951 F.2d 417 (1st Cir. 1991), 90-2211, Mitchell v. Hobbs

Docket Nº:90-2211.
Citation:951 F.2d 417
Party Name:Sebastian Infanzon MITCHELL, as Trustee of R. Cacho & Co., Inc., Plaintiff, Appellee, v. Boyd HOBBS, and the Conjugal Partnership Existing Between Himself & His Wife Margaret Doe, et al., Defendants, Appellees, C.E. Whatley, Defendant, Appellant.
Case Date:December 04, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 417

951 F.2d 417 (1st Cir. 1991)

Sebastian Infanzon MITCHELL, as Trustee of R. Cacho & Co.,

Inc., Plaintiff, Appellee,


Boyd HOBBS, and the Conjugal Partnership Existing Between

Himself & His Wife Margaret Doe, et al.,

Defendants, Appellees,

C.E. Whatley, Defendant, Appellant.

No. 90-2211.

United States Court of Appeals, First Circuit

December 4, 1991

Heard May 7, 1991.

Page 418

Ivonne Cruz-Serrano with whom Luis Sanchez-Betances and Sanchez-Betances & Sifre were on brief, for defendant, appellant Whatley.

Edna Hernandez with whom Rafael Escalera-Rodriguez and Lasa, Escalera & Reichard were on brief, for plaintiff, appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, CYR, Circuit Judge.

CYR, Circuit Judge.

Appellant Cleveland Earl Whatley filed a belated postjudgment motion alleging that a consent judgment had been entered against him without his consent. The district court summarily denied the motion and we affirm.

Page 419



On January 23, 1989, plaintiff-appellee Sebastian Infanzon Mitchell commenced a civil action against appellant Whatley and others, asserting various claims under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. ("RICO"), as well as pendent state law claims under articles 1308 and 1802 of the Puerto Rico Civil Code. In March 1990, the parties, through counsel, entered into settlement negotiations. On March 16, plaintiff informed the court that the parties would submit a settlement agreement within ten days, and the court, taking note of the motion, stated that settlement papers should be filed by March 29. On March 27, one day after receiving a draft of a settlement agreement from the plaintiff, Luis F. Colon Gonzalez, Esquire, ("Colon"), counsel of record to Whatley and three other defendants, 1 requested an extension of time to submit final settlement papers, explaining that he had not yet received responses from his clients. 2 Two weeks later, in considering Colon's motion, the district court expressed to counsel its understanding that the parties had settled the case. The court directed counsel to submit settlement papers promptly or else continue with discovery. On April 26, plaintiff Mitchell drafted a final version of the settlement and sent it to Colon, who in turn transmitted it to his clients, including Whatley.

On May 21, Colon requested leave to withdraw as counsel to all codefendants, due to a "conflict of interest." Colon explained that "[a]fter months of negotiating a settlement under terms approved by our clients, one of these has rejected it, as he feels its [sic] not to his best interest." Plaintiff Mitchell immediately filed a written request for a status conference which represented to the district court that the April 26 settlement draft contained "all of the terms and conditions agreed upon between the parties" and involved only minor modifications to the original draft.

A status conference was held before the district judge on June 25. The minutes reflect as follows: "Counsel Luis F. Colon states that upon receipt of the settlement papers drafted by plaintiff, defendant Earl Whatley refused to accept the settlement he has previously agreed upon." (emphasis added). The district court found that all parties, including appellant Whatley, had accepted the settlement agreement. The court relied on Colon's representations and on our decision in Berrios Rivera v. British Ropes, Ltd., 575 F.2d 966 (1st Cir.1978) (refusing to set aside district court findings that all parties agreed to settle case even though appellant's counsel did not attend settlement conference at which agreement allegedly was reached and no formal releases or stipulations for entry of judgment were executed). The court accordingly directed entry of a consent judgment incorporating the agreed terms. The consent judgment was entered on June 29, 1990.

