Bain, et al. v. MJJ Productions, Inc., et al.
Justia.com Opinion Summary: Raymone Bain and her firm filed suit against Michael Jackson and his production company, MJJ Productions, Inc., claiming to be owed substantial sums for various services rendered. Defendants moved to dismiss, relying principally on a December 2007 release agreement where Bain broadly relinquished any claims against Jackson and his business entities. The district court granted summary judgment in favor of MJJ, holding that the release agreement precluded Bain's claims. Bain moved for relief from judgment under Rule 60(b)(2) five months later. The "newly discovered evidence" cited by Bain was an April 2008 letter from Jackson to Bain, in which Jackson stated that he had no awareness of, and had never signed, the release agreement on which the district court had grounded its grant of summary judgment. The district court held that a movant's awareness of evidence automatically precludes relief under Rule 60(b)(2), regardless of the evidence's availability. The court found that to be an unduly constricted understanding of "newly discovered evidence" for purposes of Rule 60(b)(2). The court concluded, however, that the district court committed no abuse of discretion by looking beyond Bain's efforts in searching her own files and considering whether she mentioned the letter to the court or sought its assistance in locating the evidence. Because Bain failed to exercise reasonable diligence in seeking out the letter, the court affirmed the judgment of the district court.
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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued December 6, 2013 Decided May 13, 2014 No. 12-7061 RAYMONE K. BAIN AND DAVIS, BAIN & ASSOCIATES, INC., APPELLANTS v. MJJ PRODUCTIONS, INC. AND ESTATE OF MICHAEL JOSEPH JACKSON, APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:09-cv-00826) Joseph M. Creed argued the cause for appellants. With him on the briefs were Steven M. Pavsner and Levi S. Zaslow. Henry W. Asbill argued the cause for appellees. With him on the briefs were Jennifer Bradley Lichter, Howard L. Weitzman, and Jeremiah T. Reynolds. Ryan J. Watson entered an appearance. Before: BROWN and SRINIVASAN, Circuit Judges, and WILLIAMS, Senior Circuit Judge. 2 SRINIVASAN, Circuit Judge: In December 2003, the late entertainer Michael Jackson retained Davis, Bain & Associates, Inc., to act as his public relations firm. One of the firmâs founders, Raymone Bain, began serving as a spokesperson and publicist for Jackson, later becoming his general manager. In May 2009, Ms. Bain and her firm (collectively, Bain) sued Jackson and his production company, MJJ Productions, Inc., claiming to be owed substantial sums for various services rendered. Those services included arranging the release of a 25th anniversary edition of Jacksonâs album, Thriller, generally recognized to be the best-selling album in history. The defendants (collectively, MJJ) moved to dismiss, relying principally on a December 2007 release agreement signed by Jackson and Bain. In the release agreement, Bain broadly relinquished any claims against Jackson and his business entities. The district court granted summary judgment in favor of MJJ, holding that the release agreement precluded Bainâs claims. Five months later, Bain moved for relief from judgment under Federal Rule of Civil Procedure 60(b)(2). Rule 60(b)(2) allows for relief based on ânewly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial.â The ânewly discovered evidenceâ cited by Bain was an April 2008 letter from Jackson to Bain, in which Jackson stated that he had no awareness of, and had never signed, the release agreement on which the district court had grounded its grant of summary judgment. The district court denied the Rule 60(b)(2) motion. Because we find no abuse of discretion in the district courtâs ruling that Bain failed to exercise reasonable diligence in seeking out the April 2008 letter, we affirm. 3 I. According to the complaint, in May 2006, Bain and Jackson entered into a Personal Services Agreement. The agreement authorized Bain to incorporate a new company (the Michael Jackson Company) on Jacksonâs behalf, and appointed her the new companyâs president and chief operating officer. As compensation, she would receive a â10% Finderâs fee of any Agreement(s) entered into by Michael Jackson, or the Michael Jackson Company, generated by, or due to the direct efforts of Bain and/or Bainâs contacts.