De La Torre v. Continental Ins. Co.

• Court: Court of Appeals for the First Circuit
• Decided: January 31, 1994
• Docket: 93-1600
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 93-1600

                                 DOMINGO DE LA TORRE,

                                Plaintiff, Appellant,

                                          v.

                          THE CONTINENTAL INSURANCE COMPANY,

                                 Defendant, Appellee.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________

                              _________________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________

                          Selya and Boudin, Circuit Judges.
                                            ______________

                              _________________________

               Juan G. Casasnovas Luiggi on brief for appellant.
               _________________________
               J. Ramon  Rivera-Morales, Jimenez, Graffam &  Lausall, James
               ________________________  ___________________________  _____
          E. Tribble, and Blackwell & Walker, P.A. on brief for appellee.
          __________      ________________________

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                                   January 31, 1994

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SELYA,  Circuit  Judge.    In  this  appeal,  plaintiff
                    SELYA,  Circuit  Judge.
                            ______________

          invites us  to set  aside the district  court's entry  of summary

          judgment  and  its ensuing  refusal  to  grant  relief  from  the

          judgment.  We decline the invitation.

                                          I
                                          I

                    Contending  that  Continental   Insurance  Company  had

          wrongfully  refused to  pay a  claim for  benefits under  a group

          accident  insurance policy  purchased  by  his  former  employer,

          plaintiff-appellant Domingo de la Torre filed suit in the  United

          States District Court for the  District of Puerto Rico.  Invoking

          diversity  jurisdiction, see 28  U.S.C.   1332  (1988), appellant
                                   ___

          sought  compensatory,  consequential,  and  punitive damages  for

          Continental's alleged  disregard of its  contractual obligations.

          The insurer joined  issue, denying the allegations  of wrongdoing

          that characterized the complaint.

                    In due  course, a  magistrate-judge entered  a pretrial

          scheduling order, see  Fed. R. Civ. P. 16;  D.P.R. Loc. R. 314.3,
                            ___

          which  had  been  prepared  by  the parties  and  to  which  they

          assented.   Among  other  things, the  order  indicated that  the

          defendant would submit a motion for summary judgment.

                    On  October 22, 1992,  the defendant moved  for summary

          judgment.   The motion  raised five  distinct grounds  supporting

          brevis disposition, including averments that appellant waited too
          ______

          long before submitting both his claim  and his proof of loss, and

          that, in  any event,  appellant had not  suffered any  disability

          within the meaning of the  policy.  Although appellant's response

2

was due ten days thereafter,  see D.P.R. Loc. R. 311.5  & 311.12,
                                        ___

          appellant ignored the deadline.

                    On  December 8,  1992    more  than a  month after  the

          opposition was  due    appellant moved for  an extension  of time

          within which to  respond to the summary  judgment motion.  In  an

          attempt  to  explain  the  delay,  appellant's  counsel mentioned

          ongoing  settlement negotiations  (although he conceded  that the

          defendant had given explicit warning by letter that negotiations,

          if conducted,  would not operate  to excuse a timely  response to

          the motion for  summary judgment) and the press  of other pending

          cases.

                    The district  court  issued a  memorandum  decision  on

          December  11, 1992, without  acting upon  the motion  to extend.1

          In that  rescript, the court addressed the  merits of the Rule 56

          motion,  found Continental's  arguments  to  be  convincing,  and

          ordered summary  judgment  in its  favor.   Judgment  entered  on

          December 23, 1993.  

                    Appellant did not  take an appeal from  this judgment.2
                              
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               1It is  not clear  whether the motion  came to  the district
          judge's  attention before  he  ruled on  the  motion for  summary
          judgment.

               2Because this is  so, and because the  30-day appeal period,
          Fed. R. App.  P. 4(a)(1), ran long  before de la Torre  filed the
          instant notice  of appeal,  the  original judgment  is no  longer
          amenable  to  direct  review.    See  Rodriguez-Antuna  v.  Chase
                                           ___  ________________      _____
          Manhattan Bank Corp., 871 F.2d 1, 2 (1st Cir. 1989) (holding that
          ____________________
          an appeal  from an  order denying relief  from judgment  does not
          resurrect a  plaintiff's expired right  to contest the  merits of
          the   underlying  judgment  or  bring  the  judgment  before  the
          appellate court for review).  Since it was served well beyond the
          time limit stipulated  in Fed. R. Civ. P.  59(e), the later-filed
          motion for reconsideration did not toll the running of the appeal

