Harduvel v. General Dynamics Corp., 84-1450-Civ-T-10.

• Decision Date: 15 August 1992
• Docket Number: No. 84-1450-Civ-T-10.,84-1450-Civ-T-10.
• Parties: Janet HARDUVEL, Individually and as Personal Representative of the Estate of Theodore Harduvel, Deceased, and on behalf of his minor child, Christina Harduvel, Plaintiff, v. GENERAL DYNAMICS CORP., Defendant.
• Court: U.S. District Court — Middle District of Florida

801 F. Supp. 597

Janet HARDUVEL, Individually and as Personal Representative of the Estate of Theodore Harduvel, Deceased, and on behalf of his minor child, Christina Harduvel, Plaintiff, v. GENERAL DYNAMICS CORP., Defendant.

No. 84-1450-Civ-T-10.

United States District Court, M.D. Florida.

August 15, 1992.

COPYRIGHT MATERIAL OMITTED

Howard M. Acosta and George K. Rahdert, Rahdart, Acosta & Dickson, St. Petersburg, Fla., David W. Holman and Wayne Fisher, Fisher, Gallagher, Perrin & Lewis, Houston, Tex., for plaintiff.

T. Paine Kelly, Jr., Macfarlane, Ferguson, Allison & Kelly, Tampa, Fla., Frank Finn and James L. Johnson, Thompson & Knight, Dallas, Tex., Mark A. Dombroff, Hughes Humbard & Reed, Washington, D.C., for defendant.

GAGLIARDI, Senior District Judge.

The plaintiff moves for a new trial, pursuant to Federal Rule of Civil Procedure 60(b), based on newly discovered evidence, misconduct, and "fraud on the court." See Fed.R.Civ.P. 60(b)(2), 60(b)(3), 60(b)(6). The motion is denied in all respects.

I. PROCEDURAL BACKGROUND¹

The plaintiff's product liability claim arises from her husband's fatal accident at the controls of an F-16A fighter plane on November 15, 1982. In April, 1987, the case was tried to a jury, which awarded 3.1 million dollars in damages against General Dynamics Corporation (hereinafter "General Dynamics") based on the plaintiff's claims of failure to warn and negligence and strict liability in the design and manufacture of the aircraft.

General Dynamics moved, under Rule 50(b), for judgment notwithstanding the verdict and, in the alternative, for a new trial pursuant to Rule 59. In a memorandum decision issued on September 30, 1987, this court denied the motions, but set aside the jury verdict for failure to warn. Harduvel's motion for pre-judgment interest was also denied at that time.

Harduvel appealed this court's decision denying pre-judgment interest and the ruling setting aside the jury verdict on failure to warn. General Dynamics cross-appealed, challenging, inter alia, the underlying judgment and this court's rulings on its motions for a new trial and j.n.o.v.

On July 31, 1989, the Eleventh Circuit, in an opinion authored by Associate Justice Powell,² reversed and remanded with instructions to enter judgment in favor of General Dynamics. Two principal determinations buttressed the Court's holding. First, Justice Powell found that the evidence supporting the claim of defective manufacture in Harduvel's F-16A was insufficient. Second, the Court held that the design defect claim was precluded by the Supreme Court's most recent formulation of the government contractor defense, as set forth in Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988).³ The Court later denied Harduvel's petition for rehearing and rehearing en banc. In accordance with the Eleventh Circuit ruling, this court entered judgment on January 8, 1990.

The following month, before her petitions to the United States Supreme Court for certiorari and rehearing were denied,⁴ Harduvel filed an action for fraud and negligent misrepresentation in Texas state court. General Dynamics removed the action to the United States District Court for the Southern District of Texas. Upon reconsidering its initial order granting summary judgment in favor of General Dynamics, the district court concluded anew that res judicata barred Harduvel's claims, since the "crux" of the claims had already been presented to both the Eleventh Circuit and the United States Supreme Court. See Harduvel v. General Dynamics, No. H-90-993 (S.D.Tex. Dec. 11, 1990). Harduvel elected not to appeal.

Finally, on January 7, 1991, Harduvel filed the instant motion for relief from this court's judgment pursuant to Rule 60(b). Over two thousand documents pertaining to the F-16A and related aircraft were appended. The plaintiff also filed a Motion for a Hearing and a Motion to Inquire.

II. DISCUSSION

A. Res Judicata and Related Doctrines

General Dynamics argues that principles of res judicata bar Harduvel's Rule 60(b) motion for a new trial. See, generally, Defendant's Response to Plaintiff's Motion for a New Trial at 4, et. seq. The defendant contends that the preclusive effect of the Texas fraud judgment and the Eleventh Circuit opinion in this case bar Harduvel's motion for relief from judgment, since the instant claims were or could have been raised in the earlier proceedings. Both contentions are without merit.

