Samuel Nemaizer, General Manager of the New York Coat, Suit, Dress, Rainwear and Allied Workers' Union I.L.G.W.U. v. Jack Baker, an Individual
793 F.2d 58
2d Cir.
1986
Check Treatment

*2 CARDAMONE, Cirсuit Judges. CARDAMONE, Judge: Circuit question we are called to de- appellees may cide is bring whether an claiming action in appel- federal court individually lant is Employ- liable ee Security Retirement Income Act (ERISA), seq. U.S.C. 1001 et §§ unpaid corporate employee benefit funds, appellee trust previously after prejudice” dismiss “with raising ap- that claim. The reason pellees advance to obtain Rule from the order stipulation contemplated only a pending claim, state The legal federal claim. consequences stipulation incorporated of a simply stipulation dismissing undone ecuted a the action order not be in a court stip- hindsight, prejudice,” and ordered” because, the benefit of “with it was “so by Judge been an unfortu- Broderick on March ulating out turns Although obviously in- better nate tactic. September on months later Six foresight, argument based than formed and another trustee benefit fund upon which a ground not a hindsight *3 brought (appellees) instant federal ac- the 60(b) relief. may grant Rule court appellant alleging that individual- tion was I BACKGROUND ly liable under ERISA for contributions Nemaizer, by corporation. the fund Plaintiff, owed the Samuel General Coat, Suit, judge court the action was district whom Manager of the York New originally assigned he would Dress, Allied Workers’ Un- indicated that Rainwear and judicata grounds dismiss it on res I.L.G.W.U., unless originally commenced ion January, Judge in New York State convinced Broderick to plaintiffs in action employee benefit modify prejudice” to recover earlier “with order to Supreme Court appellant, from encompass only plaintiffs’ fund contributions a dismissal of trust Brett, Baker, Inc. an officer of Sue original complaint. state law Jack complaint alleged cause of one The initial him, When the matter was referred to Law, New Labor York State action ap- was Judge Broderick found that such Inc., Brett, corpo- 198-c Sue § stipulation, entering intent in pellee’s bankruptcy, employer, declared rate 60(b) granted appellees’ and Fed.R.Civ.P. complaint alleged that and relieving them motion from the delinquent liable for the personally dismissed “with that had the state action op- corporation’s chief as the contributions and prejudice,” which otherwise erating officer. precluded raising them now from February appellant removed On arising under law. The dis- claims federal District to the States the action United genuine found a misunderstand- trict court of New for the Southern District Court concerning stipula- ing had occurred J.), (Broderick, alleging that the claim York giving that scope equity tion’s and dictated 1132 and preempted by asserted §§ make their appellees opportunity Nemaizer did 1144 of ERISA. Plaintiff The dis- ERISA claims federal court. removal, he move to nor did contest specify court did not the subsection trict it back state court. remand 60(b) upon which relied. Rule in federal Appellant Baker then moved determination, defendant-ap- From this he al- complaint court to dismiss —that reviewing appeals. pellant Baker After preempted arguing leged by ERISA — (b)(6), 60(b)(1), (b)(4) only applica- —the liability upon impose ERISA did that none that ble subsections —we conclude bargaining non-signatory to a collective granted, support the relief regardless individual’s agreement, of that discre- abused its therefore pendency of corporate During status. it. granting We reverse motion, February plaintiffs’ appealed ment and dismiss Stoga- Appeals down York Court handed judicata. by claim as barred Dinolfo, novic v. N.Y. N.Y.2d II THE JUDGMENT held 462 N.E.2d S.2d written, stated As did not New York Labor Law 198-c § is dis part recovery in relevant “this provide a cause action for costs prejudice without employee trust funds missed with unpaid benefit with party.” A dismissal Faced either against an individual like Baker. adjudica final has the effect of a knowledge prejudice had no claim that he to defendant court, the merits favorable in state Nemaizer offered tion on cognizable by plaintiff brought suits bars future voluntarily to lawsuit discontinue Wain- ex- same cause of action. Accordingly, upon federal court. Thus, wright Inc. Wall Tran Securities St. order to maintain the instant action, (S.D.N.Y.1978). script, 80 F.R.D. federal invoke must Rule 60(b) to vacate judg part judgment. Such a dismissal constitutes a final the initial preclusive successfully, To do that govern- ment with the effect “res the rules 60(b) litigated all must be judicata not as to matters