Michael McCormack v. Citibank

___________

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.

Michael McCormack appeals the district court's1 order granting
summary judgment to three defendant banks: First Westroads Bank (First
Westroads), National Bank of Commerce Trust and Savings Association (NBC),
and Citibank, N.A. (Citibank). McCormack, who filed this suit as the
subrogee of Acoustical Engineering, Inc. (Acoustical), alleges breach of
contract and negligence by the defendant banks in connection with a letter
of credit and guarantee transaction. On appeal, McCormack argues that
genuine issues of material fact remain. He also argues that the district
court

1
The Honorable Lyle E. Strom, United States District Judge
for the District of Nebraska.
committed reversible error by failing to hold oral argument on the
defendant banks' summary judgment motion. We affirm.

I.

A.

This case involves a complex international transaction between
Acoustical and Obaid & Almulla Construction Company (Obaid), a Saudi
Arabian corporation. At the heart of the matter are the questions of
whether the defendant banks breached their contract with Acoustical or, in
the alternative, breached a duty they owed to Acoustical.

Because this is an appeal from a grant of summary judgment, we must
view the facts in the light most favorable to the nonmoving party. See
Rifkin v. McDonell Douglas Corp., 78 F.3d 1277, 1280 (8th Cir. 1996).
Accordingly, viewed in the light most favorable to McCormack, the facts
that gave rise to this dispute are summarized below.

In November 1980, Acoustical entered into a contract with Obaid to
furnish materials and labor as part of the construction of an airport
terminal in Riyadh, Saudi Arabia. As part of this agreement, Obaid
required that Acoustical have a Saudi bank issue a performance guarantee
to Obaid in the amount of 5% of the value of Acoustical's construction
contract, or approximately $150,000. The performance guarantee was like
an insurance policy for Obaid; in the event that Acoustical failed to
perform under the agreement, Obaid could draw on the guarantee.

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

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contacted its correspondent bank, Citibank. Citibank ultimately contacted
the Saudi American Bank (SAMBA), the Saudi bank that Acoustical and Obaid
had chosen to issue the performance guarantee.
SAMBA issued a performance guarantee to Obaid on behalf of
Acoustical. In support of this guarantee, Citibank issued a "clean sight
credit" to SAMBA, see I Appellant's App. at 22, Ex. A; NBC agreed to
reimburse Citibank upon demand; and First Westroads agreed to reimburse NBC
upon demand. 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 performance
guarantee would flow through the banks and would ultimately be borne by
Acoustical.

As part of their original understanding, Acoustical and Obaid had
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 work performed by Acoustical.
Obaid could draw upon the maintenance guarantee if Acoustical did not
perform necessary repairs. The maintenance guarantee was to run for a
period of fourteen months from the date of the completion of Acoustical's
work and was to be issued by a Saudi bank in the same amount as the
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
construction contract,2 Acoustical and Obaid, with the help of First
Westroads and NBC, began to negotiate the exact terms to be included in the
maintenance guarantee. Sometime before March 14, 1983, a draft of the
maintenance guarantee was completed. Significantly, both Acoustical and
Obaid agreed that Obaid could not draw on the maintenance guarantee unless
Obaid first presented a "Certificate of Completion of the Works"
(Certificate). The

2
Acoustical completed its work in June 1983.

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Certificate was also intended to signal the expiration of the prior
performance guarantee and the start of the warranty period under the
maintenance guarantee.

In a letter dated March 14, 1983, Acoustical again asked its local
bank, First Westroads, to arrange for the maintenance guarantee to be
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
earlier performance guarantee: First Westroads enlisted the aid of its
correspondent bank, NBC, which in turn contacted its correspondent bank,
Citibank, which in turn contacted SAMBA.

To support the maintenance guarantee, First Westroads agreed to
reimburse NBC on demand for any draws that NBC was required to pay to
Citibank. NBC in turn agreed to reimburse Citibank on demand for any draws
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 performance guarantee, so that
SAMBA could 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.

