Filed: Apr. 24, 2015
Latest Update: Mar. 02, 2020
Summary: by Attorney Morales.reasonable time. 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.
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-