satisfied. We turn to it, those rules. and decided but to all relevant been issues which could have but were not 60(b) Ill FED.R.CIV.P. litigated raised and in the suit.” Heiser sets forth the Woodruff, discretion, on which a in its can 90 L.Ed. 970 Teltronics v. L M rescind or amend a final or order. Telecommunications, Ericsson prоvides, pertinent part: It On motion and such terms as are A prejudice arising dismissal with out of just, the court party relieve a or his *4 agreement an adjudica the is an legal representative from a final contemplated tion of all matters in the ment, order, proceeding or for the follow- agreement, and a court order which memo (1) mistake, reasons: inadvertence, agreement pro rializes this bars further surprise, (2) neglect; or excusable newly ceedings. appellant Here this removed ...; (3) discovered ..., evidence fraud pre case to the federal court ERISA misrepresentation, or other misconduct emption grounds alleged in his motion (4) an party; adverse the in pre to that court that dismiss ERISA void; (5) the satisfied, has been recovery. appellee’s cluded The district released, ...; or discharged, (6) or any plaintiff’s court ordered action dismissed justifying other reason relief from the prejudice stipu in accordance with the operation judgment. of the Accordingly, judicata lation. preclud Properly 60(b) applied Rule strikes a bal- present appellees ed raising from the serving ance between justice ends ERISA claim a later federal suit. See preserving finality judgments. Harris, Co., Boeing PRC Inc. v. 700 F.2d House v. Secretary Health and Human 894, Cir.), (2d denied, 896 cert. 464 U.S. 7, Services, (2d Cir.1982); 688 F.2d 9 Seven 936, 344, (1983). 104 78 L.Ed.2d 311 S.Ct. Elves, Eskenazi, 396, Inc. v. 635 F.2d 401 Appellees’ complaint simply (5th Cir.1981). substitutes In other words it should be claims of ERISA for previous broadly violations to jus- construed do “substantial law; tice,” Elves, 401, claims of a violation of state labor it see yet Seven 635 F.2d relies operative on the same Be- lightly facts. final should not “be re- pleaded Id.; cause opened.” the identical facts in the v. Swim-Tech Griffin prior 677, (11th Cir.1984). state action form basis 722 Corp., F.2d 680 complaint, new ERISA the ERISA The Rule be used as a substitute pleaded by appellant claim was fact timely appeal. for a United States v. prior O’Neil, 361, (appellant’s (5th Cir.1983); dis- action motion to 709 F.2d 372 petition), stipula- miss Syndicate Co., and removal of v. Rinieri News 385 F.2d dismissing plaintiff’s (2d Cir.1967). 60(b) “action” with 822 Since allows prejudice relief, must be read to extraordinary judicial have dismissed invoked judicata pre- upon showing all principles claims. Res exceptional circum- Intern, appellees raising clude from in a later ac- stances. Ben Sager Chemicals v. Co., (7th tion those claims been Targosz E. & 809 Cir.1977); Celebrezze, decided had the first been liti- fully action v. Hoffman gated. (8th Cir.1969); Migra Rinieri, See v. Warren 385 School F.2d Education, District Board A seeking at 822. motion relief is such 79 L.Ed.2d 56 to Mur- addressed the sound discretion (2d phy Gallagher, appellate F.2d district court with review limited Cir.1985). determining to whether that discretion has 680; 60(b)(1) sary justify F.2d at relief. Griffin, abused. ‍‌​​​​​​‌​​​​​‌‌​‌‌​‌​‌‌‌‌​‌‌‌‌​‌​‌‌‌‌‌​‌​‌​‌​​‌‌‍See been O’Neil, 373; Corp., 666 F.2d at Emergency Beacon Chick Kam Choo Matter of (5th Corp., 699 v. Exxon Cir.), denied sub cert. nom. Chick Kam 60(b)(1) A. Rule Co., Oil Choo Esso that his counsel contends S.Ct. 78 L.Ed.2d 103 contemplate original action did purposes, More particularly our an did of the not there- breadth carefully attorney’s failure evaluate bringing later intend foreclose legal consequences of a chosen course of court. The claim federal provides no basis relief from argument accepted and found this O’Neil, 373; judgment. 709 F.2d at entering into Choo, 699 is, Chick Kam F.2d at 696-97. mistake; honest misunderstand- O’Neil, government sought party each intended. None- ing of what timely appeal after it failed to take a theless, agreement clearly precluded be- misinterpreted cause it the adverse order. bringing the instant ERISA misinterpretation This preserve arose because it claim. Had intended thought separate orders directed right, he should not have entered into trials 42(b), stipulation. type prejudice” of “with under Fed.R.Civ.P. rather than sever- govern- ance Fed.R.Civ.P. 21. The error Relief from counsel’s is nor misunderstanding ment’s apparently mally sought pursuant on the interpretation stemmed from its *5 mistake, such theory that error constitutes term “sever”. Id. at 372. The district