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Bouret-Echevarría v. Caribbean Aviation Maintenance Corp. , 784 F.3d 37 ( 2015 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 13-2549
    LIZZETTE M. BOURET-ECHEVARRÍA, in her own capacity and in
    representation of her minor children; N.V.-B., minor; C.V.-B,
    minor; C.V.-B., minor,
    Plaintiffs, Appellants,
    JOSÉ ANTONIO MONTANO; DIEGO VIDAL-LAMPÓN; IRMA IRIS
    VIDAL-GONZÁLEZ; MARINIEVES VIDAL-GONZÁLEZ; DIEGO VIDAL-SHIRLEY,
    Plaintiffs,
    v.
    CARIBBEAN AVIATION MAINTENANCE CORP.; ROBINSON HELICOPTER
    COMPANY; CHARTIS INSURANCE COMPANY OF PUERTO RICO, a/k/a American
    International Insurance Company of Puerto Rico; PATHFINDER
    INDEMNITY COMPANY LTD.; D&O AVIATION, INC.,
    Defendants, Appellees,
    INSURANCE COMPANIES X, Y, AND Z; CORPORATIONS A, B AND C; JOHN
    DOE; RICHARD ROE; ABC INSURANCE COMPANIES; DEF INSURANCE COMPANY;
    JANE DOE, CORP.; JKL INSURANCE COMPANY,
    Defendants.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Gustavo A. Gelpí, U.S. District Judge]
    Before
    Torruella, Lipez, and Barron,
    Circuit Judges.
    David P. Angueira for appellants.
    Tim A. Goetz, with whom Cathrine E. Tauscher was on brief, for
    appellee Robinson Helicopter Company. Tim A. Goetz, with whom
    Cathrine E. Tauscher was on brief, for appellee Robinson Helicopter
    Company.
    Louis R. Martínez for appellees Caribbean Aviation Maintenance
    Corp. and Chartis Insurance Company of Puerto Rico.
    April 24, 2015
    -2-
    LIPEZ, Circuit Judge.     This case arose from a helicopter
    crash in November 2008 that killed a passenger in the helicopter,
    Diego Vidal-Gonzalez. The decedent's widow, Dr. Lizzette Bouret-
    Echevarria, and her three minor children (together "appellants"),
    brought    a    products   liability    action   against    the   helicopter's
    manufacturer and repair company. The jury absolved all defendants
    of liability.
    Appellants claim that eighteen months after the jury
    returned       its   verdict,   they   were   told   that   the   verdict   was
    influenced by the jurors' improper knowledge of a confidential
    settlement offer. In this appeal, they challenge the district
    court's rejection of their request for an evidentiary hearing,
    pursuant to Federal Rule of Civil Procedure 60(b)(6), to explore
    the alleged jury taint.
    In denying this request, the district court miscalculated
    the timeliness of the motion, did not assume, as required by law,
    the truth of fact-specific statements set forth in affidavits
    supporting the Rule 60(b)(6) motion, and did not appreciate the
    inability of appellants, under the unusual circumstances here, to
    avoid reliance on hearsay in seeking Rule 60(b)(6) relief. Hence,
    we conclude that the court abused its discretion in denying the
    motion for 60(b) relief without holding an evidentiary hearing. We
    therefore vacate the court's order and remand for such a hearing.
    -3-
    I.
    A. Background
    In the underlying products liability suit, appellants
    filed a wrongful death action against Robinson Helicopter Company
    ("Robinson"), the manufacturer of the helicopter, and Carribean
    Aviation Maintenance Corp. (the "CAM defendants"), who repaired the
    helicopter. The products liability case was tried in February 2012,
    with Attorney Carlos J. Morales-Bauza ("Attorney Morales"), a San
    Juan attorney, representing appellants.
    Appellants assert that, prior to jury deliberations,
    Attorney Morales received a confidential settlement offer of $3.5
    million, comprised of $3 million from one defendant and $500,000
    from another defendant. The CAM defendants acknowledge that they
    unsuccessfully attempted to settle with appellants, but they deny
    that either amount reflects their settlement offer. Robinson admits
    that settlement was discussed at various times, but asserts it made
    no   formal    settlement   offer    and       that    it   was   unaware   of   the
    settlement     amount   offered     by    the    CAM    defendants.    Appellants
    rejected the offer and proceeded to trial. On March 16, 2012, the
    jury returned a unanimous verdict finding that the CAM defendants
    were not negligent in their repair of the helicopter, and that
    Robinson's design of the helicopter was not defective. Final
    judgment was entered on March 19, 2012. Appellants filed a motion
    for a new trial, which was denied on May 9, 2012.
    -4-
    Sixteen months later, on September 4, 2013, appellants
    filed a motion pursuant to Federal Rule of Civil Procedure 60(b)(6)
    seeking an evidentiary hearing to assess an allegation that the
    introduction      of    extraneous      prejudicial      information,     namely
    appellants' rejection of the settlement offer, was improperly
    injected into jury deliberations. In support of their motion,
    appellants submitted affidavits from Attorney David P. Angueira
    ("Attorney Angueira") and Lizzette Bouret-Echevarria, the widow of
    the passenger killed in the helicopter crash. The affidavits
    reported   that      Luis   Irizarry,   an    aviation   expert   witness   who
    testified on behalf of appellants during their trial, was the
    source   of    the   allegation   of    juror   misconduct.    In   May   2013,
    subsequent to appellants' trial, Irizarry provided expert services
    in an unrelated aviation case where he allegedly met an individual
    who claimed to be the employer of a juror in appellants' case. The
    employer told Irizarry that his employee informed him that the jury
    declined to award appellant any money damages because they knew she
    had been offered and rejected a $3.5 million settlement.
    Irizarry communicated this information to appellants'
    trial counsel, Attorney Morales, who in turn informed Bouret-
    Echevarria. She then retained Attorney Angueira, a Boston attorney,
    and informed him of the potential jury misconduct disclosures made
    by Attorney Morales. At the time, Attorney Angueira was not
    admitted to the Puerto Rico Bar. He asked appellants to inquire
    -5-
    whether Attorney Morales would agree to act as co-counsel in order
    to   file   post-judgment   motions   and   present   evidence   of   jury
    misconduct to the court. Within twenty-four hours after that
    request was made, Attorney Morales sent a letter to appellants
    indicating that he was immediately withdrawing from the case.
    Attorney Angueira then sought other local counsel to assist him.
    Attorney Angueira also called Irizarry in an attempt to
    confirm the information reported to appellants. In his affidavit,
    Attorney Angueira states that Irizarry told him he would not be
    able to speak with him without the permission of Attorney Morales.
    Attorney Angueira then called Attorney Morales and left a message
    asking that he return the call. Attorney Morales never returned the
    call.
    B. District Court's Denial of the Rule 60(b)(6) Motion
    The district court denied appellants' Rule 60(b)(6)
    motion, finding that the eighteen-month period between the entry of
    final judgment and the filing of the motion made the motion
    untimely, and that the materials filed in support of the motion
    were insufficient. The court stated, "[w]hile there is no specific
