKS, BY

### -12-

OBAID . . . ." I Appellant's App. at 17, Ex. 2. Because this languag e imposes a requirement that a Certificate must be presented before Citibank is o bligated to pay, McCormack argues that, when the language of th e original document is added to the language of the May 13 telex, it i s unclear whether the Citibank letter of credit was clean or documentary.

McCorm ack's efforts to parse the language of the May 13 telex , however, do not offer a reasonable interpretation of that document. The only reasonable inter pretation of the May 13 telex is that it amended the original maintenance guarantee. Although the May 13 telex called for term s to be a dded, it also spoke of "THE AMENDMENT THAT CITIBANK NEW YORK HA S REQUES TED," it requested that the parties "PLEASE AMEND THE ABOV E REFER ENCED LETTER OF CREDIT AS FOLLOWS," and it warned Carlson t o "UNDERSTAND ALL OF THE POINTS OF THE AMENDMENT." I Appellant's App. at 16 , Ex. 6. Thus, the defendant banks clearly indica ted an intention to amend, not merely add to, the earlier agreement.

Furth ermore, the May 13 telex superseded the original maintenanc e guarantee. Under Nebraska law, "'[w]here a late r contract is entered into betweenthe same parties in relation to the same subject matter as th e earlier one, and [the later contract] fully covers the terms of the earlie r one, the later contra ct supersedes the earlier one which is deemed merged in it . . . .'" Hasenauer v. Durbin , 346 N.W.2d 695, 698 (Neb. 1984 ) (quoting 17A C.J.S. C ontracts § 382 (1963)); cf. Havelock Bank of Lincoln

v. Bargen , 321 N.W.2d 432, 435 (Neb. 1982) (later mutual assent modified personal guaranty agreement).

Because the later May 13 telex was between the same parties an d covered the same subject matter as the original draft of the maintenance guarantee, it superseded the earlier draft of the maintenance guarantee, the rebyaccomplishing two significant changes. First, the May 13 tele x substituted SAMBA for Citibank as

### -13-

the issuer of the mai ntenance guarantee. Second, it expressly called for a clean letter of credit to be issued by Citibank.
These provisions directly contradict the requirement in the original draft of the maintenance guarantee that would have obligated Citibank to refrain from paying u ntil a Certificate was issued. The first change, by substituting SAMBA for Citibank, removed any obligation that Citibank woul d have had as issuer of the maintenance guarantee. Instead, SAMBA, as issue r of the maintenance guarantee, became obligated to refrain from payin g unless a Certificate was issued. The second change obligated Citibank to payupon demand. Thus, because it called for terms wholly inconsisten t with the earlier draft of the document, the only reasonable interpretation of the May 13 telex is that it amended the original draft of th e maintenan ce guarantee. It made SAMBA liable under the terms of th e documentaryguarantee and called for Citibank to issue a clean letter of credit in support of that guarantee.

The defendant banks thus did not breach their contract wit h Acoustical when they honored the draw made by SAMBA. Under the unambiguou s terms of the agreement to which Acoustical assented, the defendant banks were required to pay upon demand. Consequently, no issue of fact remains as to whether the defendant banks breached their contract with Acoustical.

B.
McCormack's second theory as to why summary judgment is inappro priate centers o n his claim that the defendant banks breached a duty that the y owed to Acoustical. McCormack asserts that the defendant banks wer e neglig ent because they structured the maintenance guarantee in a wa y contrary to the desires of Acoustical.

### -14- We see no merit in this claim because Carlson expressly approved in writing the structure of the maintenance guarantee after consulting with McCorm ack, Acoustical's legal counsel. In addition, the earlie r performance guarantee, which Acoustical seems to have found acceptable, wa s structured in precisely the same way; there too, Citibank issued a clean sight credit. Finally, Acoustical even approved, without complaint, a series of amendments extending the date of both SAMBA's maintenanc e guarantee and Citibank's letter of credit in support of that guarantee.

The defe ndant banks therefore had every reason to believe that th e maintenance guarantee was structured in a manner that was satisfactory to Acoustical. Furthermore, the obligation of an issuer of a letter of credi t to its customer "does not include liability or responsibility . . . for any act or omission of any person other than itself or its own branch . . . ." Neb. Rev. Stat. U.C.C . § 5-109(1)(b). Here, the relevant act or omission
was on the part of Acoustical for not telling the defendant banks that the y had entirely and repeatedly missed what was allegedly a fundamental elemen t of the transaction from Acoustical's perspective. McCormack's theory of negligence thus fails to raise a genuine issue of fact because McCormack presents no evidence that even suggests that the defendant banks did not follow Acoustical's instructions precisely.