neglect. or But we inadvertence excusable 60(b) up- court’s denial of Rule reliеf was consistently to declined relieve despite finding good held faith (1) of the “burdens client subsection appellate mistake. The stated of a final entered him ambiguous the orders themselves were not mistake omission of due to the or his attor appeal inquire failure to or to as to ignorance ney by reason the latter’s their “amounts status to a want ade- court, his the law or other rules of or quate ignorance care or of the rules.” Id. manage inability efficiently to his case at 374. Cirami, load.” United States v. (2d Cir.1976); analagous United States circumstances here are to Erdoss, (2d Cir.), The parties voluntarily 440 F.2d 1221 cert. de those in O’Neil. States, agreеd plaintiff’s dismiss with nied sub nom. Horvath v. United prejudice. language 30 L.Ed.2d 88 The clear of the dis- 404 U.S. S.Ct. States, (1971); 384 F.2d trict court’s order notice that basic Schwarz United served (2d Cir.1967). judicata principles a person This is because would bar future who selects counsel cannot thereafter avoid actions. Insofar Nemaizer or coun- consequences agent’s “proper” or sel order’s and “techni- acts read the Co., language differently, omissions. Link Railroad cal” he misread the v. Wabash 626, 633-34, likely, consequences 8 law. of en- 370 U.S. 82 S.Ct. More Teltronics, tering agreement an were L.Ed.2d 734 see into such not (“While fully judica weighed. Admittedly, true that res the choice F.2d at it is applied, poor, responsibility no made but even if mechanically is not to be ... ta counsel, plaintiff’s prior or discovered where rests with Rule case has been cited 60(b)(1) provide principles avenue for judicata from res has been does an relief example, granted plaintiff allegation, relief. no simply There is because counsel.”). authority to en- by inexperienced that former counsel lacked represented Moreover, in hindsight stipulation. ter into Mere dissatisfaction actions, context, attorney’s whether deliberately by counsel is not choices made mistake, arising neglect, or inex- from carelessness finding inadvert cliеnt, ence, neglect perience, to the who surprise or neces are attributable excusable duty protect by has his own interests Thus whether the water in the taking legal steps necessary. such as are is grand, reservoir scant or is far from States, Nonetheless, Ackerman v. United clear. it was plainly in 197-98, 209, 211, 212, 95 L.Ed. 207 apply tended to in the circumstances empty To presented rule otherwise would grant here. To relief under this finality meaning. rule of subsection would accept be to proposi tion that when counsel’s conduct shows 60(b) designed Rule relief is to afford negligence gross relief to a may client be opportunity dispute to resolve а 60(b)(6). afforded under Rule Although Lucas, on its merits. J. Moore & J. some courts view, have embraced that see 60.19, Practice, Federal H at 156 ed. Steuart, Matthews, L.P. Inc. v. 1983). When the to an submit denied, cert. agreed-upon disposition seeking instead of 13 L.Ed.2d 35 consistently we have merits, however, a resolution on the Cirami, indicated to do reluctance so. 60(b) burden to obtain Rule relief is ‍‌​​​​​​‌​​​​​‌‌​‌‌​‌​‌‌‌‌​‌‌‌‌​‌​‌‌‌‌‌​‌​‌​‌​​‌‌‍heavier 740-41; Schwarz, at trial, if proceeded lost, one party than Id.; appeal. and failed to see also Hoff- Celebrezze, man v. 405 F.2d at 836. It unnecessary to reconsider our short, “mistake, inadvertence, there is no disinclination prior because counsel’s fail surprise neglect” or excusable demonstrat- recognize ure to the effect of agreed- here ed sufficient to afford Rule upon stipulation does not gross amount to 60(b)(1)relief. negligence. plaintiff’s When state law B. Rule claim became untenable virtue of an intervening decision from New high York’s (6) Clause of Rule provides that est quickly sought counsel pre granted relief “any be other rea- vent his client pursuing from a lawsuit justifying son operation destined to end in Regardless defeat. óf judgment.” portion This intent, agreeing to a dismissal pre properly invoked when there are ex- being cluded Nemaizer from later able traordinary relief, justifying circumstances *6 litigate fеderal claims not was an unreason Emergency Cory., Matter Beacon 666 of able act. His claim had been removed"to a F.2d at judgment may when the work federal forum where had moved Id.; an extreme and hardship, undue Unit- to ground dismiss on the that no valid Karahalias, ed States v. 205 F.2d 333 ERISA existed him (2d Cir.1953), individu and when the asserted ally. A decision stipulate to to a grounds are recognized relief not of entire cause of action at (1) (5) point that clauses of Rule. Matter — of well could have been