USCA1 Opinion

December 13, 1995 UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1552

GEO. P. REINTJES, CO., INC.,

Plaintiff, Appellant,

v.

RILEY STOKER CORPORATION,

Defendant, Appellee.

____________________

ERRATA SHEET
ERRATA SHEET

The opinion of

this Court

issued on December

7, 1995,

is

amended as follows:

On page 2,
"Riley Stoker's."

first paragraph, line 12,

change "Reintjes'" to

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

____________________

No. 95-1552

GEO. P. REINTJES CO., INC.,

Plaintiff, Appellant,

v.

RILEY STOKER CORPORATION,

Defendant, Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Aldrich and Coffin, Senior Circuit Judges.

_____________________

____________________

Duane J. Fox with whom

____________

Gregory S. Gertstner,
____________________

Seigfreid, Bingh
________________

Levy, Selzer & Gee, Edmund C. Case, Roger Lane and

___________________ _______________ __________

Testa, Hurwit
_____________

Thibeault were on brief for appellant.

_________
David P. Grossi with whom
_______________

Barry A. Bachrach and

_________________

were on brief for appellee.

____________________

December 7, 1995
____________________

Bowditch & De
_____________

ALDRICH,

case

seeking, inter alia, to

___________

2(a)

Corp.

with

attribute

This

is another

to M.G.L.

c. 93A,

and 11 (1988 ed.), the universal capacity of a Swiss

army jack-knife.

Inc.

Senior Circuit Judge.

_____________________

of Kansas

Briefly,

City, Missouri,

of Worcester,

the

plaintiff Geo. P.

question of

and defendant

Massachusetts,

who

must

Reintjes Co.,

Riley Stoker

found themselves

bear

a loss

due

faced

to

the

inappropriateness

obtained

Riley

of

and installed

Stoker to

whether Reintjes'

arbitrator

testified,

arbitrator's

District Court

Stoker

to

credited

The answer

Riley

Riley

favor, that

findings

for the

lining material,

in boilers

Stoker

The parties resorted

it was

supplied by

depended

included

on

the

to arbitration and

Stoker's

were confirmed

employees,

who

so understood.

The

by the

United States

District of Massachusetts

obtained a judgment in

parties agreed

furnace

by Reintjes

warranty

in its

Green

third party.

material's design.

the

A.P.

the amount of

and Riley

$989,119.

The

to settle the judgment for $950,000 which, in

due course, was done.

Some two years later

Reintjes learned, through the

accident of its counsel in the arbitration case being engaged

in entirely independent

litigation with

Riley

may

Stoker employees

Reintjes arbitration

action

claiming

have committed

proceeding.

Riley

Riley Stoker,

Stoker's

-3-

Reintjes

failure

perjury in

then filed

to

disclose

that

the

this

the

alleged

fraud

during settlement

Reintjes paying a

negotiations, that

substantial sum, amounted to a

misrepresentation and, more, was

led to

common law

an "unfair or deceptive act

. . . in the conduct of . . . trade or commerce" under M.G.L.

c. 93A,

2(a), entitling Reintjes

to damages.

According to

Reintjes, its present suit rests not on the original cause of

action,

but

on

the

independent

allegation

of

fraud

in

procurement of the settlement agreement.

The district

Reintjes' claims

agreement

later,

Reintjes

court

initially took

arising from procurement

the view

that

of the settlement

were cognizable independently of the judgment, but

on Riley

Stoker's motion,

thereupon

moved

for

undertook

leave

complaint to set aside the judgment.

to

to reconsider.

file

an

amended

This was denied on the

grounds that Reintjes did

the judgment in

court

motion

because

The court then

dismiss Reintjes'

they

relief from

the absence of a showing that fraud upon the

had occurred.

to

not state a claim for

could not

judgment was obtained.

lie

granted Riley Stoker's

common

law

and state

unless relief

claims

from

the prior

court

erred in

We affirm.

I.
__

Reintjes

ruling its fraud and

judgment.

which

first

asserts that

the

chapter 93A claims barred by

the prior

Reintjes states that "failure to disclose any fact

would

influence

person

-4-

not

to

enter

into

transaction is a violation of chapter 93A;" that this statute

therefore "imposed

(sic)

to

disclose,

agreement, that

the

upon

Riley Stoker

during

award

an

procurement

was

obtained

affirmative duty
_________________

of

the settlement

through

perjured

testimony," and that Reintjes relied on the non-disclosure in

entering into the settlement agreement.

