October 19, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 93-1914
IN RE:
PETER FISHER & BALFOUR HOLDINGS, INC., Petitioner.
ERRATA SHEET
This opinion of this court issued on October 12, 1993 is amended as follows:
On page 4, not 2, fifteenth line, replace "Trainor" with Fisher".
On page 6, eighth line of the first full paragraph, replace "circumstances which" with "circumstances,".
October 12, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
PETER FISHER & BALFOUR HOLDING, INC., Petitioner.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Selya, Circuit Judges.
Evan Slavitt, Hinckley, Allen & Snyder, James B. Hicks, Kathy A.
Jorrie and Andrews & Kurth L.L.P., on Petitions for Writ of Mandamus,
for petitioners.
Per Curiam. Petitioners Peter Fisher and Balfour
Holding, Inc. [hereinafter collectively "Fisher"] seek a writ
of mandamus directed to the United States District Court for
the District of Massachusetts. This petition arises out of
the district court's order declaring a mistrial after the
parties to the action could not agree on the implications of
the jury's answer to questions submitted to them pursuant to
Fed.R.Civ.P. 49(a). The court found that in the
circumstances of the case, "justice w[ould] best be served by
retracing what, in the context of this litigation, ha[d] been
a relatively small step."
Background
The matter below has its source in two actions, both of
which relate to a multi-party venture aimed at developing a
human blood substitute. We summarize the facts briefly.
Biopure Corporation manufactures Hemopure, a potential human
blood substitute. In the late 1980s, William Trainor and
Peter Fisher discussed entering into a joint venture
agreement to provide financial assistance to Biopure in
exchange for certain rights in Hemopure and other Biopure
products. Fisher believed that an agreement had been entered
into. However, in 1990, Biopure and a corporation controlled
by Trainor, Bio-Vita, Ltd., entered into an agreement which
did not include Fisher. Believing himself wrongfully
excluded from the deal, Fisher brought an action against
Biopure and Trainor [the "Fisher Action"]. After Trainor had
invested over one million dollars in the Biopure project,
Biopure rescinded the 1990 agreements on the grounds that
Trainor had made misrepresentations and failed to meet
certain obligations. Trainor then commenced his own action
against Biopure [the "Bio-Vita Action"].
After more than two years of pretrial discovery and
litigation, the Fisher Action was called to trial in November
1992. The court severed the first count of Fisher's amended
complaint for immediate trial. This count alleged the
existence, and Trainor's breach, of a binding joint venture
agreement. The amended complaint also included counts of
misrepresentation, interference with contract or advantageous
relationship, and breach of fiduciary duty against Trainor,
and several counts against Biopure.
At the conclusion of the trial, and upon stipulation by
the parties, the following questions were submitted to the
jury pursuant to Fed.R.Civ.P. 49(a):
1. Did [Fisher] and [Trainor] enter into a binding oral contract providing that they would share 50/50 in the expense and gains involved in the Biopure project?
If your answer to question one is "No" you need go no further. If your answer to question one is "Yes" go on to question[s] two and three.
2. Did [Fisher] breach the terms of [the] oral contract with [Trainor] by unjustifiably
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failing to contribute [his] agreed upon share of the purchase price and other expenses incurred with respect to the Biopure project?
3. Did [Trainor] breach the terms of his oral contract with [Fisher] by unjustifiably denying [Fisher] an opportunity to participate on a 50/50 basis in the Biopure project?
The jury answered "yes" to questions one and three, and "no" to
question two.1 The court then recessed the jury with the
intention of bringing them back later to resolve the issue of
damages.
The jury was never called back. Instead on July 12, 1993,
the court declared a mistrial sua sponte. It based its decision
on the fact that the parties "could not . . . agree to the
implications of the jury's special verdict"2 and how to proceed
1. Given these responses the jury was not required to address a fourth question which asked, if both Fisher and Trainor had breached the contract, who breached it first.