â J.A. 31. Bain alleged that she initiated a number of such projects, for which she claims to be owed compensation amounting to at least $44 million. Bain brought suit against MJJ in federal district court, invoking the courtâs diversity jurisdiction. MJJ moved to dismiss the complaint based on a âPayment and Release Agreementâ (the Release) signed by Bain in December 2007, which MJJ claimed absolved it of liability under the Personal Services Agreement. The Release provided that Jackson would render a payment to Bain in the amount of $488,820.05, as âfull and final satisfaction of any [and] all monies, known or unknown, to be owed to you by the Jackson Parties with respect to any and all agreements whether verbal or written that you may have entered into with the Jackson Parties from the beginning of time until December 27, 2007.â J.A. 104. One week after MJJ filed its motion to dismiss, Jackson unexpectedly died. In opposing dismissal, Bain argued that the Release was defective due to fraud in the inducement, misrepresentation, and mistake. Bain also contended that the Release was facially ambiguous, permitting consideration of parol evidence to interpret the contract. Bain asserted that she intended to discharge claims for past debts and liabilities, not claims concerning future work or deals yet to be finalized. In addition, 4 Bain expressed doubt about the authenticity of Jacksonâs signature on the Release. Finally, she requested the opportunity to conduct discovery to support her challenges. Because the defendantsâ motion to dismiss relied on matters outside the pleadingsânamely, the Releaseâthe district court converted the motion into one for summary judgment. The court granted both sides additional time to supplement the record with âall the material that is pertinent to the motion.â J.A. 274-75. Bainâs attorney filed an affidavit under Federal Rule of Civil Procedure 56(d), stating that, if permitted by the court, Bain would conduct discovery concerning Jacksonâs intent in the Release and the authenticity of his signature. On May 7, 2010, the district court granted summary judgment in favor of the defendants, holding that the unambiguous language of the Release barred Bainâs claims. See Bain v. Jackson, 783 F. Supp. 2d 13, 17 (D.D.C. 2010). The court rejected Bainâs contentions that the Release was voidable due to fraud in the inducement or mistake. Id. at 17-18. The court also denied Bainâs requests for discovery. Id. at 18 n.4. Bain did not appeal the district courtâs grant of summary judgment against her. On October 4, 2010, Bain moved for relief from judgment based on ânewly discovered evidence,â pursuant to Rule 60(b)(2). The ânewly discoveredâ evidence cited in support of the motion was an April 24, 2008, letter faxed from Jackson to Bain. The letter stated: I have never terminated your services nor did I null and void any of your Agreements. I know nothing about a release form. I neither authorized or signed the same. Therefore, I am authorizing you to continue to communicate with Mr. Yakoob regarding the Sultanâs property in Las Vegas, and to continue your role as my 5 General Manager and President/COO of The Michael Jackson Company. J.A. 414. In an accompanying affidavit, Bain explained that she had received the letter âin connection with the work Mr. Jackson expected me to continue to perform on his behalf.â Bain Aff. Â¶ 4. Bain now says that the letter referenced âthe Sultanâs propertyâ because, at the time, Jackson had been searching for a permanent residence and had expressed interest in a property owned by the Sultan of Brunei. When Jackson inquired about the property in early 2008, Bain raised the issue of the Release. Jackson responded with the April 2008 letter. According to Bainâs affidavit, an unnamed consultant who worked for the Michael Jackson Company had taken a collection of files from Bainâs office, and those files included the April 24, 2008, letter. The consultant had been handling real estate matters for Jackson. When the consultant completed his responsibilities in 2008, he âboxed up the information regarding properties and took that information home with him, including the file on the Sultan of Bruneiâs property,â which contained the April letter. Bain Aff. Â¶ 4. The consultant returned the box of files to Bain in âlate June, or early July, 2010,â after Jacksonâs death, and after the district courtâs entry of summary judgment. Id. Bain stated that she âdid not know the April 24, 2008, letter was in this box, or that it was in the Sultan of Bruneiâs file,â and she did not examine the contents of the box until late August 2010. Id. Â¶ 5. When she opened the Sultanâs file, she discovered the letter, which âhad been misfiled . . . in a file labeled, âThe Sultan of Brunei Finance.