
USCA1 Opinion

	




          October 19, 1993  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No.  93-1914                                        IN RE:                          PETER FISHER & BALFOUR HOLDINGS, INC.,                                     Petitioner.                                 ____________________                                                                                ERRATA SHEET               This opinion  of this  court issued on  October 12,  1993 is          amended as follows:               On  page 4, not  2, fifteenth  line, replace  "Trainor" with          Fisher".               On page 6, eighth line  of the first full paragraph, replace          "circumstances which"  with "circumstances,".          October 12, 1993      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1914                                         IN RE:                        PETER FISHER & BALFOUR HOLDING, INC.,                                     Petitioner.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ____________________            Evan Slavitt, Hinckley, Allen  & Snyder, James B. Hicks, Kathy  A.            ____________  _________________________  ______________  _________        Jorrie and Andrews &  Kurth L.L.P., on Petitions for Writ of Mandamus,        ______     _______________________        for petitioners.                                 ____________________                                 ____________________                 Per  Curiam.    Petitioners  Peter  Fisher  and  Balfour                 ___________            Holding, Inc. [hereinafter collectively "Fisher"] seek a writ            of mandamus directed to the United States District Court  for            the District of  Massachusetts.  This petition  arises out of            the district  court's order  declaring a  mistrial after  the            parties to the action could  not agree on the implications of            the jury's answer to questions submitted to  them pursuant to            Fed.R.Civ.P.   49(a).     The  court   found   that  in   the            circumstances of the case, "justice w[ould] best be served by            retracing what, in the context of this litigation, ha[d] been            a relatively small step."            Background            __________                 The matter below has its  source in two actions, both of            which  relate to a multi-party  venture aimed at developing a            human  blood substitute.   We  summarize  the facts  briefly.            Biopure Corporation manufactures Hemopure, a potential  human            blood substitute.   In the  late  1980s, William  Trainor and            Peter  Fisher  discussed   entering  into  a   joint  venture            agreement  to provide  financial  assistance  to  Biopure  in            exchange for  certain rights  in Hemopure  and other  Biopure            products.  Fisher believed that an agreement had been entered            into.  However, in 1990, Biopure and a corporation controlled            by Trainor, Bio-Vita,  Ltd., entered into an  agreement which            did  not  include  Fisher.    Believing  himself   wrongfully            excluded  from the  deal, Fisher  brought  an action  against            Biopure and Trainor [the "Fisher Action"].  After Trainor had            invested over  one million  dollars in  the Biopure  project,            Biopure rescinded  the 1990  agreements on  the grounds  that            Trainor  had  made  misrepresentations  and  failed  to  meet            certain obligations.   Trainor then commenced his  own action            against Biopure [the "Bio-Vita Action"].                 After  more than  two years  of  pretrial discovery  and            litigation, the Fisher Action was called to trial in November            1992.  The court severed  the first count of Fisher's amended            complaint  for immediate  trial.    This  count  alleged  the            existence, and Trainor's  breach, of a binding  joint venture            agreement.   The amended  complaint also  included counts  of            misrepresentation, interference with contract or advantageous            relationship, and  breach of fiduciary duty  against Trainor,            and several counts against Biopure.                 At the  conclusion of the trial, and upon stipulation by            the  parties, the following  questions were submitted  to the            jury pursuant to Fed.R.Civ.P. 49(a):                    1.     Did [Fisher] and  [Trainor] enter into                    a binding  oral contract providing  that they                    would share  50/50 in  the expense  and gains                    involved in the Biopure project?                    If  your answer to  question one is  "No" you                    need  go no  further.    If  your  answer  to                    question one  is "Yes"  go on to  question[s]                    two and three.                    2.     Did [Fisher] breach the terms of [the]                    oral contract with [Trainor] by unjustifiably                                         -4-                    failing to contribute [his] agreed upon share                    of  the  purchase  price  and other  expenses                    incurred with respect to the Biopure project?                    3.     Did [Trainor] breach the  terms of his                    oral contract with  [Fisher] by unjustifiably                    denying    [Fisher]    an    opportunity   to                    participate on  a 50/50 basis in  the Biopure                    project?          