James v. New England Telephon

• Court: Court of Appeals for the First Circuit
• Decided: March 18, 1993
• Docket: 91-1883
• Status: Published

Opinion

USCA1 Opinion

March 18, 1993    UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 91-1883
        No. 92-1394

                                    MORGAN JAMES,

                                Plaintiff, Appellant,

                                          v.

                 NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, ET AL.,

                                Defendants, Appellees.

____________________

ERRATA SHEET

            The opinion of this  Court issued on March 9, 1993, is amended  as
        follows:

            Page 2, Footnote 2, line 4:  "procedure" should be "Procedure".

            Page   4,  Footnote   3,  line   1:    "impartiality"   should  be
        "partiality".

            Page  4,   Footnote  3,  line   7:     "impartiality"  should   be
        "partiality". 

            Page 6,  Footnote 5,  paragraph 2, line  7:   "parties" should  be
        "parties'".

            Page 7, line 9:  "both" should be "either".

March 9, 1993
                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 91-1883
        No. 92-1394

MORGAN JAMES,

                                Plaintiff, Appellant,

                                          v.

                 NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, ET AL.,

                                Defendants, Appellees.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Joyce L. Alexander, U.S. Magistrate Judge]

                                 ____________________

                                        Before

                               Torruella, Cyr and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Willie James Wheaton on brief for appellant.
            ____________________
            John  D. Corrigan, on  brief for  appellee, New  England Telephone
            _________________
        and Telegraph Company.

____________________

____________________

Per Curiam.    This case began  in March 1981  with
                      __________

            the    filing    of    plaintiff-appellant   Morgan    James'

            discrimination  complaint against  the New  England Telephone

            Company  ("NET"),  his  employer  from  1974  to  1983.    It

            concluded in January  1991 when summary  judgment entered  in

            favor  of NET.1   Before  us are  two companion  appeals: the

            first purports  to appeal from the  adverse summary judgment;

            the second is from the denial of plaintiff's motion, pursuant

            to Fed.  R. Civ. P. 60(b),  to reconsider.   We conclude that

            the plaintiff has effectively waived all appellate claims  in

            the first appeal, find  no abuse of discretion in  the denial

            of the Rule 60(b) motion, and affirm both judgments.

THE SUMMARY JUDGMENT APPEAL
                             THE SUMMARY JUDGMENT APPEAL
                             ___________________________

                      Appellant's  brief2 in  this  appeal argues  solely

            that later  discovered  evidence  would  have  shown  that  a

            genuine and  material factual dispute existed  as to pretext,

            McDonnell  Douglas Corp. v. Green, 411  U.S. 792, 804 (1973),
            ________________________    _____

____________________

            1.   A magistrate-judge decided the  case by agreement of the
            parties under 28 U.S.C.   636(c).

            2.   Only two issues are raised:
                      (1).  Whether  the  Court  below   is  required  to
            consider newly discovered evidence  pursuant to Rule 60(b) of
            the  Federal  Rules  of   Civil  Procedure,  when,  with  due
            diligence, the movant could  not have discovered the evidence
            at [the] time of the original proceeding.
                      (2). Whether  the newly discovered evidence  was of
            such a  material and controlling  nature as to  have affected
            the outcome of the original proceeding.

precluding summary judgment against him.  The brief, filed by

            plaintiff's counsel, concedes that:

                 Appellant   did   not   successfully   oppose   the
                 Appellee's Motion  for  Summary Judgment  at  court
                 below because  there was  evidence  that tended  to
                 refute   and    otherwise   contradict   Appellee's
                 witnesses   that  was  not,   with  due  diligence,
                 available  to Appellant when Appellant as Plaintiff
                 below  filed its  Motion in  Opposition to  Summary
                 Judgment.

                 Plaintiff-Appellant's  failure  to supply  specific
                 facts of a genuine and material issue in dispute in
                 court   below  was  due  entirely  [to]  Plaintiff-
                 Appellant's  inability to obtain  all of the needed
                 affidavits timely, even with diligence; and because
                 many of the affidavits were not yet discovered.

