Reinsurance Co. of America, Inc. v. Administratia Asigurarilor de Stat (Admin. of State Ins.)

• Decision Date: 25 May 1990
• Docket Number: Nos. 88-3142,88-3208,s. 88-3142
• Citation: 902 F.2d 1275
• Parties: REINSURANCE COMPANY OF AMERICA, INC., Plaintiff-Appellee/Cross-Appellant, v. ADMINISTRATIA ASIGURARILOR de STAT (ADMINISTRATION OF STATE INSURANCE), Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1275

902 F.2d 1275

16 Fed.R.Serv.3d 1269

REINSURANCE COMPANY OF AMERICA, INC. Plaintiff-Appellee/Cross-Appellant, v. ADMINISTRATIA ASIGURARILOR de STAT (ADMINISTRATION OF STATE INSURANCE), Defendant-Appellant/Cross-Appellee.

Nos. 88-3142, 88-3208.

United States Court of Appeals Seventh Circuit.

Argued Sept. 29, 1989.

Decided May 25, 1990.

Bernard Hubscher, New York City, John R. Ostojic, Michael P. Connelly, Jack Mustes, Connelly, Mustes, Palmer & Schroeder, Chicago, Ill., for plaintiff-appellee.

Paul V. Esposito, James R. Gannon, Lewis, Overbeck & Furman, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.

BAUER, Chief Judge.

Defendant-appellant Administratia Asigurarilor de Stat (ADAS), an insurance corporation wholly owned by the Romanian government, appeals from the district court's denial of its motion under Fed.R.Civ.P. 60(b)(6) to vacate the court's entry of summary judgment against it. 122 F.R.D. 517. ADAS contends that the court abused its discretion in denying this motion and that the gross negligence of its counsel in the underlying action justifies relief from judgment. Plaintiff-appellee Reinsurance Company of America (RCA), an Illinois corporation engaged in the reinsurance business, cross-appeals asserting that the district court's denial of its request for post-judgment interrogatories was likewise an abuse of discretion. We find no abuse of discretion by the district court in either instance and therefore affirm.

I.

The parties and this court are both painfully familiar with the rather tangled facts of this case; See Reinsurance Co. of America, Inc. v. Administratia Asigurarilor de Stat, 808 F.2d 1249, 1250-51 (7th Cir.1987) (ADAS I ). With the hope of imposing some degree of clarity on this bramble of accusations, we will, once again, attempt to summarize the dispute.

Plaintiff and defendant entered into two Quota Share Retrocession Agreements, effective October 1, 1977, and January 1, 1980, respectively. Under the terms of the contract, ADAS agreed to participate as a retrocessionaire for risks which were reinsured by RCA. The contract was executed by representatives of RCA and CJV Associates (CJV) which acted as agents for ADAS. On January 19, 1983, RCA sued ADAS in the Circuit Court of Cook County for breach of these retrocession agreements. ADAS removed the case to federal court on July 8, 1983, and filed an answer to the complaint on July 20. In the answer, ADAS set forth nine affirmative defenses. On February 28, 1984, ADAS filed a motion to dismiss based upon a Romanian judgment which had declared the contracts void. On that same date, RCA filed a motion for summary judgment on the issue of liability.

The district court, on April 15, 1985, partially granted RCA's motion for summary judgment and denied ADAS's motion to dismiss. Chief Judge Grady stated that because the Romanian court lacked jurisdiction over RCA, he would not recognize the judgment voiding the contracts. Further, in partially granting RCA's motion for summary judgment, Chief Judge Grady held that CJV was an agent empowered to enter into an agreement on behalf of ADAS. ADAS then was instructed to file supplemental memoranda offering additional defenses by May 3, 1985. It failed to do so. On July 9, 1985, the district court granted summary judgment on liability for RCA. Following submission of additional evidence by RCA (ADAS again failed to provide any materials), the district granted summary judgment for RCA on November 26, 1985, and awarded damages in the amount of $337,597.00.

ADAS subsequently filed a notice of appeal on December 31, 1985, four days after the expiration of the period for filing such a notice. See Fed.R.App.Pro. 4(a)(1). The court refused to extend the deadline citing the inexcusable neglect of ADAS and Mr. Radu Herescu, ADAS's then newly-hired attorney, as grounds for the refusal. On appeal, we affirmed that decision. ADAS I, 808 F.2d 1249 (7th Cir.1987). ADAS then filed a motion under Fed.R.Civ.Pro. 60(b)(6) to vacate the judgment based on the gross negligence and intentional deceit of its former counsel, Mr. John Hubscher. On October 3, 1988, the district court denied defendant's motion. Judge Grady wrote that an attorney's gross negligence is not a basis for relief under Rule 60(b)(6). The court held in the alternative that even assuming such a standard was proper, ADAS had not exercised sufficient diligence during the litigation to allow it to recover under a gross negligence standard.

