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Hernandez v. Results Staffing, Inc.

United States District Court, N.D. Texas, Fort Worth Division

September 1, 2017




         Before the court for decision is the motion filed by defendant, Results Staffing, Inc., on April 27, 2017, for relief from judgment and for sanctions. After having considered such motion, the memorandum filed by plaintiff, Jose Luis Hernandez, on May 10, 2017, in opposition thereto, the record of the June 12, 2017 hearing on the motion, all filings by the parties on the subjects of the motion, the record of the May 26, 2015 trial leading to the entry of this court's final judgment on May 26, 2015, the opinion of the United States Court of Appeals for the Fifth Circuit reversing that final judgment and rendering judgment in favor of plaintiff on his reemployment claim, certain parts of the record of the Fifth Circuit in plaintiff's appeal, and pertinent legal authorities, the court has concluded that defendant's Rule 60 motion should be granted, that other rulings should be held in abeyance, and that the court should certify its Rule 60 ruling for interlocutory appeal.


         Nature and History of the Litigation

         This action was initiated by plaintiff on March 11, 2014, by plaintiff's complaint alleging that defendant violated his rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("Act"), 38 U.S.C. §§ 4301, et seq., by terminating his employment the second day after he returned from a weekend training session in which he was required to participate because of his membership in the United States Army Reserve. After a non-jury trial conducted on May 26, 2015, the court rendered judgment denying plaintiff any relief from defendant. Plaintiff appealed to the Fifth Circuit.

         On January 30, 2017, the Fifth Circuit issued its opinion reversing this court's judgment, rendering judgment in favor of plaintiff on his reemployment claim, and remanding the case to this court to determine his damages and for other proceedings consistent with the Fifth Circuit's opinion. Hernandez v. Results Staffing, Inc., 677 F.App'x 902 (5th Cir. 2017) .


         The Factual and Legal Bases of the Opinion of the Fifth Circuit

         While the Fifth Circuit in its January 30, 2017 opinion noted that plaintiff was asserting more than one theory of violation of the Act, it evaluated the merits of only one of the theories. It based its decision on the Act's convalescent period provision, which extends the reporting period for an employee who sustains injuries during his military service.[1] Hernandez, 677 F.App'x at 905-908. In support of its holding, the Fifth Circuit considered that the record of the May 26, 2015 trial established as a matter of law, and without dispute, the following facts:

The undisputed facts in this case demonstrate that [plaintiff] aggravated a pre-existing back injury during his military service. [Plaintiff] began to experience discomfort in his back while still on duty and sought medical attention from military medical staff members. When [plaintiff] awoke at home on the morning of Monday, July 15, 2013, he was in severe pain and was unable to walk. [Plaintiff] was taken to the hospital where he received pain killers and muscle relaxers, and he spent the remainder of the day convalescing at home.
The facts in this case demonstrate that [plaintiff] could not have reported on July 15 because the service-related aggravation of his injury prevented him from doing so. Even if [defendant] required [plaintiff] to report to work on July 15, [plaintiff] was excused from reporting by the plain language of § 4312(e)(2)(A) because he was "convalescing from[] an . . . injury . . . aggravated during[] the performance of service" and he was not required to report to work until "the end of the period that [was] necessary for" his recovery. 38 U.S.C. § 4312(e) (2) (A).

Id. at 906.

         The evidentiary basis for the Fifth Circuit's determination that those facts were undisputed was described in the opinion as follows:

At trial, [plaintiff] offered his own testimony, the testimony of his wife, and a note from his physician to demonstrate that his convalescence lasted until the morning of July 16. [Plaintiff] testified that on July 15, he was admitted to the emergency room and that he received muscle relaxer, pain killers, and an IV as the doctors monitored him to see how long it would take for his muscles to relax, [Plaintiff]'s wife testified that after [plaintiff] was discharged from the hospital, he was "sleepy" and returned home and slept. She also testified that she took the day off of work to care for [plaintiff]. Finally, [plaintiff] submitted a note from his physician into evidence, which said, "Jose Hernandez was under my care on July 15, 2013. He will be able to return to work on July 16, 2013."