            The  brief does not address how the district court's judgment

            was in error, or otherwise contend that the plaintiff had, at

            the summary  judgment stage,  established the existence  of a

            genuine and material issue  sufficient to rebut NET's motion.

            See Mesnick v. General  Electric Co., 950 F.2d 816,  822 (1st
            ___ _______    _____________________

            Cir. 1991), cert. denied, 112 S. Ct. 2965 (1992).  These, and
                        _____ ______

            other  statements  filed in  this  court,  indicate that  the

            appellant  has unambiguously  waived  the right  to have  the

            correctness of the grant  of summary judgment in  NET's favor

            reviewed by this court.   Jusino v. Zayas, 875 F.2d 986,  993
                                      ______    _____

            n.9 (1st Cir. 1989) (challenges to the lower court's judgment

            that are neither briefed or argued are waived); Pignons  S.A.
                                                            _____________

            de  Mecanique  v. Polaroid,  701 F.2d  1,  3 (1st  Cir. 1983)
            _____________     ________

            ("[A]n appellee is  entitled to  rely on the  contents of  an

            appellant's brief for the scope of  the issues appealed . . .

-3-

.").   Nor  can plaintiff's  pro se  attacks3 on  the summary
                                         ___ __

            judgment decision, made after the appellee's brief was filed,

            extinguish that waiver.  See United States v. Nueva, 979 F.2d
                                     ___ _____________    _____

            880, 885 n.8 (1st  Cir. 1992) (appellant may not  enlarge the

            scope of the issues appealed  after initial briefing).  Thus,

            any  challenge to the propriety of  summary judgment in favor

            of the defendant has been waived.

THE RULE 60(B) APPEAL
                                THE RULE 60(B) APPEAL
                                _____________________

                      The  only  question  presented  by  this  appeal is

            whether the district court  abused its discretion in deciding

            that  plaintiff's motion  under  Fed. R.  Civ.  P. 60(b)  for

            relief from summary judgment did not present newly discovered

____________________

            3.   In  particular, claims  of  judicial bias  or partiality
            must first  be addressed to  the trial  judge.  In  re Abijoe
                                                            _____________
            Realty Corp., 943  F.2d 121,  126 (1st Cir.  1991); see  also
            ____________                                        ___  ____
            United States  v.  Chantal, 902  F.2d  1018, 1024  (1st  Cir.
            _____________      _______
            1990).   At  no time  during the  lengthy  proceedings below,
            including the  request  for 60(b)  reconsideration,  did  the
            plaintiff suggest partiality, thus effectively  immunizing it
            from judicial scrutiny.  Abijoe Realty, 943 F.2d at 127.  The
                                     _____________
            plaintiff  offers no reason why the issue could not have been
            put  before the  trial  court.   See  Playboy Enterprises  v.
                                             ___  ___________________
            Public  Service  Comm., 906  F.2d  25, 40  (1st  Cir.), cert.
            ______________________                                  _____
            denied, 111 S. Ct. 388 (1990).  No facts or circumstances are
            ______
            presented  that  would  lead  a  reasonable  person  to  even
            remotely doubt the magistrate's impartiality.  Merely issuing
            unfavorable rulings, Lisa v.  Fournier Marine Corp., 866 F.2d
                                 ____     _____________________
            530,  532 (1st  Cir. 1989),  or, as  here, suggesting  that a
            party  file a  particular motion,  Noli v.  Commissioner, 860
                                               ____     ____________
            F.2d 1521, 1527 (9th  Cir. 1988), or other actions taken by a
            judge or a  magistrate-judge in his or  her judicial capacity
            during the course of  proceedings cannot form the basis  of a
            disqualification  claim absent  a showing  of personal  bias,
            Chantal, 902 F.2d at 1022-23 & n.9 (comparing standards under
            _______
            28 U.S.C.    144 and 455), an assertion not made here. 

