Cotto v. U.S.

• Decision Date: 04 May 1993
• Docket Number: No. 92-2440,92-2440
• Citation: 993 F.2d 274
• Parties: Evelyn COTTO and Edwin Torres, etc., et al., Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 274

993 F.2d 274

25 Fed.R.Serv.3d 991

Evelyn COTTO and Edwin Torres, etc., et al., Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.

No. 92-2440

United States Court of Appeals First Circuit.

Heard May 4, 1993.

Decided May 19, 1993.

Peter John Porrata, Hato Rey, PR, for plaintiffs, appellants.

Fidel A. Sevillano del Rio, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, PR, was on brief, for defendant, appellee.

Before SELYA, Circuit Judge, FEINBERG, ^* Senior Circuit Judge, and STAHL, Circuit Judge.

SELYA, Circuit Judge.

This appeal arises out of an action brought against the United States by family members and personal representatives of an injured minor under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680 (1990). Long after the district court dismissed the case, plaintiffs sought to revivify it but failed. Believing, as we do, that the district court appropriately rebuffed the attempted resurrection, we affirm the judgment below.

I. BACKGROUND

The incident that sparked this case occurred on December 13, 1987, when a small child, Alexis Agosto, caught his hand in a conveyer belt operated by an employee of the United States Department of Agriculture (DOA). On February 24, 1989, Agosto's parents and grandparents filed FTCA claims on Agosto's and their own behalf. On April 21, DOA responded, requesting medical records, itemized bills, and other details. Plaintiffs retained counsel. On November 29, 1989, their attorney notified DOA that he would supply pictures of Agosto's injured hand, apparently believing that the photographs would satisfy DOA's curiosity anent the extent of injury. He was wrong. DOA, unmollified, wrote to the lawyer on March 5, 1990, reiterating its need for the information previously requested and mentioning that plaintiffs' claim forms were incomplete. The letter also stated:

Please bear in mind that the claims must be substantiated and that we must have the information requested before a determination can be made by [the appropriate official]. No further action will be taken on these claims until the information requested has been received (emphasis in original).

Instead of submitting further particulars, plaintiffs brought suit. They alleged, inter alia, that "[n]o affirmative action as to any settlement or responsibility has been taken by [DOA], although a copy of the medical record has been provided to them [sic]." This allegation was seemingly an endeavor to show that, despite the lack of an explicit denial, DOA had implicitly denied plaintiffs' claim, thus satisfying the FTCA's exhaustion requirement. See 28 U.S.C. § 2675(a).

The government answered the complaint, asserting inter alia that plaintiffs had yet to file a substantiated, completed administrative claim, and, therefore, had not exhausted their administrative remedy. On August 27, 1990, a magistrate judge stayed proceedings for ninety days to allow plaintiffs a final opportunity "to provide defendant's claim specialist with the necessary documentation so that defendant may either accept or reject the claim." The stay proved unproductive. On November 28, 1990, the magistrate convened the next scheduled conference, noted plaintiffs' counsel's absence, and reported to the district judge that "the government will shortly move to dismiss the complaint for failure to exhaust administrative remedy." Even so, some settlement negotiations continued.

To make a tedious tale tolerably terse, the government, prodded by the district judge, moved for dismissal on May 15, 1991. The motion papers averred that plaintiffs had failed to prosecute their claims diligently at either the administrative or judicial levels. Among other things, the government proffered the affidavit of a local DOA staffer attesting to plaintiffs' failure to perfect their administrative claims. Without waiting for plaintiffs' objection, the district court dismissed the case with prejudice under Fed.R.Civ.P. 41(b). Judgment entered on May 28, 1991. ¹

At that point, plaintiffs and their lawyer, figuratively speaking, played the ostrich, burying their heads in the sand and ignoring the adverse judgment. They did not ask that the dismissal be vacated so that their opposition, see supra note 1, might be more fully considered; they did not move for reconsideration of the order; they did not take an appeal; they did not seasonably seek post-judgment relief. Withal, plaintiffs suggest that they continued to pursue negotiations, eventually reaching what plaintiffs' counsel describes as a tentative agreement (ironically, with the same DOA representative who had executed the aforementioned affidavit) for a $60,000 settlement. They concede, however, that the United States Attorney's office declined to approve any settlement, presumably because the lawsuit had been dismissed with prejudice. ² They also concede that they never asked the district court to enforce the supposed settlement. Rather, plaintiffs resumed their struthionine pose. It was not until September 28, 1992--sixteen months to the day after judgment entered--that they filed a motion under Fed.R.Civ.P. 60(b)(6). ³ The court below denied the motion without fanfare. This appeal followed.

