UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1600
DOMINGO DE LA TORRE,
Plaintiff, Appellant,
v.
THE CONTINENTAL INSURANCE COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Breyer, Chief Judge,
Selya and Boudin, Circuit Judges.
Juan G. Casasnovas Luiggi on brief for appellant.
J. Ramon Rivera-Morales, Jimenez, Graffam & Lausall, James
E. Tribble, and Blackwell & Walker, P.A. on brief for appellee.
January 31, 1994
SELYA, Circuit Judge. In this appeal, plaintiff
SELYA, Circuit Judge.
invites us to set aside the district court's entry of summary
judgment and its ensuing refusal to grant relief from the
judgment. We decline the invitation.
I
Contending that Continental Insurance Company had
wrongfully refused to pay a claim for benefits under a group
accident insurance policy purchased by his former employer,
plaintiff-appellant Domingo de la Torre filed suit in the United
States District Court for the District of Puerto Rico. Invoking
diversity jurisdiction, see 28 U.S.C. 1332 (1988), appellant
sought compensatory, consequential, and punitive damages for
Continental's alleged disregard of its contractual obligations.
The insurer joined issue, denying the allegations of wrongdoing
that characterized the complaint.
In due course, a magistrate-judge entered a pretrial
scheduling order, see Fed. R. Civ. P. 16; D.P.R. Loc. R. 314.3,
which had been prepared by the parties and to which they
assented. Among other things, the order indicated that the
defendant would submit a motion for summary judgment.
On October 22, 1992, the defendant moved for summary
judgment. The motion raised five distinct grounds supporting
brevis disposition, including averments that appellant waited too
long before submitting both his claim and his proof of loss, and
that, in any event, appellant had not suffered any disability
within the meaning of the policy. Although appellant's response
2
was due ten days thereafter, see D.P.R. Loc. R. 311.5 & 311.12,
appellant ignored the deadline.
On December 8, 1992 more than a month after the
opposition was due appellant moved for an extension of time
within which to respond to the summary judgment motion. In an
attempt to explain the delay, appellant's counsel mentioned
ongoing settlement negotiations (although he conceded that the
defendant had given explicit warning by letter that negotiations,
if conducted, would not operate to excuse a timely response to
the motion for summary judgment) and the press of other pending
cases.
The district court issued a memorandum decision on
December 11, 1992, without acting upon the motion to extend.1
In that rescript, the court addressed the merits of the Rule 56
motion, found Continental's arguments to be convincing, and
ordered summary judgment in its favor. Judgment entered on
December 23, 1993.
Appellant did not take an appeal from this judgment.2
1It is not clear whether the motion came to the district
judge's attention before he ruled on the motion for summary
judgment.
2Because this is so, and because the 30-day appeal period,
Fed. R. App. P. 4(a)(1), ran long before de la Torre filed the
instant notice of appeal, the original judgment is no longer
amenable to direct review. See Rodriguez-Antuna v. Chase
Manhattan Bank Corp., 871 F.2d 1, 2 (1st Cir. 1989) (holding that
an appeal from an order denying relief from judgment does not
resurrect a plaintiff's expired right to contest the merits of
the underlying judgment or bring the judgment before the
appellate court for review). Since it was served well beyond the
time limit stipulated in Fed. R. Civ. P. 59(e), the later-filed
motion for reconsideration did not toll the running of the appeal
3
In late December, however, he filed a motion to enlarge the time
within which to move for reconsideration of the December 11
order. The district court granted an enlargement until January
15, 1993. When filed, appellant's motion for reconsideration (1)
contended that his December 8 request for additional time had
been overlooked, and (2) presented a decurtate response to the
substantive arguments advanced in defendant's summary judgment
motion. In this connection, the motion for reconsideration
contained material not previously in the record that addressed
some, but not all, of the grounds limned in Continental's Rule 56
motion. Withal, the motion for reconsideration did not contain
any new information concerning plaintiff's failure to file a
timely opposition to the request for summary judgment.
On May 4, 1993, the district court denied the motion
for reconsideration without any elaboration. This appeal
followed.
II
On appeal, the parties' first area of dispute centers
around the nature of appellant's motion for reconsideration. The
motion itself did not identify any pertinent procedural rule or
other hook upon which it might be hung. This becomes a matter of
potential moment, for, if the motion invoked Rule 59(e), as the
defendant asserts, then it was clearly out of time, see Fed. R.