    limit under Rule 60(b)(6), seeking relief eighteen months after
    final judgment pushes against reasonableness." The court went on to
    state that "Plaintiffs present to the court only hearsay evidence
    of the supposed tainted jury deliberations" and that the two
    affidavits brought in support of the motion were "insufficient to
    -6-
    push Plaintiffs' claims beyond the daunting threshold required by
    Rule 60(b). If this material were sufficient to force a court to
    hold       an   evidentiary   hearing,     the    court      would   be    potentially
    required        in   any   civil   case   to    grant   an    evidentiary     hearing
    following a jury verdict based on mere rumors, regardless of how
    much time had elapsed since judgment. Rule 60(b) is not satisfied
    that easily."1 Appellants filed this timely appeal.
    II.
    A. The Applicable Subsection of Rule 60(b)
    Rule 60(b) grants federal courts the power to vacate
    judgments        "whenever    such   action     is   appropriate      to   accomplish
    1
    The district court also denied the Rule 60(b) motion on the
    basis of its analysis of a complaint by appellants in their motion
    about the conduct of Juror Number 4. At trial, Bouret-Echevarria
    was accompanied by her cousin, Richard Cora, on several occasions.
    Juror Number 4 informed the court that he knew Cora, prompting the
    court to hold a hearing, with counsel present, to inquire into
    possible bias. Juror Number 4 assured the court that his knowledge
    of Cora would not cause bias, and he remained on the panel without
    objection. In their Rule 60(b)(6) motion, appellants argued that at
    some point after the hearing (no date is provided), they learned
    that Juror Number 4 was in fact a former employee of Cora and was
    terminated for unsatisfactory work performance, a fact that he
    failed to disclose to the court. The court stated in its order
    denying the Rule 60(b) motion that while Juror Number 4 "may not
    have informed Plaintiffs that Juror Number 4 had purported
    knowledge of broken down settlement discussions...it did put
    Plaintiffs on notice that this juror knew someone involved in this
    litigation." The suggestion of the district court that Juror Number
    4 might have been the one who had an awareness of the settlement
    discussions, and perhaps introduced that awareness into the jury's
    deliberations, has no grounding in the record. Appellants' Rule
    60(b)(6) motion does not link Juror Number 4 to the asserted
    disclosure of the settlement information. Appellants pointed to his
    relationship with Cora as an independent basis for the motion. They
    do not pursue that independent theory on appeal.
    -7-
    justice." Teamsters, Chauffeurs, Warehousemen & Helpers Union,
    Local No. 59 v. Superline Transp. Co., 
    953 F.2d 17
    , 19 (1st Cir.
    1992) (internal citation omitted). Rule 60(b) recites six reasons
    justifying relief from final judgment. Two are at issue here. Under
    Rule   60(b)(3),   a    district    court       may    vacate   a   judgment    for
    "fraud . . ., misrepresentation, or misconduct by an opposing
    party." Fed. R. Civ. P. 60(b)(3). Rule 60(b)(6) is a catchall
    provision that provides relief for "any other reason" not otherwise
    covered by (b)(1)-(5). Fed. R. Civ. P. 60(b)(6).
    The parties disagree about which subsection of Rule 60(b)
    applies in this case. If the motion should have been brought
    pursuant to 60(b)(3), as appellees contend, it would be time-barred
    because the motion was brought more than one year after the entry
    of final judgment. See Fed. R. Civ. P. 60(c)(1) ("A motion under
    Rule 60(b) must be made within a reasonable time -- and for reasons
    (1), (2), and (3) no more than a year after the entry of the
    judgment   or   order   or   the   date    of    the    proceeding.").    If,   as
    appellants argue, the motion was proper pursuant to Rule 60(b)(6),
    the timing is subject to a more lenient, "reasonable" standard.
    Liljeberg v. Health Servs. Acquisition Corp., 
    486 U.S. 847
    , 863
    (1988). Appellees argue that the motion falls squarely within the
    parameters of subsection (3) because it alleged misconduct by the
    appellees. They point to appellants' insinuation in their motion
    that appellees were the likely source of the settlement offer
    -8-
    information because they would have benefitted from its disclosure
    to the jury.2
    While appellants suggest in their Rule 60(b)(6) motion
    that the information of the settlement offer could have been leaked
    by appellees, they do not contend that appellees did in fact
    provide this information. Rather, the bulk of appellants' Rule
    60(b) motion focuses on the assertion that the jury was tainted by
    its knowledge of a confidential settlement offer and that it
    improperly based its decision on that information. In the absence
    of any provision of Rule 60(b) dealing explicitly with juror
    misconduct, appellants' motion was appropriately brought, and the
    district court properly viewed it, pursuant to Rule 60(b)(6).
    B. Rule 60(b)(6) Factors
    Rule 60(b)(6) grants federal courts "broad authority" to
    vacate final judgments provided that the motion is made within a
    reasonable time. 
    Liljeberg, 486 U.S. at 863
    . The Supreme Court has
    interpreted Rule 60(b)(6)'s "any other reason justifying relief" as
    requiring a showing of "'extraordinary circumstances' suggesting
    that the party is faultless in the delay." Davila-Alvarez v.
    Escuela de Medicina Universidad Cent. del Caribe, 
    257 F.3d 58
    , 67
    2
    In their motion to the district court appellants stated,
    "there is an undeniable inference that the only sources of this
    [settlement offer] information must have been provided by persons
    who would have benefitted from the disclosure of this information.
    There would be no benefit to the plaintiff by disclosing that she
    had rejected a three and a half million dollar offer. Conversely,
    such a disclosure would benefit the defense."
    -9-
    (1st Cir. 2001) (quoting Pioneer Inv. Servs. Co. v. Brunswick
    Assocs. Ltd. P’ship, 
    507 U.S. 380
    , 393 (1993)). The high threshold
    required by Rule 60(b)(6) reflects the need to balance finality of
    judgments with the need to examine possible flaws in the judgments.
    See Paul Revere Variable Annuity Ins. Co. v. Zang, 
    248 F.3d 1
    , 5
    (1st Cir. 2001) ("'There must be an end to litigation someday' and
    therefore district courts must weigh the reasons advanced for
    reopening the judgment against the desire to achieve finality in
    litigation.") (quoting Ackermann v. United States, 
    340 U.S. 193
    ,
    198 (1950)).
    To   balance    the   "competing    policies"    of   finality      of
    judgments    and   resolving       litigation    on    the   merits,     courts
    considering motions under Rule 60(b)(6) ordinarily examine four
    factors: (1) the motion's timeliness, (2) whether exceptional
    circumstances justify extraordinary relief, (3) whether the movant
    can show a potentially meritorious claim or defense, which, if
    proven, could bring her success at trial, and (4) the likelihood of
    unfair prejudice to the opposing party. 
    Superline, 953 F.2d at 20
    .