ââ Id. She further stated: 6 Not in my wildest imagination did I suspect that a box containing documents relating to real properties would contain any material relating to my relationship or employment with Mr. Jackson before this Court. I knew I had correspondence from Mr. Jackson, but I could not find it. I made a diligent search of all the records and files in my office. I did not know, nor was I able to look in the Sultan of Bruneiâs file, which was in the possession of the consultant. I looked for this file for months, spending many, many hours looking into all of the files which were in my office, but it was no where [sic] to be found. Id. On June 7, 2012, the district court denied Bainâs Rule 60(b)(2) motion. Bain v. Jackson, No. 09-826, Mem. Op. & Order (D.D.C. June 7, 2012). The court based its denial on two independent grounds. First, the court held that, because Bain knew about Jacksonâs April 2008 letter at the time of trial, the letter could not be considered ânewly discoveredâ evidence within the meaning of Rule 60(b)(2). Id. at 4. Second, the court held that Bain failed to exercise âdue diligenceâ in attempting to discover the letter. Id. at 4-5. The court explained that Bain made no reference to the letter in any filings, and thus âcannot be said to have conducted due diligence in attempting to procure it.â Id. at 5. II. Federal Rule of Civil Procedure 60(b) sets forth various grounds upon which a party may obtain relief from a judgment. Rule 60(b)(2) allows for relief based on ânewly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial.â Fed. R. Civ. P. 60(b)(2). A district court considering a motion for relief from 7 judgment under Rule 60(b) must âstrike a âdelicate balance between the sanctity of final judgments . . . and the incessant command of a courtâs conscience that justice be done in light of all the facts.ââ Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C. Cir. 1988) (alteration in original) (quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980)) (some internal quotation marks omitted). The trial judge, âwho is in the best position to discern and assess all the facts, is vested with a large measure of discretion in deciding whether to grant a Rule 60(b) motion.â Id. We thus review the denial of a Rule 60(b)(2) motion for abuse of discretion, but we consider underlying legal issues de novo. Marino v. Drug Enforcement Admin., 685 F.3d 1076, 1080 (D.C. Cir. 2012). Here, we disagree with the district courtâs first ground for denying Bainâs Rule 60(b)(2) motion, but we affirm on the basis of the district courtâs second ground. A. The district court first held that Bainâs knowledge of Jacksonâs April 2008 letter at the time of trial precluded the grant of Rule 60(b)(2) relief. In the courtâs view, ââevidence cannot be newly discoveredââ for purposes of Rule 60(b)(2) ââif it was known to the party at the time of trial.ââ Mem. Op. at 4 (quoting Lightfoot v. District of Columbia, 555 F. Supp. 2d 61, 68 (D.D.C. 2008)). We disagree. It is true that Bain âknewâ of the letter at the time of trial in the sense that she then knew of its existence. In the view of MJJ and the district court, awareness of evidence during trial necessarily compels denying relief under Rule 60(b)(2), regardless of the evidenceâs availability at that time. Evidence known to a party at trial, MJJ argues, cannot qualify as ânewly discoveredâ in a post-judgment motion. MJJ emphasizes one definition of âdiscoverâ: âto obtain for the first time sight or knowledge of.â Websterâs Third New International Dictionary 8 647 (3d ed. 1986). âDiscover,â however, can also mean âto detect the presence of,â i.e., to âfind,â id.; or âto make known or visible,â i.e., to âexpose,â Merriam-Websterâs Collegiate Dictionary 357 (11th ed. 2011); see also Websterâs New International Dictionary 647 (2d ed. 1947) (similar definitions). Under those definitions, evidence that was lost, hidden, or unavailable during trial could qualify as ânewly discovered evidenceâ when later found, even if the evidence was known to the movant at the time of trial. We think that understanding better squares with the purpose and operation of Rule 60(b)(2) than one in which mere awareness of evidence would forever preclude its consideration as ânewly discovered.