United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE.
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.
and History of the Litigation
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.
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) .
Factual and Legal Bases of the Opinion of the Fifth
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. 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
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
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.
evidentiary basis for the Fifth Circuit's determination
that those facts were undisputed was described in the opinion
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,
Id. at 907. The Fifth Circuit thought significant
that defendant "acknowledged at oral argument [that]
none of this evidence is disputed." 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.
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.
of Defendant's Motion
April 27, 2017 motion, defendant seeks relief pursuant to the
provisions of Rules 60(b) (3) and (6) and 37(c) 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.
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.
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.
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. 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:
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.
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.
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,
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. 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.
Taken by Plaintiff in His Responses in Opposition to the
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. 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.
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
Request for Rule 60(b) Relief
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.
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
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.
the findings stated above are made based on clear and
court turns now to the reasons plaintiff has given for denial
to defendant of the Rule 60(b) relief it seeks by its motion.
The Reasons Given by Plaintiff for Denial of the
Motion Lack Merit
This Court Has the Authority to Vacate the Judgment
of the Fifth Circuit if a Vacatur is Appropriate
Under a Provision of Rule 60
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.
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
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
Id. (internal quotation marks and citations
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.
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) .
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.
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.
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.
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.
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.
Plaintiff's Reliance on the Entries in the
EmergencyRoom Records of Low Back Pain as an