                                          3

In late  December, however, he filed a motion to enlarge the time

          within  which to  move  for reconsideration  of  the December  11

          order.   The district court  granted an enlargement until January

          15, 1993.  When filed, appellant's motion for reconsideration (1)

          contended  that his  December 8  request for additional  time had

          been overlooked, and  (2) presented a  decurtate response to  the

          substantive  arguments advanced  in defendant's  summary judgment

          motion.    In  this connection,  the  motion  for reconsideration

          contained  material not previously  in the record  that addressed

          some, but not all, of the grounds limned in Continental's Rule 56

          motion.   Withal, the motion for  reconsideration did not contain

          any  new information  concerning plaintiff's  failure  to file  a

          timely opposition to the request for summary judgment.

                    On May  4, 1993, the  district court denied  the motion

          for  reconsideration   without  any  elaboration.    This  appeal

          followed.

                                          II
                                          II

                    On appeal, the  parties' first area of  dispute centers

          around the nature of appellant's motion for reconsideration.  The

          motion  itself did not identify any  pertinent procedural rule or

          other hook upon which it might be hung.  This becomes a matter of

          potential moment, for,  if the motion invoked Rule  59(e), as the

          defendant asserts, then it was  clearly out of time, see  Fed. R.
                                                               ___

          Civ. P.  59(e) (stipulating that  motions "to alter or  amend the

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          period.   See Echevarria-Gonzalez v. Gonzalez-Chapel 849 F.2d 24,
                    ___ ___________________    _______________
          26 (1st Cir. 1988).

                                          4

judgment shall  be served not later  than 10 days  after entry of

          the  judgment"), and,  since  it is  apodictic that  the district

          court does not  have the power  to extend the  time for filing  a

          Rule 59(e) motion, see Feinstein v.  Moses, 951 F.2d 16, 19  (1st
                             ___ _________     _____

          Cir. 1991), this appeal would likely have  to be dismissed.3  If,

          however, as appellant now asserts, the motion for reconsideration

          invoked Fed.  R. Civ.  P. 60(b),  the motion  was timely and  the

          appeal  can survive.   See United  States v.  789 Cases  of Latex
                                 ___ ______________     ___________________

          Surgeon Gloves, ___  F.3d ___, ___ (1st Cir.  1993) [No. 93-1554,
          ______________

          slip op. at 5-7]; Rodriguez-Antuna v. Chase Manhattan Bank Corp.,
                            ________________    __________________________

          871 F.2d 1, 2 (1st Cir. 1989).

                    Courts  should not spend  their energies wrestling with

          academic  questions or deciding  the juridical equivalent  of how

          many angels  can  dance on  the  head of  a pin.    Thus, in  the

          interests   of  time  and  judicial  economy,  we  shall  assume,

          favorably  to  appellant,  that the  motion  for  reconsideration

          deserved attention under Fed. R. Civ. P. 60(b).  We indulge  this

          assumption on the  basis that "an appellate court  may forego the

          resolution of a jurisdictional question  if, as is true here, the

          appeal is uncomplicated and easily resolved in favor of the party

          to  whose  benefit the  jurisdictional  question would  redound."

          United  States v.  Connell,  6 F.3d  27, 29  n.3 (1st  Cir. 1993)
          ______________     _______
                              
          ____________________

               3We caution that, under certain circumstances, the denial of
          a late-filed Rule  59(e) motion which does more  than assert that
          the  court wrongly  decided a  point  of law  possibly may  prove
          appealable.   See,  e.g., United  States  v. 789  Cases of  Latex
                        ___   ____  ______________     ____________________
          Surgeon Gloves, ___  F.3d ___, ___ (1st Cir.  1993) [No. 93-1554,
          ______________
          slip op. at 5-7].  Given  our approach to the appeal, see  infra,
                                                                ___  _____
          we need not address this possibility.

                                          5

(citing Supreme Court precedents).