McCormack next asserts that the defendant banks breached wha t amounted to a fiduciary duty that they owed to A coustical. Under Nebraska law, "[a] fiduciary duty arises out of a confidential relationship which exists when one party gains the confidence of the other and purports to ac t
or advi se with the other's interest in mind." Wolf v. Walt , 530 N.W.2 d 890, 898 (Neb. 1995). McCormack points to the relationship between th e defendant banks and Acoustical and argues that the banks had a fiduciary duty to, in effect, make it absolutely clear to Carlson that, under th e terms of the May 13 telex, Citibank would be obligated to pay SAMBA

### From the perspective of the defendant banks, it was not 4 

### unreasonable to view this change as merely administrative. The defendant banks were originally asked to arrange for SAMBA to issue a maintenance guarantee, but were handed a draft of a guarantee that called for Citibank to issue the maintenance guarantee. Therefore, insofar as the May 13 telex called for a clarification that SAMBA, not Citibank, was to issue the maintenance guarantee, the May 13 amendments were merely administrative. McCormack contends that the May 13 telex constituted more than a mere administrative change because the banks removed the documentary requirement of Citibank's letter of credit. However, Acoustical at no point requested a documentary requirement to attach to any link in the chain of payments other than to the guarantee itself. Therefore, it was not unreasonable for the defendant banks to conclude that nothing of substance was changed by the May 13 telex. SAMBA, as issuer of the maintenance guarantee, was still obligated to refrain from paying unless a Certificate was first issued. Acoustical never informed the defendant banks that they were supposed to arrange a documentary guarantee as well as have Citibank issue a documentary letter of credit.
-15- upon d emand, regardless of whether a Certificate was ever issued

. Acc ording to McCormack, because the defendant banks failed to make thi s point clear to Carlson, the defendant banks breached a duty they owed to Acoustical when they told Carlson that the May 13 changes were merel y administrative. 4
McCormack provides no foundation for the existence of this fiduciary duty. His assertion, moreover, contrasts sharply with the presumptio n under Nebraska law th at ordinarily "the relationship between a bank and a customer . . . imposes no fiduciary duty upon th e bank." Chase v. Deneau , 1993 WL 70947, at *2 (Neb. Ct. App. Mar. 16, 199 3); see also Bloomfield v. Nebraska State Bank , 465 N.W.2d 144, 149 (Neb. 1991) (no fiduciar y relationship even whe re bank was nearly in complete control of customer's financing ability); T erry A. Lambert Plumbing, Inc. v. Western Sec. Bank , 934 F.2d 976, 984 (8th Cir. 1991) (construing Bl oomfield to hold that bank did not owe fiduciary duty to customer whom it advised in business an d financial matters); Nelson v.

### -16-

Productio nCredit Ass'n of the Midlands , 729 F. Supp. 677, 685 (D. Neb

. 1989) (no fiduciary duty owed by credit association to its borrowers) , aff'd , 930 F.2d 599 (8th Cir.), cert. denied , 502 U.S. 957 (1991); cf

. Wright & Souza, Inc. v. DM Properties , 510 N.W.2d 413, 417 (Neb. Ct. App. 1993) (no agency, and hence no fiduciary relationship, where loan brokerag e
serv ice agreed to obtain financing for real estate developer). Thi s presumptioncan be rebutted when (1) a customer "who is in a position of inequa lity, dependence, weakness, or lack of knowledge reposes trust o r confidence in his or her banker" and (2) "the relationship results in the bank's dominion, cont rol, or influence" over the affairs of the customer. Chase , at *2 (citing Garrett v. BankWest, Inc. , 459 N.W.2d 833, 838-3 9 (S.D. 1990) (applying similar standard to find t hat bank owed no fiduciary duty to one of its customers, an experienced bus inessman-rancher-farmer)); accord Bloomfield , 465 N.W.2d at 149 ("[S]uperio rity alone does not create a fiduciary duty. There must also be an opportunity to influence.").
Acoustical was not in a position of inequality, dependence, wea kness, or lack of knowledge relative to the defendant b anks. Instead, Acoustical was a corporation engaged in an international co nstruction project and was repr esented by its own legal counsel. Acoustical had negotiated it s contract with Obaid a nd had helped to negotiate and draft the basic terms of t he two guarantees required by Obaid. Furthermore, McCormack ha s provided no evidence that the defendant banks ex ercised dominion, control, or influence over Acoustical. The defendant ban ks helped to structure the transaction, but throughout their dealings with Acoustical, Carlson an d McCormack were always consulted and remained in a position to approve or disapprove of the structure proposed.

We can therefore rule as a matter of law that the defendant ban ks did not owe a fiduciary duty to Acoustical. See Blo omfield , 465 N.W.2d at 149 (claimof breach of fiduciary duty failed as a matter of law). Since no duty existed, McCormack's claim that the

### -17-

defendant banks breached a fiduciary duty can raise no issues of fact. Cf

. Lange Ind us., Inc. v. Hallam Grain Co. , 507 N.W.2d 465, 476 (Neb. 1993 ) ("The elements of a negligence action are duty, breach, proximate cause, and damages.").