Throughout the process of arranging the maintenance guarantee, the
version of this guarantee drafted by Acoustical and Obaid was forwarded to
each of the defendant banks in the chain and was ultimately passed along
to SAMBA. Included in this document was the following language pertaining
to the effectiveness of the maintenance guarantee:

THIS GUARANTEE BECOMES VALID AND SHALL TAKE EFFECT ONLY UPON
THE ISSUANCE OF A CERTIFICATE OF COMPLETION OF THE WORKS, BY
OBAID AND ALMULLA CONSTRUCTION COMPANY LTD.

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

On April 11, 1983, SAMBA telexed Citibank to request certain
clarifications and changes. This request was then relayed to NBC. On May
13, 1983, NBC in turn relayed SAMBA's request to First Westroads and to
Acoustical's president, Gerald E. Carlson, via telex. This May 13 telex
is crucial to understanding the dispute between McCormack and the defendant
banks.

In keeping with Acoustical's March 14 letter, the telex requested
acknowledgement that SAMBA, not Citibank, was to issue the maintenance
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 AMERICAN BANK WILL BE NOTIFIED BY OBAID AND AL MULLAH
THAT CERTIFICATE OF COMPLETION HAS BEEN ISSUED AND THAT THE
GUARANTEE IS IN FULL FORCE ACKNOWLEDGED BY .M/S ACOUSTICAL
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 portion also pertained to the
letter of credit to be issued by Citibank to SAMBA:

IN CONSIDERATION OF YOUR ISSUING YOUR GUARANTEE IN FAVOR

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 OF OBAID . . . WE IRREVOCABLY AND UNCONDITIONALLY CONFIRM THAT,
UPON RECEIPT OF YOUR FIRST WRITTEN DEMAND, WE WILL PAY YOU THE
AMOUNT DEMANDED NOT EXCEEDING THE LIMIT SET FORTH HEREIN, EACH
DEMAND BY YOU SHALL BE EITHER 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 FOR THE AMOUNT UNDER YOUR ABOVE MENTIONED
GUARANTEE . . . .

Id. Finally, the May 13 telex advised Carlson: "PLEASE MAKE SURE YOU
UNDERSTAND ALL OF THE POINTS OF THE AMENDMENT", id., and requested that
Carlson and First Westroads sign the bottom of the telex in order to
"[CONFIRM THEIR] AUTHORIZATION TO AMEND THE CREDIT." Id.

Unsure of what this language meant, Carlson first turned to
McCormack, who was Acoustical's lawyer at the time. McCormack advised
Carlson to ask NBC for advice. When asked for advice, NBC told Carlson
that the amendments were essentially administrative changes. Evidently,
Carlson believed that this assurance meant that none of the defendant banks
would be obligated to pay unless a Certificate of Completion had been
issued by Obaid. Acting on behalf of Acoustical, Carlson approved the
terms of the May 13 telex in writing on May 26, 1983. First Westroads
approved the changes as well.

After receiving this approval, SAMBA issued the maintenance guarantee
and Citibank issued a letter of credit in SAMBA's favor as provided in the
May 13 telex. Acoustical later approved in writing a series of amendments
that extended the expiration date of both SAMBA's guarantee and Citibank's
letter of credit.

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

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a Certificate.3 After Acoustical was unsuccessful in obtaining an
injunction, each of the defendant banks in turn honored their respective
obligations to reimburse 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 dissolved 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 the
underlying facts. McCormack, as subrogee of Acoustical, filed the instant
action in September 1989 seeking damages from the defendant banks under
various theories of breach of contract and negligence.

Upon a motion by the defendant banks, the district court dismissed
McCormack's cause of action. McCormack v. Citibank, No. 89-0-574 (D. Neb.
Apr. 30, 1990). On appeal, 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 another motion for summary judgment. Included in this motion was a
request for oral argument. McCormack filed affidavits and documents in
opposition to this motion on

3
McCormack originally named SAMBA as one of the defendants.
SAMBA filed a motion to dismiss on jurisdictional grounds and
this motion was granted by the district court. McCormack does
not challenge this decision.