Civ. P. 59(e) (stipulating that motions "to alter or amend the
period. See Echevarria-Gonzalez v. Gonzalez-Chapel 849 F.2d 24,
26 (1st Cir. 1988).
4
judgment shall be served not later than 10 days after entry of
the judgment"), and, since it is apodictic that the district
court does not have the power to extend the time for filing a
Rule 59(e) motion, see Feinstein v. Moses, 951 F.2d 16, 19 (1st
Cir. 1991), this appeal would likely have to be dismissed.3 If,
however, as appellant now asserts, the motion for reconsideration
invoked Fed. R. Civ. P. 60(b), the motion was timely and the
appeal can survive. See United States v. 789 Cases of Latex
Surgeon Gloves, F.3d , (1st Cir. 1993) [No. 93-1554,
slip op. at 5-7]; Rodriguez-Antuna v. Chase Manhattan Bank Corp.,
871 F.2d 1, 2 (1st Cir. 1989).
Courts should not spend their energies wrestling with
academic questions or deciding the juridical equivalent of how
many angels can dance on the head of a pin. Thus, in the
interests of time and judicial economy, we shall assume,
favorably to appellant, that the motion for reconsideration
deserved attention under Fed. R. Civ. P. 60(b). We indulge this
assumption on the basis that "an appellate court may forego the
resolution of a jurisdictional question if, as is true here, the
appeal is uncomplicated and easily resolved in favor of the party
to whose benefit the jurisdictional question would redound."
United States v. Connell, 6 F.3d 27, 29 n.3 (1st Cir. 1993)
3We caution that, under certain circumstances, the denial of
a late-filed Rule 59(e) motion which does more than assert that
the court wrongly decided a point of law possibly may prove
appealable. See, e.g., United States v. 789 Cases of Latex
Surgeon Gloves, F.3d , (1st Cir. 1993) [No. 93-1554,
slip op. at 5-7]. Given our approach to the appeal, see infra,
we need not address this possibility.
5
(citing Supreme Court precedents).
III
We now turn to the merits of the appeal. In doing so,
it is important to recall that motions brought under Rule 60(b)
are committed to the district court's sound discretion.4 As a
result, orders denying such motions are reviewed only for abuse
of discretion. See Teamsters, Chauffeurs, Warehousemen & Helpers
Union v. Superline Transp. Co., 953 F.2d 17, 19 (1st Cir. 1992);
Rodriguez-Antuna, 871 F.2d at 3. In these precincts, the trial
court's exercise of discretion must be colored by a recognition
that, because Rule 60(b) is a vehicle for "extraordinary relief,"
4The rule provides in pertinent part:
On motion and upon such terms as are just,
the court may relieve a party or a party's
legal representative from a final judgment,
order, or proceeding for the following
reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence
could not have been discovered in time to
move for a new trial under Rule 59(b); (3)
fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation,
or other misconduct of an adverse party; (4)
the judgment is void; (5) the judgment has
been satisfied, released, or discharged, or a
prior judgment upon which it is based has
been reversed or otherwise vacated, or it is
no longer equitable that the judgment should
have prospective application; or (6) any
other reason justifying relief from the
operation of the judgment. The motion shall
be made within a reasonable time, and for
reasons (1), (2), and (3) not more than one
year after the judgment, order, or proceeding
was entered or taken.
Fed. R. Civ. P. 60(b).
6
motions invoking the rule should be granted "only under
exceptional circumstances." Lepore v. Vidockler, 792 F.2d 272,
274 (1st Cir. 1986).
We do not find any sufficiently exceptional
circumstances here, and, concomitantly, we do not discern the
slightest sign that the district court abused its discretion.
Appellant relies mainly on clause (1) of Rule 60(b).5 Yet, he
makes no credible claim of "mistake," "inadvertence," or
"surprise" so he is left to demonstrate "excusable neglect."
On this record, he cannot shoulder that burden. His most touted
claim that his attorney was preoccupied with other matters
has been tried before, and regularly has been found wanting.
