U. S. Life and Credit Corporation, defendant below, seeks reversal of the district court’s refusal to grant it relief from a judgment under Fed.R.Civ.P. 60(b). We have jurisdiction.
Lairsey v. Advance Abrasives Co.,
In a suit filed in 1979, the Parks alleged that U.S. Life and Credit had violated the Truth-in-Lending Act, 15 U.S.C. § 1601 et seq., and Regulation Z promulgated thereunder. They asserted that the use of certain terms in a loan disclosure statement was confusing and misleading to the borrower in violation of the Act and Regulation. The magistrate opined that no violation had occurred. The district judge disagreed. Recognizing no Supreme Court or Fifth Circuit cases directly governed, he relied on Ford v. General Finance Corporation of Georgia, No. 78-328A (N.D.Ga., June 5, 1979) (Edenfield, J.), and entered judgment for the appellees on September 25, 1980. U.S. Life and Credit Corporation chose not to appeal.
On March 13, 1981, the Fifth Circuit affirmed a contrary district court holding that the identical terms were not confusing or misleading.
Blalock v. Aetna Finance Co.,
Rule 60(b)(1) authorizes a court to grant relief from judgments for “mistake, inadvertence, surprise, or excusable neglect.” The “mistakes” of judges may be remedied under this provision.
Meadows v. Cohen,
The policy favoring such a construction is, of course, one aimed at preventing the unnecessary wasting of energies by both appellate courts and litigants. It seems that absent the chance of serious injury to the rights of any party, the possible saving of judicial energies warrants the use of such a discretionary reconsideration by the district court. Here the district court properly entertained Pruitt’s motion which was filed within the period allowed for giving notice of appeal and in fact after notice of appeal had been filed. In such circumstances, it is difficult to see how this reconsideration by the district court could have worked an injustice to any party.
Some circuits have limited the use of Rule 60(b) to a time not exceeding the time allowed for appeal.
E.g., Gila Ranch, Inc. v. United States,
In Lairsey, a Rule 60(b) motion was made in district court pointing out a post-judgment change in the controlling decisional state law. At the time of the filing of the motion, the judgment was before the Fifth Circuit for appellate review. The district court dismissed the motion as untimely because it was not filed within the period allowed for perfecting an appeal. The appellate court disagreed with that basis for denial and also addressed the argument that because the case was on appeal when the motion was filed the district court did not have jurisdiction. Judge Godbold, speaking for the court, responded:
[Tjhis circuit, along with other circuits and the commentators, has expressly recognized power in the district court to consider on the merits, and deny, a 60(b) motion filed after a notice of appeal, because the court’s action is in furtherance of the appeal. Ferrell v. Trailmobile, Inc.,223 F.2d 697 (C.A.5, 1955); Oliver v. Home Indemnity Co., supra, at 331; 11 Wright & Miller, Federal Practice & Procedure § 2873, at 265-66.
A party may not use Rule 60 as a substitute for a timely and proper appeal.
Ackermann v. United States,
Permitting the district court to have the first bite at the issue is a direct way of reaching a problem which otherwise can be attacked circuitously — if the motion were addressed to this court we could remand with directions to the district court to consider it, or we could affirm subject to the district court’s considering the motion. Aldridge v. Union Bankers Insurance Co.,457 F.2d 501 (C.A.5, 1972).
Nonetheless, appellant, acknowledging the absence of a pending appeal here, argues that
Lairsey
stands for the proposition that a Rule 60(b)(1) motion should be entertained any time the law changes and the motion is filed within the one-year time prescribed by the rule. For whatever reason, appellant chose not to appeal at the time of the initial judgment and now seeks to use Rule 60(b) as a substitute for appeal after others had sought a ruling from the Fifth Circuit. An unsuccessful litigant may not rely on appeals by others and share in the fruits of victory by way of a Rule 60(b) motion.
Ackermann, supra;
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Annat, supra; Oliver v. Monsanto Co.,
The strong interest in the finality of litigation demands rejection of appellant’s suggestion. During the pendency of an appeal, the parties recognize the possibility of reversal; thus, modification of a judgment being appealed impacts not at all on finality concerns. “There must be an end to litigation some day, and free, calculated and deliberate choices are not to be relieved from.”
AFFIRMED.