Our

assent to such a

contention would amount to a

rule,

in

Massachusetts at

least,

that

attached to

federal judgment affecting commercial matters is

condition that it

must be

relied upon, for

if

it is

may be

claims,

Reintjes concludes

attacked, "cannot curtail"

28 U.S.C.A.

Federal Rules of Civil

or

2072(b)

judgments is

Reintjes

that the

no

60, which

federal judgments

to

common law

the effect

that

Procedure "shall not abridge, enlarge

With due

respect, it is

finality of otherwise

dependent upon their validity

cites

be

to disclose

its state and

modify any substantive right."

inconceivable

it cannot

that Rule

exclusive methods by which

citing

an inherent

there is an "affirmative duty"

faulty.

prescribes the

proved correct, or

every

authority.

We

valid federal

under state law.

summarily

affirm

the

district court's

from

the

ruling that Reintjes' only

settlement

application of

and

Federal Rule

underlying

route to relief

judgment

of Civil Procedure

To this we turn.

II.
___

-5-

is

through

Rule 60(b).

Reintjes claims

was

the court erred in

ruling that it

unable to state a claim for relief from judgment because

its allegations did not amount to a fraud upon the court, or,

alternatively, that Rule

fraud

upon

the

cognizable

court

basis for

Riley's witnesses

perjured

design

of

relief

testimony during the

charges stem

entry

and that

engaged in

the central issue in

assumed

60(b) does not

its

require it to

allegations

under the

Rule.

a concerted effort

for

against

It contends

to present

arbitration hearing regarding

the boiler

from Reintjes' discovery, some

judgment

state

the case, namely, whether Reintjes

warranty

show

it,

of

linings.

had

These

two years after

materials1

indicating

Riley's witnesses may have perjured themselves.

Rule 60(b) permits relief

from final judgment for,

inter alia,
__________

(2)

newly

due

discovered evidence

diligence

discovered

could

in time

to

not

which by
have

move for

been
a

new

trial under Rule 59(b);

(3) fraud (whether heretofore denominated

intrinsic

or

extrinsic),

misrepresentation, or other misconduct of

an adverse party . . .

Fed.R.Civ.P. 60(b).

The

Rule requires that motions pursuant

to the above grounds "shall be made within a reasonable time,

and . . . not more

than one year after the

judgment, order,

____________________

1.

Letters

pivotal

and

notes of

meeting between

third-party

the parties,

testified.

-6-

participant in

about which

both had

or proceeding was entered or taken."

Id.
___

At

the same time,

the Rule

does not
entertain

limit the
an

relieve a party
or

power of a

independent

court to

action

from a judgment,

proceeding, . . . or

to set

judgment for fraud upon the court.

Id.
___

to

order,
aside a

Our initial reaction is

openness

that, despite the apparent

of this final provision, where the body of the Rule

contains an

explicit

time limitation

for motions

invoking

specified grounds for relief, it would make no sense to apply

the

final general provision, containing no limit of time, so

broadly as to cover all the grounds for which

is expressly stated.

fall

Since Reintjes' claims would appear

exactly under

sections (2)

materialized too late

to file

court,2 it should not now be

the

unlimited

reason.

answer.

and

clause

Historically,

In view

modicum of

the time limit

and (3)

in a motion

of the

to the

Rule, but

judgment

able to elect to proceed

without

however,

some

additional

this may

be

to

under

ground

or

too easy

an

of the curtness of the Rule's final clause,

disagreement

in

the

circuits, we

will

examine its origins.

____________________

2.

Reintjes did file

such a

(Young,

J.), however,

because

it was filed more

judgment.

motion to

it was

summarily denied,

than one year

Fed.R.Civ.P. 60(b)(3).

-7-

the judgment

court

presumably

after entry of the

No appeal was filed.

Prior to the adoption of the Federal Rules of Civil

Procedure the

from

general rule

judgment on

account

was that application

of fraud

could

for relief

be made

to

presiding court before expiration of the term in which

judgment was entered.

(1882).

v. Excelsior Foundry Co., 56

_____________________

Cir. 1995).

However, efforts

the value of finality against aversion to

the

judicial

recognize

an

led

courts sitting

exception

for

"extrinsic," or collateral,

narrow

to balance

condoning abuse of

apparatus

other hand, intrinsic

final

Bronson v. Schulten, 104 U.S. 410, 415

_______
________

See also Glass, et al.

