Firestone v. Firestone, No. 94-7202

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtPER CURIAM
Parties, 34 Fed.R.Serv.3d 1128 Myrna O'Dell FIRESTONE, et al., Appellants, v. Leonard K. FIRESTONE, Appellee.
Decision Date16 February 1996
Docket NumberNo. 94-7202

Page 1205

76 F.3d 1205
316 U.S.App.D.C. 152, 34 Fed.R.Serv.3d 1128
Myrna O'Dell FIRESTONE, et al., Appellants,
v.
Leonard K. FIRESTONE, Appellee.
No. 94-7202.
United States Court of Appeals,
District of Columbia Circuit.
Argued Oct. 2, 1995.
Decided Feb. 16, 1996.

Myrna O'Dell Firestone and Russell A. Firestone III, pro se, filed appellants' brief. Joan E. O'Dell, Washington, DC, argued the cause and filed the reply brief, for appellants.

Thomas F. Cullen Jr., Washington, DC argued the cause for appellee, with whom James E. Anklam, Washington, DC, was on the brief.

Before: BUCKLEY, GINSBURG, and TATEL, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM:

Appellants, Myrna O'Dell Firestone, individually and as trustee of the Russell A. Firestone III Child Support Trust, and Russell A. Firestone III seek review of two district court orders. In the first, the district court dismissed Russell III and Myrna's complaint with prejudice, ruling that their claims were barred by the applicable three-

Page 1207

year [316 U.S.App.D.C. 154] statute of limitations and that their complaint failed to plead fraud with particularity as required by Federal Rule of Civil Procedure 9(b). The second order denied Appellants' Federal Rule of Civil Procedure 59(e) motion to vacate the dismissal of the complaint and Rule 15(a) motion requesting leave to file an Amended Complaint. We reverse the district court's order denying the 59(e) and 15(a) motions, and remand with instructions to grant Appellants leave to file their First Amended Complaint.

I.

The parties in this suit are all members of the same family. Russell A. Firestone III, one of the plaintiffs, is the great-grandson of Harvey S. Firestone, founder of The Firestone Tire & Rubber Company. Myrna O'Dell Firestone, the other plaintiff, is Russell III's mother. Myrna was married to Russell A. Firestone Jr.--Russell III's father--until their divorce in 1974. Defendant, Leonard Firestone, is the oldest living son of Harvey S. Firestone. Leonard also serves as an "advisor" to the Firestone trusts, known as the Harbel Trusts, of which Russell III and other descendants of Harvey Firestone are beneficiaries.

This suit is rooted in intra-family disputes dating back more than two decades. Pursuant to the 1974 divorce, Russell Jr. agreed to pay child support into a trust for Russell III and to pay spousal support to Myrna. When Russell Jr. refused to pay the support owed, Myrna sued for enforcement in Kentucky, obtaining a judgment in 1984. At that time, Russell Jr. was allegedly receiving at least $800,000 a year from the Harbel Trusts, of which Ameritrust Bank served as trustee.

On November 29, 1993, Russell III and Myrna, individually and on behalf of the Russell A. Firestone III Child Support Trust, filed a pro se complaint in the United States District Court for the District of Columbia against Leonard Firestone for fraud, intentional infliction of emotional distress, and interference with judgments. They claimed damages in excess of $13 million. The complaint alleged that a "representative" of Leonard Firestone, in "a series of meetings, telephone calls, letters and proposals" commencing in June 1984, encouraged them to "dismiss the judgments [and] appeals" pending against Russell Jr. and settle other unspecified litigation against Ameritrust, the trustee of the Harbel Trusts. Complaint p 3. In exchange, Russell III and Myrna received a written agreement providing "payment guarantees for their past-due, court-ordered child support and spousal support." Id. Without explanation, the complaint alleges that Leonard sought the agreement because he would gain "approximately $1 million" in relief from liability in claims filed against him. Id. p 4. Relying on Leonard's representations, Russell III and Myrna dismissed their appeals and their actions to enforce their judgments, forfeiting more than $5 million. Id. p 6-7. They allege, however, that Leonard's representations were fraudulent from their inception: the payments stopped in April 1987, forcing them into litigation which was unsuccessful. Id. pp 8-9.

Leonard Firestone moved to dismiss the complaint on several grounds including that Russell III and Myrna's claims were barred by the applicable three-year statute of limitations of the District of Columbia, and that they had failed to plead fraud with particularity as required by Federal Rule of Civil Procedure 9(b). Leonard's statute of limitations argument is based on the complaint's allegations that the payments of child and spousal support stopped in 1987. Def.'s Mot. to Dismiss at 7-8. According to Leonard, the cessation of the payments put Russell III and Myrna on inquiry notice of their claims against Leonard. Because the suit was not filed until six years later, he claims it is barred by the 3-year statute of limitations. Id. at 8-9.