III.

A.

McCormack argues that the district court erred by granting th e defendant banks' motion for summary judgment wit hout holding oral argument or scheduling a hearing. We disagree.
A district court is not always requi red to hold oral argument before granting a motion for summary judgment under Fed. R. Civ. P. 56(c). See Clark Equip. Credit Corp. v. Martin Lumber Co. , 731 F.2d 579, 581 (8th Cir

. 1984) ("Fed. R. Civ. P. 56 does not require a hearing in the absence of a prior request."); see also Celotex Corp. v. Catrett , 477 U.S. 317, 32 6 (1986) ("[D]istrict courts are widely acknowledg ed to possess the power to enter summary judgments sua sponte , so long as the losing party was o n notice that she has to come forward with all of her evidence."). Moreover , oral argument is deem ed waived where the nonmoving party neither requests a hearing nor request s that consideration of the motion be deferred until discovery is completed, despite ample time to make such a request. Cf

. Deutsch v. Burlington Northern R.R. , 983 F.2d 74 1, 744 n.2 (7th Cir. 1992) ("Fed. R. Civ. P. 56(c) does not require a hearing, and oral argument is deemed to be waived when the opposing party does not request it."), cert. denied , 507 U.S. 1030 (1993).
Here, McCormack neither requested oral argument nor requested, at any time, that consideration of the motion be deferred until discovery wa s completed, despite having more than five and one-half months in which to do so.

### -18- B.

McCormack also appeals the district court's decision denying hi s motion f or relief from judgment under Fed. R. Civ. P. 60(b) or, in th e alternative , for a new trial under Fed. R. Civ. P. 59(a) or, in th e alternative, to alter or amend a judgment under Fed. R. Civ. P. 59(e). We affirm.

"ARul e 60(b) motion is committed to the sound discretion of th e trial court, and we r eview the district court's decision to grant or deny the motion only for an abuse of discretion." MI F Realty L.P. v. Rochester Assocs. , 92 F.3d 752, 755 (8th Cir. 1996). To prevail on a Rule 60(b)(2) motion, the moving pa rty must show: "(1) that the evidence was discovered after trial; (2) that the party exercised due diligence to discover th e evidence before the end of trial; (3) that the evidence is material and no t merely cumulative or impeaching; and (4) that a new trial considering the eviden ce would probably produce a different result." Atkinson v

. Prudential Property Co. , 43 F.3d 367, 371 (8th C ir. 1994). In the context of th is summary judgment motion, we feel that, even if McCormack coul d demonstrate that he has met the first three cond itions, he has not met the fourth.

To suppor t his claim, McCormack points to evidence that was no t before the district court when it granted summar y judgment and argues that this evidence raises a factual issue with respect to whether the terms of the letter of credit/guarantee arrangement were ambiguous. We find that thi s evidence merely suggests that the parties have opposing views wit h respect to the meaning of the May 13 telex.

For exam ple, McCormack points (1) to a July 27-28, 1995 depositio n of Gerald E. Carlson and (2) to the April 28, 1995 affidavit of Dr. Boris Kozolch yk. While we find it difficult to see how this evidence is new , given the fact that the district

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cou rt's summary judgment motion was not filed until September 25, 1995 , well after the date that this testimony was take n, we also fail to see how this evidence would have changed the outcome of the summary judgmen t motion.
The testimony of Carlson only reveal s that he did not understand the signif icance of the May 13 telex but approved it anyway. The exper t opinion of Dr. Kozolc hyk merely demonstrates that the language of the May 13 telex, if added to a preexisting letter of credit, may have bee n confus ing. Dr. Kozolchyk's testimony does not undermine our earlie r conclusion that the May 13 telex was an unambiguous amendment.
McCormack also points to a March 28, 1983 letter from Obaid to SAMBA in which Obaid calls for the cancellation of SAMBA's "Letter of Guarantee No. CU230328 dated 12.12.1981." II Appellant's App. at 62, Ex. 2. Becaus e "CU230328" was also u sed in the May 13 telex to reference the maintenance guarantee, McCormack argues that this letter raises a factual issue as to whethe r the Citibank letter of credit was cancelled approximately tw o months before Carlsonapproved the May 13 telex. McCormack hopes to show that Carlson could not have approved a cancelled letter of credit.
This argument is unpersuasive. Obaid's March 28, 1983 letter c learly refers to the earlier performance guarantee, which was to be replaced by the maintenance guarantee. It is therefore understandable that Obaid woul d call for the cancella tion of the performance guarantee in anticipation of the issuance of the maintenance guarantee. Moreover, Carlson approved in writing a series of amendments that extended the expiration date of both SAMBA's guarantee and Citibank's letter of credit.

For the same reasons that we reject McCormack's appeal of th e district court's Rule 60(b)(2) decision, we also reject McCormack's Rule 59(a) and 59(e) appeals.

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The district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.