2. According to the court's memorandum:
Trainor believes that Fisher's right to any relief- -i.e., a share in the judgment, if any, against Biopure--should be conditioned upon his payment of those expenses he would have been obligated to cover had he not been excluded as a joint venturer from the Biopure project. Fisher argues that he is excused from not putting up his share of the expenses, in light of Trainor's breach of the joint venture agreement. Fisher contends that the trial of the remaining counts in the Fisher Action, including the damages phase of the first count, should await the conclusion of the trial in the Bio-Vita Action. Trainor has expressed a willingness to proceed with the Bio-Vita Action, but not without the financial support of Fisher. Moreover, the parties disagree as to who should be controlling counsel with respect to the remaining
-5-
against Biopure in the Bio-Vita Action. "Given these
extraordinary circumstances, [the court] decided not to hold
either party to the other's interpretation of the verdict, or to
[its] own."
Petitioners contend that in failing to enter a verdict,
pursuant to Fed.R.Civ.P. 58(2), in accord with the jury's special
verdict, the court deprived them of their Seventh Amendment right
to have judgment entered on the findings of the jury. They
petition this court to issue a writ to the district court to
enter judgment on the special verdict.
Uses of Mandamus
The All Writs Act, 28 U.S.C. 1651(a), empowers federal
courts to issue writs of mandamus where "necessary or appropriate
in aid of their respective jurisdictions." See In Re Pearson,
990 F.2d 653, 656 (1st Cir. 1993). Traditionally such writs have
been used "to confine inferior courts to the lawful exercise of
their prescribed jurisdiction or compel them to exercise their
authority when duty demands." Id.; see also Mallard v. United
States Dist. Court for Southern Dist., 490 U.S. 296, 308 (1989)
(quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21
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October 19, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 93-1914
IN RE:
PETER FISHER & BALFOUR HOLDINGS, INC., Petitioner.
ERRATA SHEET
This opinion of this court issued on October 12, 1993 is amended as follows:
On page 4, not 2, fifteenth line, replace "Trainor" with Fisher".
On page 6, eighth line of the first full paragraph, replace "circumstances which" with "circumstances,".
October 12, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
PETER FISHER & BALFOUR HOLDING, INC., Petitioner.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Selya, Circuit Judges.
Evan Slavitt, Hinckley, Allen & Snyder, James B. Hicks, Kathy A.
Jorrie and Andrews & Kurth L.L.P., on Petitions for Writ of Mandamus,
for petitioners.
Per Curiam. Petitioners Peter Fisher and Balfour
Holding, Inc. [hereinafter collectively "Fisher"] seek a writ
of mandamus directed to the United States District Court for
the District of Massachusetts. This petition arises out of
the district court's order declaring a mistrial after the
parties to the action could not agree on the implications of
the jury's answer to questions submitted to them pursuant to
Fed.R.Civ.P. 49(a). The court found that in the
circumstances of the case, "justice w[ould] best be served by
retracing what, in the context of this litigation, ha[d] been
a relatively small step."
Background
The matter below has its source in two actions, both of
which relate to a multi-party venture aimed at developing a
human blood substitute. We summarize the facts briefly.
Biopure Corporation manufactures Hemopure, a potential human
blood substitute. In the late 1980s, William Trainor and
Peter Fisher discussed entering into a joint venture
agreement to provide financial assistance to Biopure in
exchange for certain rights in Hemopure and other Biopure
products. Fisher believed that an agreement had been entered
into. However, in 1990, Biopure and a corporation controlled
by Trainor, Bio-Vita, Ltd., entered into an agreement which
did not include Fisher. Believing himself wrongfully
excluded from the deal, Fisher brought an action against
Biopure and Trainor [the "Fisher Action"]. After Trainor had
invested over one million dollars in the Biopure project,
Biopure rescinded the 1990 agreements on the grounds that
Trainor had made misrepresentations and failed to meet
certain obligations. Trainor then commenced his own action
against Biopure [the "Bio-Vita Action"].
