Ojeda-Toro v. Rivera-Mendez

• Decision Date: 08 June 1988
• Docket Number: OJEDA-TOR,P,RIVERA-MENDEZ,No. 87-1706,87-1706
• Citation: 853 F.2d 25
• Parties: Gladyslaintiff, Appellant, v. Mario E., et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 25

853 F.2d 25

12 Fed.R.Serv.3d 376

Gladys OJEDA-TORO, Plaintiff, Appellant, v. Mario E. RIVERA-MENDEZ, et al., Defendants, Appellees.

No. 87-1706.

United States Court of Appeals, First Circuit.

Heard June 8, 1988.

Decided Aug. 3, 1988.

Frank D. Inserni, Hato Rey, P.R., for plaintiff, appellant.

Digna E. Landrove de la O, Hato Rey, P.R., with whom Rae Schupack Nathan, New York City, Regional Counsel, and Nancy Pujals, Sr. Atty., Santurce, P.R., were on brief, for defendant, appellee Federal Deposit Ins. Corp.

Roberto Buso Aboy, Santurce, P.R., for defendant, appellee Citibank, N.A.

Appellee Mario E. Rivera-Mendez submitted on the brief of Citibank, N.A.

Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

This appeal arises out of the denial of a motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure. Plaintiff-appellant Gladys Ojeda Toro argues that the district court abused its discretion in denying her motion. She bases her request for relief on two grounds: (1) that defendant-appellee Citibank, with the tacit acquiescence of defendant-appellee Federal Deposit Insurance Corporation (FDIC), misrepresented facts in its motion for dismissal, and (2) that she received inadequate representation from her counsel. We find that plaintiff has failed to establish an abuse of discretion and we affirm the judgment of the district court.

This case has a complex procedural background. We summarize only those facts relevant to this appeal. Plaintiff began her legal quest on December 12, 1983, when she first filed a complaint in the Superior Court of Puerto Rico. Her complaint charged defendants Citibank and FDIC, among others, as participants in a fraud to deprive her of both personal and conjugal property. The case (hereinafter case no. 84-0340) was removed to federal court upon petition by the FDIC and was dismissed over two years later, on January 21, 1985, for failure to prosecute. Prior to the dismissal, the court had authorized two changes of counsel for plaintiff. In a December 12, 1984 order granting the motion to withdraw of plaintiff's latest counsel, the court allowed plaintiff thirty days to obtain a new attorney. In its subsequent order of dismissal, the court noted that plaintiff had failed to obtain one.

Following the dismissal of case no. 84-0340, plaintiff filed two motions. The first requested additional time to obtain counsel; the second alleged that plaintiff had not received timely notice of the court's December 12th order. The court held a hearing on February 27, 1985, to address the question of notice. The court found as follows:

The Court after considering the comments of the Petitioner and of [sic] the comments of [her counsel], finds that they had withdrawn their representation of the Petitioner and that they had also notified the Petitioner of their withdrawal. And that it's plain from the record that the defendant knew of this withdrawal because she in fact was trying to obtain new counsel on her own....

And therefore her petition for reconsideration is denied and the dismissal of the case stands.

During the course of the hearing, the court recognized that plaintiff was attempting to secure representation by requesting the intervention and aid of the Supreme Court of Puerto Rico. After denying her request for reconsideration, the court stated:

This is not to say, however, that if the Supreme Court of Puerto Rico somehow resolves your problem with respect to your representation that this Court will not entertain a subsequent motion at that time. By anyone whom you may be able to obtain to represent you in this case. You understand that.

Although the Supreme Court of Puerto Rico did in fact appoint several attorneys to represent plaintiff, each of these attorneys subsequently withdrew either upon their own request or that of the plaintiff. In July 1985, the Supreme Court disclaimed any further interest in aiding the plaintiff in her efforts to obtain counsel:

[T]his Court does not have the obligation to designate a court appointed counsel to a party who is not an indigent. The efforts carried out up to the present were aimed at aiding a person who claimed impossibility to get an attorney to represent her for reasons beyond her control. The efforts have been fruitless. The various incidents that transpired up to this date move the court to reconsider the position originally assumed.

(Emphasis in original).

Over one year after the dismissal of case no. 84-0340 for failure to prosecute, plaintiff obtained new counsel and filed a complaint in federal district court. This complaint was an exact English translation of the original pleading filed in the Superior Court of Puerto Rico in December 1983. The new complaint did not refer to case no. 84-0340 nor did it invoke any grounds for federal jurisdiction. Citibank filed a motion to dismiss on the grounds of both (1) failure to establish federal jurisdiction and (2) res judicata. The plaintiff did not respond to the motion to dismiss.