â If awareness of evidence alone were automatically to foreclose its treatment as ânewly discovered,â evidence known to a party could never form the basis of Rule 60(b)(2) relief even if it had been unavailable during trial or summary judgment proceedings due to circumstances entirely beyond the partyâs control. For instance, if critical documentary evidence were known to have existed at one time but had been presumed by all to have been destroyed in a natural disaster, a party would have no ability to seek relief from judgment even if the pivotal document were later discovered unexpectedly to have been moved before the disaster and to have survived in an unanticipated place. See Serio v. Badger Mut. Ins. Co., 266 F.2d 418 (5th Cir. 1959). We perceive no basis for concluding that Rule 60(b)(2) categorically precludes the grant of relief in such situations, with no consideration given to the particular circumstances. Rather, Rule 60(b), while respecting âthe sanctity of final judgments,â allows that âjustice be done in light of all the facts.â Twelve John Does, 841 F.2d at 1138 (internal quotation marks omitted). No decision of this Court suggests that mere awareness of evidence during trial, standing alone, categorically precludes later treating the evidence as ânewly discoveredâ under Rule 9 60(b)(2). Nor, to our knowledge, has any other court of appeals so held. MJJ cites the observation of the First Circuit in one decision that, â[i]n order for evidence to be newly discovered, the party seeking a new trial must be unaware of the existence of the evidence before or during the trial.â Parrilla-Lopez v. United States, 841 F.2d 16, 19 (1st Cir. 1988). In that case, however, the court did not rely on the movantâs mere awareness of the evidence. The court instead explained that the movant knew of the evidence but chose not to âpresent [it] to the district court because of [his] conscious decision on trial strategy.â Id. Evidence intentionally withheld, the court reasoned, âis not grounds for a new trial.â Id. Whereas the First Circuit based its decision on a movantâs tactical decision to withhold evidence accessible to him, here the district court held that a movantâs awareness of evidence automatically precludes relief under Rule 60(b)(2), regardless of the evidenceâs availability. We find that to be an unduly constricted understanding of ânewly discovered evidenceâ for purposes of Rule 60(b)(2). B. While awareness of evidence, standing alone, does not categorically preclude considering the evidence to be ânewly discoveredâ under Rule 60(b)(2), a partyâs unannounced awareness of evidence can affect the assessment of whether it exercised the âreasonable diligenceâ contemplated by the Rule. Fed. R. Civ. P. 60(b)(2). The district court held that Bain âfailed to exercise due diligence in seeking out the 2008 letterâ because Bain knew of the letterâs existence but made no mention of the letter in any submission to the court. Mem. Op. at 4-5. The district court did not abuse its discretion in so ruling. According to Bainâs recital of the relevant events, the ânewly discoveredâ evidence at issueâthe April 2008 letterâhad been faxed by Jackson to Bain in April of that year. The copy of the 10 letter submitted by Bain thus bears facsimile time-stamps. The necessary implication is that at least one copy other than the one in Bainâs possession had been in existence: the original letter. As Bain herself points out, that âoriginal was presumably within the possession, custody or control of Mr. Jacksonâs Estate.â And as Bain further observes, â[c]ounsel for [the Jackson Parties] should have had . . . a copy of this document in their possession since April, 2008.â Bain Aff. Â¶ 3. In such circumstances, even if the faxed copy was believed lost, missing, or destroyed, a party exercising reasonable diligence should have sought to obtain the original from the defendants, either by requesting the courtâs assistance or directly contacting the defendants. See Yachts Am., Inc. v. United States, 779 F.2d 656, 662 (Fed. Cir. 1985) (affirming denial of Rule 60(b)(2) motion based in part on movantâs failure to seek an alternate copy of a document from the government, the adverse party). Bain emphasizes her search of her own files to locate the letter. But while Bainâs examination of her own files may bear on the assessment of reasonable diligence, it does not end the inquiry. Bainâs efforts to find her own copy of the letter did not relieve her of all responsibility to undertake reasonable efforts to obtain the original letter (or a separate copy) from Jackson, his estate, or his counsel. And by failing to apprise the district court of the letter, Bain denied the court any opportunity to assist with locating it. See Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1290 (10th Cir. 2005) (finding lack of due diligence