based on a Emergency Cory., 758; consci Beacon 666 at F.2d Cirami, entious informed (b)(6) at estimate counsel applies 535 F.2d 740. As plaintiffs legal success, of available, when chances bal no other subsection is ancing benefits of may mistake, litigation continued not be inadvertence, against its prospective costs. surprise or excusable ne- Rarick glect. America, v. United Steelworkers 202 (W.D.Pa.1962). F.Supp. 903 If counsel (b)(6) The scope variously has been did analysis not undertake this cost-benefit interpreted. See, Karahalias, e.g., always and instead had bring intended to a (L. Hand, J.) (“extremely F.2d at 333 mea subsequent lawsuit on the federal cause of Rinieri, 822; ger”); accord 385 F.2d at cf. action, sign it was* pre careless to such a Cirami, United States v. stipulation, clusive but is such carelessness (2d Cir.1977) (quoting 7 Moore’s Federal gross negligenсe, not is it nor sufficient to Practice, (2d at U ed. rev. 60.27[2] judgment 60(b)(6). vacate under Rule 1975))(“a grand equitable pow reservoir of er”); Dunlop Appellees urge Dunlop accord v. Pan American that v. Pan Inc., Airways, World Airways, World American Dunlop, jurisdiction federal courts lack the U.S. Secre- cause over controls. age case, appellees a federal discrimi- tary improperly Labor settled removed on behalf of with Pan American signed by nation suit that the order maintain the dis- Appellants, who employees. nullity airline trict court was a not therefore litigation prior state that had commenced assuming binding. Even this case was pending the оutcome stayed was jurisdiction not properly within the suit, given superseding were no federal court, appellees may not now collat- opportunity participate to the federal erally juris- attack that court’s exercise of Nonetheless, ambiguous stipula- suit. diction. dismissing into the federal entered only relevant subdivision suit, prevent appel- read to could be which (b)(4) judg- relates to void separate on proceeding their lants from appellees correctly Although argue ments. Secretary Because the state law claims. improperly that this case was removed to extinguish state authority to claims no logiсally federal it does not or neces- rights Age statutory or under the Discrimi- every judgment follow sarily rendered (ADEA), Employment Act nation improper after an removal must be classi- 633(a) (1982), U.S.C. nullity fied void. therefore permit ap- to amended under Rule pellants prosecute their state law claims. to In most cases a defense of federal law at 1051. preemption indepen- will not constitute an jurisdiction for federal dent basis sufficient is different. Here the The case bar party asserting to entitle the it to removal ambiguous; legal its not 1441(a). Appellees rely under 28 U.S.C. § clearly precluded appellees from la- effect principle reсent ERISA Thus, the raising ter claim. federal Tax decision Franchise Bd. Laborers susceptible simply being ment 1, 13-14, Trust, 463 U.S. Vacation amended; it must be vacated. Unlike the 77 L.Ed.2d 420 S.Ct. appellants Dunlop non-parties in the — they appellant’s when assert brought by federal lawsuit the Secre- initial appellees’ preemption defense did not make partici- tary plaintiff-appellee Nemaizer — original complaint state law 198-c § pated fully original in the state suit and Labor York Law one that fell voluntarily stipulated Ap- to its dismissal. “arising jurisdiction within the under” pellees modify do not seek to a federal Thus, court. such defense did federal claims, protect state law but removing provide basis state preserve modify a federal complaint. Plainly, claims. federal courts federal accomplish justice in a vacate deciding appel- assume We without *7 Yet, particular equi- justice case. Id. correctly lees claim that this case was im- 60(b)(6) ty by invoking not are served im- properly removed and the district court to allow to sue the individual jurisdiction it properly exercised its when appellant for ERISA contributions when Nonetheless, stipulation. “so ordered” the urged theory the identical claim under entered federal court parties law was dismissed and the state Appellees not could hаve moved to void. have not to raise to state court after its remand action federal claim in court. court, or chal- improper removal to federal 60(b)(4) C. Rule juris- lenged the district court’s exercise appeal. they did diction on direct Because they Appellees next contend neither, they by principles now barred are by stipulation agreed were not bound finality and the interest judicata upon between the because mounting a collateral original improperly removed the action present prior in the on a by claiming ERISA attack from state court appellees’ Be- preempted statе-law claim. action.