After more than two years of pretrial discovery and
litigation, the Fisher Action was called to trial in November
1992. The court severed the first count of Fisher's amended
complaint for immediate trial. This count alleged the
existence, and Trainor's breach, of a binding joint venture
agreement. The amended complaint also included counts of
misrepresentation, interference with contract or advantageous
relationship, and breach of fiduciary duty against Trainor,
and several counts against Biopure.
At the conclusion of the trial, and upon stipulation by
the parties, the following questions were submitted to the
jury pursuant to Fed.R.Civ.P. 49(a):
1. Did [Fisher] and [Trainor] enter into a binding oral contract providing that they would share 50/50 in the expense and gains involved in the Biopure project?
If your answer to question one is "No" you need go no further. If your answer to question one is "Yes" go on to question[s] two and three.
2. Did [Fisher] breach the terms of [the] oral contract with [Trainor] by unjustifiably
-4-
failing to contribute [his] agreed upon share of the purchase price and other expenses incurred with respect to the Biopure project?
3. Did [Trainor] breach the terms of his oral contract with [Fisher] by unjustifiably denying [Fisher] an opportunity to participate on a 50/50 basis in the Biopure project?
The jury answered "yes" to questions one and three, and "no" to
question two.1 The court then recessed the jury with the
intention of bringing them back later to resolve the issue of
damages.
The jury was never called back. Instead on July 12, 1993,
the court declared a mistrial sua sponte. It based its decision
on the fact that the parties "could not . . . agree to the
implications of the jury's special verdict"2 and how to proceed
1. Given these responses the jury was not required to address a fourth question which asked, if both Fisher and Trainor had breached the contract, who breached it first.
2. According to the court's memorandum:
Trainor believes that Fisher's right to any relief- -i.e., a share in the judgment, if any, against Biopure--should be conditioned upon his payment of those expenses he would have been obligated to cover had he not been excluded as a joint venturer from the Biopure project. Fisher argues that he is excused from not putting up his share of the expenses, in light of Trainor's breach of the joint venture agreement. Fisher contends that the trial of the remaining counts in the Fisher Action, including the damages phase of the first count, should await the conclusion of the trial in the Bio-Vita Action. Trainor has expressed a willingness to proceed with the Bio-Vita Action, but not without the financial support of Fisher. Moreover, the parties disagree as to who should be controlling counsel with respect to the remaining
-5-
against Biopure in the Bio-Vita Action. "Given these
extraordinary circumstances, [the court] decided not to hold
either party to the other's interpretation of the verdict, or to
[its] own."
Petitioners contend that in failing to enter a verdict,
pursuant to Fed.R.Civ.P. 58(2), in accord with the jury's special
verdict, the court deprived them of their Seventh Amendment right
to have judgment entered on the findings of the jury. They
petition this court to issue a writ to the district court to
enter judgment on the special verdict.
Uses of Mandamus
The All Writs Act, 28 U.S.C. 1651(a), empowers federal
courts to issue writs of mandamus where "necessary or appropriate
in aid of their respective jurisdictions." See In Re Pearson,
990 F.2d 653, 656 (1st Cir. 1993). Traditionally such writs have
been used "to confine inferior courts to the lawful exercise of
their prescribed jurisdiction or compel them to exercise their
authority when duty demands." Id.; see also Mallard v. United
States Dist. Court for Southern Dist., 490 U.S. 296, 308 (1989)
(quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943)).
Being drastic measures, such writs "must be used sparing and only
in extraordinary situations." Pearson, 990 F.2d at 653 (citing
cases). Otherwise they may undermine the policies surrounding
counts.
