United States Court of Appeals For the First Circuit
NORTH SHORE MEDICAL CENTER, INC. ET AL.,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Howard, Selya and Thompson, Circuit Judges.
Godfrey K. Zziwa, with whom Alanna G. Cline, Law Office of Alanna G. Cline, and Law Office of Godfrey K. Zziwa were on brief, for appellant. Eugene J. Sullivan III, with whom Nicole Forbes and Holtz & Reed, LLP were on brief, for appellees.
August 12, 2013
SELYA, Circuit Judge. When litigation goes awry, lawyers
sometimes scramble to find a scapegoat. So it is here: having
conspicuously failed to protect the record, the plaintiff's lawyers
attempt to shift the blame to their opposing counsel. Concluding,
as we do, that this diversionary tactic lacks force, we affirm the
district court's denial of the plaintiff's motion for relief from
The facts that gave rise to the underlying litigation are
chronicled in the opinion below, see Nansamba v. N. Shore Med.
Ctr., Inc., No. 11-11459, 2012 WL 1856950 , at *1-2 (D. Mass. May
21, 2012), and there is no need to rehearse them here. We offer
instead a brief sketch of the genesis and travel of the case and
supplement that sketch with a more detailed discussion of the
events upon which the issues before us rest.
In 2002, defendant-appellee North Shore Medical Center,
Inc. hired plaintiff-appellant Janat Nansamba as a technical
nursing assistant. While so employed, the plaintiff developed
hemorrhoids. During the early morning hours of May 7, 2010, she
felt ill and left her overnight shift. Later that day, she
informed her manager, defendant-appellee Ellen Bova, that she would
need time off to undergo a colonoscopy. Three days later, North
Shore cashiered the plaintiff. In doing so, it cited performance-
The plaintiff repaired to a Massachusetts state court,
contending that the defendants had orchestrated her firing in
retaliation for her hemorrhoids-induced absences in violation of
the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654.
She added a medley of state-law claims. Citing the presence of a
federal question, the defendants removed the case to the federal
district court. See 28 U.S.C. §§ 1331, 1441.
After a period of pretrial discovery and the dismissal of
some of the plaintiff's causes of action, the defendants moved for
summary judgment on, pertinently, the FMLA claim.1 They argued,
among other things, that the plaintiff's inability to show that she
suffered a "serious health condition" as defined by the FMLA and
its accompanying regulations, see 29 U.S.C. § 2611(11); 29 C.F.R.
§§ 825.113-.115, doomed her FMLA claim. The plaintiff opposed the
motion, but the district court deemed the "no serious health
condition" argument convincing and granted summary judgment. See
Nansamba, 2012 WL 1856950 , at *5. The court declined to exercise
supplemental jurisdiction over the plaintiff's remaining state-law
claim. See id.; see also 28 U.S.C. § 1367(c). Final judgment
entered on May 24.
On May 29, the plaintiff moved for reconsideration,
alleging that certain medical records — her own — constituted newly
1 The defendants filed their summary judgment motion on February 15, 2012. Unless otherwise indicated, all dates mentioned hereafter refer to the year 2012.
discovered evidence showing that her hemorrhoids satisfied the
FMLA's definition of a "serious health condition."2 The saga of
these records is of central importance to what next transpired.
During pretrial discovery, the parties jockeyed over the
production of the plaintiff's complete medical file. She first
produced a set of her medical records on December 13, 2011,
responding to a discovery request. The defendants complained that
the release form used to obtain those records requested only a
"medical record abstract," not the plaintiff's complete medical
file. Four days after this complaint was made, the plaintiff
executed and delivered a new release form. Although this form was
broader in scope, it still excepted the release of photographs,
radiation reports, x-ray reports, and "personal information not
related to treatment."
The new release form instructed that the records be sent
directly to defense counsel. But those additional records, when
received, did not assuage the defendants' concerns. On February 3,
defense counsel e-mailed plaintiff's counsel lamenting that:
We have received part of [the plaintiff's] medical record — but, once again, only part of it.
You will see that — once again — [the plaintiff] has signed the medical release, but
2 We assume for argument's sake that the plaintiff's full medical file would suffice to make out a genuine issue of material fact about whether she suffered from a "serious health condition." The defendants dispute this conclusion.
specifically instructed the physician not to provide the entire medical file.
Attached to this e-mail were the records that defense counsel had
received pursuant to the second release form.
The plaintiff's lawyers did not bother to open or examine
the attachment. On February 14, however, the plaintiff executed an
unrestricted release form. Using this third release form, the
defendants garnered more records in April. What they received,
however, did not differ in any meaningful way from what they
previously had sent to plaintiff's counsel in February.