                                         -4-

facts. Because of the  clear and thorough disposition  by the

            magistrate  on summary judgment, we do not relate the details

            of every claim  presented and decided below,  and repeat only

            those facts and conclusions necessary to decide this appeal.

                      Plaintiff's  employment  discrimination  complaints

            revolve  around his demotion due to  a speech "problem" which

            NET  claimed   seriously  interfered  with  his   ability  to

            communicate  and perform.  The plaintiff is a black male who,

            admittedly, speaks with a slight Jamacian/West  Indian accent

            and speech pattern.   In  support of its  motion for  summary

            judgment  NET offered  evidence that  plaintiff had  a speech

            defect which  caused him,  despite speech therapy  during the

            course of employment, to perform in an unsatisfactory manner.

            On  motion for  reconsideration, filed  six months  after the

            entry of summary judgment against him, plaintiff attempted to

            show  that  newly  discovered  evidence  revealed   that  the

            plaintiff had, in fact, no diagnosed speech  defect and that,

            consequently,   NET's  rationale  for  its  decision  not  to

            promote,   and  to   demote,   was  a   pretext  for   racial

            discrimination.4  

____________________

            4.   Much of  the  motion  to  reconsider,  like  appellant's
            brief,  is devoted  to arguing the merits of his case against
            NET.  As  this appeal  addresses only the  order denying  the
            60(b)  motion, and  for  the reasons  discussed earlier,  the
            merits of  the underlying grant  of summary judgment  are not
            before us.   See, e.g., Parrilla-Lopez v. United  States, 841
                         ___  ____  ______________    ______________
            F.2d 16, 20 (1st Cir. 1988).    

                                         -5-

The  "new"  evidence  supporting  plaintiff's  Rule

            60(b)(2)  motion took the form of medical reports which post-

            dated the entry of summary judgment in NET's favor and stated

            that the plaintiff did not have the particular speech  defect

            claimed  by NET as the reason for its employment decision not

            to promote the plaintiff.   The reports presented evaluations

            based  on  a  series  of assessments  of  plaintiff's  speech

            patterns that were originally performed in 1978 and 1979, but

            which, the plaintiff asserted, were heretofore available only

            in  illegible  handwritten  form.    The  plaintiff professed

            knowledge  of the reports at  the time his  opposition to the

            motion for  summary judgment was  filed, but stated  that the

            records  were  not,  despite  diligent efforts  to  obtain  a

            "translation", available in legible form  at that time due to

            difficulty in retrieving  the information from the  reporting

            source.   The motion also stated that counsel's illness was a

            contributing factor  in the inability to  properly respond at

            the time the summary judgment opposition was filed.5

____________________

            5.   Plaintiff's counsel at the  Rule 60(b) stage had entered
            the case  shortly before  NET's motion for  summary judgement
            was  filed.  During the  prior ten-year history  of the case,
            plaintiff  was represented,  at various  times, by  two other
            attorneys, or had appeared pro se.  
                                       ___ ___
                 After NET  moved for  summary judgment,  plaintiff filed
            two motions for a continuance of the summary judgment hearing
            (each occasioned by the rescheduling of counsel's bone marrow
            implant  operation);  both were  granted.    In allowing  the
            second  continuance,  the  magistrate  indicated,  apparently
            taking into account counsel's ill health, that the motion for
            summary judgment would be decided on the parties' submissions
            some six weeks  later.   At no time  did plaintiff's  counsel

                                         -6-

The magistrate refused to grant the motion because,

            despite professing  earlier  knowledge of  the evidence,  the

            plaintiff  did not request an extension of time to respond to

            the summary  judgment motion,  Fed.  R. Civ.  P. 56(f)6,  and

            could  not, given  the  lengthy  history  of  the  case  -  -

            including the  allowance of  an extremely late  opposition to

            the motion  for  summary  judgment, make  a  claim  that  the

            documents  now  offered  were   difficult  to  obtain.    The

            magistrate  concluded  that  the  plaintiff  had   failed  to

            demonstrate either that the  evidence was newly discovered or

            that  due  diligence could  not  have  uncovered it  earlier,

            Nickerson  v. G.D. Searle & Co.,  900 F.2d 412, 417 (1st Cir.
            _________     _________________