Id. at 907. The Fifth Circuit thought significant that defendant "acknowledged at oral argument [that] none of this evidence is disputed."[2] Id. From that evidence and defendant's acknowledgment at oral argument, the fifth Circuit concluded "that [plaintiff] did provide evidence that his convalescence lasted until the morning of July 16 such that [plaintiff] qualified for reemployment under § 4312(e)(2)(A). Id.

         The Fifth Circuit held that defendant's "failure to reemploy [plaintiff] when he reported after his period of convalescence ended violated § 4312(a)" and that this court "erred by failing to address whether [plaintiff] satisfied the reemployment requirements of § 4312(e)(2)(A)'s convalescence provision in light of the undisputed evidence pertaining to [plaintiff's] back injury." Id. at 906. In Conclusion, the Fifth Circuit summed up that plaintiff

qualified for reemployment under the plain language of § 4312(e)(2)(A)'s convalescence provision when he aggravated a preexisting back injury during military service and when he reported to work on Tuesday, July 16, 2013, at the end of his period of convalescence, [Defendant] 's failure to reemploy [plaintiff] after his period of convalescence violated § 4312.

Id. at 908.


         Grounds of Defendant's Motion

         By the April 27, 2017 motion, defendant seeks relief pursuant to the provisions of Rules 60(b) (3) and (6)[3] and 37(c)[4] of the Federal Rules of Civil Procedure. Defendant "move[d] this Court for (i) relief from the Fifth Circuit's judgment rendering liability against it under the [Act], and (ii) sanctions against Plaintiff[] for his discovery abuse." Doc. 111 at 1.[5]

         As grounds for the motion, defendant alleged that after the Fifth Circuit issued its January 30, 2017 opinion rendering judgment for plaintiff against defendant on plaintiff's reemployment claim, and during the course of discovery related to the issues remanded to this court for resolution, defendant discovered evidence that established that one or more of the factual bases of the Fifth Circuit's opinion were incorrect and that the trial evidence upon which the Fifth Circuit relied in concluding that those facts were undisputed was the product of misrepresentation, fraud, and misconduct by plaintiff and his counsel.

         Defendant learned that plaintiff and his wife had given false testimony at trial concerning plaintiff's service-related back condition and his reason for going to the emergency room for medical assistance the morning of July 15, 2013, and that plaintiff and his counsel had in their possession in advance of the trial hospital records, which should have been, but were not, disclosed to defendant before the trial, that showed the true reason for his trip to the emergency room the morning of July 15, 2013.

         Accompanying the motion was an appendix that contained, inter alia, medical records that defense counsel obtained from plaintiff's counsel during the taking of a post-appeal deposition of plaintiff.[6] The records were the emergency room records of the hospital at which plaintiff received emergency care the morning of July 15, 2013. Doc. 113 at App. 008-031. The entries that defendant found significant appear to be from the notes of the emergency room physician, David Lewis Kocurek, M.D., reading as follows:

HPI Comments: History of Present Illness:
Historian: Patient.
Chief Complaint: Headache, frontal
Onset/Duration of symptoms: Today
Where did it Occur: Home Severity: severe.
Time Course: Persisting.
Context of Events: Spont onset
Worsened by: nothing
Improved by: nothing
Associated Symptoms: Low back pain, sharp - similar to prev
Treatments Prior to Arrival: None
Sick Contacts: None
Recent Doctor Visits or Treatments: None
Similar Symptoms Previously: Yes, dx with migraines

Id. at App. Oil. The records show (1) under the heading "Past Medical History" as the first diagnosis "[m]igraine, " id. at App. 012, (2) that the "Encounter Diagnosis" was "[h]eadache (primary encounter diagnosis)" and "[l]ow back pain, " id. at App. 015, and (3) that the location of defendant's headache was "Generalized, " Id. at App. 021.