    However,    "[t]his   compendium      is   neither    exclusive   nor   rigidly
    applied.    Rather,   the    listed   factors   are    incorporated      into   a
    holistic    appraisal   of   the    circumstances."      Ungar    v.   Palestine
    Liberation Org., 
    599 F.3d 79
    , 83-84 (1st Cir. 2010) (internal
    citation omitted). "[T]here is no ironclad rule requiring an
    in-depth, multi-factored analysis in every case. Sometimes one
    -10-
    factor predominates to such an extent that it inexorably dictates
    the result." 
    Id. at 86.
    We review the denial of a Rule 60(b) motion for abuse of
    discretion. See Ahmed v. Rosenblatt, 
    118 F.3d 886
    , 891 (1st Cir.
    1997). "Abuse occurs when a material factor deserving significant
    weight is ignored, when an improper factor is relied upon, or when
    all proper and no improper factors are assessed, but the court
    makes a serious mistake in weighing them." Indep. Oil & Chem.
    Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 
    864 F.2d 927
    ,
    929 (1st Cir. 1988).
    1. Timeliness
    Motions brought pursuant to Rule 60(b)(6) are subject to
    a "reasonable" time limit, and the determination of what is
    "reasonable" depends upon the circumstances of each case. See
    United States v. Baus, 
    834 F.2d 1114
    , 1121 (1st Cir. 1987) (stating
    that "[i]n determining temporal reasonableness under subsection
    (6), we must review the specific circumstances of the case")
    (internal quotation marks omitted). The determination of what
    constitutes a "reasonable" period of time requires a district court
    to examine when a movant could have filed a Rule 60(b)(6) motion.
    See 
    Baus, 834 F.2d at 1121
    .
    The   district   court   found   appellants'   motion   pushed
    "against the boundaries of reasonableness." In its order, the court
    referred to a period of eighteen months, marking the time between
    -11-
    the entry of final judgment and the time when appellants brought
    their Rule 60(b)(6) motion. Appellants contend that the appropriate
    time frame for the district court to evaluate was three months and
    thirteen days, the period from when appellants first learned of the
    potential jury misconduct to the time they filed their Rule
    60(b)(6) motion.3
    Courts evaluating what constitutes a "reasonable" period
    of time for purposes of Rule 60(b) measure the time at which a
    movant could have filed his or her Rule 60(b)(6) motion against
    when he or she did in fact file the motion. See, eg., Klapprott v.
    United States, 
    335 U.S. 601
    , 607-16 (1949) (holding that a four-
    year gap was timely where a naturalized citizen sought to set aside
    a default judgment of denaturalization entered while he was in
    prison, ill, and without funds to obtain counsel); Cotto v. United
    States, 
    993 F.2d 274
    , 280 (1st Cir. 1993) (finding that a sixteen-
    month       delay   was   unreasonable    because   the   pertinent   event,   a
    settlement, occurred two months after the entry of the order of
    dismissal, and appellants had "no valid excuse for having dawdled
    an additional fourteen months before alerting the district court to
    the changed circumstances"); 
    Baus, 834 F.2d at 1122
    (finding a
    five-year lapse timely because the moving party had no reason to
    3
    In his affidavit, Attorney Angueira states that Attorney
    Morales informed Bouret-Echevarria about the alleged juror
    misconduct on May 22, 2013, and that Bouret-Echevarria informed
    Attorney Angueira the following day. The information was ultimately
    brought to the district court's attention on September 4, 2013.
    -12-
    file a Rule 60(b)(6) motion until the opposing party changed its
    mind about executing on a judgment).4
    The district court, however, measured the reasonableness
    of appellants' delay in bringing forth their Rule 60(b)(6) motion
    from the entry of final judgment, not from the time that appellants
    first learned of the allegations of juror misconduct. During this
    less       than    four-month   period,   Attorney   Angueira   was   actively
    attempting to obtain pro hac vice admission to Puerto Rico, and to
    acquire more information to better substantiate the motion. He also
    was seeking local counsel to assist him in the wake of Attorney
    Morales's resignation. In addition, during this time, Irizarry
    informed Attorney Angueira that he would not communicate with him
    without Attorney Morales's permission. Attorney Angueira then
    attempted to contact Attorney Morales, who failed to return his
    4
    This focus on when a party seeking 60(b)(6) relief became
    aware of the grounds justifying the motion is further reflected in
    cases from a number of other circuits. See PRC Harris, Inc. v.
    Boeing Co., 
    700 F.2d 894
    , 897 (2d Cir. 1983) (finding a one-year
    time lapse untimely because appellant had failed to present any
    "persuasive reasons to justify the delay of almost one year in
    moving for amendment"); United States v. Holtzman, 
    762 F.2d 720
    ,
    725 (9th Cir. 1985) (finding a five-year delay permissible where
    litigant reasonably interpreted an injunction to authorize
    litigant's conduct and timely relief was sought upon receipt of
    notice to the contrary); J.D. Pharm. Distrib., Inc. v. Save–On
    Drugs & Cosmetics Corp., 
    893 F.2d 1201
    , 1207 (11th Cir. 1990)
    (relief from judgment granted because party never served with
    requests for admissions or motion for summary judgment); Carvajal
    v. Drug Enforcement Admin., 
    286 F.R.D. 23
    , 28 (D.D.C. 2012)
    (finding a twenty-five month delay untimely because plaintiff
    waited ten-months after receiving the requisite information to file
    the motion).
    -13-
    call. In sum, during the period between when appellants first
    learned of the alleged misconduct and when they filed their Rule
    60(b)(6) motion, appellants made diligent efforts to strengthen the
    basis for their motion.    As in Baus, the allegations referring to
    the delay -- namely that Attorney Angueira was actively seeking pro
    hac vice admission to Puerto Rico and that neither Attorney Morales
    nor Irizarry would speak with Attorney Angueira -- were "verified
    and 
    uncontested." 834 F.3d at 1122
    .
    A reasonableness inquiry evaluates whether a movant acted
    promptly when put on notice of a potential claim. In making its
    determination that eighteen months was unreasonable, the district
    court did not address the fact that the earliest appellants could
    have brought their Rule 60(b)(6) motion was May 22, 2013, the day
    they learned of the potential misconduct. Nor did it recognize that
    during the three-month and thirteen-day period before the filing of
    the 60(b) motion, appellants' counsel was actively attempting to
    substantiate the motion and find local counsel with whom to
    associate. In failing to evaluate the appropriate time frame, and
    all that was done by appellants within that time frame to prepare
    to file the 60(b) motion, the district court committed a legal
    error. In these circumstances, appellants' timing was reasonable.
    2. Exceptional Circumstances
    Relief   under   Rule   60(b)(6)   requires   a   showing   that
    exceptional circumstances justify extraordinary relief. Superline,
    
