149 F.R.D. 90 | D. Maryland | 1993
MEMORANDUM
I
This action was originally instituted by Linda Lepore against Kurt Ramsey, Donald Alexander and Westinghouse Electric Corporation in the Circuit Court for Baltimore City. Plaintiff asserted claims for intentional infliction of emotional distress, defamation and invasion of privacy. Defendants removed the action to this court on the ground that plaintiffs claims were barred by Section 301 of the Labor Management Relations Act of 1947. 29 U.S.C. § 185(a) (1988). Plaintiff filed a motion to remand the action to the Circuit Court for Baltimore City.
On April 3, 1990, Judge Joseph Howard— to whom the case was then assigned—issued a memorandum and order finding that most of plaintiffs claims were preempted and that others were not actionable under Maryland law.
After the Fourth Circuit had ruled, the case was returned to the district court for remand to the state court. However, before the remand actually occurred, defendants filed a motion for costs. The clerk of the court granted the motion, the district court denied plaintiffs motion for a review of the clerk’s decision and plaintiff appealed that decision to the Fourth Circuit. While that appeal was pending, defendants filed a motion pursuant to Fed.R.Civ.P. 60(b), seeking relief from Judge Howard’s original order remanding the one claim to the Circuit Court for Baltimore City. That motion is now pending before the court.
II.
Fed.R.Civ.P. 60(b)(1) authorizes the court to relieve a party from a final judgment because of “mistake, inadvertence, surprise, or excusable neglect.” It has been held that the term “mistake” as used in the rule comprehends an error of law made by the district court which becomes manifest by a change in, or clarification of, the law subsequent to the court’s decision. See United States v. Williams, 674 F.2d 310, 312-13 (4th Cir.1982); Tarkington v. United States Line Co., 222 F.2d 358, 360 (2d Cir.1955); but see Silk v. Sandoval, 435 F.2d 1266, 1267-68 (1st Cir.), cert. denied, 402 U.S. 1012, 91 S.Ct. 2189, 29 L.Ed.2d 435 (1971). However, “[wjhere the motion is nothing more than a request that the district court change its mind, ... it is not authorized by Rule 60(b).” Williams, 674 F.2d at 313.
A motion under Rule 60(b)(1) must be filed “not more than one year after the judgment, order, or proceeding was entered or taken.” Defendants filed their Rule 60(b) motion on November 9, 1992, well beyond one year after Judge Howard’s original order that was entered on April 3, 1990. Defendants argue, however, that “where, as here, the error in the District Court’s opinion was not apparent until after an appellate court decision, the one year period runs from the effective date of that decision.”
There are two fallacies in this argument. First, defendants’ premise that Judge Howard committed an error which was not apparent until after the Fourth Circuit’s decision in this case is incorrect. The mistake which defendants contend Judge Howard made was his holding that plaintiffs claim based upon the alleged public disclosure of private facts was not preempted. Nothing in the Fourth Circuit’s opinion on the appeal of Judge Howard’s order made this error apparent. To the contrary, the Fourth Circuit declined to address the issue, finding itself precluded from doing so by 28 U.S.C. Section 1447(d).
Rule 60(b)(1), as construed by the Fourth Circuit and other courts which read its term “mistake” as encompassing legal error, supplements the foregoing rules by permitting relief from a judgment if a material change of the law occurs after the judgment is entered. However, to avoid conflict between Rule 60(b)(1) and Fed.R.App.P. 4(a), it is generally held that a Rule 60(b)(1) motion based upon a legal mistake must be filed within the period for filing an appeal. See, e.g., United States v. Real Property & Residence, 920 F.2d 788, 791-92 (11th Cir.1991); D.C. Federation of Civic Ass’ns v. Volpe, 520 F.2d 451, 453 (D.C.Cir.1975); 7 Moore’s Federal Practice ¶60.22[4], at 60-195 (1993). The only exception which has been engrafted to this rule applies where a timely notice of appeal has been filed and the change in the law occurs within one year of the entry of the district court’s judgment.
Thus applied, Rule 60(b)(1) provides a means for making the judicial system work effectively without interfering with a prevailing party’s reasonable expectation that the judgment in his favor has become final after the appeal period has expired or, in the event of appeal (during the pendency of which his interests are protected by the requirement that a bond be posted), after the appeal has been decided. This is wholly consonant with
Defendants cite only two cases, Southern Fireproofing Co. v. R.F. Ball Constr. Co., 334 F.2d 122 (8th Cir.1964) and Morgan v. Southern Farm Bureau Cas. Ins. Co., 42 F.R.D. 25 (W.D.La.1967), to support their reading of Rule 60(b). Neither of these cases contains even a cursory analysis of the issues involved. In Southern Fireproofing the Eighth Circuit “merely suggested], without expression of opinion,” that the appellant might be able to obtain relief under Rule 60(b) as to a small item of damages which the district court may have overlooked in writing an extensive opinion on more weighty matters. In Morgan the district court, in denying a Rule 60(b) motion, merely noted that the motion was filed twenty-three months after the Fifth Circuit had rendered its decision on appeal. Obviously, in light of the fact that the motion clearly was untimely even assuming that the date of the appellate decision triggered the running of the one-year period, the district court was not required to grapple with the question of when the one-year period did begin to run.