-6-
the congressional judgment that in general appellate review
should be postponed until after final judgment. Allied Chemical
Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980). The decision on
whether to issue the writ is within the sound discretion of this
court. Kerr v. United States District Court for Northern Dist.,
426 U.S. 394, 403 (1976).
To ensure that the writ issue only in extraordinary
circumstances, a petitioner is required to show "some special
risk of irreparable harm" and a "clear entitlement to the relief
requested" before a writ will be issued.3 In Re Recticel Foam
Corp., 859 F.2d 1000, 1005 (1st Cir. 1988); Pearson, 990 F.2d at
656. To satisfy the first requirement, a petitioner "must
ordinarily demonstrate that something about the order, or its
circumstances would make an end-of-case appeal ineffectual or
leave legitimate interests unduly at risk." Id. (quoting
Recticel, 859 F.2d at 1005-06). To satisfy the second,
petitioner must "establish a 'clear and indisputable' right to
the requested relief or, in other words, that the challenged
order is palpably erroneous." Id. (quoting Banker Life & Cas.
Co. v. Holland, 346 U.S. 379, 384 (1953) (quoting United States
v. Duell, 172 U.S. 576, 582 (1899))).
3. Cases of great public import where advisory mandamus is appropriate are excepted from these requirements. See In Re
Recticel Foam Corp., 859 F.2d 1000, 1005 n.4 (1st Cir. 1988).
This is not such a case.
-7-
Discussion
Petitioners assert that the court's failure to enter
judgment in accord with the verdict in their favor deprived them
of their rights under the Seventh Amendment. See Robles v. Exxon
Corp., 862 F.2d 1201, 1204 (5th Cir.), cert. denied, 490 U.S.
(1989) ("rule 58(2) and the seventh amendment command that
judgment be entered on the verdict if the jury's answers are
clear and consistent, subject, of course, to the usual motions
under rules 50 and 59 for judgment notwithstanding the verdict or
a new trial"); Toucet v. Maritime Overseas Corp., 991 F.2d 5, 8
(1st Cir. 1993) ("[w]hen a special verdict form results in
apparently conflicting findings, a court has a duty under the
Seventh Amendment to harmonize the answers if at all possible
under a fair reading"). Furthermore, they assert that the
court's declaration of a mistrial because the parties could not
agree on the meaning of the verdict was a clear abuse of
discretion. See Freeman v. Package Machinery, Co., 865 F.2d
1331, 1333 (1st Cir. 1988) (judge may set aside jury verdict in
civil case "only if, 'it is quite clear that the jury has reached
a seriously erroneous result.'") (quoting Borras v. Sea-Land
Services, Inc., 586 F.2d 881, 887 (1st Cir. 1978)). We do not
address the merits of these contentions.
As we have said above, to obtain mandamus relief a
petitioner must show both a special risk of irreparable harm and
a clear entitlement to the relief he seeks. The Supreme Court has
-8-
indicated that "[a] trial court's ordering of a new trial rarely,
if ever, will justify the issuance of a writ of mandamus" because
it is likely to meet neither of these standards. Daiflon, 449
U.S. at 36 First, since a litigant may seek review on direct
appeal after final judgment, it cannot be said that the litigant
is without other adequate means of relief. Id. Second, in a
matter committed to the discretion of the trial court, it is
unlikely that a litigant can demonstrate that his right to a
particular result is clear and indisputable. Id.
Even if this were a rare instance where a discretionary
order by a trial court was a palpable abuse of discretion,
petitioners still have an adequate remedy through a direct appeal
after final judgment. See Navarro de Cosme v. Hospital Pavia,
922 F.2d 926, 929 (1st Cir. 1991) ("[i]n a civil case, the remedy
for a wrongfully declared mistrial is a second trial"). An
erroneous declaration of a mistrial--if the declaration were in
fact erroneous--is not an extraordinary circumstance. Hence, it
does not merit the extraordinary remedy of mandamus relief. Nor
does the fact that an appeal after final judgment will require
more burdensome litigation, standing alone, justify our use of
the power of mandamus. In Re Pearson, 990 F.2d at 661.
Petitioners' request for a writ of mandamus is denied.
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