Samuel Nemaizer, General Manager of The New York Coat, Suit, Dress, Rainwear and Allied Workers' Union I.L.G.W.U. v. Jack Baker, An Individual, 793 F.2d 58, 2d Cir. (1986)
Samuel Nemaizer, General Manager of The New York Coat, Suit, Dress, Rainwear and Allied Workers' Union I.L.G.W.U. v. Jack Baker, An Individual, 793 F.2d 58, 2d Cir. (1986)
2d 58
55 USLW 2039, 55 USLW 2051, 5
Fed.R.Serv.3d 159,
7 Employee Benefits Ca 1817
Robert Cammer, New York City (Cammer & Shapiro, P.C., New York
City), for defendant-appellant.
Eric B. Chaikin, New York City (Chaikin & Chaikin, New York City), for
plaintiffs-appellees.
Before MANSFIELD, MESKILL, and CARDAMONE, Circuit Judges.
CARDAMONE, Circuit Judge:
The question we are called upon to decide is whether appellees may bring an
action in federal court claiming that appellant is individually liable under the
Employee Retirement Income Security Act (ERISA), 29 U.S.C. Secs. 1001 et
seq. (1982), for unpaid corporate employee benefit trust funds, after appellee
had previously stipulated to dismiss "with prejudice" an action raising that
claim. The reason appellees advance to obtain Rule 60(b) relief from the order
of dismissal is that the stipulation contemplated only a pending state claim, not
a federal claim. The legal consequences of a stipulation incorporated in a court
order may not be undone simply because, with the benefit of hindsight,
Plaintiff, Samuel Nemaizer, General Manager of the New York Coat, Suit,
Dress, Rainwear and Allied Workers' Union I.L.G.W.U., originally commenced
an action in January, 1984 in New York State Supreme Court to recover
employee benefit trust fund contributions from appellant, Jack Baker, an officer
of Sue Brett, Inc. The initial complaint alleged one cause of action under New
York State Labor Law, Sec. 198-c (1986). Sue Brett, Inc., the corporate
employer, had declared bankruptcy, and the complaint alleged that appellant
was personally liable for the delinquent contributions as the corporation's chief
operating officer.
On February 23, 1984 appellant removed the action to the United States
District Court for the Southern District of New York (Broderick, J.), alleging
that the claim asserted was preempted by Secs. 1132 and 1144 of ERISA.
Plaintiff Nemaizer did not contest this removal, nor did he move to remand it
back to state court.
Six months later on September 13, 1984, Nemaizer and another benefit fund
trustee (appellees) brought the instant federal action alleging that appellant was
individually liable under ERISA for contributions owed the fund by the
corporation. The district court judge to whom the action was originally
assigned indicated that he would dismiss it on res judicata grounds unless
plaintiffs convinced Judge Broderick to modify the earlier "with prejudice"
order to encompass only a dismissal of plaintiffs' original state law complaint.
When the matter was referred to him, Judge Broderick found that such was
appellee's intent in entering the stipulation, and granted appellees' Fed.R.Civ.P.
60(b) motion relieving them from the judgment that had dismissed the state
action "with prejudice," and which otherwise would have precluded them from
now raising claims arising under federal law. The district court found a genuine
misunderstanding had occurred concerning the stipulation's scope and that
equity dictated giving appellees an opportunity to make their ERISA claims in
federal court. The district court did not specify the subsection of Rule 60(b)
upon which it relied.
II THE JUDGMENT
8
As written, the stipulation stated in relevant part that "this action is dismissed
with prejudice and without costs against either party." A dismissal with
prejudice has the effect of a final adjudication on the merits favorable to
defendant and bars future suits brought by plaintiff upon the same cause of
action. Wainwright Securities Inc. v. Wall St. Transcript, 80 F.R.D. 103, 105
(S.D.N.Y.1978). Such a dismissal constitutes a final judgment with the
preclusive effect of "res judicata not only as to all matters litigated and decided
by it, but as to all relevant issues which could have been but were not raised and
litigated in the suit." Heiser v. Woodruff, 327 U.S. 726, 735, 66 S.Ct. 853, 857,
90 L.Ed. 970 (1946); Teltronics v. L M Ericsson Telecommunications, 642
F.2d 31, 35 (2d Cir.1981).