On or about July 16, 1990, Francisco Lopez Romo, Esquire, whom Whatley had consulted in connection with the case, informed Whatley of the entry of the consent judgment. Nevertheless, Whatley did not appeal. A writ of execution issued on September 20. On October 16 the district court granted Colon's second motion for leave to withdraw and Colon was replaced as Whatley's counsel of record by Ivonne Cruz-Serrano, Esquire. Finally, on November 1, more than four months after the entry of the consent judgment, Whatley filed a postjudgment motion to vacate judgment, pursuant to Federal Rule of Civil Procedure 60(b)(6), which the district court summarily denied on November 8. 3

Page 420



On appeal, Whatley advances three principal claims for relief from the consent judgment. The primary contention is that he never authorized anyone to represent him, let alone to consent to judgment in his behalf. The second claim for relief from judgment is that he was never properly served with process. Third, Whatley contends that the district court erroneously applied Berrios Rivera, supra, and mistakenly assumed that the validity of the settlement agreement was governed by federal law, rather than Puerto Rico law. 4

A rule 60(b)(6) motion is addressed to the sound discretion of the district court. Rivera v. Puerto Rico Tel. Co., 921 F.2d 393, 395 (1st Cir.1990); United States v. Baus, 834 F.2d 1114, 1121 (1st Cir.1987). See also United States v. Berenguer, 821 F.2d 19, 20 (1st Cir.1987) ("60(b)" motion). Thus, we inquire whether the rule 60(b)(6) motion was denied 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." Anderson v. Beatrice Foods Co., 900 F.2d 388, 394 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 233, 112 L.Ed.2d 193 (1990) (quoting Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1081 (1st Cir.1989)).

  1. Consent

    The district court did not abuse its discretion by denying Whatley's rule 60(b)(6) motion for relief from judgment. Rule 60(b)(6) may not be used to escape the consequences of the movant's dilatory failure to take a timely appeal. United States v. Berenguer, 821 F.2d 19, 21 (1st Cir.1987) ("Absent compelling reasons, parties may not employ [60(b) ](6) to expand their time for taking appropriate action"); Elias v. Ford Motor Co., 734 F.2d 463, 467 (1st Cir.1984) (rule 60(b)(6) motion may not be used as a substitute for appeal); Lubben v. Selective Service System Local Board, 453 F.2d 645, 651 (1st Cir.1972) ("like Rule 60(b) generally, [60(b)(6) ] is not a substitute for an appeal, and in all but exceptional circumstances, the failure to prosecute an appeal will bar relief under that clause" (footnote omitted)). See also Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 29 (1st Cir.1988) (party who had timely access to information which would have proven opponent's misrepresentations, but failed to appeal, could not prevail on a rule 60(b)(3) motion).

    Relief from judgment cannot be obtained under rule 60(b)(6) unless the movant can demonstrate that "extraordinary circumstances" prevented a timely appeal. Ackermann v. United States, 340 U.S. 193, 197-202, 71 S.Ct. 209, 211-214, 95 L.Ed. 207 (1950). Whatley utterly failed to demonstrate any extraordinary circumstance which would excuse his failure to take a timely appeal from the consent judgment. Whatley not only failed to come forward before judgment with his allegations of misrepresentation by the parties and of unauthorized representation by Colon, but he failed to appeal the consent judgment notwithstanding his own admission that he was informed of the consent judgment "on or around July 16," well within the thirty-day appeal period. See also Fed.R.App.P. 4(a)(5) (permitting 30-day extension by district court on showing of excusable neglect or good cause, on motion made within "30 days after the expiration of" the 30-day appeal period allowed under FRAP 4(a)). Thus, Whatley failed to offer any legitimate explanation for the failure to take a timely appeal from the consent judgment.

    Page 421

    Whatley argues, nonetheless, that the district court abused its discretion by denying relief from judgment without an evidentiary hearing. Although an evidentiary hearing may be appropriate in a rule 60(b) case, none was required in the instant case. See United States v. Baus, 834 F.2d 1114, 1123 (1st Cir.1987) (when reviewing denial of rule 60(b)(6) motion based on uncontested allegations, appeals court should decide whether allegations, if proven, would justify relief, and if so, should direct district court to hold evidentiary hearing to determine truth of allegations). We are not presented with an appeal from a denial of postjudgment relief where the grounds for relief were not discovered until after judgment. Compare Surety Ins. Co. v. Williams, 729 F.2d 581, 582 (8th Cir.1984); Bradford Exchange v. Trein's Exchange, 600 F.2d 99, 100-01 (7th Cir.1979). Whatley admits that the grounds...

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