Russell III and Myrna, now represented by counsel, filed an opposition to defendant's motion, arguing that a motion to dismiss was not the proper tool for raising a statute of limitations defense, and that, from the face of the complaint, their allegations were not clearly time-barred. Pls.' Mem. of Law in Opp'n to Def.'s Mot. to Dismiss at 1-9. They also argued that their complaint properly pled fraud as required by Rule 9(b). See id. at 10. Although Russell III and Myrna did not append a proposed amended complaint,

Page 1208

[316 U.S.App.D.C. 155] they asked the court to grant them leave to amend in the event that the complaint failed to "comply with the federal rules." Id. at 11. On July 13, 1994, the district court dismissed the complaint with prejudice, stating that Russell III and Myrna's claims were time-barred and that they had failed to plead fraud with particularity.

On July 27, 1994, Russell III and Myrna filed a motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e) and requested leave pursuant to Rule 15(a) to file an amended complaint, which they appended to the motions. Without giving its reasons, the court denied both motions. On August 26, 1994, Russell III and Myrna filed a Motion for Reconsideration under Rule 60(b), which the district court denied.

Russell III and Myrna appeal both the dismissal of the original complaint with prejudice and the denials of the 59(e) and 15(a) motions. Since the Rule 60(b) motion was pending at the time of this appeal, and because Appellants have not appealed its denial, it is not before us.

II.

Although Russell III and Myrna appeal both the order dismissing the complaint with prejudice, and the order denying the 59(e) and 15(a) motions, the validity of the latter order rests partly on the propriety of the first. A Rule 59(e) motion "is discretionary" and need not be granted unless the district court finds that there is an "intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." National Trust v. Department of State, 834 F.Supp. 453, 455 (D.D.C.1993), aff'd in part and rev'd in part on other grounds sub nom. Sheridan Kalorama Historical Ass'n v. Christopher, 49 F.3d 750 (D.C.Cir.1995) (quoting Virgin Atlantic Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.), cert. denied 506 U.S. 820, 113 S.Ct. 67, 121 L.Ed.2d 34 (1992)). We therefore review a district court's refusal to vacate a judgment under Federal Rule of Civil Procedure 59(e) for abuse of discretion. See Browder v. Director, Ill. Dep't of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54...

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1182 practice notes
  • Kenley v. Dist. of Columbia, Civil Action No. 14–1232 JEB
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 13, 2015
    ...But in this Circuit, “it is an abuse of discretion to deny leave to amend unless there is sufficient reason.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996). In the present case, Defendants do not argue undue prejudice, delay, or bad faith; instead, they contend only that the Cou......
  • Bates v. Northwestern Human Services, Inc., Civil Action No. 04-2116 (RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 11, 2006
    ...plead any allegation of fraud with specificity, does not alter the operation of Rule 15(a)") (citation omitted); Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996) (observing that "leave to amend is almost always allowed to cure deficiencies in pleading fraud") (internal quotation ma......
  • Lattisaw v. Dist. of Columbia, Civil Action No. 13–cv–0762 (KBJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 28, 2015
    ...582, 88 L.Ed. 788 (1944). However, "statute of limitations issues often depend on contested questions of fact," Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996) (citing Richards v. Mileski, 662 F.2d 65, 73 (D.C.Cir.1981) ); therefore, the D.C. Circuit has cautioned that "courts sho......
  • Wilcox v. Georgetown Univ., No. 19-7065
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 9, 2021
    ...under Rule 15(a). No amendment is permitted unless the district court first reopens the judgment. See, e.g. , Firestone v. Firestone , 76 F.3d 1205, 1208–09 (D.C. Cir. 1996) (per curiam).16 The plaintiff may move to reopen the judgment, but only if it does so within 28 days of the judgment.......
  • Request a trial to view additional results
1186 cases
  • Kenley v. Dist. of Columbia, Civil Action No. 14–1232 JEB
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 13, 2015
    ...But in this Circuit, “it is an abuse of discretion to deny leave to amend unless there is sufficient reason.” Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir.1996). In the present case, Defendants do not argue undue prejudice, delay, or bad faith; instead, they contend only that the Cou......
  • Bates v. Northwestern Human Services, Inc., Civil Action No. 04-2116 (RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 11, 2006
    ...plead any allegation of fraud with specificity, does not alter the operation of Rule 15(a)") (citation omitted); Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996) (observing that "leave to amend is almost always allowed to cure deficiencies in pleading fraud") (internal quotation ma......
  • Lattisaw v. Dist. of Columbia, Civil Action No. 13–cv–0762 (KBJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 28, 2015
    ...582, 88 L.Ed. 788 (1944). However, "statute of limitations issues often depend on contested questions of fact," Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996) (citing Richards v. Mileski, 662 F.2d 65, 73 (D.C.Cir.1981) ); therefore, the D.C. Circuit has cautioned that "courts sho......
  • Wilcox v. Georgetown Univ., No. 19-7065
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 9, 2021
    ...under Rule 15(a). No amendment is permitted unless the district court first reopens the judgment. See, e.g. , Firestone v. Firestone , 76 F.3d 1205, 1208–09 (D.C. Cir. 1996) (per curiam).16 The plaintiff may move to reopen the judgment, but only if it does so within 28 days of the judgment.......
  • Request a trial to view additional results

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