Rubin v. Smith

Opinion

Rubin v. Smith CV-92-273-SD 05/23/96 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Carol A. Rubin

v. Civil No. 92-273-SD

Philip Smith, Sr., et al

O R D E R

Pursuant to Rule 59(e), Fed. R. Civ. P., plaintiff Carol A.

Rubin presently moves the court to reconsider and alter or amend

its March 20, 1996, order granting defendants' respective motions

for summary judgment. In the alternative, plaintiff seeks relief

from judgment and a new trial pursuant to Rules 60(b)(2), (3),

and (6), Fed. R. Civ. P. The Salem defendants object to such

relief, and defendant Harvey Rubin filed an untimely objection.1

defendant Rubin's opposition bears the date of April 22, 1996, which would have been timely with one day to spare, but such paper was not actually filed with the clerk of court until April 26, 1996, some three days late. Accordingly, plaintiff's motion to strike (document 205) such untimely objection is granted, and the opposition (document 204), as well as its exhibit, will not be considered by the court in ruling on plaintiff's motion under Rules 59 and 60, Fed. R. Civ. P. Discussion

Plaintiff's motion under Rule 59(e), Fed. R. Civ. P., having

been filed with the court eight days after the entry of final

judgment, March 22, 1996, is well within the ten-day limitation

set forth in the rule. Accordingly, this court is vested with

jurisdiction to consider plaintiff's arguments, see Feinstein v.

Moses, 951 F.2d 16, 21 (1st Cir. 1991) (untimely motion under

Rule 59(e) divests district court of jurisdiction to grant), and

the time for filing the notice of appeal is tolled until the

motion is resolved, see Rule 4(a)(4), Fed. R. Ap p . P. Appellate

review of a trial court's decision to deny a motion under Rule

59(e) is, however, limited to the "manifest abuse of discretion"

standard. See Jorge Rivera Surillo & Co. v. Falconer Glass

Indus., Inc., 37 F.3d 25, 27 (1st Cir. 1994).

Plaintiff's claims in the underlying action find their

vitality in 42 U.S.C. § 1983 (1994). As ever, "liability under §

1983 reguires not only state action but also an unconstitutional

deprivation of rights." Roche v. John Hancock Mut. Life Ins.

C o ., 81 F.3d ___, ___ , slip op. at 10 (1st Cir. Apr. 16, 1996).

Insofar as "'Rule 59(e) motions are aimed at reconsideration, not

initial consideration,'" Falconer Glass, supra, 37 F.3d at 29

(guoting FDIC v. World Univ., Inc., 978 F.2d 10, 16 (1st Cir.

1992) (internal citations and guotations omitted in Falconer

2 Glass), such motions "'may not be used to argue a new legal

theory,'" but rather "'must either clearly establish a manifest

error of law or must present newly discovered evidence,'" id.

(guoting World Univ., Inc., supra, 978 F.2d at 16).

This litigation has followed a long, tortured, and erratic

course since it was first filed in this court nearly four years

ago. Having reviewed plaintiff's papers seeking reconsideration

of the summary judgment order, the court finds and rules that no

error of constitutional dimension can be culled from the copious

evidence before it. This failing extinguishes plaintiff's

claims, all of which are brought under section 1983.

Moreover, plaintiff's attempt to introduce the April 2,

1996, letter from Earl M. Sweeney, Director of the New Hampshire

Police Standards and Training Council, to plaintiff's attorney

actually proves too much. Director Sweeney's reference therein

to the New Hampshire Attorney General's Law Enforcement Manual

indicates that such volume was in plaintiff's possession and thus

could not constitute "newly discovered evidence." See Haves v.

Douglas Dynamics, Inc., 8 F.3d 88, 90 n.3 (1st Cir. 1993)

(affirming denial of relief under Rule 59(e) where the

information on which the movant relied was neither unknown nor

unavailable when the opposition to summary judgment was filed),

cert, denied, ___ U.S. ___, 114 S. C t . 2133 (1994)

3 Having failed to identify a manifest error of law or the

existence of "newly discovered" evidence, plaintiff's motion for

reconsideration pursuant to Rule 59(e), Fed. R. Civ. P., must be

and herewith is denied.

With respect to that portion of plaintiff's motion seeking

relief from judgment and/or a new trial pursuant to Rule 60(b),

Fed. R. Civ. P., the court begins by noting that "Rule 60(b) is a

vehicle for 'extraordinary relief,'" and "motions invoking the

rule should be granted 'only under exceptional circumstances.'"

de la Torre v. Continental Ins. Co., 15 F.3d 12, 14-15 (1st Cir.

1994) (guoting Lepore v. Vidockler, 792 F.2d 272, 274 (1st Cir.

1986)). Accordingly, "district courts enjoy broad discretion in

deciding motions brought under Rule 6 0 (b)," and the appeals court

will "review such rulings only for abuse of that discretion."

Hoult v. Hoult, 57 F.3d 1, 3 (1st Cir. 1995) (citations

omitted). Moreover, appellate "review is limited to the denial

of the motion itself" and does not reach "the merits of the

underlying judgment." Id. (citing Ojeda-Toro v. Rivera-Mendez,

853 F .2d 25, 28 (1st Cir. 1988)).

Plaintiff's motion employs subsections (2), (3), and (6) of

Rule 60(b), Fed. R. Civ. P. "Rule 60(b) (2) gives the district

court discretion to vacate a judgment based upon 'newly

discovered evidence which by due diligence could not have been

4 discovered in time to move for a new trial under Rule 59(b).