    -14- 953 F.2d at 20
    . If a jury is aware of and bases its decision on
    knowledge of a confidential settlement offer, there has been a
    violation of due process. See Smith v. Phillips, 
    455 U.S. 209
    , 217
    (1982) ("Due process means a jury capable and willing to decide the
    case solely on the evidence before it, and a trial judge ever
    watchful to prevent prejudicial occurrences and to determine the
    effect of such occurrences when they happen.").
    In her affidavit, Bouret-Echevarria stated that Attorney
    Morales told her that Irizarry had been informed by an employer of
    one of the jurors that the jury decided against Bouret-Echevarria
    because they were aware that she rejected a $3.5 million settlement
    offer.5 If that allegation of juror awareness of the confidential
    5
    Specifically, Bouret-Echevarria describes the interaction
    with Attorney Morales as follows: "In June 2013, I received a
    telephone call from Mr. Morales advising me that he had some very
    important information to share with me. I was advised by attorney
    Morales that he had learned from Luis Irizarry that he had
    potential evidence suggesting that there may have been improper
    jury deliberations in my case. Mr. Morales advised me that he had
    been told by Mr. Irizarry that while attending an inspection on an
    unrelated case another individual had reported to Mr. Irizarry that
    he employed one of the jurors in my case. This individual told Mr.
    Irizarry that he had been told by this juror that the reason that
    the jury decided against me was that they did not like me and that
    they were aware that I had turned down an offer in the amount of
    $3.5 million. To my understanding the offer that had been made to
    me was confidential and certainly should not have been provided to
    any of the jurors.
    Mr. Morales also advised me that we needed to conduct an
    investigation immediately to obtain this evidence and report it to
    the court. Out of concern, I then communicated directly with Mr.
    Irizarry and confirmed the information reported to me by Mr.
    Morales. I then contacted David Angueira to discuss these matters
    with him. Mr. Angueira advised me that this is a matter requiring
    the court's involvement as soon as possible. Mr. Angueira also
    -15-
    settlement offer is true, it is an exceptional circumstance that
    might justify the extraordinary relief of vacating the finality of
    a judgment.
    In recognition of the due process implications of a
    tainted jury, and the need to maintain juror privacy, our law
    provides    for    the   exploration    of    the   influence     of   extraneous
    information       on   the   deliberations    of    a   jury   under   controlled
    circumstances. Federal Rule of Evidence 606(b) states that "a juror
    may testify about whether extraneous prejudicial information was
    improperly brought to the jury's attention" or whether any "outside
    influence was improperly brought to bear upon any juror." If the
    existence    of    external    influences     is    established    through   such
    testimony,    the      court   must   determine     whether    such    extraneous
    information was prejudicial by determining its "probable effect on
    a hypothetical average juror." United States v. Boylan, 
    898 F.2d 230
    , 262 (1st Cir. 1990) (internal citation omitted); see also 
    id. at 261
    (stating that there is a presumption of prejudice when
    asked me to communicate with Mr. Morales to authorize him to share
    this information with attorney Angueira so that he can co-counsel
    with Mr. Morales and report this matter to the court. I immediately
    authorized Mr. Morales to discuss this matter with my attorney,
    David P. Angueira. After my communication with Mr. Morales, I
    received a notice of withdrawal from him. I was shocked and deeply
    disturbed by this notice of withdrawal which Mr. Morales had not
    even discussed with me. I then immediately communicated the notice
    of withdrawal to Mr. Angueira seeking his advice as to how we
    should proceed."
    -16-
    "third party communication . . . directly injects itself into the
    jury process").6
    3. Potentially Meritorious Claim
    "[A]s a precondition to relief under Rule 60(b), [a
    party] must give the trial court reason to believe that vacating
    the judgment will not be an empty exercise . . . .'motions for
    relief under Rule 60(b) are not to be granted unless the movant can
    demonstrate a meritorious claim or defense.'" 
    Superline, 953 F.2d at 20
    (quoting Lepkowski v. U.S. Dep't of Treasury, 
    804 F.2d 1310
    ,
    1314 (D.C. Cir. 1986)).
    Although the jury found neither negligence on the part of
    the CAM defendants nor a product defect on the part of Robinson,
    this case had enough merit to get to the jury. If the jury knew of
    the settlement offer when it rejected appellants' case, we cannot
    say that a retrial without that proscribed information would be an
    empty exercise.
    4. Unfair Prejudice
    The CAM defendants argue that granting appellants' Rule
    60(b)(6) motion would unfairly prejudice them. They would have to
    fly witnesses into Puerto Rico once again; appellants could prepare
    6
    Boylan involved an assessment of juror misconduct in the
    context of a direct criminal appeal. Nevertheless, we see no reason
    why this principle for assessing the significance of juror
    misconduct should not apply here where the district court would be
    required to assess what likely effect juror misconduct, if any, had
    on a jury verdict in deciding whether to grant 60(b)(6) relief.
    -17-
    their case knowing the defendants' trial strategy; and jurors would
    have access to the public documents referring to offered settlement
    amounts that signal an admission of guilt.
    Most of these claims of unfair prejudice appear to be
    nothing more than the usual inconveniences any party faces when
    forced to re-litigate. See United States v. One Parcel of Real
    Prop., 
    763 F.2d 181
    , 183 (5th Cir. 1985) (explaining that requiring
    a party to re-litigate an action does not amount to prejudice). We
    are sympathetic to appellees' burdens. They do not, however, amount
    to unfair prejudice. See Coon v. Grenier, 
    867 F.2d 73
    , 77 (1st Cir.
    1989) (refusing to infer prejudice simply from the passage of time,
    and requiring the party alleging prejudice to instead show evidence
    of specific prejudice, such as death of witnesses, dimmed memories
    that are beyond refreshment, loss of evidence, or that some
    discovery scheme "has been thwarted"). Furthermore, we do not
    understand the CAM defendants' concern about juror access to the
    settlement offer referenced in documents now filed in this case.
    Information regarding settlement offers remains inadmissible. See
    Fed. R. Evid. 408. An appropriately focused voir dire process could
    identify and eliminate jurors with knowledge of any settlement
    offers.
    5. Additional Considerations
    Although we have now discussed the four factors that we
    ordinarily examine when considering Rule 60(b)(6) motions, we
    -18-
    cannot complete our analysis of the district court's application of
    those factors to appellants' request for an evidentiary hearing
    without examining the district court's treatment of the charge that
    is   at   the    core   of   both    factor      2     (exceptional     circumstances
    justifying      extraordinary       relief)      and    factor     3   (a   potentially
    meritorious claim) -- the allegation that jurors were aware of
    settlement       discussions       and    used       that    awareness      to        reject