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

On October 5, 1995, McCormack brought a motion for relief from
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 amend
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 district
court erred in granting summary judgment. He argues that genuine issues
of material fact remain because the terms of the letter of credit issued
by Citibank 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 Servs. 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 record presents "no genuine
issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(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. § 632
(1994). As determined by the district court, Nebraska law applies in this
action. See Summ. J. Mem. Op. at 7.

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 Under Nebraska law, a letter of credit or credit is defined as "an
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 for
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 documentary
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 2-14
(3d ed. 1996); Burton V. McCullogh, Letters of Credit § 1.01[1] (1996).
In contrast, to draw on a clean letter of credit, the beneficiary must
merely demand payment; no documentation, other than perhaps a written
demand for payment, is required. McCullogh, supra, § 1.01[1]. A sight
credit is a letter of credit that, like a clean letter of credit, calls for
the issuer to honor a beneficiary's draft, or demand for payment, upon
presentation of that draft. Dolan, supra, § 1.02[1].

An issuer of a letter of credit "must honor a draft or demand for
payment which complies with the terms of the relevant credit . . . ." Neb.
Rev. Stat. U.C.C. § 5-114(1). Moreover, "[u]nless otherwise agreed an
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 by
Citibank were ambiguous, and therefore, a genuine issue of fact remains as
to whether Citibank's letter of credit was documentary or clean. According
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 consequently obligated to pay SAMBA
upon demand regardless of whether a Certificate had been issued. According
to the defendant banks, the only party that was obligated to wait for the
issuance of a Certificate, prior to releasing any funds, was SAMBA.

We recognize 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, the
interpretation of an ambiguous contract presents a question of fact,
thereby precluding summary judgment." Id.

Under Nebraska law, the determination of whether a contract is
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 the
instrument at issue is susceptible of two or more reasonable but
conflicting interpretations 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 conclusion that the instrument is ambiguous." Id. Moreover, "[a]
contract written in clear and unambiguous language is not subject to
interpretation or construction and must be enforced according to its
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 the
terms of the letter of credit issued by Citibank were clear and
unambiguous. In the May 13 telex, Acoustical's president, Carlson, was
specifically notified that SAMBA had requested that Citibank "ISSUE A CLEAN
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 credit
to be issued by Citibank. This language read as follows: "WE IRREVOCABLY
AND UNCONDITIONALLY CONFIRM THAT, UPON RECEIPT OF YOUR FIRST WRITTEN
DEMAND, WE WILL PAY YOU THE AMOUNT DEMANDED NOT EXCEEDING THE LIMIT SET
FORTH

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HEREIN . . . ." Id. The telex further provided that the written demand
"SHALL BE EITHER 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 FOR THE AMOUNT
UNDER YOUR ABOVE MENTIONED GUARANTEE . . . ." Id.

The May 13 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, is
entirely consistent with a clean letter of credit and is wholly
inconsistent with a documentary letter of credit. Finally, the language
nowhere mentions that a Certificate of Completion of the Works or any other
special documentation must be presented before Citibank is obligated to
pay. Instead, the language obligates Citibank to pay upon receipt of a
written demand in the form of a telex or letter.

Carlson expressly approved this language in writing on May 26, 1983,
after he was specifically warned: "PLEASE MAKE SURE YOU UNDERSTAND ALL OF
THE POINTS OF THE AMENDMENT." Id. As a result of his express written
approval, the terms of the May 13 telex are properly considered as part of
the letter of credit because all parties involved agreed to them. See Neb.
Rev. Stat. U.C.C. §§ 5-104(1), -106(2) (setting forth requirements for
modifying letter of credit). McCormack, however, contends that the May 13
telex was an addition to, and not an amendment of, the original draft of
the maintenance guarantee. He argues that, when these documents are read
together, the May 13 telex is ambiguous.