                                         III
                                         III

                    We now turn to the merits of  the appeal.  In doing so,

          it is important  to recall that motions brought  under Rule 60(b)

          are committed  to the district  court's sound discretion.4   As a

          result, orders denying such  motions are reviewed only  for abuse

          of discretion.  See Teamsters, Chauffeurs, Warehousemen & Helpers
                          ___ _____________________________________________

          Union v. Superline Transp. Co., 953 F.2d 17,  19 (1st Cir. 1992);
          _____    _____________________

          Rodriguez-Antuna, 871 F.2d  at 3.  In these  precincts, the trial
          ________________

          court's exercise of  discretion must be colored  by a recognition

          that, because Rule 60(b) is a vehicle for "extraordinary relief,"

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               4The rule provides in pertinent part:

                    On  motion and upon  such terms as  are just,
                    the  court may relieve  a party or  a party's
                    legal representative  from a  final judgment,
                    order,  or   proceeding  for   the  following
                    reasons:      (1)    mistake,   inadvertence,
                    surprise,  or  excusable neglect;  (2)  newly
                    discovered  evidence which  by due  diligence
                    could not  have been  discovered  in time  to
                    move  for a new  trial under Rule  59(b); (3)
                    fraud    (whether   heretofore    denominated
                    intrinsic  or extrinsic),  misrepresentation,
                    or other misconduct of  an adverse party; (4)
                    the judgment  is void; (5)  the judgment  has
                    been satisfied, released, or discharged, or a
                    prior judgment  upon which  it  is based  has
                    been reversed or otherwise vacated,  or it is
                    no longer equitable  that the judgment should
                    have  prospective  application;  or  (6)  any
                    other  reason  justifying   relief  from  the
                    operation of the judgment.  The motion  shall
                    be  made within  a reasonable  time, and  for
                    reasons (1), (2),  and (3) not more  than one
                    year after the judgment, order, or proceeding
                    was entered or taken.

          Fed. R. Civ. P. 60(b).

                                          6

motions  invoking  the   rule  should  be  granted   "only  under

          exceptional circumstances."   Lepore v. Vidockler, 792  F.2d 272,
                                        ______    _________

          274 (1st Cir. 1986).

                    We   do   not   find   any   sufficiently   exceptional

          circumstances here,  and, concomitantly,  we do  not discern  the

          slightest sign  that the  district court  abused its  discretion.

          Appellant relies mainly on  clause (1) of Rule  60(b).5  Yet,  he

          makes  no  credible  claim   of  "mistake,"  "inadvertence,"   or

          "surprise"   so  he is left  to demonstrate "excusable  neglect."

          On this record, he cannot shoulder  that burden.  His most touted

          claim    that his attorney  was preoccupied with other  matters  

          has  been tried  before, and  regularly has  been  found wanting.

          See, e.g., Mendez v. Banco Popular de Puerto Rico, 900 F.2d  4, 7
          ___  ____  ______    ____________________________

          (1st Cir. 1990); McLaughlin v. City of La Grange, 662  F.2d 1385,
                           __________    _________________

          1387 (11th Cir. 1981), cert. denied, 456  U.S. 979 (1982).  As we
                                 _____ ______

          wrote on an  earlier, comparable, occasion:  "Most  attorneys are

          busy most of the time and they must  organize their work so as to

          be  able  to meet  the  time  requirements  of matters  they  are

          handling or suffer the consequences."   Pinero Schroeder v. FNMA,
                                                  ________________    ____

          574 F.2d 1117, 1118 (1st Cir. 1978).

                    Relatedly, appellant tells  us that the  district court
                              
          ____________________

               5In  his brief,  appellant also invokes  clause (6),  but he
          offers no  developed argumentation  supporting an  application of
          that  clause.  We, therefore, decline to  address the point.  See
                                                                        ___
          Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990); United
          ____    ______________                                     ______
          States v. Zannino, 895 F.2d  1, 17 (1st Cir.), cert. denied,  494
          ______    _______                              _____ ______
          U.S.  1082 (1990).   In  all  events, 60(b)(6)  and 60(b)(1)  are
          mutually exclusive.   See Liljeberg v. Health  Servs. Acquisition
                                ___ _________    __________________________
          Corp., 486 U.S. 847, 863 n.11  (1988); Superline, 953 F.2d at  20
          _____                                  _________
          n.3.