    appellants' claims against defendants. See 
    Ungar, 599 F.3d at 83-84
    (stating that the four factors are "neither exclusive nor rigidly
    applied," but are "incorporated into a holistic appraisal of the
    circumstances").        If   there       is   substance       to   that     allegation,
    appellants have a weighty claim for 60(b)(6) relief. If that
    allegation is insubstantial, there is no case for such relief.
    In its order denying appellants' motion, the district
    court ruled that the affidavits submitted by appellants in support
    of   their      Rule    60(b)(6)     motion      were       "insufficient        to    push
    Plaintiffs' claims beyond the daunting threshold required by Rule
    60(b)," and that if they "were sufficient to force a court to hold
    an evidentiary hearing, the court would be potentially required in
    any civil case to grant an evidentiary hearing following a jury
    verdict based on mere rumors, regardless of how much time had
    elapsed since judgment. Rule 60(b) is not satisfied that easily."7
    7
    Citing Cotto v. United States, the district court also
    stated that "Rule 60(b)(6) may not be used to escape the
    consequences of failure to take a timely appeal." To the extent
    -19-
    In making this judgment, the district court failed to
    recognize a proposition of law that applies to a district court's
    consideration of allegations underlying a motion for Rule 60(b)(6)
    relief. "In the first instance, an inquiring court should assume
    the truth of fact-specific statements contained in a Rule 60(b)(6)
    motion." 
    Superline, 953 F.2d at 18
    . Important portions of Bouret-
    Echevarria's motion were fact-specific.
    Bouret-Echevarria states in her affidavit that Attorney
    Morales informed her that Irizarry had told him that a juror's
    employer had told Irizarry that the jury decided against Bouret-
    Echevarria because "they did not like me and that they were aware
    that I had turned down an offer in the amount of $3.5 million."
    Morales urged her "to conduct an investigation immediately [of the
    juror misconduct] to obtain this evidence and report it to the
    court." Bouret-Echevarria further states that she "communicated
    directly with Mr. Irizarry and confirmed the information reported
    to   me   by   Mr.    Morales."   In   light     of   these    "fact-specific
    statements,"    the    district   court    was   required     to   assume   that
    that the court was suggesting Bouret-Echevarria should be faulted
    for not taking a direct appeal from the adverse decision of the
    jury, such a suggestion is wholly unfair. Bouret-Echevarria had no
    awareness of the allegations of jury misconduct prior to June 2013,
    well after the completion of the jury trial. Moreover, as to the
    other issues generated by the jury trial, Angueira explained in his
    affidavit why these issues did not result in an appeal: "I
    determined based upon my review [of the trial proceedings] that
    there were insufficient grounds upon which to file an appeal."
    Bouret-Echevarria cannot be faulted for declining to appeal when
    her attorney told her there were insufficient grounds to do so.
    -20-
    Attorney Morales reported the potential misconduct to Bouret-
    Echevarria and that Irizarry confirmed the report to Bouret-
    Echevarria. 
    Superline, 953 F.2d at 18
    . These actions by her
    attorney and an expert witness who testified in the trial of her
    claims   (these     are   not   random    people)       reflected     their   belief
    initially that the reports of juror misconduct were substantial
    enough to merit further investigation. These fact-specific portions
    of Bouret-Echevarria's motion could not be dismissed as mere rumor.
    They had a probative weight that the district court ignored.
    To be sure, whether juror misconduct in fact occurred
    was, as the district court put it, only a "rumor." There were
    layers     of   hearsay    in   the     report     of    juror   misconduct:      an
    unidentified     party    telling     Irizarry     that    one   of   the     party's
    employees, also unidentified, was a juror in Bouret-Echevarria's
    trial, and that this juror told the unidentified party that the
    jury declined to award appellant any money damages because they
    knew she had been offered and rejected a $3.5 million settlement.
    Ordinarily, the district court would be right that such rumors,
    despite the concerns that they engendered in Morales and Irizarry,
    would not justify an evidentiary hearing. Here, however, the
    district    court    failed     to    appreciate    the    critical     fact     that
    appellants could not obtain fact-specific statements beyond the
    reports of Morales and Irizarry in requesting an evidentiary
    hearing.
    -21-
    Attorney Morales refused to talk to Attorney Angueira,
    and Irizarry, the expert witness, refused to talk to Attorney
    Angueira without Attorney Morales's permission. Without talking to
    Irizarry, appellants could not find out who the employer was who
    spoke to Irizarry about the juror/employee who reported the jury
    misconduct. Although Attorney Angueira could determine from court
    records the names of all of the jurors who participated in the
    trial, he could not contact those jurors directly because Local
    Rule 47(d) of the District Court Rules of Puerto Rico states,
    "Counsel   and   parties    shall      refrain   from   any   post-verdict
    communication with jurors except under supervision of this court."8
    In short, the district court unfairly faulted appellants for
    failing to substantiate allegations of juror misconduct that they
    could not substantiate because of the refusal of the critical
    witnesses to speak to them and because of court rules that barred
    avenues of investigation.
    Although   we   draw   no   conclusive   inferences   from   the
    refusal of Attorney Morales and expert witness Irizarry to respond
    to Attorney Angueira, we find the sudden wall of silence portrayed
    by Attorney Angueira's affidavit troubling. Irizarry thought enough
    8
    We note that post-verdict contact with jurors is prohibited
    in the First Circuit generally. See United States v. Kepreos, 
    759 F.2d 961
    , 967 (1st Cir. 1985) ("We start with the proposition that
    henceforth this Circuit prohibits the post-verdict interview of
    jurors by counsel, litigants or their agents except under the
    supervision of the district court, and then only in such
    extraordinary situations as are deemed appropriate.").
    -22-
    of the report of juror misconduct to report it to Attorney Morales.
    Attorney Morales, in turn, thought enough of it to inform his
    client, Bouret-Echevarria, along with the admonition that "we
    needed to conduct an investigation immediately to obtain this
    evidence   and   report   it   to   the    court."   Then,   when   Bouret-
    Echevarria's new attorney tried to talk to Attorney Morales and
    Irizarry, they suddenly refused to cooperate. They may have had
    good reasons for their silence, or improper reasons. Without an
    evidentiary hearing, there is no way to know.
    Hence we agree with appellants that the district court
    "should have convened an evidentiary hearing, questioned potential
    (non-juror) witnesses, including Mr. Irizarry and the juror's
    employer, regarding their knowledge of the information contained in
    Appellants' motion." That limited evidentiary hearing would be
    sufficient to determine the validity of Irizarry's claim that the
    employer had been told by his employee, who was a juror in
    appellants' trial, that the jury in that trial had become aware of
    a settlement offer to the appellants that they had rejected. If