10
previous claims of a violation of state labor law; it relies on the same operative
facts. Because the identical facts pleaded in the prior state action form the basis
for the new ERISA complaint, and the ERISA claim was in fact pleaded by
appellant in the prior action (appellant's motion to dismiss and removal of
petition), the stipulation dismissing plaintiff's "action" with prejudice must be
read to have dismissed all claims. Res judicata principles preclude appellees
from raising in a later action those claims that would have been decided had the
first action been fully litigated. See Migra v. Warren City School District Board
of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Murphy v.
Gallagher, 761 F.2d 878, 879 (2d Cir.1985).
11
Thus, in order to maintain the instant federal action, appellees must invoke Rule
60(b) to vacate part of the initial judgment. To do that successfully, the rules
governing 60(b) must be satisfied. We turn to those rules.
Rule 60(b) sets forth the grounds on which a court, in its discretion, can rescind
or amend a final judgment or order. It provides, in pertinent part:
13 motion and upon such terms as are just, the court may relieve a party or his legal
On
representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence ...; (3) fraud ..., misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void; (5) the judgment has been satisfied, released, or discharged,
...; or (6) any other reason justifying relief from the operation of the judgment.
14
Properly applied Rule 60(b) strikes a balance between serving the ends of
justice and preserving the finality of judgments. House v. Secretary of Health
and Human Services, 688 F.2d 7, 9 (2d Cir.1982); Seven Elves, Inc. v.
Eskenazi, 635 F.2d 396, 401 (5th Cir.1981). In other words it should be broadly
construed to do "substantial justice," see Seven Elves, 635 F.2d at 401, yet final
judgments should not "be lightly reopened." Id.; Griffin v. Swim-Tech Corp.,
722 F.2d 677, 680 (11th Cir.1984). The Rule may not be used as a substitute for
a timely appeal. United States v. O'Neil, 709 F.2d 361, 372 (5th Cir.1983);
Rinieri v. News Syndicate Co., 385 F.2d 818, 822 (2d Cir.1967). Since 60(b)
allows extraordinary judicial relief, it is invoked only upon a showing of
exceptional circumstances. Ben Sager Chemicals Intern. v. E. Targosz & Co.,
560 F.2d 805, 809 (7th Cir.1977); Hoffman v. Celebrezze, 405 F.2d 833, 835
(8th Cir.1969); Rinieri, 385 F.2d at 822. A motion seeking such relief is
addressed to the sound discretion of the district court with appellate review
limited to determining whether that discretion has been abused. Griffin, 722
F.2d at 680; Matter of Emergency Beacon Corp., 666 F.2d 754, 760 (2d
Cir.1981).
A. Rule 60(b)(1)
15
Nemaizer contends that his counsel in the original action did not contemplate
the breadth of the stipulation and did not thereby intend to foreclose later
bringing an ERISA claim in federal court. The district court accepted this
argument and found that entering into the stipulation was an honest mistake;
that is, a misunderstanding of what each party intended. Nonetheless, the
agreement clearly precluded appellees from bringing the instant ERISA claim.
Had appellant intended to preserve that right, he should not have entered into
this type of "with prejudice" stipulation.
16
17
under Fed.R.Civ.P. 42(b), rather than severance under Fed.R.Civ.P. 21. The
government's misunderstanding apparently stemmed from its interpretation of
the term "sever". Id. at 372. The district court's denial of Rule 60(b) relief was
upheld despite the finding of a good faith mistake. The appellate court stated
that the orders themselves were not ambiguous and the failure to appeal or to
inquire as to their status "amounts to a want of adequate care or ignorance of the
rules." Id. at 374.
18
19
B. Rule 60(b)(6)
20
Clause (6) of Rule 60(b) provides that relief may be granted for "any other
reason justifying relief from the operation of the judgment." This portion of the
Rule is properly invoked only when there are extraordinary circumstances
justifying relief, Matter of Emergency Beacon Corp., 666 F.2d at 759, when the
judgment may work an extreme and undue hardship, Id.; United States v.
Karahalias, 205 F.2d 331, 333 (2d Cir.1953), and when the asserted grounds for
relief are not recognized in clauses (1)-(5) of the Rule. Matter of Emergency
Beacon Corp., 666 F.2d at 758; Cirami, 535 F.2d at 740. As (b)(6) applies only
when no other subsection is available, grounds for relief may not be mistake,
inadvertence, surprise or excusable neglect.