1. Preclusive Effect of Texas Decision⁵

It is a hackneyed truism that "res judicata does not preclude a litigant from making a direct attack upon the judgment before the court which renders it." 1B J. Moore, Federal Practice, § 0.407, at 282 (2d ed. 1991). In other words, a party may introduce evidence, normally extrinsic in nature, "with the direct and primary objective of modifying, setting aside, canceling or vacating, or enjoining the enforcement of the judgment." 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure at § 4406 (citing Intermill v. Nash, 94 Utah 271, 75 P.2d 157 (1938)).

Harduvel's Rule 60(b) motion represents a direct attack on the prior judgment of this court. The only jurisdiction in which relief from the January 8, 1990, judgment is available is the Middle District of Florida. See 11 C. Wright & A. Miller, Federal Practice and Procedure at § 2865. It is of no consequence that the Texas fraud action, a collateral attack on the judgment of this court, was properly decided adversely to the plaintiff under the doctrine of res judicata.⁶ See Watts v. Pinckney, 752 F.2d 406, 410 (9th Cir.1985) (res judicata bars collateral, and not direct, attacks on final judgments). The res judicata effect of the Texas fraud judgment cannot preclude Harduvel from making a direct attack upon the judgment of this court in the form of a Rule 60(b) motion. See Woodrum v. Southern Ry. Co., 750 F.2d 876, 883 (11th Cir.1985) ("practical effect of 60(b) is to lift the bar of res judicata in certain cases"); Watts v. Pinckney, 752 F.2d at 410 (60(b) motion constituted proper direct attack, where appellate court reversed and remanded, and res judicata did not apply); Jordan v. Gilligan, 500 F.2d 701, 710 (6th Cir.1974).

2. Preclusive Effect of Eleventh Circuit Decision: Law of the Case Doctrine

Similarly, the defendant cannot rely on the preclusive effect of the Eleventh Circuit decision to bar Harduvel's Rule 60(b) claim. Since the present Rule was drafted, the Supreme Court has held that a federal district court may hear a Rule 60(b) motion without leave from the appellate court. See Standard Oil Co. of California v. United States, 429 U.S. 17, 97 S.Ct. 31, 50 L.Ed.2d 21 (1976) (appellate court's mandate does not bar trial court from disturbing judgment entered in accordance with mandate). See also, Lairsey v. Advance Abrasives Co., 542 F.2d 928, 932 (5th Cir.1976).⁷

The trial court is free to hear the motion, provided that appropriate deference is accorded to the rulings of the appellate court. The "district judge is not free to flout the decision of the appellate court as far as it goes, but he should be free to consider whether circumstances not previously known to either court compel a new trial." 11 C. Wright & A. Miller, Federal Practice and Procedure at § 2873.

In other words, all issues expressly or impliedly considered on appeal remain the law of the case, and may not be disturbed, absent highly unusual circumstances. See Gulf Coast B. & S. Co. v. International Bro. of E.W., No. 480, 460 F.2d 105 (5th Cir.1972) (where all issues were expressly or impliedly presented to and disposed of by appellate court, district court lacked power to alter judgment); Ritter v. Smith, 811 F.2d 1398, 1404 (11th Cir.1987) (district court may hear 60(b) motion without leave, but "the mandate of an appellate court to a district court must be scrupulously adhered to by the district court on remand as the law of the case in all but the most extraordinary of situations").⁸ In short, although the Eleventh Circuit mandate has no preclusive effect, the holdings on appeal adumbrate the parameters within which this court evaluates the appended documents.

B. Jurisdiction and Applicable Law

This court has jurisdiction to consider the plaintiff's motion under applicable principles of federal law. See Wilson v. Thompson, 638 F.2d 801, 803 (5th Cir. Unit B Mar. 1981) (district court retains jurisdiction to consider Rule 60(b) motion filed after perfected appeal of original decision); Ope Shipping Ltd. v. Underwriters at Lloyds, 100 F.R.D. 428, 435 (S.D.N.Y.1983) (district court may grant relief from judgment of circuit court pursuant to Rule 60(b)). Federal law controls the disposition of these issues. The "grounds and the procedure for setting aside a federal judgment are entirely a matter of federal law, on which state law may be disregarded." 11 C. Wright & A. Miller, Federal Practice and Procedure § 2853 (1973).

C. Timeliness

Rule 60(b) sets forth two tests of "timeliness." The Rule states, in pertinent part, that the "motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken." Fed.R.Civ.P. 60(b). Both limitations — "one year" and "reasonableness" — apply to Harduvel's claims under subsections (2) and (3), while her 60(b)(6) claim is subject only to the requirement of "reasonableness." See White v. American Airlines, 915 F.2d 1414, 1425 (10th Cir. 1990) ("a 60(b) motion is not timely merely because it has been filed within one year of the judgment"). With respect to subsections (2) and (3), the court must determine first whether the motion was filed within the outside limitation of one year and, if so, whether the time of filing was "reasonable." Under the circumstances of this case, the latter question is closer than it may appear at first blush.

1. One-year Limitation Period

Under the...