II. ANALYSIS

District courts enjoy considerable discretion in deciding motions brought under Civil Rule 60(b). We review such rulings only for abuse of that wide discretion. See Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 19 (1st Cir.1992); Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 3 (1st Cir.1989); Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 28 (1st Cir.1988).

In this case, plaintiffs' theory seems to be that, because DOA's representative continued to negotiate after judgment entered, the lower court should have excused plaintiffs' failure to appeal or otherwise contest the dismissal. This contention has a variety of flaws. Without endeavoring to cover the waterfront, we offer four reasons why plaintiffs' theory is unavailing. In the course of that recital, we assume the truth of the fact-specific statements contained in plaintiffs' motion, but do not credit "bald assertions, unsubstantiated conclusions, periphrastic circumlocutions, or hyperbolic rodomontade." Superline, 953 F.2d at 18.

First: Rule 60(b) seeks to balance the importance of finality against the desirability of resolving disputes on the merits. See id. at 19. The rule's first five subsections delineate specific grounds for relief. ⁴ In keeping with the policy that "there must be an end to litigation someday," Ackermann v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 211-212, 95 L.Ed. 207 (1950), the rule imposes a one-year limit on motions that invoke clauses (1)-(3). While this limit does not apply in haec verba to clause (6)--as the rule states, motions invoking clauses (4)-(6) must only "be made within a reasonable time"--clause (6) is designed as a catchall, and a motion thereunder is only appropriate when none of the first five subsections pertain. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 & n. 11, 108 S.Ct. 2194, 2204 & n. 11, 100 L.Ed.2d 855 (1988); Klapprott v. United States, 335 U.S. 601, 613, 69 S.Ct. 384, 389, 93 L.Ed. 266 (1949); Lubben v. Selective Serv. Sys. Local Bd., 453 F.2d 645, 651 (1st Cir.1972).

Here, plaintiffs' attempt to garb their motion in the raiment of clause (6) runs aground on the bedrock principle that clause (6) may not be used as a vehicle for circumventing clauses (1) through (5). The essence of plaintiffs' argument is that, under all the circumstances, their failure to contest the dismissal constituted understandable, ergo, excusable, neglect. On its face, that theory falls squarely within the encincture of Rule 60(b)(1) and, as such, plaintiffs' motion, filed more than one year after the entry of judgment, was time-barred. See Pioneer Inv. Servs. Co. v. Brunswick Assoc., --- U.S. ----, ----, 113 S.Ct. 1489, 1497, 123 L.Ed.2d 74 (1993) (explaining that, where "a party is partly to blame for the delay," post-judgment relief "must be sought within one year under subsection (1)").

Second: Plaintiffs' belated effort to set aside the adverse judgment also runs afoul of the admonition that Rule 60(b)(6) may not be used to escape the consequences of failure to take a timely appeal. See Ackermann, 340 U.S. at 197-200, 71 S.Ct. at 211-212; Mitchell v. Hobbs, 951 F.2d 417, 420 (1st Cir.1991); Lubben, 453 F.2d at 651; see also Ojeda-Toro, 853 F.2d at 28-29 (collecting cases). In our adversary system of justice, each litigant remains under an abiding duty to take the legal steps that are necessary to protect his or her own interests. See Ackermann, 340 U.S. at 197, 71 S.Ct. at 211. Thus, Rule 60(b)(6) may not be used as a back-door substitute for an omitted appeal, and, in all but the most exceptional circumstances, a party's neglect to prosecute a timeous appeal will bar relief under the rule. See Ackermann, 340 U.S. at 197-202, 71 S.Ct. at 211-213; Mitchell, 951 F.2d at 420; United States v. Parcel of Land, Etc. (Woburn City Athletic Club, Inc.), 928 F.2d 1, 5 (1st Cir.1991); Lubben, 453 F.2d at 651.

There are no sufficiently exceptional circumstances here. To be sure, plaintiffs strive to show the contrary. Citing United States v. Baus, 834 F.2d 1114 (1st Cir.1987), they argue that DOA acted in a Svengali-like manner, lulling them to sleep with settlement songs while the sands of time drained and the appeal period expired. This deception, they say, justifies relief under Rule 60(b)(6). The district court did not agree. Nor do we.

Baus is readily distinguishable. There, defendants (the guarantors of a debt owed to a federal agency) moved, long after the fact, for relief from a judgment entered pursuant to a settlement agreement they had made with the United States. Id. at 1115- 16. We determined that the government had been dilatory in performing...