105 F.R.D. 639 | D.R.I. | 1984
MEMORANDUM & ORDER
The above-entitled action was tried in this court, resulting in a jury verdict for the plaintiffs on two counts of a four count complaint.
Notwithstanding the pendency of their appeal, the plaintiffs filed in this court on November 16,1984 a motion for relief from the judgment, Fed.R.Civ.P. 60(b),
The court’s jurisdiction in this case has been premised on 28 U.S.C. § 1332, and the substantive law of Massachusetts has governed. See Burten I, 592 F.Supp. at 1022. The facts of this case are exhaustively detailed in Burten I, and no useful purpose would be served by rehashing them at this time. Burten I similarly limns the theories upon which the plaintiffs proceeded to trial. The additional count which the plaintiffs now seek to inject into the case by post-judgment amendment deals with the previously-litigated fact pattern, and seeks to impose liability on the basis that the defendant's conduct, even if expressly authorized by the contract between the parties, was nevertheless an unfair or deceptive act or method of competition which transgressed § 2(a) of Mass. Gen. Laws Ann. ch. 93A.
Given the time constraints inherent in Colocotroni, this court can do little more in respect to the intricacies of the subject motion than summarily to raise some of the obvious questions and to resolve them without the benefit of elaborate research and without regard to the stylistic niceties of formal opinion writing.
First, the plaintiffs’ motion insofar as it implicates Rule 60(b) is on shaky ground. If the court accepts each and all of the movants’ assertions as true in fact and correct in law, there would be no basis for relief from the judgment heretofore entered. The plaintiffs do not, by this motion, put a new gloss on the initial four counts of their complaint, or on the disposition thereof in the district court. Rather, they assert that a fifth (completely new) count ought in fairness to be added to the complaint, and passed upon by the district court. Viewed in this light, the plaintiffs complain not as to the substance of the judgment previously entered, but as to its finality and completeness: they urge that a further claim for relief, which was neither presented nor passed upon at trial, should also be heard. Their contention thus boils down to a plea that appellate proceedings be abated so that the court may consider their belated motion to amend in order to add a new statement of claim (the so-called Chapter 93A claim).
Viewed as a matter of leave to amend, and being mindful of the liberality which attaches under Fed.R.Civ.P. 15, the court must nevertheless make the following observations:
1. The case was fully tried without reference to the Chapter 93A claim, and the defendant had no reason to protect the record in that regard. Milton Bradley’s protest that its trial tactics and quantum of proof would have been vastly different if the Chapter 93A issue was in the case at trial rings true to this court. And, undue prejudice to the non-movant is, of course, material to a consideration of a late-filed Rule 15 motion. E.g., Waters v. Weyer-haeuser Mortgage Co., 582 F.2d 503, 507 (9th Cir.1978).
2. The plaintiffs rely primarily on Penny v. First National Bank, 433 N.E.2d 901, 904-06 (Mass.1982), as the touchstone for their newly-emergent Chapter 93A claim. Penney was decided by the Massachusetts Supreme Judicial Court a full two years before the trial in this cause. There has been no meaningful showing as to why Penney was overlooked by the plaintiffs in advance of trial; nor has any satisfactory explanation been advanced for the plaintiffs’ delay in asserting the Chapter 93A claim. This particular cheese becomes all the more binding when it is noted that the other Massachusetts cases cited by the plaintiffs as support for their Chapter 93A thrust are of even earlier vintage. E.g.,
3. Implicit in the plaintiffs’ attempt to amend is the assumption that their new claim (proposed Count V) could be determined on the existing trial record. That course of action would, in the judgment of this court, be grossly unfair to the defendant. To illustrate briefly, Milton Bradley presented but a single witness in the defense case at the trial. It had designated several other prospective witnesses, including an expert, in its pre-trial filings. Had the defense been pitched to more than the narrowly-focused issue of the disclosure record form (which was, as a matter of law, a full defense to all of the claims asserted at trial, but not a defense to proposed Count V), the court has every reason to believe that the defendant would have called some or all of these additional witnesses. At the very least, even if the motion was granted, it would be necessary to accord the defendant leave to reopen and to allow it to offer evidence designed to meet plaintiffs’ neoteric theory. Cf. MBI Motor Co., Inc. v. Lotus/East, Inc., 506 F.2d 709, 713 (6th Cir.1974).