This brings us back to the plaintiff's motion for
reconsideration of the summary judgment order. In that motion, the
plaintiff — not realizing that the records produced in April (after
the summary judgment motion had been briefed but before it was
decided) were materially identical to those attached to the
February 3 e-mail — argued that the April records constituted newly
discovered evidence. The district court demurred, observing that
virtually all the records on which the motion relied had been e-
mailed to plaintiff's counsel on February 3 and had languished in
their possession since that time.
The plaintiff did not take a timely appeal from either
the entry of summary judgment or the denial of her motion for
reconsideration. On November 13, however, she moved for relief
from the judgment. In that motion, she characterized her lawyers'
failure to introduce the medical records contained in the
attachment to the February 3 e-mail as the product of either
excusable neglect or fraud. See Fed. R. Civ. P. 60(b)(1), (3).
Reiterating that "no justifiable reason" had emerged to explain the
plaintiff's delay in obtaining her own medical records, the
district court denied the motion. This appeal followed.
We preface our analysis with an inventory of what is
properly before us and what is not. Although the plaintiff
endeavors to challenge the district court's order for summary
judgment, that challenge is out of time. The plaintiff did not
file her notice of appeal until February 22, 2013 — more than four
months after the district court denied her motion for
reconsideration of the summary judgment order. Although the appeal
period is tolled upon the filing of a timely motion for
reconsideration,3 an order disposing of the motion restarts the
appeal clock. See Young v. Gordon, 330 F.3d 76 , 80 (1st Cir.
2003). Thus, the plaintiff's notice of appeal was untimely as to
both the entry of summary judgment and the denial of
reconsideration. See Fed. R. App. P. 4(a)(1)(A) (stipulating
thirty-day appeal period).
The plaintiff's motion for relief from judgment, filed
outside the thirty-day appeal period, did not resurrect her expired
3 For this purpose, a motion for reconsideration is timely only if it is filed within twenty-eight days of the entry of the order to be reconsidered. See Fed. R. Civ. P. 59(e).
right of appeal. See de la Torre v. Cont'l Ins. Co., 15 F.3d 12 ,
13 n.2 (1st Cir. 1994). As we have explained, "an appeal from the
denial of a Rule 60(b) motion is not a surrogate for a seasonable
appeal of the underlying judgment." Karak v. Bursaw Oil Corp., 288
F.3d 15 , 19 (1st Cir. 2002).
Our inquiry, then, is confined to the supportability of
the district court's denial of the motion for relief from judgment.
Familiar principles guide this inquiry: "relief under Rule 60(b) is
extraordinary in nature and  motions invoking that rule should be
granted sparingly." Id. Finality is an important element in the
judicial process, and setting aside a final judgment requires more
than the frenzied brandishing of a cardboard sword. Such a motion
must satisfy a special set of criteria; it is not enough merely to
cast doubt on the soundness of the underlying judgment. See Fisher
v. Kadant, Inc., 589 F.3d 505 , 512 (1st Cir. 2009).
The criteria for Rule 60(b) relief are well-established.
A party seeking such relief must demonstrate "that his motion is
timely; that exceptional circumstances exist, favoring
extraordinary relief; that if the judgment is set aside, he has the
right stuff to mount a potentially meritorious claim or defense;
and that no unfair prejudice will accrue to the opposing parties
should the motion be granted." Id. (internal quotation mark
omitted). Because the district court is best positioned to examine
these criteria, we review an order granting or denying a Rule 60(b)
motion solely for abuse of discretion. See Karak, 288 F.3d at 19.
Against this backdrop, we turn to the substance of the
present appeal. Rule 60(b) plots six different paths, each of
which may lead to relief from judgment. See Fed. R. Civ. P.
60(b)(1)-(6). The plaintiff tries to traverse two of these paths:
clause (1) and clause (3).4 As to both paths, the defendants
concede (at least implicitly) that the motion for relief from
judgment was filed within a reasonable time and, thus, satisfies
Rule 60(b)'s temporal requirement. Our focus, therefore, is on the
existence vel non of exceptional circumstances warranting
extraordinary relief.5 See Fisher, 589 F.3d at 512.