The  jury answered "yes" to questions  one and three, and "no" to          question  two.1   The  court  then  recessed  the jury  with  the          intention of  bringing them  back later to  resolve the  issue of          damages.                    The jury was never called back.  Instead on July 12, 1993,          the court declared a mistrial sua sponte.   It based its decision                                        ___ ______          on  the fact  that the  parties "could  not .  .  . agree  to the          implications of the  jury's special verdict"2 and  how to proceed                                            ____________________            1.    Given these  responses  the jury  was  not required  to            address a  fourth question  which asked, if  both Fisher  and            Trainor had breached the contract, who breached it first.            2.  According to the court's memorandum:                  Trainor believes that Fisher's right to any relief-                 -i.e., a  share in  the judgment,  if any,  against                 Biopure--should be conditioned upon  his payment of                 those  expenses he  would  have been  obligated  to                 cover  had he not been excluded as a joint venturer                 from  the Biopure project.    Fisher argues that he                 is excused  from not  putting up  his share  of the                 expenses, in light of Trainor's breach of the joint                 venture agreement.  Fisher contends that  the trial                 of  the  remaining  counts in  the  Fisher  Action,                 including  the damages  phase  of the  first count,                 should await  the conclusion  of the  trial in  the                 Bio-Vita   Action.     Trainor   has  expressed   a                 willingness  to proceed  with the  Bio-Vita Action,                 but not  without the  financial support of  Fisher.                 Moreover,  the parties disagree as to who should be                 controlling counsel  with respect to  the remaining                                         -5-          against  Biopure   in  the   Bio-Vita  Action.     "Given   these          extraordinary  circumstances,  [the court]  decided  not  to hold          either party to the other's  interpretation of the verdict, or to          [its] own."                 Petitioners  contend that in  failing to enter  a verdict,          pursuant to Fed.R.Civ.P. 58(2), in accord with the jury's special          verdict, the court deprived them of their Seventh Amendment right          to  have judgment  entered on  the findings  of the  jury.   They          petition  this court  to issue a  writ to  the district  court to          enter judgment on the special verdict.          Uses of Mandamus          ________________                 The All Writs  Act, 28 U.S.C.    1651(a), empowers federal          courts to issue writs of mandamus where "necessary or appropriate          in aid  of their respective  jurisdictions."  See In  Re Pearson,                                                        ___ ______________          990 F.2d 653, 656 (1st Cir. 1993).  Traditionally such writs have          been used "to  confine inferior courts to the  lawful exercise of          their  prescribed jurisdiction or  compel them to  exercise their          authority when  duty demands."  Id.; see also  Mallard v.  United                                          __   ___ ____  _______     ______          States Dist. Court  for Southern Dist., 490 U.S.  296, 308 (1989)          _____________________________________          (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943)).                   _____    _____________________          Being drastic measures, such writs "must be used sparing and only          in  extraordinary situations."  Pearson, 990  F.2d at 653 (citing                                          _______          cases).   Otherwise they  may undermine the  policies surrounding                                            ____________________                 counts.                                         -6-          the  congressional  judgment  that in  general  appellate  review          should be postponed until after  final judgment.  Allied Chemical                                                            _______________          Corp. v. Daiflon, Inc., 449 U.S. 33,  35 (1980).  The decision on          ____     ____________          whether  to issue the writ is within the sound discretion of this          court.  Kerr v. United  States District Court for Northern Dist.,                  ____    _______________________________________________          426 U.S. 394, 403 (1976).                 To  ensure that  the  writ  issue  only  in  extraordinary          circumstances, a  petitioner is  required to  show "some  special          risk of irreparable harm" and  a "clear entitlement to the relief          requested" before a  writ will be issued.3   In Re  Recticel Foam                                                       ____________________          Corp., 859 F.2d 1000, 1005 (1st Cir.  1988); Pearson, 990 F.2d at          ____                                         _______          656.   To  satisfy  the  first  requirement, a  petitioner  "must          ordinarily demonstrate  that something  about the  order, or  its          circumstances  would make  an end-of-case  appeal ineffectual  or          leave legitimate  interests  unduly  at risk."      