McCormack correctly 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 maintenance
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

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

McCormack's efforts to parse the language of the May 13 telex,
however, do not offer a reasonable interpretation of that document. The
only reasonable interpretation of the May 13 telex is that it amended the
original maintenance guarantee. Although the May 13 telex called for terms
to be added, it also spoke of "THE AMENDMENT THAT CITIBANK NEW YORK HAS
REQUESTED," it requested that the parties "PLEASE AMEND THE ABOVE
REFERENCED LETTER OF CREDIT AS FOLLOWS," and it warned Carlson to
"UNDERSTAND ALL OF THE POINTS OF THE AMENDMENT." I Appellant's App. at 16,
Ex. 6. Thus, the defendant banks clearly indicated an intention to amend,
not merely add to, the earlier agreement.

Furthermore, the May 13 telex superseded the original maintenance
guarantee. Under Nebraska law, "'[w]here a later contract is entered into
between the same parties in relation to the same subject matter as the
earlier one, and [the later contract] fully covers the terms of the earlier
one, the later contract 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. Contracts § 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 and
covered the same subject matter as the original draft of the maintenance
guarantee, it superseded the earlier draft of the maintenance guarantee,
thereby accomplishing two significant changes. First, the May 13 telex
substituted SAMBA for Citibank as

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the issuer of the maintenance 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 until a Certificate was issued. The first change, by
substituting SAMBA for Citibank, removed any obligation that Citibank would
have had as issuer of the maintenance guarantee. Instead, SAMBA, as issuer
of the maintenance guarantee, became obligated to refrain from paying
unless a Certificate was issued. The second change obligated Citibank to
pay upon demand. Thus, because it called for terms wholly inconsistent
with the earlier draft of the document, the only reasonable interpretation
of the May 13 telex is that it amended the original draft of the
maintenance guarantee. It made SAMBA liable under the terms of the
documentary guarantee 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 with
Acoustical when they honored the draw made by SAMBA. Under the unambiguous
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 inappropriate
centers on his claim that the defendant banks breached a duty that they
owed to Acoustical. McCormack asserts that the defendant banks were
negligent because they structured the maintenance guarantee in a way
contrary to the desires of Acoustical.

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 We see no merit in this claim because Carlson expressly approved in
writing the structure of the maintenance guarantee after consulting with
McCormack, Acoustical's legal counsel. In addition, the earlier
performance guarantee, which Acoustical seems to have found acceptable, was
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 maintenance
guarantee and Citibank's letter of credit in support of that guarantee.

The defendant banks therefore had every reason to believe that the
maintenance guarantee was structured in a manner that was satisfactory to
Acoustical. Furthermore, the obligation of an issuer of a letter of credit
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 they
had entirely and repeatedly missed what was allegedly a fundamental element
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 what
amounted to a fiduciary duty that they owed to Acoustical. 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 act
or advise with the other's interest in mind." Wolf v. Walt, 530 N.W.2d
890, 898 (Neb. 1995). McCormack points to the relationship between the
defendant banks and Acoustical and argues that the banks had a fiduciary
duty to, in effect, make it absolutely clear to Carlson that, under the
terms of the May 13 telex, Citibank would be obligated to pay SAMBA

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upon demand, regardless of whether a Certificate was ever issued.
According to McCormack, because the defendant banks failed to make this
point clear to Carlson, the defendant banks breached a duty they owed to
Acoustical when they told Carlson that the May 13 changes were merely
administrative.4

McCormack provides no foundation for the existence of this fiduciary
duty. His assertion, moreover, contrasts sharply with the presumption
under Nebraska law that ordinarily "the relationship between a bank and a
customer . . . imposes no fiduciary duty upon the bank." Chase v. Deneau,
1993 WL 70947, at *2 (Neb. Ct. App. Mar. 16, 1993); see also Bloomfield v.
Nebraska State Bank, 465 N.W.2d 144, 149 (Neb. 1991) (no fiduciary
relationship even where bank was nearly in complete control of customer's
financing ability); Terry A. Lambert Plumbing, Inc. v. Western Sec. Bank,
934 F.2d 976, 984 (8th Cir. 1991) (construing Bloomfield to hold that bank
did not owe fiduciary duty to customer whom it advised in business and
financial matters); Nelson v.

