798 F. 2d 1069 - Margoles v. Johns

The plaintiff, Dr. Milton Margoles, brought this slander action in 1972 against The Journal Corporation, and Alida Johns, a reporter for the Journal. The district court dismissed the action in 1976, pursuant to Fed.R.Civ.P. 37(b)(2)(C), because of the plaintiff's failure to comply with discovery orders. The plaintiff unsuccessfully challenged the dismissal on direct appeal and in a subsequent collateral attack pursuant to Fed.R.Civ.P. 60(b)(4). The plaintiff is once again before us, following the district court's denial of his motion to vacate the dismissal and reinstate the action pursuant to Fed.R.Civ.P. 60(b)(6). For the reasons stated below, we will affirm.

* For many years prior to 1962, the plaintiff was a licensed physician in Wisconsin and a number of other states. In 1960, the plaintiff was convicted of several violations of the Internal Revenue Code and was sentenced to one-year imprisonment and ordered to pay $15,000.00 in fines. Later that same year, he was convicted of attempting to influence an officer of the court and of attempting to obstruct justice, and was sentenced to five-years imprisonment and ordered to pay $5,000.00 in fines. In 1961, the plaintiff was also convicted of communicating with a juror, and was sentenced to six-months imprisonment and fined $1,000.00.

The plaintiff's license to practice medicine and surgery in Wisconsin was revoked on February 26, 1962. Licenses he held to practice medicine in other states were subsequently revoked as well. Upon his release from prison on parole in 1962, the plaintiff commenced a campaign to regain his Wisconsin medical license. However, both in 1965 and 1969, the Wisconsin State Board of Medical Examiners, following formal hearings, denied him relicensure.

On August 18, 1972, the plaintiff filed a complaint in the United States District Court for the Eastern Division of Wisconsin, alleging that Alida Johns, while a newspaper reporter for The Journal Company, slandered him during conversations with staff members of an Illinois congressman in the late summer of 1970.1 The case was assigned to the Honorable John W. Reynolds. After status conferences had been held in April and December of 1973, the plaintiff filed a motion for Judge Reynolds to recuse himself. The plaintiff claimed that, because Judge Reynolds had been the Wisconsin Attorney General when matters concerning the plaintiff's state medical license were under consideration by the Wisconsin Medical Examining Board, he would be unable to give the plaintiff a fair trial. Prior to a ruling on the plaintiff's recusal motion, the case was transferred to the Honorable Robert W. Warren.

The parties first appeared before Judge Warren at a pre-trial conference on April 25, 1975. Because Judge Warren had served as Attorney General of Wisconsin from 1969 until his appointment to the district bench in 1974, the plaintiff "expressed [his] concern about, and inquired" whether Judge Warren's prior involvement in matters relating to the plaintiff would impair his ability to try the case impartially. Judge Warren replied that any knowledge of, or involvement in, the plaintiff's affairs he may have had was not of such a nature that he needed to disqualify himself.

On October 23, 1975, the defendants moved for dismissal under Fed.R.Civ.P. 37(b)(2)(C) on the ground that the plaintiff failed to comply with discovery orders entered by Judge Warren in January and April 1975. Judge Warren, on January 5, 1976, after hearing arguments on the matter, granted the motion and dismissed the case. Judge Warren stated:

[T]he Court is persuaded that [this] is one of the unusual cases in which the Court should and does make a specific finding that the failure to produce herein is willfull, that it is prejudicial, that the matter sought to be produced is highly relevant and material to the case ..., and that the failure to produce that and comply with the procedural orders of the Court has been so prejudicial that the sanction called for ... is appropriate, and that the Court does herewith order that the case shall be dismissed.

Judgment of dismissal was entered on January 8, 1976.

On February 4, 1976, the plaintiff moved to vacate the order of dismissal pursuant to Fed.R.Civ.P. 60(b). That same day, the plaintiff filed notice of appeal from the dismissal with this court. On March 15, 1976, Judge Warren denied the plaintiff's Rule 60(b) motion. We considered the plaintiff's direct appeal and the ruling on the Rule 60(b) motion together, and after a careful review of the record, we concluded that Judge Warren's finding that the plaintiff willfully refused to comply with discovery orders was supported by the evidence before him, and affirmed the dismissal. Margoles v. Johns, 587 F.2d 885, 888 (7th Cir.1978) ("Margoles I "). Neither before us on direct appeal, nor before the district court on his initial Rule 60(b) motion, did Margoles put into issue Judge Warren's disclaimer of bias or his decision not to disqualify himself.