21
The scope of (b)(6) has been variously interpreted. See, e.g., Karahalias, 205
F.2d at 333 (L. Hand, J.) ("extremely meager"); accord Rinieri, 385 F.2d at
822; cf. United States v. Cirami, 563 F.2d 26, 32 (2d Cir.1977) (quoting 7
Moore's Federal Practice, p 60.27 at 315 (2d ed. rev. 1975)) ("a grand reservoir
of equitable power"); accord Dunlop v. Pan American World Airways, 672
F.2d 1044, 1051 (2d Cir.1982). Thus whether the water in the reservoir is scant
or grand, is far from clear. Nonetheless, it was plainly not intended to apply in
the circumstances presented here. To grant relief under this subsection would
be to accept the proposition that when counsel's conduct shows gross
negligence relief to a client may be afforded under Rule 60(b)(6). Although
some courts have embraced that view, see L.P. Steuart, Inc. v. Matthews, 329
F.2d 234, cert. denied, 379 U.S. 824, 85 S.Ct. 50, 13 L.Ed.2d 35 (1964), we
have consistently indicated a reluctance to do so. Cirami, 535 F.2d at 740-41;
Schwarz, 384 F.2d at 835.
22
23
Appellees urge that Dunlop v. Pan American World Airways, Inc., 672 F.2d
1044, controls. In Dunlop, the U.S. Secretary of Labor settled a federal age
discrimination suit with Pan American on behalf of 600 airline employees.
Appellants, who had commenced a prior state litigation that was stayed pending
The case at bar is different. Here the stipulation was not ambiguous; its legal
effect clearly precluded appellees from later raising a federal claim. Thus, the
judgment is not susceptible simply to being amended; it must be vacated.
Unlike the appellants in Dunlop--non-parties in the initial federal lawsuit
brought by the Secretary--plaintiff-appellee Nemaizer participated fully in the
original state suit and voluntarily stipulated to its dismissal. Appellees do not
seek to modify a federal judgment to protect state law claims, but to modify a
federal judgment to preserve federal claims. Plainly, federal courts may vacate
judgments to accomplish justice in a particular case. Id. Yet, justice and equity
are not served by invoking Rule 60(b)(6) to allow appellees to sue the
individual appellant for ERISA contributions when the identical claim urged
under a theory of state law was dismissed and the parties have stipulated not to
raise the ERISA claim in federal court.
C. Rule 60(b)(4)
25
Appellees next contend that they were not bound by the stipulation agreed
upon between the parties because appellant improperly removed the original
action from state court by claiming that ERISA preempted appellees' state-law
claim. Because federal courts lack jurisdiction over an improperly removed
case, appellees maintain that the order signed by the district court was a nullity
and therefore not binding. Even assuming that this case was not properly within
the jurisdiction of the district court, appellees may not now collaterally attack
that court's exercise of jurisdiction.
26
The only relevant subdivision of Rule 60(b) is (b)(4) which relates to void
judgments. Although appellees correctly argue that this case was improperly
removed to federal court, it does not logically or necessarily follow that every
judgment rendered after an improper removal must be classified as a nullity and
therefore void.
27
it to removal under 28 U.S.C. Sec. 1441(a). Appellees rely on this principle and
the recent ERISA decision in Franchise Tax Bd. v. Laborers Vacation Trust,
463 U.S. 1, 13-14, 103 S.Ct. 2841, 2848, 77 L.Ed.2d 420 (1983), when they
assert that appellant's ERISA preemption defense did not make appellees'
original state law complaint under Sec. 198-c of the New York Labor Law one
that fell within the "arising under" jurisdiction of the federal court. Thus, such
defense did not provide a basis for removing the state complaint.
28
We assume without deciding that appellees correctly claim that this case was
improperly removed and the district court improperly exercised its jurisdiction
when it "so ordered" the stipulation. Nonetheless, the judgment entered in
federal court was not void. Appellees could have moved to remand the action to
state court after its improper removal to federal court, or challenged the district
court's exercise of jurisdiction on direct appeal. Because they did neither, they
are now barred by principles of res judicata and the interest in finality of
judgments from mounting a collateral attack on a prior judgment in the present
action.
29
In Chicot County Dist. v. Bank., 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329
(1940), the Supreme Court held that a federal district court's erroneous exercise
of subject matter jurisdiction is not subject to collateral attack. "The court has
the authority to pass upon its own jurisdiction and its decree sustaining
jurisdiction against attack, while open to direct review, is res judicata in a
collateral action." Id. at 377, 60 S.Ct. at 320. Even if a court does not expressly
rule on matters relating to its exercise of jurisdiction, if the parties could have
challenged the court's power to hear a case, then res judicata principles serve to
bar them from later challenging it collaterally. Id. at 378, 60 S.Ct. at 320. This
principle was recently reaffirmed by the Supreme Court in Insurance Corp. v.