4. The plaintiffs’ argument that the Chapter 93A issues were tried “by express or implied consent of the parties,” Fed.R.Civ.P. 15(b), is an empty exercise in casuistry. Prior to and during the trial, not a hint of a suggestion was afoot that a Chapter 93A issue might be in the case. Accordingly, neither the parties nor the court addressed any such asseveration. It is true that some evidence relevant to what would be, if allowed now, a Chapter 93A issue was received in the course of the trial; but, this was coincidental at most. There was nothing to put Milton Bradley fairly on notice that Chapter 93A hovered in the wings.
In this sense, the instant case is indistinguishable from Standard Title Insurance Co. v. Roberts, 349 F.2d 613, 620-22 (8th Cir.1965). Here, as in Roberts,
The proffered amendment set forth a completely new cause of action, based on a wholly different theory from that alleged in the amended complaint. The fact that the evidence submitted and received at the trial, on the then existing issue raised by the answer and reply, would have been relevant and admissible in the trial of such new cause of action does not mean that the latter was tried by the express or implied consent of the appellee.
Id. at 620.
The Eighth Circuit sustained the rejection of the amendment, and based its holding on the following statement of law:
The purpose of an amendment to conform to proof is to bring the pleadings in line with the actual issues upon which the case was tried; therefore an amendment after judgment is not permissible which brings in some entirely extrinsic issue or changes the theory on which the case was actually tried, even though there is evidence in the record—introduced as relevant to some other issue— which would support the amendment. This principle is sound, since it cannot be fairly said that there is an implied consent to try an issue where the parties do not squarely recognize it as an issue in the trial.
Id. at 620-21 (citations omitted), quoting 3 Moore, Federal Practice, § 15(b), at 991-92.
. The court of appeals concluded:
By the proffered amendment appellant sought to abandon the trial theory and substitute a cause of action alleging tort and unjust enrichment as the basis for its right of recovery. We are satisfied that appellant has failed to bring itself within the procedural aspects of Rule 15(b).
Id. at 621.
Roberts aligns itself with the weight of authority on the issue. E.g., Southwestern Stationery & Bank Supply, Inc. v. Harris Corp., 624 F.2d 168, 171 (10th Cir.1980) (“consent” may not be implied merely because evidence relevant to a properly pleaded issue incidentally tends to prove an issue not pleaded); Ellis v. Arkansas Louisiana Gas Co., 609 F.2d 436, 440 (10th
These cases were postured differently from the case at bar, and are readily distinguishable. None of them involved either an effort to relitigate the merits of a controversy after judgment but prior to appellate review, or an attempt to superimpose and afterthought legal theory upon an existing trial record.
The case at bar, proeedurally and substantively, is analogous to Cleary v. Indiana Beach, Inc., 275 F.2d 543 (7th Cir. 1960), cert. denied, 364 U.S. 825, 81 S.Ct. 62, 5 L.Ed.2d 53 (1960). In Cleary, the case was tried on a negligence theory. After verdict, the plaintiff filed a Rule 15(b) motion to amend his complaint to allege wilful misconduct. That motion was denied. The language of the Seventh Circuit is instructive:
We think it indisputable that the action of the trial judge in denying the motion to amend is unassailable. If Rule 15(b) were applied in the manner in which it is here sought to be used, litigation might never end. We think it obvious that the Rule was not intended to permit a party to amend his pleadings after verdict and, thereby upset the verdict by asserting a new theory which was not included in the original pleadings, and upon which the case was not tried.