    those allegations were substantiated to the court's satisfaction,
    it could then decide if the evidentiary hearing should be expanded
    to include any jurors.9
    9
    In making this decision, the district court would have to
    consider Federal Rule of Evidence 606(b)(2)(A), which permits a
    juror to testify about whether "extraneous prejudicial information
    was improperly brought to the jury's attention." In applying
    606(b)(2)(A), we have previously stated that a court should only
    -23-
    We recognize that any such inquiry of the jurors would be
    a   significant   step.   Concerns   for   juror   privacy   are   always
    significant. Yet, importantly, Local Rule 47(d) would permit such
    further inquiry under the court's supervision. If this controlled
    inquiry established that jurors had become aware of a settlement
    offer while considering a verdict, the district court would then
    have the facts it needed to fairly and appropriately decide the
    request for 60(b)(6) relief.
    III.
    We hold that the district court abused its discretion in
    denying appellants' Rule 60(b)(6) motion because it made three
    mistakes in weighing the factors relevant to a request for relief
    under Rule 60(b)(6). Specifically, it failed to identify the proper
    time frame for evaluating the reasonableness of the lapse of time
    before appellants filed the motion; it failed to assume the truth
    conduct an inquiry into whether such information was improperly
    brought to the attention of a jury when there is "substantial and
    incontrovertible   evidence   that   a   specific,   nonspeculative
    impropriety has occurred." United States v. Connolly, 
    341 F.3d 16
    ,
    34 (1st Cir. 2003) (internal citation omitted). In the present
    case, the district court could only make such judgments after it
    conducted an evidentiary hearing, first questioning Irizarry about
    the report that he had been told by an unidentified employer of
    juror misconduct in Bouret-Echevarria's trial. If Irizarry
    confirmed the report, the juror's employer could be called. If the
    employer confirmed his conversation with the juror, the juror could
    be called. If these inquiries confirmed that a basis for the jury's
    decision was their knowledge that Echevarria rejected a settlement
    offer, the court would have "substantial and incontrovertible
    evidence that a specific, nonspeculative impropriety has occurred"
    and would therefore have a basis for questioning the jurors further
    pursuant to 606(b)(2)(A).
    -24-
    of, and accord appropriate probative weight to, the fact-specific
    statements contained in Bouret-Echevarria's and Attorney Angueira's
    affidavits that Morales and Irizarry had both informed her of
    reports of juror misconduct in her trial which they believed
    merited further investigation; and it unfairly faulted appellant
    for failing to elevate these reports of juror misconduct beyond the
    realm of rumor when, under the unusual circumstances here, she
    could not do so without an evidentiary hearing. See Indep. Oil &
    Chem. Workers of Quincy, 
    Inc., 864 F.2d at 929
    (stating that
    "[a]buse occurs when a material factor deserving significant weight
    is ignored, when an improper factor is relied upon, or when all
    proper and no improper factors are assessed, but the court makes a
    serious mistake in weighing them.").
    In finding an abuse of discretion, we understand that
    granting an evidentiary hearing in the context of a request for
    60(b)(6) relief creates temporary uncertainty about the finality of
    a judgment. However, that finality remains until the court actually
    vacates the judgment. The evidentiary hearing does not undo it.
    Instead, the hearing only permits the ground for vacating the
    judgment -- juror misconduct -- to be fairly assessed, first with
    the preliminary inquiries described above, and then with the
    questioning of jurors if the court's findings justify it.
    We   do   not   minimize   the   importance   of   finality   of
    judgments or protecting the privacy of jurors. Yet we must also
    -25-
    consider the due process values implicated by jury deliberations
    free of extraneous influences. Indeed, Rule 60(b)(6) exists, in
    part, to protect such values, and, in so doing, to "accomplish
    justice." 
    Klapprott, 335 U.S. at 601
    (stating 60(b)(6) "vests power
    in courts adequate to enable them to vacate judgments whenever such
    action is appropriate to accomplish justice"). Inescapably, there
    is a tension here between the values of finality and due process.
    The conduct of the evidentiary hearing sought by appellants is the
    only fair and sensible way to accommodate that tension.
    Nevertheless,    influenced   by   the   errors   in   law   and
    judgment that we have identified, the district court denied the
    request for an evidentiary hearing, and thereby concluded that the
    value of due process must necessarily be sacrificed for the value
    of finality. That flawed ruling was an abuse of discretion. We
    therefore vacate the district court's order denying the request for
    an evidentiary hearing and remand for a hearing whose scope and
    conduct shall be determined by the district court in conformity
    with this opinion.
    So ordered. Costs to appellants.
    -Dissenting Opinion Follows-
    -26-
    BARRON, Circuit Judge, dissenting. The majority suggests
    that the District Court erred in assessing the timeliness of the
    Rule 60(b) motion and in failing to give sufficient credence to the
    allegations contained in the supporting affidavits.     But any error
    in the District Court's treatment of the timeliness of the motion
    cannot warrant reversal because the District Court did not rest the
    denial solely on that basis.      We thus may reverse only if the
    District Court erred in how it responded to the substance of the
    allegation contained in the affidavits that the jury was exposed to
    a settlement offer.    I do not see, however, how the District Court
    erred in that regard.
    As the majority notes, a district court is required to
    assume "the truth of fact-specific statements contained in" a Rule
    60(b) motion.     See Teamsters, Chauffeurs, Warehousemen & Helpers
    Union, Local No. 59 v. Superline Transp. Co., 
    953 F.2d 17
    , 18 (1st
    Cir. 1992).     The District Court was thus obliged to take as true
    that a report of juror misconduct reached the petitioner Bouret --
    not that the juror made the report, or even that the juror's
    employer passed the report to the expert witness Irizarry.       But
    that being all that must -- or even legally can -- be taken as
    true, I do not see what the District Court did wrong.   The majority
    itself describes the jury's purported exposure to the settlement
    offer as a "rumor" resting on "layers of hearsay."      Maj. Op. 20.
    -27-
    The judge's implicit characterization of the allegation as a "mere
    rumor[]" was thus entirely accurate.
    Of course, there remains the issue whether the District
    Court exercised its discretion unreasonably when it refused to
    investigate the rumor further.        The majority suggests that the
    reports of the rumor set forth in the affidavits were sufficiently
    "troubling" that the District Court should have undertaken further
    investigation given the difficulty the petitioner would have had in
    substantiating the rumor.      But the core allegation -- namely, that
    jurors   became   aware   of   settlement   discussions   and   used   this
    awareness to reject Bouret's claims against the defendants -- was
    an "unsubstantiated conclusion[]" resting on indirect sources.
    
