Wilson v. Johns-Manville Sales Corp., JOHNS-MANVILLE

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 873 F.2d 869
• Docket Number: JOHNS-MANVILLE,No. 88-2798,88-2798
• Parties: Clarence J. WILSON, Plaintiff-Appellant, v.SALES CORP., et al., Defendants, Armstrong World Industries, Inc., et al., Defendants-Appellees.
• Decision Date: 30 May 1989

Page 869

873 F.2d 869 13 Fed.R.Serv.3d 1427 Clarence J. WILSON, Plaintiff-Appellant,
v.
JOHNS-MANVILLE SALES CORP., et al., Defendants,
Armstrong World Industries, Inc., et al., Defendants-Appellees. No. 88-2798. United States Court of Appeals,
Fifth Circuit. May 30, 1989.
Rehearing Denied July 11, 1989.

Page 870

Robert E. Ballard, Grant Kaiser, Abraham, Watkins, Nichols, Ballard, Onstad & Friend, Lawrence Madeksho, Houston, Tex., for plaitiff-appellant.

Raymond Lyn Stevens, Robert S. Daggett, San Francisco, Cal., Weller, Wheelus & Green, Beaumont, Tex., for Fibreboard Corp.

George T. Shipley, Richard L. Josephson, C. Edward Fowler, Bailey & Williams, Dallas, Tex., Fullbright & Jaworski, Houston, Tex., for Owens-Corning.

Jeffrey B. McClure, Butler, Binion, Rice, Cook & Knapp, Houston, Tex., for Raybestos-Manhattan.

John H. Boswell, Hallmark & Boswell, Houston, Tex., for Armstrong World Industries.

George Shipley, Baker & Botts, Houston, Tex., for Owens-Illinois, Inc.

Elizabeth M. Thompson, Butler & Binion, Houston, Tex., for Raymark Industries, Inc. and Celotex.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, RUBIN and DAVIS, Circuit Judges.

PER CURIAM:

This appeal involves a consolidated products liability action brought by fifty plaintiffs against nine defendants. More than two years after a judgment was entered in favor of six of the defendants, and following an affirmance of that judgment by this court, plaintiffs filed a motion under Fed.R.Civ.P. 60(b) to set aside the judgment. The district court denied the motion as time-barred. We affirm.

I.

Fifty plaintiffs brought a products liability action against nine manufacturers of products containing asbestos. The district court ordered separate trials on the issues of liability and damages. During the jury trial on general liability, the defendants made a "state of the art" defense based on Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1978), arguing that they did not know of the dangers of asbestos prior to the 1960's. The jury returned a take-nothing verdict against six of the defendants: Armstrong World Industries, Inc., Eagle-Picher Industries, Inc., Fibreboard Corp., Owens-Corning Fiberglass Corp., Owens-Illinois, Inc., and Standard Insulations, Inc. The jury found that the remaining three defendants (Celotex Corporation, Pittsburg Corning Corp., and Raymark Industries, Inc.) were potentially liable for product exposure only after August 1, 1966.

The district court retained jurisdiction as to the three remaining defendants to conduct further proceedings regarding individual

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damages. As to the six defendants exonerated from liability, the district court found that there was no just reason for delay and on August 27, 1985 directed the entry of final judgment as to those six defendants. This court affirmed the final judgment as to the six defendants in Wilson v. Johns-Manville Sales Corp., 810 F.2d 1358 (5th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 97, 98 L.Ed.2d 58 (1987).

More than two years after the district court entered judgment, the plaintiffs requested this court to set aside the prior judgment under Fed.R.Civ.P. 60(b) on grounds of fraud committed by the defendants. We transferred the motion to the district court, which denied the motion as barred by the one-year time limit incorporated in Rule 60(b)(3). The district court subsequently entered an order pursuant to Fed.R.Civ.P. 54(b) certifying that the denial of the Rule 60(b) motion was a final judgment. The plaintiffs appeal from the district court's denial of the Rule 60(b) motion.

II.

Rule 60(b) provides a court may relieve a party from a final judgment, order, or proceeding. It does not afford relief from interim or interlocutory judgments.

The addition of the word "final" emphasizes the character of the judgment, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule, but rather they are left subject to the complete power of the court rendering them to afford such relief from them as justice requires.

Fed.R.Civ.P. 60(b) advisory committee's note.

The August 27, 1985 judgment to which the Rule 60(b) motion is addressed was final only as to six defendants. No judgment of any sort was entered with respect to the remaining three defendants. One of these...