Rozier v. Ford Motor Co., s. 76-2848 and 77-1929

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation573 F.2d 1332,50 A.L.R.Fed. 914
Docket NumberNos. 76-2848 and 77-1929,s. 76-2848 and 77-1929
Parties, 3 Fed. R. Evid. Serv. 119 Martha Ann Brundage ROZIER, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.
Decision Date05 June 1978

Austin E. Catts, Foy R. Devine, Atlanta, Ga., for plaintiff-appellant in both cases.

Ben L. Weinberg, Jr., John H. Stanford, Jr., F. Clay Bush, Atlanta, Ga., Albert Fendig, Jr., Brunswick, Ga., for defendant-appellee in both cases.

Appeals from the United States District Court for the Southern District of Georgia.

Before GOLDBERG and SIMPSON, Circuit Judges, and FREEMAN, District judge. *

SIMPSON, Circuit Judge:

The controlling issue raised by this appeal concerns the post-trial relief available to a party who has lost a civil suit after an adverse party failed to disclose relevant information called for by interrogatories and court order. For reasons not stated in its order, the district court denied plaintiff's motion for a new trial pursuant to Rule 60(b), Fed.R.Civ.P. timely filed when plaintiff's counsel, after adverse jury verdict and final judgment, learned of the existence of the undisclosed material. Aware of our limited role in reviewing this discretionary function, we nonetheless hold that the unique facts of this case require reversal and remand for a new trial.


On March 13, 1973, the 1969 Ford Galaxie 500 in which William Rozier was riding as a passenger on a Georgia public highway was struck from behind by a faster moving vehicle driven by Benjamin J. Wilson, Jr. The impact caused the Ford's fuel tank to rupture, resulting in a fire which engulfed the car and severely burned Mr. Rozier. Within 24 hours, he died as a result of the burns he sustained. On August 26, 1974, his widow, Martha Ann Brundage Rozier, filed suit below against Ford Motor Company (Ford), based on diversity jurisdiction (Title 28, U.S.C., § 1332), alleging that Ford's negligent design of the 1969 Galaxie's fuel tank caused the death of her husband. After a one week trial, the jury returned a verdict for Ford. Judgment was entered on March 6, 1976, and Mrs. Rozier timely filed her notice of appeal to this Court, No. 76-2848. During the pendency of that appeal, counsel for Mrs. Rozier learned of the existence of a document prepared by a Ford cost engineer, A. Mancini, in 1971 and arguably covered by plaintiff's interrogatories in this case, as limited by an order of the trial judge entered on January 6, 1976. Because Ford had failed to produce this document in response to the court's order, Mrs. Rozier, on February 9, 1977, filed a motion for a new trial pursuant to Rule 60(b)(2), Fed.R.Civ.P., newly discovered evidence, and 60(b)(3), fraud, misrepresentation, and other misconduct. After hearing oral arguments and considering briefs and affidavits filed by the parties, the district court denied the motion on all grounds. Mrs. Rozier's appeal from this later order, No. 77-1929, has been consolidated with her appeal from the original judgment.


The pivotal question in this case is whether the trial judge abused his discretion in denying Mrs. Rozier's motion for a new trial pursuant to Rule 60(b)(3), Fed.R.Civ.P. We hold that he did and reverse on that basis.

Rule 60(b)(3) provides as follows:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.

Under the express terms of the rule, 60(b)(3) motions must be made within a reasonable time, not more than one year, after the challenged judgment was entered. In this case, Mrs. Rozier moved for a new trial, relying on Rule 60, less than a year after entry of the district court's judgment for Ford, and only five days after her counsel received the information upon which the motion was based.

Because Mrs. Rozier's 60(b)(3) motion was filed timely, we have no occasion to review Ford's conduct in light of the more exacting "fraud upon the court" standard also provided for by Rule 60(b), but not subject to any time limitation. 1 With few exceptions, the cases cited by Ford in support of its argument for affirmance deal with motions made after the one year limitation period had run. 2 Consequently, these cases were decided on the basis of Rule 60(b)'s "saving clause", and were limited to consideration of whether the challenged conduct amounted to fraud upon the court.