On September 15, 1986, the district court issued an opinion and order granting defendant's motion to dismiss. The court held (1) that plaintiff had failed to plead jurisdiction as required by Rule 8(a)(1) of the Federal Rules of Civil Procedure; ¹ and (2) that the dismissal of case no. 84-0340 for failure to prosecute was an adjudication on the merits in accordance with Rule 41(b) of the Federal Rules of Civil Procedure ² and that the dismissal of the previous case therefore barred the action under consideration as res judicata. Judgment in accordance with the order was entered on September 17, 1986.

Plaintiff filed a pro se motion for reconsideration on October 2, 1986. She alleged that she had never received any official notice of Citibank's motion to dismiss, that her attorney had refused to meet with her to discuss the motion, and that as a result she had asked her attorney to withdraw from legal representation. She therefore requested permission to proceed pro se in the event that she could not obtain new counsel. Two weeks later, plaintiff's counsel filed a motion to withdraw as her attorney. In his motion, counsel stated that plaintiff had requested his withdrawal despite the fact that he had advised her that he was contemplating action on her behalf. He explained that he believed grounds existed to challenge the underlying order of dismissal. As an example, he stated that the dismissal of case no. 84-0340 may have been without prejudice and that the dismissal of the second complaint on grounds of res judicata was therefore in error; he included a copy of the relevant portions of the transcript of the February 27th hearing to substantiate his claim that the district court did not intend its dismissal order to be with prejudice. The court denied plaintiff's request for reconsideration and found her attorney's request to withdraw moot because the case had been dismissed.

Plaintiff failed to appeal from the September 17th judgment within the period allowed by Rule 4(a)(1) of the Federal Rules of Appellate Procedure, despite the suggestion of merit by her attorney as stated in the motion to withdraw. Instead she filed a Rule 60(b) motion for relief from judgment on May 1, 1987. ³ Plaintiff alleged "that she has a lot of new evidence to support that there are Mistakes, Inadvertence, Excusable Neglect, New Discovery Evidence, Fraud, Misrepresentation and other reasons that justify the relief of the Judgment and Order in this case and to reopen it." Her motion reiterated many of the substantive claims of the original complaint; it did not discuss the issue of res judicata nor did it allege misrepresentation by Citibank. The motion did include a broad claim of inadequate representation by counsel, but it did not specify the misconduct. Plaintiff supported her motion with a personal letter to the trial judge on May 5, 1987, requesting relief from judgment. The court denied her requests and plaintiff filed a notice of appeal.

Plaintiff raises essentially two grounds for relief on appeal: (1) misrepresentation by Citibank in failing to refer to the February 27th hearing in its motion to dismiss, and (2) inadequate representation of counsel in defending against the motion to dismiss. Plaintiff acknowledges that she did not raise these issues in her Rule 60(b) motion to the district court; she argues, however, that the court possessed sufficient information concerning the case to vacate the judgment. We need not decide whether the various motions filed by the plaintiff and her attorneys adequately preserved the issues pressed on appeal because we find that, even granting the most liberal reading to plaintiff's pleadings, the district court acted within its discretion in denying the motion for relief from judgment.

We note at the outset that the treatment of a Rule 60(b) motion is committed to the discretion of the district court and may be reversed only upon a finding of an abuse of that discretion. See United States v. Berenguer, 821 F.2d 19, 20 (1st Cir.1987) (citations omitted); Lepore v. Vidockler, 792 F.2d 272, 274 (1st Cir.1986) (citations omitted); Pagan v. American Airlines, 534 F.2d 990, 993 (1st Cir.1976) (citations omitted). Furthermore, our review is limited to the denial of the contested motion itself; we may not consider the merits of the underlying judgment. See Lepore, 792 F.2d at 273-74 (citation omitted); Pagan, 534 F.2d at 992-93 (citation omitted). Plaintiff may not use Rule 60(b) as a substitute for a timely appeal under Rule 4(a)(1) of the Federal Rules of Appellate Procedure. See Parrilla-Lopez v United States, 841 F.2d 16, 20 (1st Cir.1988) (citation omitted); Lepore, 792 F.2d at 274 (citations omitted); Pagan, 534 F.2d at 993 (citations omitted). This means that plaintiff may not raise the question of whether the dismissal of case no. 84-0340 precluded the relitigation of the same issues in a later case. By...