A. Rule 60(b)(1).
We start with the plaintiff's assertion that Rule
60(b)(1), which permits a court to set aside a judgment in cases of
"mistake, inadvertence, surprise, or excusable neglect," applies
here. The plaintiff trains her sights on the "excusable neglect"
prong. In her view, the excusable neglect that occurred here
4 In her brief, the plaintiff also mentions clause (6) but offers no developed argumentation supporting an application of that clause. We therefore treat any such argument as waived. See de la Torre, 15 F.3d at 15 n.5; United States v. Zannino, 895 F.2d 1 , 17 (1st Cir. 1990). 5 Because we uphold the district court's determination that the plaintiff has failed to show exceptional circumstances sufficient to warrant relief from judgment, we need not consider either the merits of the plaintiff's FMLA claim or the degree of prejudice that setting aside the judgment might entail.
comprises an exceptional circumstance that should justify relief
Neglect is not the issue. The plaintiff admits that her
lawyers failed to open the February 3 e-mail attachment containing
her medical records. She likewise admits that they failed to
introduce any of those records in opposition to the summary
judgment motion. This is neglect on steroids, and the fact that
the neglect was the attorneys' rather than the client's is
irrelevant. Attorneys act for their clients, and the neglect of an
attorney acting within the scope of his or her authority is
attributable to the client. See Thibeault v. Square D Co., 960
F.2d 239 , 246 (1st Cir. 1992) (rejecting argument that attorney's
sins should not be visited upon client); Damiani v. R.I. Hosp., 704
F.2d 12 , 16 (1st Cir. 1983) (same).
Even so, Rule 60(b)(1) requires more than a showing of
neglect simpliciter; it requires a further showing that the neglect
is excusable. The plaintiff labors to make this further showing by
suggesting that the wording of defense counsel's February 3 e-mail
lulled her legal team into inaction. That suggestion exalts hope
The Supreme Court has described "excusable neglect" as
encompassing "inadvertence, mistake, or carelessness, as well as 
intervening circumstances beyond the party's control." Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380 , 388
(1993); see Aguiar-Carrasquillo v. Agosto-Alicea, 445 F.3d 19 , 28
(1st Cir. 2006). The "determination is at bottom an equitable one,
taking account of all relevant circumstances surrounding the
party's omission." Pioneer, 507 U.S. at 395. Within the
constellation of relevant factors, the most important is the reason
for the particular oversight. See Dimmitt v. Ockenfels, 407 F.3d
21 , 24 (1st Cir. 2005). "At a bare minimum, a party who seeks
relief from judgment on the basis of excusable neglect must offer
a convincing explanation as to why the neglect was excusable."
Cintrón-Lorenzo v. Departamento de Asuntos del Consumidor, 312 F.3d
522 , 527 (1st Cir. 2002). This is especially true when the
question of excusable neglect arises out of a party's delay in
presenting available evidence to the court. See, e.g., Barrett v.
Lombardi, 239 F.3d 23 , 28-29 (1st Cir. 2001); Mas Marques v.
Digital Equip. Corp., 637 F.2d 24 , 29-30 (1st Cir. 1980).
In the case at hand, the plaintiff asseverates that the
defendants' e-mailed February 3 statement that they had "received
part of [the plaintiff's] medical record — but, once again, only
part of it" led her lawyers to believe that the records attached to
that e-mail were the same records that the plaintiff originally had
produced (and therefore not worthy of examination). The district
court found this explanation unpersuasive. So do we.
The text of the February 3 e-mail does not bear out the
interpretation that the plaintiff seeks to impress upon it; it is
entirely silent on the issue of whether the defendants, in response
to the submission of the second release form, had received anything
more than what the plaintiff had originally produced. To bridge
this gap, the plaintiff relies on her lawyers' subjective
understanding that the two productions were identical. This
reliance is mislaid: unilateral assumptions about the meaning of
correspondence, without more, are insufficient to excuse neglect.
See Easley v. Kirmsee, 382 F.3d 693 , 697-98 (7th Cir. 2004).
Here, there is no "more." Indeed, we are puzzled about
how the plaintiff's lawyers could reasonably have arrived at their
professed understanding of the February 3 e-mail. Fairly read,
nothing about either the contents or the context of that e-mail
provides even the slightest justification for the lawyers' failure
to open the attachment. The e-mail specifically noted: "You will
see that — once again — [the plaintiff] has signed the medical
release, but specifically instructed the physician not to provide
the entire medical file." This appears to be an invitation to
examine the contents of the attachment rather than an exhortation
to shun such an examination.
Two additional facts cut sharply against the plaintiff's
position. First, her attorneys never sought clarification of the
February 3 e-mail that she now suggests was ambiguous. Second —
and more damning — the plaintiff offers no plausible rationale for
bringing an FMLA claim, yet not taking the initiative to obtain her
complete medical record in order to prosecute that claim. One
would have expected that the lawyers would have obtained their
client's complete medical file before bringing an FMLA action, cf.
Fed. R. Civ. P. 11(b) (requiring good-faith basis for the
allegations in a pleading); or at any rate would have used the
roughly seven months that elapsed between the commencement of the
action and the filing of the summary judgment opposition to procure
To say more on this point would be supererogatory. Given
the plaintiff's failure to offer a convincing explanation for the
patent lack of diligence exhibited here, the district court acted
well within the broad compass of its discretion in denying the
motion for relief from judgment under Rule 60(b)(1).