Compagnie Des Bauxites, 456 U.S. 694, 702 n. 9, 102 S.Ct. 2099, 2104 n. 9, 72
L.Ed.2d 492 (1982) ("A party that has had an opportunity to litigate the
question of subject matter jurisdiction may not, however, reopen that question
in a collateral attack upon an adverse judgment."); see also Federated
Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 2427, 69
L.Ed.2d 103 (1981); 11 Wright & Miller, Federal Practice and Procedure, Sec.
2862 at 201 (1973) ("[A] court's determination that it has jurisdiction of the
subject matter is res judicata on that issue, if the jurisdictional question actually
was litigated and decided, or if a party had an opportunity to contest subject
matter jurisdiction and failed to do so.").
30
Contrary case law and commentators' views permitting any collateral attack on
a prior judgment under Rule 60(b)(4) always involve a clear usurpation of
power by a district court, and not an error of law in determining whether it has
jurisdiction. See e.g., Kansas City Southern Ry. Co. v. Great Lakes Carbon,
624 F.2d 822, 825 (8th Cir.1980); Marshall v. Board of Ed., Bergenfield, N.J.,
575 F.2d 417, 422 (3rd Cir.1978); Lubben v. Selective Service System Local
Board No. 27, 453 F.2d 645, 649-50 (1st Cir.1972); J. Moore & J. Lucas, supra,
p 60.25 at 227.
31
Since a court has power to determine its own jurisdiction and, in fact, is
required to exercise that power sua sponte, it does not plainly usurp jurisdiction
when it merely commits an error in the exercise of that power. Rather, a court
will be deemed to have plainly usurped jurisdiction only when there is a "total
want of jurisdiction" and no arguable basis on which it could have rested a
finding that it had jurisdiction. Lubben, 453 F.2d at 649. When a district court
has not explicitly noted why it assumed jurisdiction over a suit, appellate courts
will independently examine the record to determine whether a reasonable basis
existed for the lower court's implicit finding that it had jurisdiction. See id. at
647 n. 4; Kansas City Ry., 624 F.2d at 824.
32
In the present case the district court did not 'plainly usurp' jurisdiction over the
initial action. A state cause of action arises under federal law and may therefore
be removed to federal court in the rare instance when a federal cause of action
completely preempts the state cause of action. Franchise Tax Board v. Laborers
Vacation Trust, 463 U.S. 1, 22-27, 103 S.Ct. 2841, 2852-55, 77 L.Ed.2d 420
(1983). See also Avco Corp. v. Aero Lodge 735, 390 U.S. 557, 88 S.Ct. 1235,
20 L.Ed.2d 126 (1968); McIntyre v. Fallahay, 766 F.2d 1078, 1084 (7th
Cir.1985). Here the district court could reasonably have found that ERISA's
remedial provision, 29 U.S.C. Sec. 1132(a), so completely preempted N.Y.
Labor Law Sec. 198-c that an action brought under Sec. 198-c 'arose under'
ERISA. See Franchise Tax Board, 463 U.S. at 24, 103 S.Ct. at 2854 ("It may be
that ... any state action coming within the scope" of 29 U.S.C. Sec. 1132(a) is
removable to federal court); Calhoon v. Bonnabel, 560 F.Supp. 101, 108-09
(S.D.N.Y.1982) (actions brought under Sec. 198-c removable to federal court as
'arising under' ERISA). We do not suggest that the district court's implicit
finding that it had jurisdiction over the suit was correct, only that it was
reasonable, and therefore immune from collateral challenge under Rule 60(b)
(4).
33
IV CONCLUSION
34
The judgment of the district court is reversed and appellees' ERISA complaint
is dismissed as barred by principles of res judicata.
MESKILL, Circuit Judge, dissenting:
35
I respectfully dissent.
36
After correctly stating that our scope of review of the grant or denial of relief
under Rule 60(b) is limited to determining whether the district court abused its
discretion, the majority then proceeds to ignore the facts that Judge Broderick
considered in interpreting his own order. The majority effectively reads back
into the stipulation the very language that the parties themselves agreed to
delete. A review of the complete factual background convinces me that Judge
Broderick did not abuse his discretion in this case.
37
38
39
Rather than investing his client's time and money in an effort to win a remand
of what was now a meritless 198-c claim, Nemaizer contacted Baker and
suggested a voluntary termination of the claim. Baker responded by proposing
a stipulation of dismissal which contained the following language: "[T]his
action, including all claims which were or could have been asserted herein, is
dismissed with prejudice...." App. of Appellant at 44 (emphasis added).