         Also in the appendix was an excerpt of the testimony plaintiff gave at the May 26, 2015 trial in explanation of his visit to the emergency room on the morning of July 15, 2013, thus providing a contrast with the explanation in the emergency room records of why he was there. Id. at App. 007. He testified at the trial that:

A. I woke up, and I was in severe pain. My left leg was locked at a 90-degree angle. I had a stabbing sensation in the lower left side of my back. I was crying. I was wincing. At times, it was difficult to breathe.


         Evidence defendant provided with its motion established that the medical records came from the file of plaintiff's counsel, that plaintiff's counsel sent a letter to the hospital on April 30, 2015, accompanied by a written authorization signed by plaintiff on April 22, 2015, requesting the affidavit and records, and that those items were picked up at the hospital on May 13, 2015, thirteen days before the trial commenced. Id. at App. 041-042, 125-126.

         A part of the appendix to the defendant's motion was a copy of a response made by plaintiff to requests for production directed to him by defendant before the May 26, 2015 trial. Id. at 128-130; Doc. 112 at 8. Included was a request for " [a]ll documents related to any visits Plaintiff had with civilian medical personnel in July 2 013, including all documents related to Plaintiff's visit to the hospital on July 15, 2013, as alleged in Plaintiff's Petition." Doc. 113-1 at App. 129. After expressing several objections to the request, plaintiff responded; "Exhibit 17 Texas Health Arlington Memorial Hospital Letter 7/15/2013." Id.[7] Plaintiff and his counsel did not supplement his response in advance of the trial; rather, counsel for defendant first saw the emergency room records plaintiff's counsel had received almost two weeks before the trial when they were produced by plaintiff's counsel during plaintiff's post-appeal deposition. Doc. 112 at 8-9.


         Positions Taken by Plaintiff in His Responses in Opposition to the Motion

         On May 10, 2017, plaintiff filed a memorandum, with a supporting appendix, in opposition to defendant's motion, Docs. 122 and 123; on July 24, 2017, plaintiff filed a second brief and supporting appendix in opposition to the motion, which took into account evidence received at the June 12, 2017 hearing on the motion, Docs. 148 and 149; and, on August 7, 2017, plaintiff filed a third brief in opposition to the motion, Doc. 151. The grounds of plaintiff's opposition to the requests for Rule 60(b) relief are:

1. The first-stated basis of opposition was that this court lacks jurisdiction to grant defendant's motion because it seeks to vacate a judgment rendered by the Fifth Circuit. Doc. 122 at 1-3; Doc, 148 at 1-4.
2. Next, plaintiff argued that the medical records confirm that plaintiff was treated for a back injury. Doc. 122 at 3-8.
3. Plaintiff urged, that he did not engage in fraud, misrepresentation, or misconduct. Doc. 122 at 8-11; Doc. 148 at 4-9; Doc. 151 at 2-4.
4. Plaintiff maintained that defendant should be denied the relief it seeks by its motion because it has failed to prove that the medical records were unavailable to it if it exercised diligence, a position he combined with arguments that defendant has not proved that it was denied a full and fair opportunity to present a defense. Doc. 122 at 10-11; Doc. 148 at 9-13; Doc. 151 at 4-9.
5. Finally, plaintiff argued that the relief requested by defendant under Rule 60(b)(6) should be denied because the request for relief under that part of Rule 60 is factually indistinct from defendant's claim for relief under Rule 60(b)(3). Doc. 148 at 13.

         Plaintiff maintains that defendant's request for Rule 37(c) sanctions should be denied because the failure of plaintiff to produce the emergency room records in response to defendant's discovery request was harmless to defendant. Doc. 122 at 12. Plaintiff follows that with the contentions that his counsel's failure to disclose was inadvertent, that the evidence was unimportant to the defense, and that, in any event, the records that he should have produced for defendant were more helpful to him than the defendant. He adds reasons why he thinks the particular sanctions sought by defendant would not be authorized, but the court does not find necessary at this point to discuss those additional reasons.