65 Bank., County Dish power Chicot 308 Since a court has to determine its 371, 317, jurisdiction and, own fact, U.S. 60 S.Ct. 84 L.Ed. 329 required power exercise that Supreme sponte, sua Court held that a federal dis- it does not plainly usurp jurisdiction when it merely subject trict court’s erroneous exercise of commits an error in the exercise of that jurisdiction subject matter to collat- power. Rather, a court will be deemed to authority eral attack. “The court has the plainly have usurped jurisdiction only when pass upon jurisdiction its own and its there is a “total jurisdiction” want of sustaining jurisdiction decree against at- arguable no basis on which it could have tаck, review, open while to direct is res finding rested a jurisdiction. had judicata 377, in a collateral action.” Id. at Lubben, 453 F.2d at 649. When a district 60 if S.Ct. at 320. Even a court does not court has explicitly why noted it as- expressly relating rule on matters to its jurisdiction suit, sumed over appellate jurisdiction, exercise of if the could courts will independently examine the challenged ‍‌​​​​​​‌​​​​​‌‌​‌‌​‌​‌‌‌‌​‌‌‌‌​‌​‌‌‌‌‌​‌​‌​‌​​‌‌‍power the court’s to hear a record to determine whether a reasonable case, judicata principles then res serve to basis existed for the lower implicit court’s them challenging bar from later it collat- finding that it jurisdiction. See id. at 378, erally. Id. at 60 S.Ct. at 320. This 4; 647 n. Kansas Ry., 624 F.2d at 824. principle recеntly reaffirmed present In the case the district court did Supreme Court Corp. Insurance not ‘plainly usurp’ jurisdiction over the ini Bauxites, 694, Compagnie Des 456 U.S. tial action. A state cause of action arises 9, 702 n. 102 S.Ct. 2104 n. under federal law therefore be (1982)(“A party L.Ed.2d 492 that has had removed to federal court in the rare in opportunity litigate question stance when a federal cause of action com subject not, jurisdiction may matter how- pletely preempts the state cause of action. ever, reopen question in a collateral Franchise Tax Board v. Laborers Vaca judgment.”); attack an adverse see Trust, 1, 22-27, 463 U.S. 103 S.Ct. Stores, Department also Federated Inc. v. 2841, 2852-55, 77 L.Ed.2d 420 See Moitie, also Corp. Avco v. Aero Lodge (1981); Wright 69 L.Ed.2d 103 & L.Ed.2d Miller, Procedure, Federal Practice and (1968); McIntyre v. Fallahay, 766 F.2d (1973) (“[A] at 201 court’s determi- § (7th Cir.1985). Here the district jurisdiction nation that it has subject reasonably court could have found that issue, judicata matter is res on that if the provision, ERISA’s remedial 29 U.S.C. jurisdictional question actually litigat- 1132(a), completely preempted so N.Y. § decided, party ed and or if oppor- had an Labor brought Law 198-c that an action § tunity subject jurisdiction to contest matter 198-c ‘arose ERISA. under’ § so.”). and failed to do Board, Franchise Tax 463 U.S. at (“It Contrary case S.Ct. at 2854 may any law and commentators’ be thаt ... state coming permitting any scope” views within the collateral attack on a 1132(a) U.S.C. is removable to always federal prior judgment § under Rule court); Bonnabel, F.Supp. Calhoon v. involve usurpation power by a clear (S.D.N.Y.1982) (actions 108-09 and not an error of law in brought under 198-c removable to feder- determining § jurisdiction. whether it has *8 ERISA). ‘arising al court as under’ We do e.g., Kansas Ry. Southern v.Co. suggest implicit that the district court’s Carbon, 822, Great Lakes finding jurisdiction that it had over the suit (8th Cir.1980); Ed., Marshall v. Board of correct, reasonable, only that it was N.J., (3rd Bergenfield, and therefore immune from collateral chal- Cir.1978); Lubben v. Sys- Selective Service 60(b)(4). lenge under Rule tem Local Board No. (1st Cir.1972); Lucas, Hence, 649-50 J. Moore & J. we conclude that the earlier ment, supra, although perhaps 227. an erroneous exer- 60.25[2] 1984, Baker removed Nemaizer’s suit to is not now sub- jurisdiction, cise federal of court, alleging ground the federal as 7 J. Moore & J. attack. ject to collateral Thus, preempt- removal that the 198-c claim was at 230-31. Lucas, supra, 1160.25[2] following day by The Baker furnish ed ERISA. does pursuant suit moved to dismiss Nemaizer’s judgment. the to vacate 12(b)(6)for failure to to Fed.R.Civ.P. state CONCLUSION IV accompanying a claim. His memorandum is argued failed of law that the claim complaint ERISA appellees’ reversed and ERISA.1 by principles of as barred dismissеd investing his client’s Rather than time judicata. money to win a remand of in an effort claim, 198-c what was now a meritless MESKILL, Judge, dissenting: Circuit suggested Baker and Nemaizer contacted I dissent. respectfully voluntary of the claim. termination Baker stating scope that correctly our After responded by proposing grant or denial un- of relief review following dismissal which contained determining limited to der Rule action, including language: “[Tjhis all court abused its discre- whether the district could have claims which were or been tion, proceeds ignore majority then herein, with preju- is dismissed asserted Judge Broderick considered the facts that ____” Appellant (empha- at 44 Aрp. dice majori- his own order. The interpreting added). sign refused to sis into stipula- back ty effectively reads clearly would have barred language very tion the negotiation, After a future ERISA claim. agreed to delete. A review of themselves language was deleted. The the italicized background complete factual convinces by resulting stipulation, signed both did his Judge me Broderick not abuse Broderick, Judge by and ordered stated in this case. discretion “this action is dismissed instead App. Appellant at prejudice.” ac with 25. Nemaizer filed an Appellee Samuel complaint out of Supreme With the now in Janu 198-c tion in New York Court picture, Bakеr’s motion to dismiss com- ary alleging that Baker Jack 12(b)(6) was plaint pursuant to Rule dis- employee contri benefit fund was liable by as Judge missed Broderick moot on New York Labor Law 198- butions under § York March February c. the New On Stoganovic in the case of Appeals Court of September Nemaizer and On 61 N.Y.2d 473 N.Y.S.2d DiNolfo, brought another benefit fund trustee (Ct.App.1984), affg N.E.2d 149 against alleg- in federal court action Baker DiNolfo, 92 A.D.2d Stoganovic employee was liable for that Baker 1983), (4th Dep’t squarely N.Y.S.2d The suit under ERISA. benefit funds a civil cause held that originally assigned Judge Brieant. At a like Baker could not be corporate officials judge, Baker’s attor- conferencе with Thus, 198-c. implied under section before new suit was barred ney asserted that the law claim ever reached Nemaizer’s state prejudice by the legal its basis had been the federal Nemaizer, According to suit. earlier highest repudiated by the state’s court. Judge if the dismissal Brieant said own, be inclined to order were he would attorney says he learned