B. Rule 60(b)(3).
The plaintiff's remaining claim implicates Rule 60(b)(3),
which permits a court to relieve a party from a judgment upon a
showing that the adverse party has committed "fraud (whether
previously called intrinsic or extrinsic), misrepresentation, or
misconduct." There are two prerequisites to such relief. In the
first place, the moving party must prove the adverse party's
culpable misconduct by clear and convincing evidence. See Anderson
v. Cryovac, Inc., 862 F.2d 910 , 926 (1st Cir. 1988). In the second
place, the moving party must show by a preponderance of the
evidence that the culpable misconduct "substantially interfered
with [her] ability fully and fairly to prepare for, and proceed [to
judgment]." Id. The moving party must carry the devoir of
persuasion as to each of these prerequisites. See Karak, 288 F.3d
In framing this claim, the plaintiff starts with the
defendants' argument, made in support of their summary judgment
motion, that her hemorrhoids did not satisfy the FMLA's definition
of a "serious health condition." She then asserts that this
argument was fraudulent because defense counsel must have read the
medical records attached to the February 3 e-mail (even though her
counsel did not) and realized that their argument was belied by
those records. With this patchwork foundation in place, she posits
that the argument was knowingly untrue.
The plaintiff's thesis is a house of cards. The office
of a summary judgment motion is to test the sufficiency of the
opposing party's evidence. Thus, a party moving for summary
judgment is free to assert that the record before the court fails
to make out a trialworthy question of material fact as to a
dispositive issue. Once the movant takes such a position, it is
the burden of the nonmoving party to proffer facts sufficient to
rebut the movant's assertions. See Gulf Coast Bank & Trust Co. v.
Reder, 355 F.3d 35 , 39 (1st Cir. 2004). The plaintiff's Rule
60(b)(3) argument conflates and confuses these roles.
What happened here is a mundane example of the summary
judgment process at work. The defendants, through their summary
judgment papers, asserted that the evidence of record did not show
a serious health condition. The plaintiff was free to proffer
facts sufficient to counter this assertion. She failed to do so
(even though such facts were readily available to her). That the
defendants did not scour the discovery materials for facts
supporting the plaintiff's position is not a badge of fraud but,
rather, a prudent refusal to make their adversary's case for her.
That is simply good lawyering, and we reject the plaintiff's brash
attempt to "transmogrify advocacy into misrepresentation."
Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1 , 3 n.3
(1st Cir. 1989).
The same reasoning undermines the plaintiff's reliance on
certain statements made by defense counsel at the summary judgment
hearing. There, defense counsel stated that the plaintiff
"received no medical treatment" since her colonoscopy and had
"received no medication" for her hemorrhoids. These statements are
properly viewed as counsel's characterization of the summary
judgment record.6 So viewed, the statements were accurate. After
all, the plaintiff testified on deposition that she had neither
6 Context makes this meaning pellucid: defense counsel explicitly tied his recitation of facts to the record evidence.
received medical treatment since her colonoscopy nor taken any
medication for her hemorrhoids.
If more were needed — and we do not think that it is — we
explained in Karak that "[w]hen a party is capable of fully and
fairly preparing and presenting his case notwithstanding the
adverse party's arguable misconduct, the trial court is free to
deny relief under Rule 60(b)(3)." 288 F.3d at 21-22. Here, the
plaintiff has made no showing that any misconduct of the
defendants' counsel inhibited her from fully and fairly preparing
her case. It is transparently clear that, regardless of what
defense counsel may or may not have done, the plaintiff had at her
fingertips the records that would have laid bare what she now
asserts to be the true facts. As in Karak, her pursuit of the
truth was not "hampered by anything except h[er] own reluctance to
undertake an assiduous investigation." Id. at 22.
The short of it is that the plaintiff, through her
attorneys, had in her possession prior to crafting her opposition
to the summary judgment motion all the medical records that she now
claims should have been submitted to the district court. The
failure of the plaintiff and her attorneys to examine and proffer
those records is no one's fault but their own. Their effort to
pass the buck is a technique as old as time, see, e.g., Genesis
3:11-13, but its efficacy as a basis for relief has not improved
That ends this aspect of the matter. Simply put, the
record does not reveal either fraud or any unfair impediment to the
plaintiff's ability fully and fairly to defend against the summary
judgment motion. Consequently, the district court did not abuse
its discretion in denying the plaintiff's motion for relief under
Rule 60(b)(3). See Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25 , 29
(1st Cir. 1988) (explaining "that a party may not prevail on a Rule
60(b)(3) motion on the basis of fraud where he or she has access to
disputed information . . . at the time of the alleged misconduct").
We need go no further. For the reasons elucidated above,
we uphold the district court's denial of the plaintiff's motion for
relief from judgment.