    Superline, 953 F.2d at 18
    .       And I do not believe a different view
    about how discretion should be exercised in the face of a petition
    based on such an unsubstantiated rumor -- made well after a final
    verdict -- supplies a sufficient reason to conclude that discretion
    -28-
    was abused or exercised unreasonably.10 As a result, I respectfully
    dissent.
    10
    There is no precedent beyond Superline that elaborates
    on the showing that a party must make to require a district court
    to hold an evidentiary hearing in circumstances akin to those
    presented here. But analogous precedent from the criminal context
    -- which the majority also takes to be relevant -- seems to me to
    support the conclusion that the District Court had considerable
    discretion to make the call it made.         See United States v.
    Connolly, 
    341 F.3d 16
    , 34 (1st Cir. 2003) ("A court should only
    conduct such an inquiry when 'reasonable grounds for investigation
    exist,'   i.e.,   'there   is   clear,  strong,    substantial   and
    incontrovertible    evidence  that    a  specific,    nonspeculative
    impropriety has occurred which could have prejudiced the trial of
    a defendant.'" (quoting United States v. Sun Myung Moon, 
    718 F.2d 1210
    , 1234 (2d Cir. 1983))); see also, e.g., United States v.
    Villar, 
    586 F.3d 76
    , 88 (1st Cir. 2009) ("[T]he district judge is
    in the best position to make the initial judgment. If in this case
    he   thinks   further   inquiry   appropriate,   he    is  free   to
    proceed . . . ."); United States v. Mikutowicz, 
    365 F.3d 65
    , 75
    (1st Cir. 2004) (the District Court "acted within its considerable
    discretion by declining to investigate" when confronted with a
    speculative claim of misconduct during trial); Mahoney v.
    Vondergritt, 
    938 F.2d 1490
    , 1493 (1st Cir. 1991) (finding that a
    full hearing "would have been premature" where "the judge was faced
    only with impressionistic concerns about improprieties"); 
    id. at 1492
    ("Whether or not the vague allegations in the juror's letter
    were enough to require any response by the trial court, it is
    evident that her unfocused, unsworn assertions demanded no more
    than the preliminary inquiry that the judge agreed to conduct."
    (footnote omitted)); Neron v. Tierney, 
    841 F.2d 1197
    , 1205 (1st
    Cir. 1988) ("The caselaw, as we read it, fully supports the
    conclusion that a convicted defendant cannot lay claim to a
    constitutional right to cross-question jurors in the absence of an
    adequate evidentiary predicate.").
    -29-
    