            1990), and deemed the motion frivolous.  We review the denial

            of  a Rule  60(b) motion  for abuse  of discretion,  Duffy v.
                                                                 _____

            Clippinger, 857  F.2d 877, 879  (1st Cir.  1988), and  cannot
            __________

____________________

            seek an  extension of time to file an opposition.  Almost two
            months after the grant of  the second continuance, and  three
            months  after   the  summary  judgment   motion  was   filed,
            plaintiff's  counsel  filed  a  request  for  leave  to  file
            plaintiff's  opposition,  offering ill  health  and the  bone
            marrow  operation as reason for the delay.  The only opposing
            affidavit offered was that of the plaintiff.   The magistrate
            allowed the request and considered the plaintiff's opposition
            in  the ruling  on the  summary judgment  motion  three weeks
            later.

            6.   Rule 56(f) states, in relevant part:
                 Should  it appear.  . .  that the  [opposing] party
                 cannot  .  . .  present facts  .  . .  essential to
                 justify the party's opposition, the court may . . .
                 order  a continuance  to  permit  affidavits to  be
                 obtained or depositions to be taken or discovery to
                 be had or may make such other order as is just.

                                         -7-

find that  an error of  judgment was committed  here.   It is

            clear that the proffered  documents were not newly discovered

            since the plaintiff  was aware of their  existence when NET's

            motion  for summary  judgment was  filed.   Parrilla-Lopez v.
                                                        ______________

            United States, 841 F.2d 16, 19 (1st Cir. 1988).  Nor does the
            _____________

            plaintiff  assert  that  further  facts  became  known  after

            summary  judgment  entered.    See  Mas  Marques  v.  Digital
                                           ___  ____________      _______

            Equipment Corp., 637 F.2d  24, 29 (1st Cir.  1980).  Even  if
            _______________

            the documents  remained illegible at the  time the opposition

            was due, Rule 56(c),  it was incumbent upon the  plaintiff to

            make known to  the magistrate  the existence of  any and  all

            material  facts  bearing  on   summary  judgment  either   by

            introducing affidavits from the treating sources or otherwise

            utilizing the mechanisms of Rule 56(f).

                      Rule  60(b)(2)  also requires  the moving  party to

            show  due diligence in order  to secure relief from judgment.

            The  plaintiff's  brief  argues  that  the  medical   records

            purporting to show that  the plaintiff had no speech  or oral

            communication  problem were  unavailable  because  they  were

            unreadable and their conclusions had to be reconstructed from

            the original speech and language  tests performed in 1978 and

            1979.   However,  this  falls  short  of explaining  why  the

            plaintiff  did not  at least  verify the  existence of  these
                                                      _________

            records  at the time the summary judgment was filed, or apply

            for a continuance  as provided for in Rule 56(f).   Lepore v.
                                                                ______

-8-

Vidockler,  792 F.2d  272, 274  (1st Cir.  1986).   Given the
            _________

            lengthy history  of the  case, including that  the magistrate

            was clearly indulgent of counsel's difficulties, and  mindful

            that  Rule 60(b)  affords  "extraordinary  relief"  available

            "only under  exceptional circumstances," United States v. One
                                                     _____________    ___

            Urban Lot,  882 F.2d 582-83,  585 (1st Cir.  1989) (citations
            _________

            omitted),  we cannot find an  abuse of discretion in refusing

            to reconsider summary judgment.7

                      Accordingly,  the judgments  of the  district court

            are  affirmed.   Appellees'  request for  an award  of double
                 ________

            costs and attorney's fees in the Rule 60(b) appeal is denied.

____________________

            7.   Since relief from judgment under Rule  60(b)(2) requires
            that each of  four elements  be present, Duffy,  857 F.2d  at
                                                     _____
            879, we  need  not reach  appellant's  claim that  the  "new"
            evidence would likely change the summary judgment outcome.  

                                         -9-