Cases in other Circuits make clear that "fraud upon the court" under the saving clause is distinguishable from "fraud . . . misrepresentation, or other misconduct" under subsection (3). As the district court explained in United States v. International Telephone & Telegraph Corp., 349 F.Supp. 22, 29 (D.Conn.1972), aff'd without opinion, 410 U.S. 919, 93 S.Ct. 1363, 35 L.Ed.2d 582 (1973):

Generally speaking, only the most egregious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated, will constitute a fraud on the court. See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (1944); Root Refin. Co. v. Universal Oil Products, 169 F.2d 514 (3d Cir. 1948) 7 J. Moore, Federal Practice, P 60.33 at 510-11. Less egregious misconduct, such as nondisclosure to the court of facts allegedly pertinent to the matter before it, will not ordinarily rise to the level of fraud on the court. See Kupferman v. Consolidated Research & Mfg. Co., 459 F.2d 1072 (2d Cir. 1972); see also England v. Doyle, 281 F.2d 304, 310 (9th Cir. 1960).

Alternately stated, "(in) order to set aside a judgment or order because of fraud upon the court under Rule 60(b) . . . it is necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its decision." England v. Doyle, supra, 281 F.2d at 309. See also United States v. Standard Oil Co. of Calif., 73 F.R.D. 612, 615 (N.D.Cal.1977).

The distinction between a 60(b)(3) motion and a motion alleging fraud upon the court is rooted in policies basic to the law of judgments, as the Supreme Court explained prior to the 1946 revision of Rule 60:

Federal courts . . . long ago established the general rule that they would not alter or set aside their judgments after the expiration of the term at which the judgments were finally entered. This salutary general rule springs from the belief that in most instances society is best served by putting an end to litigation after a case has been tried and judgment entered. . . . From the beginning there has existed along side the term rule a rule of equity to the effect that under certain circumstances, one of which is after-discovered fraud, relief will be granted against the judgments regardless of the term of their entry. Hazel-Atlas Glass Co. v. Hartford-Empire Co., supra, 322 U.S. at 244, 64 S.Ct. at 1000 (citations omitted).

Although Rule 60(b) substitutes a general one year limitations period for the earlier "term rule", it continues to reflect a strong policy favoring an end to litigation by severely restricting the relief available after the one year limit has run. 3 In the year after a judgment has been entered, however, the district courts have greater discretion to balance the policy of finality of judgments against the other salutary policies embodied in the alternate grounds for relief provided in subsections (1) through (3) of Rule 60(b). Essentially, this discretion, as guided by the Rule, furnishes an escape valve to protect the fairness and integrity of litigation in the federal courts.

Our review in this case must focus on two questions: (1) Did the plaintiff satisfy the threshold requirements for relief under Rule 60(b)(3)? And, if so, (2) would the granting of a new trial in this case effectuate any policy more significant than that of preserving the finality of judgments?

1. Rule 60(b)(3) Requirements :

One who asserts that an adverse party has obtained a verdict through fraud, misrepresentation or other misconduct has the burden of proving the assertion by clear and convincing evidence. Saenz v. Kenedy, 178 F.2d 417, 419 (5th Cir. 1949); Gilmore v. Strescon Industries, Inc., 66 F.R.D. 146, 153 (E.D.Pa.1975), aff'd without opinion, Bucks County Const. Co. v. P. Agnes, Inc., 521 F.2d 1398 (3d Cir.). The conduct complained of must be such as prevented the losing party from fully and fairly presenting his case or defense. Toledo Scales Co. v. Computing Scale Co., 261 U.S. 399, 421, 43 S.Ct. 458, 464, 67 L.Ed. 719 (1923); Atchison, Topeka & Santa Fe Ry. Co. v. Barrett, 246 F.2d 846, 849 (9th Cir. 1957); Rubens v. Ellis, 202 F.2d 415, 417 (5th Cir. 1953). Although Rule 60(b)(3) applies to misconduct in withholding information called for by discovery, Petry v. General Motors Corp., 62 F.R.D. 357 (E.D.Pa.1974), it does not require that the information withheld be of such nature as to alter the result in the case. Seaboldt v. Pennsylvania RR. Co., 290 F.2d 296, 299-300 (3d Cir. 1961). See generally, 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2861 (1970). This subsection of the Rule is aimed at judgments which were unfairly obtained, not at those which are factually incorrect. 4

The facts relevant to Mrs. Rozier's 60(b)(3) motion are as follows.

On August 25, 1975, counsel for Mrs. Rozier served her fourth set of interrogatories upon counsel for defendant Ford. Interrogatories 8, 10, 12, and 16 asked whether Ford had conducted "any cost/benefit analyses" with respect to four possible design modifications of fuel tanks for passenger cars, including full-sized sedans and hard-tops. Interrogatory 19 requested similar information not limited to "cost/benefit analyses":

19. In conducting ...

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