Nemaizer refused to sign this stipulation which clearly would have barred a
future ERISA claim. After negotiation, the italicized language was deleted. The
resulting stipulation, signed by both parties and ordered by Judge Broderick,
stated instead only that "this action is dismissed with prejudice." App. of
Appellant at 25. With the 198-c complaint now out of the picture, Baker's
motion to dismiss the complaint pursuant to Rule 12(b)(6) was dismissed by
Judge Broderick as moot on March 16, 1984.
40
On September 13, 1984, Nemaizer and another benefit fund trustee brought an
action against Baker in federal court alleging that Baker was liable for
employee benefit funds under ERISA. The suit was originally assigned to Judge
Brieant. At a conference with the judge, Baker's attorney asserted that the new
suit was barred by the stipulated dismissal with prejudice of the earlier suit.
According to Nemaizer, Judge Brieant said that if the dismissal order were his
own, he would be inclined to modify it in order to allow the ERISA claim to
proceed. According to both parties, however, Judge Brieant stated that if the
order were not modified, he would probably be required to dismiss the ERISA
claim on res judicata grounds. Nemaizer says it was Judge Brieant's suggestion
that the parties return to Judge Broderick to determine the order's scope.
41
Nemaizer then filed with Judge Broderick the instant request for Rule 60(b)
relief from the dismissal order. After receiving affidavits and briefs from the
parties and hearing argument, Judge Broderick found that Nemaizer had
intended the stipulation only to discontinue his state law claim, that there had
been a true misunderstanding between counsel for the parties over the intended
effect of the stipulation and that, in light of all of the facts and circumstances of
the case, it would be inequitable to deny Nemaizer an opportunity to litigate his
ERISA claim. In support of his finding, Judge Broderick particularly noted the
deletion of the broad language from the original stipulation and the rapid
confluence of events preceding it--the critical New York Court of Appeals
decision, the removal of the 198-c action and the motion to dismiss. He also
noted that an effort to remand the 198-c claim to state court would probably
have succeeded, but would have been futile in light of the New York Court of
Appeals decision.
42
Rather than actually modifying the dismissal order, Judge Broderick issued an
order on May 8, 1985, in which he "construe[d] the stipulation as having been
intended to discontinue the claim under state law but ... not ... as barring a
subsequent claim under ERISA."2 App. of Appellant at 4. This order deemed
the Rule 60(b) motion as having been made in the ERISA suit. A subsequent
order dated June 4, 1985, amended the May 8 order, construing the Rule 60(b)
motion as having been made in both the original 198-c suit and the later ERISA
action.
DISCUSSION
43
The majority begs the key question in this case when it states that "[a]
dismissal with prejudice arising out of an agreement of the parties is an
adjudication of all matters contemplated in the agreement," Majority Op. at
section II (emphasis added), while refusing to examine what was actually
contemplated by the parties here or, indeed, whether there ever was a meeting
of the minds. The district judge, on the other hand, actually made this inquiry.
He found that instead of an agreement there was a genuine misunderstanding
between the parties as to the stipulation's scope. The majority notes this finding,
see id. at section I, and nowhere indicates that it was wrong, much less clearly
erroneous. Then, instead of according the finding the deference it deserves, the
majority disregards it.
44
"45'reliance upon certain aids to construction is proper, as with any contract. Such aids
include the circumstances surrounding the formation of the [stipulation, and] any
technical meaning words used may have had to the parties'.... [A] court may interpret
the terms ... by examining extrinsic documents ... [and may also examine] 'the
circumstances surrounding the order and the context in which the parties were
operating,' "
46
Schurr, 719 F.2d at 574 (quoting United States v. ITT Continental Baking Co.,
420 U.S. 223, 238, 243, 95 S.Ct. 926, 935, 938, 43 L.Ed.2d 148 (1975)). See
New York State Association For Retarded Children v. Carey, 596 F.2d 27, 37
(2d Cir.), cert. denied, 444 U.S. 836, 100 S.Ct. 70, 62 L.Ed.2d 46 (1979); see
also Alliance to End Repression v. City of Chicago, 742 F.2d 1007, 1013 (7th
Cir.1984) (en banc) ("context ... is the key to understanding language [in a
consent decree]").