In July of 1980, the plaintiff filed a motion under Fed.R.Civ.P. 60(b)(4), in which he claimed that Judge Warren's failure to recuse himself violated 28 U.S.C. Sec. 455,2 and thus rendered the 1976 order of dismissal void for want of due process. Judge Warren transferred the motion to the Honorable Terence T. Evans, who denied it on February 25, 1981. Judge Evans held that the issue to be resolved was not whether Judge Warren erred in refusing to recuse himself, but rather whether Judge Warren "in fact was so biased or prejudiced against [the plaintiff] that the proceeding was unfair." Judge Evans found that "[w]hile it is true that Judge Warren had some knowledge of the [plaintiff], nothing included in the plaintiff's exhibits leads me to conclude that the judge had a duty to disqualify himself from presiding over this slander case," and concluded that "the documentation submitted by ... [the plaintiff is] far short of the kind of evidence necessary for him even to get a hearing, let alone carry the day." We affirmed on appeal and adopted Judge Evans's Decision and Order. Margoles v. Johns, 660 F.2d 291 (7th Cir.1981) ("Margoles II ").

On January 5, 1984, the plaintiff filed a third motion under Fed.R.Civ.P. 60(b)(6) to overturn the judgment in which he claimed to have discovered documents that demonstrated Judge Warren and counsel for the defendants failed to disclose "material extraordinary extrajudicial relationships" existing between them during the time Judge Warren was Attorney General of Wisconsin. The plaintiff argued that Judge Warren should have disqualified himself because of this putative relationship, and that his failure to do so denied the plaintiff due process of law.3 Judge Evans denied the plaintiff's motion on January 17, 1985.4 This appeal followed.

In considering the plaintiff's motion for relief from judgment under Rule 60(b)(6), we do not directly review the district court's dismissal of the plaintiff's action for failure to comply with discovery orders pursuant to Fed.R.Civ.P. 37(b)(2)(C). Marane, Inc. v. McDonald's Corp., 755 F.2d 106, 112 (7th Cir.1985) ("[W]e cannot reach the merits of the underlying judgment."); see also Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 606-07 (7th Cir.1986). As we noted above, we affirmed the propriety of the dismissal order in Margoles I. In the instant case, we must determine only whether the district court abused its discretion in denying the plaintiff's motion under Rule 60(b)(6). Browder v. Director, Department of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978); Metlyn Realty Corp. v. Esmark, Inc., 763 F.2d 826, 831 (7th Cir.1985); Simons v. Gorsuch, 715 F.2d 1248, 1253 (7th Cir.1983); Fuhrman v. Livaditis, 611 F.2d 203, 204 (7th Cir.1979). There is, of course, a strong policy favoring the finality of judgments: "[j]udgments in civil cases fix the rights of parties and entitle them to go about their lives [and] may be reopened only for extraordinary reasons." Metlyn Realty Corp., 763 F.2d at 830; see also Andrews v. Heinhold Commodities, Inc., 771 F.2d 184, 188 (7th Cir.1985); C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1205 (7th Cir.1984); McKnight v. United States Steel Corp., 726 F.2d 333, 335 (7th Cir.1984); Merit Insurance Co. v. Leatherby Insurance Co., 714 F.2d 673, 682-83 (7th Cir.1983). Indeed, we have held that, to find an abuse of discretion under Rule 60(b), the appellate court must be convinced that "no reasonable man could agree with the district court's decision." Tolliver v. Northrop Corp., 786 F.2d 316, 318 (7th Cir.1986); Simons, 715 F.2d at 1253; Smith v. Widman Trucking & Excavating, 627 F.2d 792, 795-96 (7th Cir.1983).