         The Request for Rule 60(b) Relief

         The court is satisfied, and finds, that plaintiff's visit to the emergency room the morning of July 15, 2013, was not for care or treatment of an aggravation of a back condition he suffered while on military duty over the preceding weekend but, instead, was for treatment of a severe headache, probably a migraine in character, that had its onset after he arrived home the morning of July 15, 2013, and that the low back pain he mentioned upon his hospital admission as an associated symptom was not the cause of his visit to the hospital but was a non-disabling chronic back pain that he had been suffering for years. The court further finds that to whatever extent plaintiff and his wife gave testimony inconsistent with the findings expressed in the preceding sentence, their testimony was intentionally false, and was given by them in order to disadvantage and mislead the defendant in its trial preparation and presentation, and that it ultimately misled the Fifth Circuit in plaintiff's appeal from this court's judgment of dismissal.

         The court is further satisfied, and finds, that plaintiff's counsel had, and knew the contents of, the records of plaintiff's visit to the emergency room the morning of July 15, 2013, many days before the trial commenced on May 26, 2015, and that he did not take appropriate steps to supplement an incomplete and misleading response plaintiff had made to defendant's previously served discovery request on plaintiff seeking production of all documents related to plaintiff's visit to the emergency room; and, the court is satisfied, and finds, that counsel for plaintiff did not disclose those records to counsel for defendant in advance of the trial for the purpose of misleading defendant and its counsel into believing that the purpose of plaintiff's July 15, 2013 visit to the emergency room was for care and treatment of an aggravation of a back condition that he suffered over the weekend while performing military duties.

         The court further finds that the misrepresentations made by plaintiff and his wife at the trial concerning plaintiff's reason for seeking emergency room care the morning of July 15, 2013, and the withholding of the emergency room records by plaintiff's counsel from defendant's trial counsel before and during that trial, put defendant at an unfair disadvantage in defending itself at the trial, put defendant's appeal counsel at an unfair disadvantage in his presentations to the Fifth Circuit and in answering questions the members of the Fifth Circuit posed to him during oral argument, and put the Fifth Circuit at an unfair disadvantage in evaluating what the true facts were concerning the July 15, 2013 visit to the emergency room.

         All of the findings stated above are made based on clear and convincing evidence.

         The court turns now to the reasons plaintiff has given for denial to defendant of the Rule 60(b) relief it seeks by its motion.

         A. The Reasons Given by Plaintiff for Denial of the Motion Lack Merit

         1. This Court Has the Authority to Vacate the Judgment of the Fifth Circuit if a Vacatur is Appropriate Under a Provision of Rule 60

         In Standard Oil Co. of California v. United States, the Supreme Court had summarily affirmed the judgment of the district court in favor of the government. 42 9 U.S. 17 (197 6) (per curiam). Preliminary to filing a motion in the district court pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, the defendant filed a motion in the Supreme Court requesting that it recall its mandate and grant defendant leave to proceed in the district court. Id. The Supreme Court held that "the District Court may entertain a Rule 60(b) motion without leave by this Court." Id. It, therefore, denied the motion to recall the mandate, without prejudice to the defendant to proceed in the district court. Id.

         The Supreme Court then directed its attention to the often-expressed belief that an appellate court's mandate bars the trial court from later disturbing the judgment entered in accordance with the mandate, id. at 18, and the argument that the appellate-leave requirement protects the finality of the judgment and allows the appellate court to screen out frivolous Rule 60(b) motions, id. Both of those views were rejected by the Court. Id. As to the first, the Court explained that "the appellate mandate relates to the record and issues then before the court, and does not purport to deal with possible later events, " with the consequence that "the district judge is not flouting the mandate by acting on the motion." Id. As to the second, the Court noted that "the interest in finality is no more impaired in this situation than in any Rule 60 (b) proceeding" and that it had "confidence in the ability of the district courts to recognize frivolous Rule 60(b) motions." Id. at 19. The Court added that "[i]ndeed, the trial court is in a much better position to pass upon the issues presented in a motion pursuant to Rule 60(b)." Id. (internal quotation marks and citations omitted).