Id.  (quoting                                                              __          Recticel,  859  F.2d  at  1005-06).    To   satisfy  the  second,          ________          petitioner  must "establish a  'clear and indisputable'  right to          the  requested  relief or,  in other  words, that  the challenged          order is  palpably erroneous."   Id. (quoting Banker Life  & Cas.                                           __           ___________________          Co. v. Holland,  346 U.S. 379, 384 (1953)  (quoting United States          __     _______                                      _____________          v. Duell, 172 U.S. 576, 582 (1899))).             _____                                            ____________________            3.    Cases of great public import where advisory mandamus is            appropriate are excepted  from these requirements. See  In Re                                                               ___  _____            Recticel Foam Corp., 859 F.2d 1000, 1005 n.4 (1st Cir. 1988).            __________________            This is not such a case.                                         -7-          Discussion          __________                 Petitioners  assert  that  the  court's failure  to  enter          judgment in accord with the  verdict in their favor deprived them          of their rights under the Seventh Amendment.  See Robles v. Exxon                                                        ___ ______    _____          Corp., 862  F.2d 1201,  1204 (5th Cir.),  cert. denied,  490 U.S.          ____                                      ____  ______          (1989)  ("rule 58(2)  and  the  seventh  amendment  command  that          judgment  be entered  on the  verdict if  the jury's  answers are          clear and  consistent, subject, of  course, to the  usual motions          under rules 50 and 59 for judgment notwithstanding the verdict or          a new trial"); Toucet v. Maritime  Overseas Corp., 991 F.2d 5,  8                         ______    _______________________          (1st  Cir.  1993) ("[w]hen  a  special  verdict form  results  in          apparently  conflicting findings,  a court has  a duty  under the          Seventh Amendment  to harmonize  the answers  if at  all possible          under a  fair  reading").    Furthermore, they  assert  that  the          court's  declaration of a mistrial  because the parties could not          agree  on  the meaning  of  the  verdict  was  a clear  abuse  of          discretion.   See Freeman  v. Package  Machinery,  Co., 865  F.2d                        ___ _______     _______________________          1331, 1333 (1st Cir. 1988)  (judge may set aside jury  verdict in          civil case "only if, 'it is quite clear that the jury has reached          a  seriously  erroneous  result.'") (quoting  Borras  v. Sea-Land                                                        ______     ________          Services, Inc., 586  F.2d 881, 887 (1st  Cir. 1978)).  We  do not          _____________          address the merits of these contentions.                 As  we  have  said  above,  to  obtain  mandamus relief  a          petitioner must show both a  special risk of irreparable harm and                               ____          a clear entitlement to the relief he seeks. The Supreme Court has                                         -8-          indicated that "[a] trial court's ordering of a new trial rarely,          if ever, will justify the issuance of a writ of mandamus" because          it is  likely to  meet neither of  these standards.  Daiflon, 449                                                               _______          U.S.  at 36   First, since a  litigant may seek  review on direct          appeal after final judgment, it  cannot be said that the litigant          is without  other adequate means  of relief.  Id.   Second, in  a                                                        __          matter  committed to  the discretion  of the  trial court,  it is          unlikely  that a  litigant can  demonstrate that  his right  to a          particular result is clear and indisputable.  Id.                                                          __                 Even  if this were  a rare instance  where a discretionary          order  by a  trial  court  was a  palpable  abuse of  discretion,          petitioners still have an adequate remedy through a direct appeal          after final  judgment. See   Navarro de Cosme v.  Hospital Pavia,                                 ___   ________________     ______________          922 F.2d 926, 929 (1st Cir. 1991) ("[i]n a civil case, the remedy          for  a wrongfully  declared mistrial  is  a second  trial").   An          erroneous declaration of  a mistrial--if the declaration  were in          fact  erroneous--is not an extraordinary circumstance.  Hence, it          does not merit the extraordinary  remedy of mandamus relief.  Nor          does the  fact that an  appeal after final judgment  will require          more  burdensome litigation, standing  alone, justify our  use of          the power of mandamus.  In Re Pearson, 990 F.2d at 661.                                  _____________                 Petitioners' request for a writ of mandamus is denied.                                                                ______                                         -9-