___ ____ _____________

F.3d 844, 848 (7th

the

in

equity

category

to the original action.

fraud, such as perjury

of

to

fraud

On the

relating to an

issue actually decided, could not form the basis for untimely

relief.

United States v.
_____________

(1878)

(judgment

Throckmorton, 98 U.S.
____________

confirming certain

land

61, 66, 68

claims

based on

falsified land grant could not be set aside 18 years later on

claim

of

fraud

because

validity of

grant

was

the issue

tried).

The

matter

for

Throckmorton rule
____________

tried cannot form

relief from

that fraud

the basis for

final judgment

claimed

in the

an untimely request

was refined

in Hazel-Atlas
___________

Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944).3

_________
____________________

An

____________________

3.

This

case avoided

have long found the

the extrinsic/intrinsic

labels. Some

distinction dubious, dubbing it "clouded

and confused," 11 Wright, Miller & Kane, Federal Practice and

____________________
Procedure,
_________

2868, p.

401 (1995 ed.), and "at times

journey into futility."

. . . a

Moore & Rogers, Federal Relief from

-8-

attorney for Hartford had

its patent claim published

contrived to have an

encomium for

in a trade journal under

line of a

disinterested expert, which was

evidence.

Hartford lost at trial, but its attorneys

the by-

then presented in

paraded

the article before

then

reversed

supporting

a panel

and

its

of the court

entered judgment

opinion

publication.

Id. at
___

instigated an

action to

with quotation

240-42.

obtained

evidence of

directed

that judgment

in

Nine

undo the

of appeals,

which

Hartford's

favor,

from

the

spurious

years later Hazel-Atlas

judgment

Hartford's caper.

for Hartford

be

based on

The

newly

Supreme Court

set aside

and the

district court's original order denying relief to Hartford be

reinstated.

Id.
___

at

251.

The

Court emphasized

the

old

English rule that, "under certain circumstances, one of which

is

after-discovered

fraud, relief

will be

granted against

judgments regardless of the term of their entry," id. at 244,

___

was

to

be

applied

cautiously,

i.e.,

only

"in

certain

instances

departure

justified

. . .

deemed

sufficiently

from rigid adherence" to finality.

its

distinguishing

application

this

in

situation

from

discovered evidence indicates merely

perjured

private

gross

himself, id.
___

parties, id.
___

at

at

245, from

246, and

Id.
___

demand

case

The Court

Hazel-Atlas
Glass
___________________

where

by

after-

that a witness may have

cases concerning

from cases

____________________

Civil Judgments, 55 Yale L.J. 623, 658 (1946).

-9-

to

only

resulting in

injury merely to a single litigant (deeming fraud perpetrated

to

obtain a

favorable patent

institutions set

Id.
___

And,

up to

Hartford's

"a wrong

protect and safeguard

was

carefully

executed scheme"

only the

Patent Office but

Id. at 245-46.
___

ruling

"a

deliberately

by an

the public").

planned

attorney "to

the Circuit

In fact, it reached

against the

Court of

and

defraud not

Appeals."

all persons affected by

the patent.

Hazel-Atlas

Glass thus expanded

the range

of the

__________________

fraud exception

for untimely requests

in Throckmorton
____________

to include

the

court."

359

(1995).

understanding

fraud committed by

See Moore, 7
___

It

that

Federal Practice,
________________

carries

this

for relief delineated

forward

exception

"officers of

60.33, p. 60-

the

well-established

never

included garden-

variety fraud:

This is

not simply a case

obtained with
on

the

evidence,

the aid of a

basis
is

of

of a judgment
witness who,

after-discovered

believed possibly

to have

been guilty of perjury.

Hazel-Atlas Glass, 322 U.S. at 245.

_________________

In

Rule

60(b)

1946 Congress

which

adopted the

specifies

fraud,

current version

"whether

of

heretofore

denominated extrinsic or

as

it,

intrinsic," Fed.R.Civ.P.

an explicit ground for

like several

limitation.

other

The Rule

a motion for

relief and subjects

grounds specified,

preserves

60(b)(3),

judicial

to

a one

power to

year

grant

-10-

relief

in

an

independent

action "insofar

as

established

doctrine permits,"4

of the court,

and "expressly does not

when fraud

has been perpetrated

give relief under the saving clause."

of

Advisory

limit the power

Committee on

Rules,

upon it,

to

Fed.R.Civ.P. 60, Notes

1946

Amendment, Note

to

Subdivision (b) (hereinafter "Advisory Committee Notes").