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

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Production Credit 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 brokerage
service agreed to obtain financing for real estate developer). This
presumption can be rebutted when (1) a customer "who is in a position of
inequality, dependence, weakness, or lack of knowledge reposes trust or
confidence in his or her banker" and (2) "the relationship results in the
bank's dominion, control, or influence" over the affairs of the customer.
Chase, at *2 (citing Garrett v. BankWest, Inc., 459 N.W.2d 833, 838-39
(S.D. 1990) (applying similar standard to find that bank owed no fiduciary
duty to one of its customers, an experienced businessman-rancher-farmer));
accord Bloomfield, 465 N.W.2d at 149 ("[S]uperiority alone does not create
a fiduciary duty. There must also be an opportunity to influence.").

Acoustical was not in a position of inequality, dependence, weakness,
or lack of knowledge relative to the defendant banks. Instead, Acoustical
was a corporation engaged in an international construction project and was
represented by its own legal counsel. Acoustical had negotiated its
contract with Obaid and had helped to negotiate and draft the basic terms
of the two guarantees required by Obaid. Furthermore, McCormack has
provided no evidence that the defendant banks exercised dominion, control,
or influence over Acoustical. The defendant banks helped to structure the
transaction, but throughout their dealings with Acoustical, Carlson and
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 banks did
not owe a fiduciary duty to Acoustical. See Bloomfield, 465 N.W.2d at 149
(claim of breach of fiduciary duty failed as a matter of law). Since no
duty existed, McCormack's claim that the

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defendant banks breached a fiduciary duty can raise no issues of fact. Cf.
Lange Indus., 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 the
defendant banks' motion for summary judgment without holding oral argument
or scheduling a hearing. We disagree.

A district court is not always required 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, 326
(1986) ("[D]istrict courts are widely acknowledged to possess the power to
enter summary judgments sua sponte, so long as the losing party was on
notice that she has to come forward with all of her evidence."). Moreover,
oral argument is deemed waived where the nonmoving party neither requests
a hearing nor requests 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 741, 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 was
completed, despite having more than five and one-half months in which to
do so.

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 B.

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

"A Rule 60(b) motion is committed to the sound discretion of the
trial court, and we review the district court's decision to grant or deny
the motion only for an abuse of discretion." MIF 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 party must show: "(1) that the evidence was discovered
after trial; (2) that the party exercised due diligence to discover the
evidence before the end of trial; (3) that the evidence is material and not
merely cumulative or impeaching; and (4) that a new trial considering the
evidence would probably produce a different result." Atkinson v.
Prudential Property Co., 43 F.3d 367, 371 (8th Cir. 1994). In the context
of this summary judgment motion, we feel that, even if McCormack could
demonstrate that he has met the first three conditions, he has not met the
fourth.

To support his claim, McCormack points to evidence that was not
before the district court when it granted summary 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
this evidence merely suggests that the parties have opposing views with
respect to the meaning of the May 13 telex.

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

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court's summary judgment motion was not filed until September 25, 1995,
well after the date that this testimony was taken, we also fail to see how
this evidence would have changed the outcome of the summary judgment
motion.

The testimony of Carlson only reveals that he did not understand the
significance of the May 13 telex but approved it anyway. The expert
opinion of Dr. Kozolchyk merely demonstrates that the language of the May
13 telex, if added to a preexisting letter of credit, may have been
confusing. Dr. Kozolchyk's testimony does not undermine our earlier
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. Because
"CU230328" was also used in the May 13 telex to reference the maintenance
guarantee, McCormack argues that this letter raises a factual issue as to
whether the Citibank letter of credit was cancelled approximately two
months before Carlson approved 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 clearly
refers to the earlier performance guarantee, which was to be replaced by
the maintenance guarantee. It is therefore understandable that Obaid would
call for the cancellation 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 the
district court's Rule 60(b)(2) decision, we also reject McCormack's Rule
59(a) and 59(e) appeals.

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 IV.

The district court is affirmed.

A true copy.

Attest:

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

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