Chief Judge Grady's order of October 3, 1988, also disposed of a request by RCA to order certain post-judgment interrogatories. ADAS had objected to RCA's inquiries as violating Romanian law prohibiting disclosure of state secrets. RCA then sought a motion to compel responses. In its order of October 3, 1988, the district court denied RCA's motion to compel indicating that the balance of the interests weighed in favor of Romania's laws protecting national secrecy. Both sides now appeal from those portions of this order with which they disagree.

II.

Federal Rule of Civil Procedure 60(b) provides in relevant part:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; (6) any other reason justifying relief from the operation of the judgment.

ADAS contends that the "gross negligence" and misrepresentations by its attorney justify relief from judgment under Fed.R.Civ.Pro. 60(b)(6), the catch-all provision. For the following reasons, we disagree. At the outset, however, we must note that our review on this appeal is a most limited one. Relief from judgment under Rule 60(b) may be granted at the broad discretion of the trial judge, Lomas and Nettleton v. Wiseley, 884 F.2d 965, 967 (7th Cir.1989), and the court's determination may only be reversed upon an abuse of that discretion. Williams v. Hatcher, 890 F.2d 993 (7th Cir.1989). We note further that "abuse of discretion in denying a 60(b) motion is established only when no reasonable person could agree with the district court; there is no abuse of discretion if a reasonable person could disagree as to the propriety of the court's action." McKnight v. United States Steel Corp., 726 F.2d 333, 335 (7th Cir.1984). Along with this narrow scope of review, we have stated that "the general rule in this circuit is that relief from a judgment under [R]ule 60(b) is an extraordinary remedy and is granted only in exceptional circumstances." C.K.S. Engineers v. White Mountain Gypsum, 726 F.2d 1202, 1204-05 (7th Cir.1984).

ADAS argues that the gross negligence of its counsel, Mr. John Hubscher, created such an exceptional circumstance and, therefore, justifies an extreme remedy. In support of this claim, ADAS contends that Hubscher did not disclose important facts despite repeated inquiries from the company. Particularly, Hubscher never informed ADAS of the court's ruling of April 15, 1985, denying defendant's motion to dismiss and partially granting plaintiff's motion for summary judgment. Moreover, after the April 15, 1985 order, Hubscher repeatedly failed to provide the court with documents and materials, or to make appearances, necessary for ADAS' defense.

Despite appellant's contentions, this court has never held that an attorney's gross negligence justifies relief under Rule 60(b). Coleman v. Smith, 814 F.2d 1142 (7th Cir.1987); Inryco, Inc. v. Metropolitan Engineering Co., Inc., 708 F.2d 1225 (7th Cir.1983); Ben Sager Chemicals International, Inc. v. E. Targosz & Co., 560 F.2d 805, 809 (7th Cir.1977). At least two circuits have adopted such a rule, see Boughner v. Secretary of Health, Education and Welfare, 572 F.2d 976 (3rd Cir.1978) (attorney "neglect so gross that it was inexcusable [and] sufficiently exceptional and extraordinary so as to mandate relief"); L.P. Steuart, Inc. v. Matthews, 329 F.2d 234 (D.C.Cir.1964) ("[Rule 60(b) ] permit(s) relief when as in this case personal problems of counsel cause him to grossly neglect a diligent client's case and mislead the client."). The Seventh Circuit, however, has declined to do so. See Coleman v. Smith, 814 F.2d at 1147; Inryco, 708 F.2d at 1234.

Whatever the relative merits of these two views, we need not choose between them today. Regardless of the conduct of Hubscher, ADAS simply did not demonstrate the diligence necessary to establish "extraordinary circumstances" sufficient to invoke Rule 60(b). As the district court noted, from May of 1984 until ADAS learned of the adverse judgment on December 2, 1985, there was apparently only one meeting between client and attorney. ADAS did not inquire about the status of its case for over a year and a half. Despite Hubscher's alleged refusals to respond to their calls and telexes from July 5, 1983 through May 7, 1985, officials of ADAS refused to make any additional efforts to obtain information about their litigation. We must demand a higher standard than this of parties before our courts.

ADAS is a corporation involved in the highly technical, complex business of reinsurance. Its officers are bilingual, well-educated and well-travelled. We do not ask too much by demanding that they stay abreast of a lawsuit intimately involving their business. They failed to do so. Therefore, because of its lack of diligence...