Other

however,

the

than specifying

the Rule "makes no

independent

60.37[2].

Moore, 7

Rather, it leaves

applied in such an

action."

upon

attempt to state

action."

to established principles,

"fraud

the

court,"5

the bases for

Federal Practice,
_________________

this substantive determination

id., "which have

___

heretofore been

Advisory Committee Notes.

Indian Head Nat. Bank of Nashua v. Brunelle,

_________________________________
________

See
___

689 F.2d 245,

248-49 (1st Cir. 1982) (as Advisory Committee Notes indicate,

"the Rule expressly

available "prior

Congress

preserves independent equitable actions"

to the

Rule's enactment").

incorporated into Rule

principles governing

We find

that

60(b) pre-existing judicial

untimely requests for

equitable relief

____________________

4.

The Rule as originally adopted did not specify fraud as a

ground

for relief, but did contain a saving clause that left

courts free to

continue to exercise their inherent

power to

grant

from

doctrine

relief

warranted.
(West 1941).

judgments

where

established

Fed.R.Civ.P. 60(b) (1937), 28

U.S.C.A.

723(c)

See, e.g., Central Hanover Bank & Trust Co.

___ ____ ________________________________

v.

Wardman Real Est. Prop., 31 F.Supp. 685 (D.D.C. 1940).

_______________________

5.

In this Circuit we have held

"unconscionable

scheme

such fraud to consist of an

calculated

to

interfere

with

the

judicial system's ability impartially to adjudicate a matter"

involving an officer of the court.
892 F.2d 1115, 1118 (1st Cir. 1989).

Aoude v. Mobil Oil Corp.,

_____
_______________

-11-

from fraudulent

judgments.

See Hazel-Atlas Glass, 322 U.S.

___ __________________

238.

While "fraud

only
____

permissible basis

district

such

upon the court" is

court held,

showing,

for

an independent

and therefore

there

is

also

therefore not the

action, as

Reintjes need

little

the

not make

doubt that

fraud

cognizable to maintain an

untimely independent attack upon a

valid and final judgment has long been

more than common

law fraud.

Hazel-Atlas Glass,
__________________

Throckmorton, 98
____________

322 U.S.

relief justified only where

"manifestly

at

244-45

U.S. at

66;

(untimely bid

for

enforcement of judgment would be

unconscionable")

225 U.S. 651, 657 (1912)).

regarded as requiring

(quoting Pickford
________

v. Talbott,
_______

See also, Chicago, R.I. & P. Ry.

___ ____ _______________________

v. Callicotte, 267 F. 799, 810 (8th Cir. 1920), cert. denied,

__________
____________

255 U.S. 570

attack

(1921) ("indispensable" element of

independent

on judgment for fraud is that it prevented party from

presenting his case); Aetna Casualty & Surety Co. v. Abbott,

____________________________
______

130 F.2d 40, 43-44 (4th Cir. 1942) ("it is well settled

that

[a conspiracy between plaintiff

perjured testimony]

could

deny

scope

of fraud

under the

See,
___

constitutes no ground" upon

enforcement

proceeding).

The

and his witnesses to present

great

of

judgment

majority of

necessary to

modern Rule 60(b)

in

an

which court

independent

cases addressing

sustain an

the

independent action

has adhered to

this principle.

e.g., Gleason v. Jandrucko, 860 F.2d 556, 558 (2nd Cir.

____ _______
_________

-12-

1988)

(fraud

narrower

timely

necessary

to

than that which

sustain independent

is sufficient to

motion); Travelers Indemnity Co.

________________________

action

is

obtain relief by

v. Gore,
____

761 F.2d

1549 (11th Cir. 1985) (allegations of perjury insufficient to

entitle plaintiff

action

under Rule

to relief from judgment

60(b));

in an independent

Great Coastal Express v.

______________________

Brotherhood of Teamsters, 675

__________________________

F.2d

1349,

1358 (4th

Int'l
_____

Cir.

1982), cert. denied, 459 U.S. 1128 (1983);

____________

Robinson, 56 F.3d
________

at

But see,
_______

Averbach v. Rival
________
_____

809 F.2d 1016, 1022-23

(3rd Cir.), cert.

1274 n.6 (10th

Manufacturing Co.,

Cir. 1995).

_________________

denied, 482 U.S. 915,

______

("[T]he

elements of

_____

and cert. denied, 484 U.S.