         The Court explained why it viewed the appellate-leave requirement to be inappropriate by saying:

The appellate-leave requirement adds to the delay and expense of litigation and also burdens the increasingly scarce time of the federal appellate courts. We see no reason to continue the existence of this unnecessary and undesirable clog on the proceedings.

Id. (internal quotation marks and citations omitted).

         This court has not found any post-Standard Oil Co. court decision that has varied from the ruling and explanations of the Supreme Court in that case.

         In a recent unpublished opinion of the Fifth Circuit, the Fifth Circuit, in reliance on the Standard Oil Co. decision, rejected a contention that the district court lacked subject-matter jurisdiction to amend its judgment pursuant to a Rule 60(b) motion after it was affirmed by the Fifth Circuit on appeal. Lindy Invs. III v. Shakertown 1992 Inc., 360 F.App'x 510, 512 (5th Cir. 2010) .

         A case that illustrates the lack of merit of plaintiff's contention that a motion under Rule 60(b) to vacate the judgment of an appellate court reversing the district court judgment cannot be entertained by the district court is DeWeerth v. Baldinger, 38 F.3d 1266 (2d Cir. 1994). DeWeerth brought suit against Baldinger in district court to recover a painting. The district court found that DeWeerth had established a superior right to the painting, and issued a judgment in her favor. The ruling of the district court was based in part on the conclusion that the applicable New York statute of limitations had not run on DeWeerth's claim to the painting. Baldinger appealed, and the Second Circuit reversed the judgment of the district court on the ground that under applicable New York law limitations had run. DeWeerth v. Baldinger, 836 F.2d 103 (2d Cir. 1987). The Second Circuit issued a mandate directing that the judgment in favor of DeWeerth be reversed, and the Supreme Court denied DeWeerth's petition for writ of certiorari.

         Over three years later, DeWeerth filed a motion with the Second Circuit asking it to withdraw its prior mandate and vacate its judgment of reversal because the New York Court of Appeals had held in the interim that the New York statute of limitations applicable to the action did not require the showing the Second Circuit had held it required. If the rule of the New York Court of Appeals had been applied by the Second Circuit on Baldinger's appeal, the Second Circuit would not have reversed, but would have affirmed the district court's judgment in favor of DeWeerth. The Second Circuit denied without opinion the motion to recall the mandate and vacate its judgment.

         Thereafter, DeWeerth moved in the district court for relief pursuant to Rules 60(b)(5) and (6) on the same grounds set forth in her motion to recall the mandate, i.e., that the New York Court of Appeals' decision required a different outcome. The district court granted DeWeerth's Rule 60(b) motion, and again ruled in her favor against Baldinger.

         Baldinger appealed again. He argued that the district court lacked jurisdiction to act upon DeWeerth's Rule 60(b) motion and that, in any event, any ruling in DeWeerth's favor was precluded by the Second Circuit's denial of DeWeerth's motion for recall of its mandate. The Second Circuit rejected both of Baldinger's contentions, noting that the district court properly relied on Standard Oil Co. in entertaining and ruling on DeWeerth's Rule 60(b) motion that sought to set aside the initial ruling of the Second Circuit in favor of Baldinger. In the second appeal, the Second Circuit disagreed with the district court's ruling on the Rule 60(b) motion, but acknowledged that the district court had the authority to entertain and rule on the motion.

         The court is satisfied, and concludes, that it has jurisdiction to entertain and make a ruling on defendant's Rule 60(b) motion in this action.

         2. Plaintiff's Reliance on the Entries in the EmergencyRoom Records of Low Back Pain as an ...

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