Nemaizer's 21, modify it in allow the February order to decision Stoganovic parties, According to both proceed. 1984, following publication in its however, that if the Judge Brieant stated February On York Law Journal. Instead, therefore, indicates, ‍‌​​​​​​‌​​​​​‌‌​‌‌​‌​‌‌‌‌​‌‌‌‌​‌​‌‌‌‌‌​‌​‌​‌​​‌‌‍majority. motion was Stoga- the dismissal that the 1. The record Stogаnovic eight days decision during penden- filed not come decision did novic after claim meritless. had rendered the 198-c cy dismissal motion indicated of this *9 modified, order probably were not he would with prejudice arising of an agreement out required be to dismiss the claim on parties adjudication of the is an of all grounds. says judicata it Nemaizer contemplated matters agreement,” in the Judge suggestion Brieant’s that the Op. Majority (emphasis added), section II parties Judge return Broderick to deter- refusing while to examine what was actual- scope. mine the order’s ly contemplated by parties or, the here indeed, whether there was meeting ever Nemaizer then filed with Judge Broder- minds. judge, the The district on the 60(b) request ick the instant for Rule relief hand, actually other made this inquiry. He from the dismissal order. receiving After agreement found that instead of an there parties affidavits and briefs from the and genuine was a misunderstanding hearing argument, Judge between Broderick found parties stipulation’s as to stipulation scope. Nemaizer intended the claim, majority finding, *10 68 apparent to the classic mis- End Re- reference to see also Alliance 46 Wichelhaus, case, Eng. v. 159 F.2d take City Chicago, 742 v.

