a material fact is when that party files its affidavits and other proofs in response to the motion for summary judgment, not on the settlement of the order after ruling.
Even now, Life Savers does not say that it challenges any of the invoices submitted with the Whiteside affidavit, as by saying that it was not for a Life Savers' shipment through Sentinel, or that the amount is not in accordance with Metro's arrangement with Sentinel, or that Metro had in fact been paid.
Under these circumstances, the court concludes that Life Savers' position is not taken in good faith, and that its only effect is to cause delay. The order will provide for amendment of the complaint to conform to the undisputed evidence, and will set the principal sum at the amount so shown.
There ought not to have been any difficulty in arriving at a stipulation. Even now, Life Savers agrees that the larger sum is the amount shown by the invoices. It protests that it does not agree that it owes Metro anything, but it was not asked to agree to liability; it was asked only to stipulate that if there be liability (an issue ruled on by the court), the correct amount was the larger sum.
2. Prejudgment interest. As a condition to the adjournment sought by Life Savers, the court required that it advance to Metro the amount claimed in the complaint (the lesser figure of $ 251,253.96), together with interest at 18% from April 11, 1980, the date the complaint was filed, to June 12, 1980, when the loan was to be made, on a loan receipt basis, and the court understands that this was done.
For purposes of the order, the court pointed out in its memorandum of August 5, 1980 that the formal and strict approach would require a calculation of prejudgment interest from the 8th day after each invoice, and set the realistic rate at 2% above the average prime rate in New York for each month, month by month.
In the period thus covered, the prime rate has varied considerably and frequently, at levels that can be called "high", "very high" and "exceptionally high." Since the process of calculation would be much more difficult than for a period when interest rates are stable, the court suggested that a rate of 18% be used, but only for the 62 days from April 11 to June 12, 1980. This seemed a practical solution, which Metro accepts but Life Savers insists on a provision in the order that "leaves no doubt" that Metro has waived any difference between the amount so calculated, and that which would result from a month-by-month calculation at varying rates.
This suggestion assumes that the calculated month by month interest would come to more. The court has no way of knowing this without undertaking the calculation itself. Conceivably, the month-by-month method could result in a lesser aggregate interest amount.
Since Metro has chosen to accept the single rate of 18% for the limited period, the order will provide that Life Savers will have the opportunity to serve and file a calculation showing that the month-by-month method, as outlined in the August 5, 1980 memorandum, results in a smaller aggregate amount of interest, as a basis for amending the provision for prejudgment interest. Failing that, it will be taken that the interest so calculated would either be more, or so little different as not to be worth anyone's effort, especially since the net benefit and cost are affected by the taxability of interest as income, and its allowance as a deduction.
Using a 365 day year, the 62 day interest on $ 251,253.96 at 18% is $ 7,682.78; the interest on the additional $ 5,370.69, from April 11, 1980 to September 8, 1980, also on a 365 day year, comes to $ 397.28.
3. The loan receipt and supersedeas bond; stay of execution.
These are matters which Life Savers presses to be included in the order. The court sees no reason to deal with these questions now. The ruling imposing a condition that funds be advanced on loan receipt carried no implication whatever about the financial soundness of Life Savers or its ability to satisfy a judgment. The court has absolutely no information on the subject. Since nothing of this kind is implicit or has been found, the argument based on the contrary assumption is without foundation.
The General Rules of this District deal adequately with the taxation of costs by the clerk. They allow 30 days after judgment within which the prevailing party is to serve and file his Bill of Costs and Disbursements, with notice of motion when application will be made to the Clerk to tax them. General Rule 23A. If this is not done in that period, costs are taken as waived, General Rule 23D. No reason is seen why these provisions should be altered for this case.
Since the parties have failed in two efforts to prepare an order to carry out the ruling dated July 25th, with agreement as to form, the court will draw it.
In the course of arriving at the ruling made, it was necessary to locate and examine various provisions of the Act and the regulations thereunder insofar as they apply to freight forwarders, who were first brought under I.C.C. regulation in 1942, 56 Stat. 284. These provisions, of course, do not apply to exempt shippers associations or shippers agents, but it is well to record them in order to display the contrast between regulation and exemption. Statute references are to the revised law, in effect throughout the period in suit.
49 U.S.C. § 10561. Brings freight forwarders under the jurisdiction of the I.C.C. (since 1942).
49 U.S.C. § 10562. I.C.C. does not have jurisdiction over specified types of service, some of which would otherwise be included in the services of a freight forwarder, including shippers associations, par. (3) and shippers agents in terminal areas, par. (4).