                                          7

acted  prematurely in  going  forward  while  discovery  requests

          remained outstanding.   This asseveration  is doubly flawed.   In

          the  first place,  appellant did  not raise  the point  below and

          cannot, therefore, rewardingly argue it here.  See Superline, 953
                                                         ___ _________

          F.2d at 21; Clauson v. Smith,  823 F.2d 660, 666 (1st Cir.  1987)
                      _______    _____

          (collecting  cases).  In  the second place,  incomplete discovery

          may  be  a perfectly  good reason  for  asking a  court  to defer

          decision  on a motion  for summary judgment, cf.  Fed. R. Civ. P.
                                                       ___

          56(f), but it  is a woefully  weak reason for  failing to file  a

          timely opposition to such a motion.   And it is no reason at  all

          for  failing  to  file  a  timely Rule  56(f)  motion  and-or  an

          immediate request for an extension of time.

                    Appellant's final argument  fares no better.   The fact

          that settlement  negotiations are in  progress does not  excuse a

          litigant from making required court filings.  See, e.g., Cotto v.
                                                        ___  ____  _____

          United States,  993 F.2d  274, 278-80 (1st  Cir. 1993);  Mercado-
          _____________                                            ________

          Garcia v. Ponce Federal Bank, 979 F.2d 890, 895 (1st Cir.  1992).
          ______    __________________

          It is  common sense,  as well  as common  courtesy, to alert  the

          judge  to the  ongoing negotiations  and request  that he  or she

          postpone imminent deadlines before they have expired.  A litigant

          who, like  appellant,  fails  to take  that  simple  step  courts

          disaster.

                    Above and beyond the  frailties of appellant's proffer,

          the circumstances of  this case do not suggest  an entitlement to

          extraordinary relief.   Appellant  knew from  the pretrial  order

          that the defendant planned to move for summary judgment.  Despite

8

this aposematic forewarning,  and notwithstanding the defendant's

          admonition that  it would insist  upon a timeous response  to its

          motion  regardless  of ongoing  negotiations,  appellant blithely

          ignored the summary  judgment motion when it was served.  In such

          circumstances,  a  casual  request  for  an  extension  of  time,

          identifying no compelling reason for the delay and made more than

          a month  after the due date, strikes us  as too little, too late.

          We note,  too, that when  the district court entered  the adverse

          judgment, appellant  did nothing  to extricate  himself from  the

          hole he had  dug.  Although the court gave him extra time to file

          a motion for relief from judgment, he failed to present any facts

          fairly supporting  a  conclusion that  his  omission  constituted

          excusable neglect as that term is defined in the jurisprudence of

          Rule 60(b)(1).  See Lavespere v. Niagara Mach. & Tool  Works, 910
                          ___ _________    ___________________________

          F.2d 167,  173 (5th  Cir. 1990) (suggesting  that it would  be an

          abuse of discretion for a district court to grant a Rule 60(b)(1)

          motion   seeking  relief   from   a   party's  failure,   through

          carelessness,  to  submit  evidence in  a  timely  manner), cert.
                                                                      _____

          denied, 114 S. Ct. 171 (1993).6
          ______

                                          IV
                                          IV

                    We need go no further.   If the plaintiff had a serious

          basis for opposing  the defendant's motion for  summary judgment,
                              
          ____________________

               6In an abundance of caution,  we have reviewed the materials
          filed with appellant's  motion for reconsideration.   Having done
          so,  we cannot say  that those materials are  so compelling as to
          ensure the defeat of defendant's Rule 56 initiative had they been
          proffered  in a timely manner.  Cf., e.g., Superline, 953 F.2d at
                                          ___  ____  _________
          20-21   (noting  importance,  under  Rule  60(b),  of  showing  a
          meritorious claim or defense).

                                          9

he should have submitted either  a properly focused opposition or

          a valid Rule  56(f) motion within the ample time  afforded in the

          district  court.   Having  eschewed  both of  those  courses, and

          having mustered very little in the way of a cognizable excuse for

          his palpable neglect, plaintiff cannot legitimately complain that

          the district court  held fast  to its  clearly delineated  rules.

          See  Smith v. Stone, 308 F.2d 15,  18 (9th Cir. 1962) (explaining
          ___  _____    _____

          that chaos  would result if  parties could decide  for themselves

          "when they  will file those  papers required in a  lawsuit"; also

          suggesting the  need for "some  obedience to the rules  of court;

          and some  respect  [for]  the  convenience and  rights  of  other

          counsel, litigants, and the court itself").

Affirmed.  Costs to appellee.
          Affirmed.  Costs to appellee.
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10