pression Raffles of (Ex.1864) (en (“context case of a mis- Cir.1984) banc) Rep. ... 375 “true (7th 1013 —a understanding ships pass- language whеre two were understanding key to [in is the night.” App. Appellant in of at decree]”). consent clearly express did stipulation The confusing knowledge of the Based on it was parties and relief from intent of procedural context substantive 60(b)(1). properly available under Rule Cf. operating, parties here were Carriers, Metropolitan Freight Elder v. that the correctly found Judge Broderick Cir.1976). (3d Inc., 543 F.2d 517-18 parties’ action” term “this pro- properly ambiguous. He then dis- way, was another Viewed meaning contrary intended to to determine the here also ceeded missal entered was Dunlop Pan Ameri- term. See v. of the court. of the the intentions therefore, grant F.2d relief Airways, power had to can World 60(b)(6), Cir.1982) stating providing that it was (2d (stipulation pursuant from it Rule bar, merger, and suffi- the circumstances here were to constitute a “deemed satisfy judi- of prosecution ciently “extraordinary” to estoppel to the institution or Matter gloss named subsection. See litigation” by certain cial any further Corp., F.2d Emergency Beacon “sufficiently ambiguous ... parties was Cir.1981). (2d court did not clarification”); Schurr, The district 719 F.2d 759 require cf it determined its discretion when (district looking to abuse court erred at here were extraordi- that the circumstances having found that evidence after extrinsic nary. “clear consent languagе unambiguous”). Alliance to But see Beyond the facts and events described (courts Repression, F.2d at End above, could also following factors parties’ effectuate intent seeking to First, the to that determination. have led language unambiguous disregard even power” plaintiff here the “unfettered contrary to meaning clearly literal where voluntary of his to obtain a intent). to con- Employing the aids 41(a)(l)(i) by fil- merely under Fed.R.Civ.P. above, in- particularly described struction Santiago v. Vic- ing a notice dismissal. final cluding comparison the draft and Metropolitan Agency tim Services judge the district concluded stipulations, 219, 221 Corp., Assistance action” meaning intended of “this that the. dis- motion to The defendant’s complaint limited to Nemaizer’s 198-c Rule, of the did not take the case out miss potential not extend future did to a encouraging policy whose at id. ERISA. States claim under United “voluntary actions that dismissals of Cf Cir.1983) (5th O’Neil, 366-68 stages very early untenable become court looked to context (appellate certainly litigation,” of the id. at wording judgments related to determine Thus, could here. applicable meaning “sev- court’s intended without his 198-c claim have withdrawn issue). understanding bothering ered” to reach mutual terms of the withdrawal. about 60(b) afforded subsections of Rule