Holt, supra, 57 F.3d at 6 (quoting Rule 60(b)(2), Fed. R. Civ.

P.). "Because Rule 60(b)(2) is aimed at correcting erroneous

judgments based on the unobtainability of evidence, the burden is

on the party presenting the new evidence to demonstrate that the

missing evidence was '"of such a material and controlling nature

as [would] probably [have] change[d] the outcome."'" Id.

(quoting Anderson v. Cryovac, Inc., 862 F.2d 910, 924 n.10 (1st

Cir. 1988) (quoting 7 J a m e s W m . M o o r e , M o o r e 's F e d e r a l P r a c t i c e 5

60.23[4], at 60-201 to 202 (2d ed. 1995) (footnote omitted)))

(other citations omitted). As discussed in the context of its

analysis under Rule 59(e), Fed. R. Civ. P., the Sweeney letter of

April 2, 1996, fails to satisfy plaintiff's burden.

Plaintiff's second allegation under Rule 60(b) is that the

Salem defendants withheld relevant discovery material and

otherwise concealed evidence pertinent to the plaintiff's claims.

Such allegation falls within the scope of subsection (3) to rule

60(b), which "permits relief for 'fraud (whether heretofore

denominated intrinsic or extrinsic), misrepresentation, or other

misconduct of an adverse party.'" Ojeda-Toro, supra, 853 F.2d at

29 (quoting Rule 60(b)(3), Fed. R. Civ. P.). Success under the

rule will not be forthcoming, unless the "moving party [can] show

fraud, misrepresentation, or other misconduct within the

5 intendment of 6 0 (b)(3) and, normally, that he has a meritorious

claim . . . M o o r e 's F e d e r a l P r a c t i c e , supra, 5 60.24 [5], at 60-

217. Moreover, the moving party on a Rule 60(b)(3), Fed. R. Civ.

P., motion must demonstrate fraud by clear and convincing

evidence and must further show that the fraud foreclosed full and

fair preparation or presentation of the case. See Perez-Parez v.

Popular Leasing Rental, Inc., 993 F.2d 281, 285 (1st Cir. 1993);

M o o r e 's F e d e r a l P r a c t i c e , supra, 5 60.24 [5], at 60-217.

In the First Circuit, "a party may not prevail on a Rule

6 0 (b)(3) motion on the basis of fraud where he or she has access

to disputed information or has knowledge of inaccuracies in an

opponent's representations at the time of the alleged

misconduct." Oj eda-Toro, supra, 853 F.2d at 29. Plaintiff's

memorandum of law not only indicates that she had access to, as

it is referenced in New Hampshire Revised Statutes Annotated

(RSA) 7:6-a (1988), and knowledge of, the allegedly withheld

discovery material, specifically the Attorney General's Law

Enforcement Manual, but also fails to demonstrate how the

deposition answers of the individual police officer defendants

constitute fraud, misrepresentation, or other misconduct. More

significantly, however, even if misconduct on the defendants'

part is assumed arguendo, plaintiff absolutely fails to

demonstrate how that alleged misconduct interfered with her

6 ability to prepare a defense to the summary judgment motions

filed on defendants' behalf. Accordingly, the court finds and

rules that plaintiff is not entitled to any relief under the

auspices of Rule 60(b)(3), Fed. R. Civ. P.

Failing any entitlement to relief pursuant to subsections

(2) and (3) of Rule 60(b), plaintiff makes a final, and general,

claim for relief under subsection (6) of the rule, which

authorizes the district court to relieve a party from a final

judgment or order for "[a]ny other reason justifying relief from

the operation of the judgment." Rule 60(b)(6), Fed. R. Civ. P.

A motion under this rule "is addressed to the sound discretion of

the district court." Mitchell v. Hobbs, 951 F.2d 417, 420 (1st

Cir. 1991) (citations omitted).

Appellate inguiry into the denial of a motion brought

pursuant to Rule 60(b)(6) is delimited to a determination of

whether the denial was "due to the fact that 'a material factor

deserving significant weight [was] ignored, ... an improper

factor [was] relied upon, or . . . all proper and no improper

factors [were] assessed but the court ma[d]e[] a serious mistake

in weighing them.'" Mitchell, supra, 951 F.2d at 420 (guoting

Anderson v. Beatrice Foods Co., 900 F.2d 388, 394 (1st Cir.),

cert, denied, 498 U.S. 891 (1990)) (other guotation omitted)

(alterations in Mitchell) .

7 Finding no exceptional circumstances justifying the relief

herein sought, see Hoult, supra, 57 F.3d at 9, the court herewith

finds and rules that Rule 60(b)(6) likewise fails to relieve

plaintiff from the operation of the judgment entered in the cause

sub judice. Accordingly, plaintiff's motion for reconsideration,

relief from judgment, and new trial must be and herewith is

denied in its entirety.

Conclusion

For the reasons set forth herein, plaintiff's motion to

strike (document 205) is granted and plaintiff's motion for

reconsideration, relief from judgment, and new trial (document

201) is denied in its entirety.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

May 23, 1996

cc: Paul McEachern, Esg. Wayne C. Beyer, Esg. Robert M. Larsen, Esg. Jonathan Katz, Esg.