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Tembec Inc. v. United States

August 14, 2008


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


By filing this suit, Tembec Inc., Tembec Investments Inc., and Tembec Industries Inc. ("Tembec") attempts the proverbial second bite of the apple. Tembec petitions to vacate an arbitration award, attempting to relitigate matters determined in a 2005 case before this Court. The United States seeks to dismiss. Because this case is barred by res judicata and collateral estoppel, the Court will grant the motion to dismiss.


Tembec filed its first petition to vacate arbitration award on December 5, 2005. See Tembec Inc. v. U.S., No. 05-2345 (D.D.C. Dec. 5, 2005) [Dkt. #1] ("First Petition"). The First Petition challenged orders issued by a tribunal constituted under Article 1126 of the North American Free Trade Agreement ("NAFTA Tribunal"). The NAFTA Tribunal consolidated three arbitration actions brought against the United States under Chapter Eleven of NAFTA by Canadian softwood lumber producers Tembec, Canfor Corporation ("Canfor"), and Terminal Forest Products Ltd. ("Terminal").*fn1 The First Petition challenged (1) the September 2005 consolidation order entered by the NAFTA Tribunal; (2) the selection of the members of the NAFTA Tribunal; and (3) the NAFTA Tribunal's jurisdiction over Tembec's NAFTA claim. See First Pet. ¶¶ 8-13.

On September 12, 2006, while the First Petition was pending, the United States and Canada entered into the Softwood Lumber Agreement ("SLA") in order to resolve the underlying dispute regarding duties imposed on softwood lumber. The SLA included a Settlement of Claims Agreement ("SCA").*fn2 Tembec received $242 million in connection with the SLA. See Resp.'s Mot. to Dismiss ("Resp.'s Mot."), Ex. D Joint Order on the Costs of Arbitration.

In the meantime, counsel for the United States and Tembec had been negotiating possible dismissal of the First Petition, and on October 12, 2006, Tembec and the United States filed a stipulation of dismissal, agreeing to dismiss the First Petition "with prejudice, subject to the terms and conditions of the Softwood Lumber Agreement of 2006." Tembec, No. 05-2345, Stipulation of Dismissal [Dkt. # 25] (hereinafter "Stipulation of Dismissal").*fn3

The day after the approval of the Stipulation of Dismissal, the United States took the position before the NAFTA Tribunal that Tembec should bear the entire cost of Tembec's NAFTA Claim, including the United States' attorney fees and costs, according to the rules of the NAFTA Tribunal. Tembec objected and in this Court sought to set aside the Stipulation of Dismissal and reinstate the First Petition. Tembec asserted that it was entitled to such relief under Rule 60(b)(3) because it had been misled by the United States. On April 19, 2007, this Court denied Tembec's request to set aside the Stipulation of Dismissal, finding no evidence that the United States knowingly misled Tembec and no basis to reopen the case. See Tembec Inc. v. U.S., No. 05-2345, 2007 WL 1169346, at *2 (D.D.C. Apr. 19, 2007). This Court held, "[t]he Stipulation of Dismissal, the SLA, and the SCA are clear and unambiguous; they do not preclude the United States from seeking fees and costs against Tembec related to Tembec's NAFTA Claim." Id. at * . Tembec did not appeal.

After four rounds of written submissions and a hearing, on July 19, 2007, the NAFTA Tribunal entered an award requiring Tembec to pay attorney fees and costs to the United States in the amount of $271,844.24 and to pay costs to Canfor and Terminal in the amount of $32,628.15 each (the "Costs Award").*fn4 See Resp.'s Mot., Ex. D Joint Order on the Costs of Arbitration at 89-90. On October 19, 2007, Tembec commenced this suit by filing another petition to vacate an arbitration award. See Pet. to Vacate Arbitration Award [Dkt. # 1] ("Second Petition"). Like the First Petition, the Second Petition challenges the NAFTA Tribunal's September 2005 consolidation order, the selection of the members of the NAFTA Tribunal, and the NAFTA Tribunal's jurisdiction over Tembec's NAFTA claim. See Second Pet. ¶¶ 10-16. The Second Petition also seeks to vacate the Costs Award, asserting that under the SLA the United States agreed to terminate pending litigation, including Tembec's NAFTA Chapter Eleven claim, without costs or fees to be claimed by any party. See id. ¶¶ 21-24. The United States now has filed a motion to dismiss, asserting that the Second Petition is barred by res judicata and collateral estoppel.


A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim. Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal citations omitted).

A court must treat the complaint's factual allegations - including mixed questions of law and fact - as true, drawing all reasonable inferences in the plaintiff's favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir. 2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003); see also Aktieselskabet Af 21. Nov. 2001 v. Fame Jeans, Inc., No. 07-7105, 2008 U.S. App. LEXIS 9627, at *14 (D.C. Cir. Apr. 29, 2008) (under Rule 12(b)(6), "a court must construe a complaint liberally in the plaintiff's favor, accepting all of the allegations in the complaint as true, even if doubtful in fact") (citing Twombly, 127 S.Ct. at 1965). Even so, the facts alleged "must be enough to raise a right to relief above the speculative level," Twombly, 127 S.Ct. at 1965, and the court need not accept as true inferences unsupported by facts set out in the complaint or legal conclusions cast as factual allegations. Aktieselskabet, 2008 U.S. App. LEXIS 9627, at *19 n.4; Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In deciding a 12(b)(6) motion, the Court may consider only "the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice." Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002) (citation omitted).


A. Res Judicata

Under the doctrine of res judicata, also known as claim preclusion, "a judgment on the merits in a prior suit bars a second suit involving identical parties or their privies based on the same cause of action." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.5 (1979); Apotex Inc. v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004). "Res judicata plays a central role in advancing the 'purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdictions.'" Id. (quoting Montana v. United States, 440 U.S. 147, 153 (1979)). "To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions." Montana, 440 U.S. at 153-54. In short, the doctrine embodies the principle "that a party who once has had a chance to litigate a claim before an appropriate tribunal usually ought not to have another chance to do so." SBC Comms. Inc. v. FCC, 407 F.3d 1223, 1229 (D.C. Cir. 2005) (quoting the Restatement (Second) of Judgments ch. 1 at 6 (1982)).*fn5 In sum, the four res judicata elements ...

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