Rule 60(b) allows a district court to relieve a party from a final judgment for the reasons specified in subsections (1) through (5).5 In addition, subsection (6) provides that the court may grant a motion under Rule 60(b) for "any other reason justifying relief."6 Nevertheless, relief under 60(b)(6) is warranted only upon a showing of extraordinary circumstances that create a substantial danger that the underlying judgment was unjust. Ackerman v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950); Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266 (1949); Kagan, at 609-10. Industrial Associates, Inc. v. Goff Corp., 787 F.2d 268, 269 (7th Cir.1986); Merit Insurance Co., 714 F.2d at 682-83.

The plaintiff claims that the documents attached to his Rule 60(b)(6) motion demonstrated (1) that an Assistant Wisconsin Attorney General, during the time Judge Warren served as the Wisconsin Attorney General, communicated with counsel for the defendants in the original slander suit and exchanged information with them concerning that suit, and (2) that the office of the Attorney General had used a reporter for the defendant newspaper to investigate the plaintiff in regard to his efforts to regain his medical licence. The plaintiff argues that the existence of these "relationships" denied him due process, and constituted extraordinary circumstances making relief under Rule 60(b)(6) appropriate. We disagree.

We have thoroughly examined the documents underlying the plaintiff's motion. Some of those documents relate to events that occurred before Judge Warren was elected Attorney General of Wisconsin, and hence, before he could be said to have any involvement in either the slander lawsuit or the plaintiff's other lawsuits. Some documents were part of the records in other litigation the plaintiff has pursued. These included depositions, motions, and court orders. Most of the remaining documents chronicle the plaintiff's dispute in 1983 with the office of Wisconsin Attorney General over the production of investigative files and the like, for use in the instant Rule 60(b)(6) proceedings, or for use in the plaintiff's other litigation. We have concluded that these documents neither compromise Judge Warren's decision not to disqualify himself, nor impugn the justness of the proceedings leading to the dismissal order.

Those few documents that bear on the alleged relationship between Judge Warren, during the period when he was Attorney General, and counsel for the defendants are either totally inconclusive of the nature of that "relationship," if such it be, or patently innocuous. On the basis of the record before us, we conclude that the "exchange of information," which constitutes the gravamen of the plaintiff's Rule 60(b)(6) motion, involved essentially the exchange of court documents that were part of the record, including depositions of the plaintiff and other parties, in a lawsuit which the plaintiff had brought and in which the office of the Wisconsin Attorney General was defending.7

As to the plaintiff's claim that Judge Warren's former office made use of one of the defendant newspaper's employees to investigate him, it is true that the Wisconsin Attorney's General office did call upon a person to investigate Margoles in regard to a matter unrelated to any material issues in the slander suit.8 That "relationship" developed several years before Judge Warren was elected Attorney General, and did not involve his administration of that office. In addition, this occurred when the investigator was not an employee of the defendants. There is also some indication that this person was called upon to provide information to the Attorney General subsequent to Judge Warren's election to that office and after the person became a reporter for the defendants. Nevertheless, the documents of record shed absolutely no light on whether the information requested or provided was relevant to any material factual issues that might have been disputed in the instant action.9 Therefore, the existence of this "relationship," if such it be, does not present the "extraordinary circumstances" necessary to warrant relief under Rule 60(b)(6).

Even assuming that Judge Warren knew of these activities and the communications between his office and counsel for the defendants in the underlying slander case, the evidence and reasonable inferences drawn from it are woefully inadequate to warrant relief under Rule 60(b)(6). The plaintiff's claim that these documents establish that Judge Warren stood in an "of counsel" relationship to defense counsel is groundless. Likewise, the claim that Judge Warren had a "substantial interest" in the case is totally unfounded.10 The plaintiff clearly has failed to demonstrate extraordinary circumstances that create a substantial danger of an unjust result.11 Merit Insurance Co., 714 F.2d at 682-83. We hold, therefore, that the district court did not abuse its discretion in denying the plaintiff's Rule 60(b)(6) motion.

The defendants-appellees have requested that we assess fees and costs against the plaintiff pursuant to Fed.R.App.P. 38. Although we do not ordinarily grant such requests, we have determined that this appeal was frivolous, and, therefore, assess the plaintiff-appellant $2,500.00 in fees, costs, and damages. For the reasons stated above, the district court's order dismissing the plaintiff's motion under Fed.R.Civ.P. 60(b)(6) is

AFFIRMED.