III.
Defendants also contend that they are entitled to relief under subsections (5) and (6) of Rule 60(b), to which the one-year time limit does not apply. Neither of these arguments is meritorious.
A.
Subsection (5) permits relief from a prior judgment where it is no longer equitable that the judgment should have prospective application. “The standard to be applied in determining whether an order or judgment has prospective application within the meaning of Rule 60(b)(5) is whether it is ‘executory’ or involves the ‘supervision of changing conduct or conditions,’...” Schwartz v. United States, 129 F.R.D. 117, 122 (D.Md. 1990) (quoting Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C.Cir.1988)). In this case, defendants contend that Judge Howard’s judgment has prospective application because the remand order has not yet been effectuated.
Defendants have not cited any cases where Rule 60(b)(5) was employed to block an impending remand order. Rather, Rule 60(b)(5) is normally employed in cases where the court has issued an injunction or a prior judgment requiring ongoing supervision of the parties. See 7 Moore’s Federal Practice ¶ 60.26[4] (1993). As the court in Schwartz noted, “[vjirtually every court order causes at least some reverberations into the future, and has, in that literal sense some prospective effect.... [Hjowever, [that] does not necessarily mean that it has ‘prospective application’ for the purposes of Rule 60(b)(5).” 129 F.R.D. at 122. In every case where a judgment is appealed and thereafter returned to the district court, further clerical action is required. That alone is certainly not sufficient to trigger Rule 60(b)(5).
B.
Subsection (6) of Rule 60(b) is a “catch-all” provision which permits relief for “any other reason justifying relief from the operation of the judgment.” A Rule 60(b)(6) motion “must be based upon some reason other than those stated in clauses (1)-(5)____” 7 Moore’s Federal Practice ¶ 60.-
For these reasons defendant’s motion for relief from judgment is denied.
. The case was subsequently transferred from Judge Howard to Judge Legg. Because of an imbalance in caseload, I am deciding the pending motion for Judge Legg.
. The Fourth Circuit has now affirmed the order taxing costs against plaintiff.
. The Fourth Circuit's opinion affirming Judge Howard’s April 3, 1990 order was entered on October 7, 1991, more than one year before defendants' Rule 60(b) motion was filed. However, the mandate effecting that opinion was not issued until November 12, 1991, less than one year before the filing of the Rule 60(b) motion. Plaintiff has not argued that the one year period should begin to run from the date that the Fourth Circuit’s opinion was entered, and I will assume (as seems proper) that if the clock starts to run from the date of the appellate decision, it is the issuance of the mandate that is the triggering event.
. One "error” which the Fourth Circuit's opinion did make apparent was defendants' own mistake in believing that they could obtain appellate review of Judge Howard's remand order. Another error which the Fourth Circuit mentioned was a statement made by Judge Howard, in remanding the remaining claim to the Circuit Court, that he lacked jurisdiction over it. Citing United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) (now codified as 28 U.S.C. Section 1367), the Fourth Circuit stated that "the district court clearly had pendent jurisdiction over the claim it remanded.” However, the Fourth Circuit’s statement itself is enigmatic. Indeed, unless it is itself erroneous, it undermines defendants' fundamental claim that the claim which Judge Howard remanded is
. Defendants do not deny that a district court has jurisdiction to accept a Rule 60(b) motion while an appeal is pending. Indeed, they could not do so since they filed their own Rule 60(b) motion while an appeal of the costs issue was pending in the Fourth Circuit.
. An ancillary point should perhaps be noted. The filing of a Rule 60(b)(1) does not toll the running of the period for filing a notice of appeal. See, e.g., Center For Nuclear Responsibility, Inc. v. United States Nuclear Regulatory Comm'n, 781 F.2d 935, 940 (D.C.Cir.1986); Marane, Inc. v. McDonald’s Corp., 755 F.2d 106, 111-12 (7th Cir.1985). Therefore, a party benefitted by a change in the law occurring during the thirty-day period established by Fed.R.App.P. 4(a) should file both a notice of appeal and a Rule 60(b)(1) motion and then file a motion in the court of appeals requesting a deferral of appellate decision until the Rule 60(b)(1) motion has been ruled upon by the district court.