____________

a cause

of action

822 (1987)

for [relief

from a

judgment on the ground of fraud] in an independent action are

not different from those elements

and . . . the

in a Rule 60(b)(3) motion,

time limit on such a motion does

not apply to

an independent action.").

In

sum,

perjury

alone,

absent

allegation

of

involvement by an officer of the court (Reintjes makes none),

has

never

been sufficient.

Hazel-Atlas Glass, 322 U.S.

_________________

F.2d

at 559

(2nd Cir.);

1551-52 (11th Cir.); Wood

____

Throckmorton,
____________

at 245.

98 U.S.

See also,
________

Travelers Indemnity,
___________________

at 66;

Gleason, 860
_______

761 F.2d

v. McEwen, 644 F.2d 797

______

at

(9th Cir.

1981), cert. denied, 455 U.S. 942 (1982).

____________

The possibility of

perjury, even concerted, is a common hazard of

process

with which

litigants are

equipped to

the adversary

deal through

-13-

discovery and cross-examination, and, where warranted, motion

for

relief

Fed.R.Civ.P.

override

the

statutory time

expired,

from

judgment

60(b)(3).

Were

considerable

period for

it would

to

upend

the

mere

value

presiding

perjury

of

motions on

the Rule's

court.

sufficient to

finality

after

account of

the

fraud has

careful balance.

See
___

Great Coastal Express, 675 F.2d at 1354-55 (Rule 60(b) is an

______________________

effort to

balance competing judicial values

equity, with

of finality and

equitable considerations favored for

up to one

year from entry of judgment, and finality thereafter).

Reintjes

points

to

no

reason

why

this

newly

discovered evidence might justify relief from judgment beyond

the statutory

generally

time frame.

justify

an

Discrediting witnesses

"extraordinary"

second

does not

opportunity.

Xerox Financial Services Life Ins. Co.

_______________________________________

v. High Plains Ltd.,

________________

44 F.3d 1033,

See Moore, 7 Federal

___
_______

Practice,
________

1038-39 (1st Cir. 1995).

60.37

(Rule 60(b)

relitigate, whether

"issues

via motion

that were made or

action where he had a

defense").

1984).

which,

or

independent action,

open to litigation

to

any

in the former

or

See, also, Travellers Indemnity, 761 F.2d at 1552

___ ____ ____________________

1986); Carter
______

v. LaBow, 783 F.2d 333,

_____

v. Dolce,
_____

741 F.2d

Reintjes' claims amount, at

as

a party

fair opportunity to make his claim

(11th Cir.); Comptex, S.A.

_____________

Cir.

does not license

we

have

said,

cannot

758, 760

335 (2nd

(5th Cir.

best, to ordinary fraud

form

the

basis

of

an

-14-

independent

action

under the

Rule's saving

provision when

they would certainly be barred if presented as a motion under

section

244

(3).6

(2nd

See Wallace
___ _______

Cir.),

cert. denied,
_____________

("[o]bviously it cannot

done

v. United States,
_____________

323

U.S.

have been intended that

within six months, pursuant

to the body

142 F.2d 240,

712

(1944)

what may be

of Rule 60(b)

may also be done thereafter, under the exception contained in

its

last

Rule).

fraud

sentence") (referring

See also, Moore,

_________

to

predecessor

to current

7 Federal Practice,
_________________

60.33 (if

that may form basis of independent action "is not kept

within proper

limits

substantially all

but is

ballooned

to include

species of fraud within

all

or

60(b)(3) then the

time limitation upon 60(b)(3) motions will be meaningless").

Finally, while the notion that it would be "against

conscience" to

let a particular

judgment stand may

in some

instances serve to tip what would otherwise be ordinary fraud

into the special category that can invoke

powers

589,

to breach finality, see

___

595

a court's inherent

Marshall v. Holmes, 141 U.S.

________
______

(1891), Hazel-Atlas Glass,

__________________

322

U.S. at

244-45,

Reintjes

has failed to

so move us

particularly offensive about

or

There is nothing

the circumstances

the

result of,

Reintjes'

Stoker.

See id. at
___ ___

244.

warranty

surrounding,

dispute with

If Reintjes should have

____________________

6.

here.

See note 2, supra.

___
_____

-15-

Riley

won, then

the most

that can be said

is that it lost

in large measure

due to its own lack of diligence.

The judgment of the district court is affirmed.

________

-16-