See, e.g., Mendez v. Banco Popular de Puerto Rico, 900 F.2d 4, 7
(1st Cir. 1990); McLaughlin v. City of La Grange, 662 F.2d 1385,
1387 (11th Cir. 1981), cert. denied, 456 U.S. 979 (1982). As we
wrote on an earlier, comparable, occasion: "Most attorneys are
busy most of the time and they must organize their work so as to
be able to meet the time requirements of matters they are
handling or suffer the consequences." Pinero Schroeder v. FNMA,
574 F.2d 1117, 1118 (1st Cir. 1978).
Relatedly, appellant tells us that the district court
5In his brief, appellant also invokes clause (6), but he
offers no developed argumentation supporting an application of
that clause. We, therefore, decline to address the point. See
Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990); United
States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494
U.S. 1082 (1990). In all events, 60(b)(6) and 60(b)(1) are
mutually exclusive. See Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 863 n.11 (1988); Superline, 953 F.2d at 20
n.3.
7
acted prematurely in going forward while discovery requests
remained outstanding. This asseveration is doubly flawed. In
the first place, appellant did not raise the point below and
cannot, therefore, rewardingly argue it here. See Superline, 953
F.2d at 21; Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987)
(collecting cases). In the second place, incomplete discovery
may be a perfectly good reason for asking a court to defer
decision on a motion for summary judgment, cf. Fed. R. Civ. P.
56(f), but it is a woefully weak reason for failing to file a
timely opposition to such a motion. And it is no reason at all
for failing to file a timely Rule 56(f) motion and-or an
immediate request for an extension of time.
Appellant's final argument fares no better. The fact
that settlement negotiations are in progress does not excuse a
litigant from making required court filings. See, e.g., Cotto v.
United States, 993 F.2d 274, 278-80 (1st Cir. 1993); Mercado-
Garcia v. Ponce Federal Bank, 979 F.2d 890, 895 (1st Cir. 1992).
It is common sense, as well as common courtesy, to alert the
judge to the ongoing negotiations and request that he or she
postpone imminent deadlines before they have expired. A litigant
who, like appellant, fails to take that simple step courts
disaster.
Above and beyond the frailties of appellant's proffer,
the circumstances of this case do not suggest an entitlement to
extraordinary relief. Appellant knew from the pretrial order
that the defendant planned to move for summary judgment. Despite
8
this aposematic forewarning, and notwithstanding the defendant's
admonition that it would insist upon a timeous response to its
motion regardless of ongoing negotiations, appellant blithely
ignored the summary judgment motion when it was served. In such
circumstances, a casual request for an extension of time,
identifying no compelling reason for the delay and made more than
a month after the due date, strikes us as too little, too late.
We note, too, that when the district court entered the adverse
judgment, appellant did nothing to extricate himself from the
hole he had dug. Although the court gave him extra time to file
a motion for relief from judgment, he failed to present any facts
fairly supporting a conclusion that his omission constituted
excusable neglect as that term is defined in the jurisprudence of
Rule 60(b)(1). See Lavespere v. Niagara Mach. & Tool Works, 910
F.2d 167, 173 (5th Cir. 1990) (suggesting that it would be an
abuse of discretion for a district court to grant a Rule 60(b)(1)
motion seeking relief from a party's failure, through
carelessness, to submit evidence in a timely manner), cert.
denied, 114 S. Ct. 171 (1993).6
IV
We need go no further. If the plaintiff had a serious
basis for opposing the defendant's motion for summary judgment,
6In an abundance of caution, we have reviewed the materials
filed with appellant's motion for reconsideration. Having done
so, we cannot say that those materials are so compelling as to
ensure the defeat of defendant's Rule 56 initiative had they been
proffered in a timely manner. Cf., e.g., Superline, 953 F.2d at
20-21 (noting importance, under Rule 60(b), of showing a
meritorious claim or defense).
9
he should have submitted either a properly focused opposition or
a valid Rule 56(f) motion within the ample time afforded in the
district court. Having eschewed both of those courses, and
having mustered very little in the way of a cognizable excuse for
his palpable neglect, plaintiff cannot legitimately complain that
the district court held fast to its clearly delineated rules.
See Smith v. Stone, 308 F.2d 15, 18 (9th Cir. 1962) (explaining
that chaos would result if parties could decide for themselves
"when they will file those papers required in a lawsuit"; also
suggesting the need for "some obedience to the rules of court;
and some respect [for] the convenience and rights of other
counsel, litigants, and the court itself").
Affirmed. Costs to appellee.
10