
USCA1 Opinion

	




                            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                                          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                                          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                                         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                                          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.          Affirmed.  Costs to appellee.          ________   _________________                                          10