because movant knew certain documentation was missing but âmade no attempt to explicitly include it in the discovery processâ); Lans v. Gateway 2000, Inc., 110 F. Supp. 2d 1, 6 (D.D.C. 2000) (denying Rule 60(b)(2) relief because movant âshould have notified the Court and the defendants as to [the evidenceâs] potential existence and requested time to locate itâ). Bain contends that she adequately sought the district courtâs assistance by requesting the court to permit discovery about the 11 circumstances surrounding the Release, including the authenticity of Jacksonâs signature on the Release. But even if she framed the scope of her intended discovery with sufficient breadth to encompass Jacksonâs April 2008 letter, there is a material distinction between generally seeking discovery, on one hand, and specifically mentioning the letter, on the other. Under Rule 56(d), âa court may deny a motion for summary judgment or order a continuance to permit discovery if the party opposing the motion adequately explains why, at that timepoint, it cannot present by affidavit facts needed to defeat the motion.â Strang v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989) (second emphasis added). In making that determination, courts consider whether the movant offers âspecific reasons demonstrating the necessity and utility of discovery to enable her to fend off summary judgment.â Id. In our view, a reasonably diligent party seeking to oppose summary judgment and convince a court to permit additional discovery would ordinarily mention specific evidence it seeks that would support its position. That is especially the case concerning evidence a party considers to be as pivotal as Bain contends is the case with Jacksonâs April 2008 letter. Had she alerted the court to the existence of the letter, she would have materially strengthened her case in opposition to the grant of summary judgment and in favor of an opportunity to conduct discovery. Bain, however, ultimately offers no justification for her failure to mention the 2008 letter to the district court, to seek the courtâs assistance in locating a copy, or to ask the defendants for any copy in their possession. Nor does she suggest that any such efforts to locate the letter could not have borne fruit. See In re Hope 7 Monroe St. Ltd. Pâship, 743 F.3d 867, 873-74 (D.C. Cir. 2014). In those circumstances, the district court did not abuse its discretion in finding that Bain failed to exercise reasonable diligence. 12 The circumstances of this case are far afield from those in Serio v. Badger Mutual Insurance Company, on which Bain heavily relies. The Rule 60(b) motion in Serio concerned inventory records that had been inadvertently left outside a factoryâs fire-proof safe on the night the factory was destroyed by a fire. 266 F.2d at 419. Some months later, the factory owner discovered that an employee had moved the inventory records into a storage room outside of the factory a few days before the fire, where they had survived unscathed. Id. at 420. The Fifth Circuit rejected the argument that the ownerâs failure to search for the records amounted to a lack of due diligence. Id. at 42021. In Serio, the inventory records were presumed to be destroyed, and there was no reason to suppose that there existed any additional copies. Here, by contrast, Bainâs own copy of the letter was presumed to be missing rather than destroyed, and there was every reason to suppose that there existed at least one additional copy. The fact that Bain attempted to search her own filesâwhereas the owner in Serio evidently undertook no searchâthus is of little assistance to her. The district court committed no abuse of discretion by looking beyond Bainâs efforts in searching her own files and considering whether she mentioned the letter to the court or sought its assistance in locating the evidence. * * * * * We affirm the district courtâs judgment denying relief under Rule 60(b)(2). Bain now, for the first time, also attempts to invoke alternative Rule 60(b) grounds for relief, alleging misconduct by the defense pursuant to Rule 60(b)(3) and error on the part of her prior counsel pursuant to Rule 60(b)(6). Because those arguments were not presented to the district court in the first instance, we decline to entertain them. See Potter v. District of Columbia, 558 F.3d 542, 550 (D.C. Cir. 2009) (ââIt is well settled that issues and legal theories not asserted at the District Court level ordinarily will not be heard on appeal.ââ) (quoting 13 District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084 (D.C. Cir. 1984)). So ordered.