Document Info

Docket Number: 13-2549

Citation Numbers: 784 F.3d 37, 91 Fed. R. Serv. 3d 569, 2015 U.S. App. LEXIS 6829, 2015 WL 1874104

Judges: Torruella, Lipez, Barron

Filed Date: 4/24/2015

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (23)

united-states-v-peter-boylan-united-states-of-america-v-john-e-carey , 898 F.2d 230 ( 1990 )

United States v. Bernard v. Baus , 834 F.2d 1114 ( 1987 )

The Independent Oil and Chemical Workers of Quincy, Inc. v. ... , 864 F.2d 927 ( 1988 )

Ahmed v. Rosenblatt , 118 F.3d 886 ( 1997 )

jd-pharmaceutical-distributors-inc-a-new-york-corporation-v-save-on , 893 F.2d 1201 ( 1990 )

Smith v. Phillips , 102 S. Ct. 940 ( 1982 )

United States v. Constantine T. Kepreos , 759 F.2d 961 ( 1985 )

United States v. Connolly , 341 F.3d 16 ( 2003 )

United States v. Mikutowicz , 365 F.3d 65 ( 2004 )

Louis Neron v. James E. Tierney, Etc. , 841 F.2d 1197 ( 1988 )

United States v. Sun Myung Moon and Takeru Kamiyama , 718 F.2d 1210 ( 1983 )

United States v. Villar , 586 F.3d 76 ( 2009 )

faustina-davila-alvarez-ramon-fernandez-ramirez-rosa-alvarez-oquendo , 257 F.3d 58 ( 2001 )

Scott Coon v. Robert P. Grenier , 867 F.2d 73 ( 1989 )

United States v. One Parcel of Real Property, Etc., Ignacia ... , 763 F.2d 181 ( 1985 )

Ungar v. Palestine Liberation Organization , 599 F.3d 79 ( 2010 )

Matthew Mahoney v. Ernest Vondergritt, Etc. , 938 F.2d 1490 ( 1991 )

Evelyn Cotto and Edwin Torres, Etc. v. United States , 993 F.2d 274 ( 1993 )

Klapprott v. United States , 69 S. Ct. 384 ( 1949 )

Ackermann v. United States , 71 S. Ct. 209 ( 1950 )

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