Two grant Second, parties’ powеr reading court the the district a broad stipula- plaintiff deny unintended effect of the here from an very by re-inserting the applicable day first of the subsec- his in court tion. The 60(b)(1), intention tions, language from a themselves allows relief contrary to What That result is resulting ally from “mistake.” deleted. ment 60(b), provision negligent Rule “a remedial policy of here was not the kind of occurred allowing prevent recog- injustice intended that courts have refused omission though some day in even their ground relief under nize as a Celebrezze, which would error has See, technical occurred 60(b). e.g., Hoffman Rather, or dismis (8th Cir.1969). for default otherwise be Associa Rouge Baton it—with sal.” Greater the district court described was as Golf Commission, v. Recreation and Park *11 (5th Cir.1975) (per cu riam). Third, the precluded here was claim, protected by one preventing

strong legislative policy of

employer ‘pulling rug “from out promised

under’ retirement benefits employees during

which his had relied their

long years of service.” Amato v. ‍‌​​​​​​‌​​​​​‌‌​‌‌​‌​‌‌‌‌​‌‌‌‌​‌​‌‌‌‌‌​‌​‌​‌​​‌‌‍Western Inc., International,

Union Cir.1985), dismissed, pet. cert.

— -, U.S. S.Ct. 89 L.Ed.2d Burlington Gilbert In cf.

dustries, Inc., (2d Cir.)

(financial employees by employer’s loss to obligations pri pay default on severance — ERISA),

mary aff'd, concern

—, L.Ed.2d

Considering factors, all of these ex-

perienced judge here used sound construing

discretion in his own order way

such a as to justice. do substantial

Klapprott States, v. United

614-15, L.Ed.

(1949) J.). (opinion Black, I af-

firm.

In re TWO GRAND JURY SUBPOENAE DATED

DUCES TECUM 21, 1985. AUGUST America,

UNITED STATES of

Appellee-Cross-Appellant, DOE, P.C., Esq., Roe,

John and Doe &

Appellants-Cross-Appellees.

Nos. Dockets

86-1006, 86-1007. Appeals,

United States Court of

Second Circuit.

Argued May 1986.

Decided June to discontinue his state The notes law see id. at I, there misunderstanding had been true section nowhere indicates that it was between parties counsel over the much wrong, clearly less Then, erroneous. that, intended of the effect of according instead finding the defer- light of all of the facts and circumstanc- deserves, ence it the majority disregards it. case, es of the it would inequitable be Because the instant deny litigate an opportunity dismissal, of “ like judgment, a consent is support his ERISA claim. find- agreement ‘an entered ing, Judge particularly Broderick noted the upon the record with the sanction ap language from the deletion of the broad ” proval of [c]ourt,’ Schurr see v. Aus original stipulation and rapid conflu- Illinois, Inc., tin Galleries preceding ence of events it—the critical (2d Cir.1983) (quoting Oyster Town of decision, New of Appeals York Court Forte, Bay Misc.2d 219 N.Y.S.2d removal of 198-c action and the motion (Sup.Ct.1961), reasonаble to also dismiss. He noted that effort apply here the principles long applied to remand the 198-c claim to state court consent The stipulation, cases. succeeded, would have probably but judgment, like a consent should be con light been futile New York and interpreted strued aas contract and Appeals Court of decision. “ ‘reliance certain aids to construc- actually Rather modifying than the dis- proper, any as with contract. order, Judge missal Broderick issued an aids Such include the circumstances sur- 8, 1985, May order on he “con- rounding [stipula- formation been in- having strue[d] tion, any meaning technical words and] tended tо discontinue the claim under state may parties’____ used have had to the law but ... as barring ... not subse- may interpret terms ... [A] quent Ap- claim under ERISA.” App. examining extrinsic documents ... [and pellant at 4. This order deemed the Rule also ‘the circumstances examine] 60(b) having motion as been made surrounding the order and the context in subsequent ERISA suit. A order dated ” operating,’ which the were 4, 1985, order, June amended the 8May Schurr, construing (quoting 719 F.2d at having the Rule motion as United original Co., been made in v. ITT Baking both the 198-c suit States Continental 223, 238, 243, the later ERISA action. (1975)). L.Ed.2d 148 York State DISCUSSION Association For Children Retarded (2d Cir.), begs majority key question Carey, cert. de nied, this case it states when 62 L.Ed.2d “[a] 60(b). Despite the district court’s to clari- Frigitemp references In re Cf. (2d Cir.1986). fication and construction rather than modifica- Corp., 781 F.2d tion, grant we should review its action as a