We have previously approved the principle that Rule 15(b) cannot be used in the above fashion. Apex Smelting Co. v. Burns, 7 Cir., 175 F.2d 978, 981. We there quoted and approved the following language from Hart v. Knox County, D.C.Tenn., 79 F.Supp. 654, 658:
“Plaintiffs would shift their ground and try a new theory of recovery. The effect of the amendment they propose would be not to conform the pleadings to a judgment they have won, but to jeopardize and perhaps to overthrow a judgment they have lost. It is a prime purpose of (15(b)) to avoid the necessity of new trials because of procedural irregularities, not to set judgments aside and make new trials necessary.*644 If this latter application of the Rule were permitted, a losing party, by motions to amend and rehear, could keep a case in court indefinitely, trying one theory of recovery or defense after another, in the hope of finally hitting upon a successful one.”
That Cleary is consistent with the law in this circuit is apparent from an examination of Judge Bownes’ oft-quoted opinion in Johnston v. Holiday Inns, Inc., 595 F.2d 890, 896 (1st Cir.1979). And, the Eighth Circuit agrees. See Standard Title Insurance Co. v. Roberts, 349 F.2d at 620-22.
The plaintiffs’ causes of action in this case arose out of events which occurred over a temporal span beginning in late 1979 and culminating in early 1981. The complaint had been pending for some three years at the time of trial.
Moreover, at this late stage of the proceedings, Milton Bradley would be sorely prejudiced by having been put to trial piecemeal. The court well appreciates that decisions as to whether or not to offer certain witnesses,
Lastly, the plaintiffs cite to certain dicta in this court’s opinion granting the motion for judgment n.o.v. That dicta is accurately quoted: this court did (and does) detect “a persistent hint of inequity,” 592 F.Supp. at 1037, in the result. Yet, multiplication of wrongs rarely serves to do justice. This court cannot casually blink at the glaring inequity which would result from the granting of plaintiffs’ motion to amend at this advanced date. In this case, as in Roberts, “(t)he tactics and strategy of the [defendant] at the trial were doubtless dictated by the then existing state of the pleadings and record.” Standard Title Insurance Co. v. Roberts, 349 F.2d at 622-23. And, Milton Bradley was lulled into that posture through no incremental fault of its
To require the district court to permit amendment here would allow plaintiffs to pursue a case to judgment and then, if they lose, to reopen the case by amending their complaint to take account of the court’s decision. Such a practice would dramatically undermine the ordinary rules governing the finality of judicial decisions, and should not be sanctioned in the absence of compelling circumstances. James v. Watt, 716 F.2d 71, 78 (1st Cir. 1983), cert. denied, — U.S. -, 104 S.Ct. 2397, 81 L.Ed.2d 354 (1984).
There are insufficiently compelling circumstances in the case at bar. The court concludes, therefore, that the instant motion, while plainly non-frivolous, is without merit. The motion is DÉNIED.
. During trial, the fraud count was withdrawn and discontinued with prejudice. Fed.R.Civ.P. 41(a)(2). The court directed a verdict in the defendant’s favor on the contract count. Fed.R. Civ.P. 50(a). The surviving counts both sounded in tort, viz. (i) a count for unfair competition/common law misappropriation of a trade secret, and (ii) a statutory claim of trade secret misappropriation under Mass.Gen.Laws Ann. ch. 93, § 42.
. The plaintiffs do not further particularize this aspect of the motion. Presumably, it implicates Rule 60(b)(1) or 60(b)(6). As conceded by plaintiffs’ counsel at the November 19 chambers conference, see text post, it is a cafeteria-style motion, inviting the district court to pick and choose from the buffet of grounds which Rule 60(b) offers.
. The amendment proffered by the plaintiffs in no way seeks to revise any of the four counts as to which judgment has entered; nor does it suggest that the judgment was erroneous as to any of those four counts.
. The complaint was amended at least once, see order of February 9, 1983, without regard to the present assertion.
. It should be noted that the defendant has undergone radical corporate changes, and many of its former employees are no longer on its payroll.
. To cite but one example: the defendant, at the very end of the plaintiffs’ case, stipulated to much of the proof anent damages. If the defendant’s view of the liability picture had been less rosy, Milton Bradley might well have tacked a much different course.