47
stating that it was "deemed to constitute a bar, merger, and estoppel to the
institution or prosecution of any further litigation" by certain named parties was
"sufficiently ambiguous ... to require clarification"); cf. Schurr, 719 F.2d at 575
(district court erred in looking to extrinsic evidence after having found that
language of consent judgment was "clear and unambiguous"). But see Alliance
to End Repression, 742 F.2d at 1013 (courts seeking to effectuate parties' intent
may disregard even unambiguous language where literal meaning is clearly
contrary to that intent). Employing the aids to construction described above,
particularly including a comparison of the draft and final stipulations, the
district judge concluded that the intended meaning of "this action" was limited
to Nemaizer's 198-c complaint and did not extend to a potential future claim
under ERISA. Cf. United States v. O'Neil, 709 F.2d 361, 366-68 (5th Cir.1983)
(appellate court looked to context and wording of related judgments to
determine district court's intended meaning of "severed" in judgments at issue).
48
Two subsections of Rule 60(b) afforded the district court the power to grant
relief from an unintended effect of the stipulation. The first of the applicable
subsections, 60(b)(1), allows relief from a judgment resulting from a "mistake."
What occurred here was not the kind of negligent omission that courts have
refused to recognize as a ground for relief under Rule 60(b). See, e.g., Hoffman
v. Celebrezze, 405 F.2d 833, 835 (8th Cir.1969). Rather, it was as the district
court described it--with an apparent reference to the classic mistake case,
Raffles v. Wichelhaus, 159 Eng.Rep. 375 (Ex.1864)--a "true case of a
misunderstanding where two ships were passing in the night." App. of
Appellant at 7. The stipulation did not clearly express the intent of the parties
and relief from it was properly available under Rule 60(b)(1). Cf. Elder v.
Metropolitan Freight Carriers, Inc., 543 F.2d 513, 517-18 (3d Cir.1976).
49
Viewed another way, the stipulated dismissal entered here was also contrary to
the intentions of the court. The court, therefore, had the power to grant relief
from it pursuant to Rule 60(b)(6), providing that the circumstances here were
sufficiently "extraordinary" to satisfy the judicial gloss on this subsection. See
Matter of Emergency Beacon Corp., 666 F.2d 754, 759 (2d Cir.1981). The
district court did not abuse its discretion when it determined that the
circumstances here were extraordinary.
50
Beyond the facts and events described above, the following factors could also
have led to that determination. First, the plaintiff here had the "unfettered
power" to obtain a voluntary dismissal of his claim under Fed.R.Civ.P. 41(a)(1)
(i) merely by filing a notice of dismissal. Santiago v. Victim Services Agency
of the Metropolitan Assistance Corp., 753 F.2d 219, 221 (2d Cir.1985). The
defendant's motion to dismiss did not take the case out of the Rule, id. at 222,
Second, a broad reading of the parties' stipulation here would deny the plaintiff
his day in court by re-inserting the very language the parties themselves
intentionally deleted. That result is contrary to the policy of Rule 60(b), "a
remedial provision intended to prevent injustice by allowing parties their day in
court even though some technical error has occurred which would otherwise be
grounds for default or dismissal." Greater Baton Rouge Golf Association v.
Recreation and Park Commission, 507 F.2d 227, 228 (5th Cir.1975) (per
curiam). Third, the claim precluded here was an ERISA claim, one protected
by the strong legislative policy of preventing an employer "from 'pulling the
rug out from under' promised retirement benefits upon which his employees
had relied during their long years of service." Amato v. Western Union
International, Inc., 773 F.2d 1402, 1409 (2d Cir.1985), pet. for cert. dismissed,
--- U.S. ----, 106 S.Ct. 1167, 89 L.Ed.2d 288 (1986); cf. Gilbert v. Burlington
Industries, Inc., 765 F.2d 320, 326 (2d Cir.) (financial loss to employees by
employer's default on severance pay obligations a primary concern of ERISA),
aff'd ------ U.S. --------, 106 S.CT. 3267, 91 L.Ed.2d 558 (1986).
52
Considering all of these factors, the experienced district judge here used sound
discretion in construing his own order in such a way as to do substantial justice.
Klapprott v. United States, 335 U.S. 601, 614-15, 69 S.Ct. 384, 390, 93 L.Ed.
1099 (1949) (opinion of Black, J.). I would affirm.
The record indicates, therefore, that the Stoganovic decision did not come
during the pendency of this dismissal motion as indicated by the majority.
Instead, the dismissal motion was filed eight days after the Stoganovic decision
had rendered the 198-c claim meritless