Cox v. O'Malley, 96-1695

• Decision Date: 22 January 1997
• Docket Number: No. 96-1695,96-1695
• Citation: 106 F.3d 383
• Parties: NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. Laroy D. COX, Plaintiff, Appellant, v. Peter J. O'MALLEY, Miller Thomas, Trent W. Holland, William Dunn, Francis M. Roache and City of Boston, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 383

106 F.3d 383

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.

Laroy D. COX, Plaintiff, Appellant, v. Peter J. O'MALLEY, Miller Thomas, Trent W. Holland, William

Dunn, Francis M. Roache and City of Boston,

Defendants, Appellees.

No. 96-1695.

United States Court of Appeals, First Circuit.

Jan. 22, 1997.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Robert B. Collings, U.S. Magistrate Judge]

Valeriano Diviacchi, with whom Diviacchi Law Office was on brief for appellant.

Kimberly M. Saillant, with whom Merita A. Hopkins was on brief for appellees City of Boston and Roache.

Ronald Kovner, with whom Merita A. Hopkins and Christopher J. Muse were on brief for appellees O'Malley, Thomas and Holland.

Thomas Drechsler for appellee Dunn.

Before CYR, Circuit Judge, ALDRICH and CAMPBELL, Senior Circuit Judges.

PER CURIAM.

Plaintiff Laroy Cox challenges a district court ruling denying relief from a judgment dismissing his claim for damages against the City of Boston and various members of its police department. See 42 U.S.C. § 1983; Mass. Gen. L. ch. 12, § 11I. The claim arose out of Cox's interrogation during the Boston Police investigation of the Carol Stewart homicide. The principal thrust of the Cox appeal is that counsel for defendants failed to produce some 900 pages of material from the Boston Police Department Internal Affairs Division ("IAD") which were properly requested during pretrial discovery. As the district court did not abuse its discretion, see Anderson v. Cryovac, Inc., 62 F.2d 910, 923 (1st Cir.1988), we affirm.

The record discloses that Cox's counsel knew, well before trial, that the IAD files existed; in fact, counsel so conceded in the motion for reconsideration filed below. Moreover, in a pretrial letter mailed June 1, 1995, the City of Boston offered to provide the IAD files to Cox's counsel, but the offer was declined. Thus, Cox has not explained how the proffered IAD files can have been evidence "newly discovered" after the entry of judgment, let alone evidence not discoverable in the exercise of due diligence. See Fed.R.Civ.P. 60(b)(2).

Cox nonetheless contends that his Rule 60(b)(2) motion should have been granted because defendants had an ongoing duty to supplement their discovery responses. See Fed.R.Civ.P. 26(e). ¹ This contention reduces to a claim that a responding party's alleged failure to supplement its document production excuses the proponent of a Rule 60(b)(2) motion from demonstrating that he did not know the files existed and could not have discovered them through due diligence in time to move for a new trial under Rule 59(b). This contention not only lacks case support, but runs directly counter to the plain language of Rule 60(b)(2), requiring a showing by the movant that the evidence in question was "newly discovered [and] by due diligence [on movant's part] could not have been discovered in time to move for a new trial under Rule 59(b)...." Fed.R.Civ.P. 60(b)(2). As Cox's counsel knew of the existence of the IAD files, and in the exercise of due diligence could have discovered their contents as well, we reject the Rule 60(b)(2) claim as frivolous.

Cox fares no better with his Rule 60(b)(3) claim. As he did not move to compel production of the IAD files after defendants objected to their production, ² defendants were never obligated to produce them. See Fed.R.Civ.P. 45(c)(2)(B). The trial transcript plainly indicates that defendants made no misrepresentations or misleading statements regarding the IAD files. Rather, defendants represented to Cox's counsel at trial that he had been provided with the entire homicide file. ³ Given that counsel for the City of Boston had made a pretrial offer on June 1, 1995, to produce all IAD files, ⁴ this written notification substantially met its obligations under Rule 26(e), see Fed.R.Civ.P. 26(e)(2) ("A party is under a duty seasonably to amend a prior response to [a] ... request for production ... if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.") (emphasis added). Having spurned the City of Boston's offer to produce the IAD files, Cox cannot plausibly maintain that the district court abused its discretion in rejecting his belated request for relief from judgment. See United States Fidelity & Guar. Co. v. Baker Material Handling Corp., 62 F.3d 24, 29 (1st Cir.1995) ("A party may not prevail on a Rule 60(b)(3) motion ... where [it] has access to disputed information or has knowledge of inaccuracies in an opponent's representations at the time of the alleged misconduct.").

The district court judgment is affirmed and costs are awarded to appellees City of Boston and Francis M. Roache.

SO ORDERED.

1 Rule 26(e) provides as follows:

"(e) Supplementation of Disclosures and Responses....