Opinion
C.A. No. 00C-05-131 JRS Supreme Court No. 487, 2001
Date Submitted: March 21, 2002
Date Decided: April 4, 2002
Upon Remand From The Supreme Court of The State of Delaware
For Consideration of Plaintiff's Motion to Alter or Amend Judgment.
DENIED.
David S. Lank, Esquire, Wilmington, Delaware, Attorney for Plaintiff.
Mark D. Olson, Esquire, Wilmington, Delaware, Attorney for Defendant.
I. INTRODUCTION
Plaintiff, Albu Trading, Inc. ("Albu"), commenced this litigation to recover the purchase price of frozen chicken backs that it acquired from Defendant, Allen Family Foods, Inc. ("Allen"). Albu alleges that the chicken was contaminated with salmonella when delivered by Allen on May 14, 1998.
On August 30, 2001, this Court granted summary judgment to Allen. Albu filed a Motion to Alter or Amend Judgment on September 14, 2001, which this Court denied on September 24, 2001. Albu appealed both decisions to the Supreme Court of Delaware. After a flurry of motion practice, which primarily addressed untimely filings and allegations of newly discovered evidence, the Supreme Court remanded the matter, directing Albu to file an appropriate motion under Superior Court Civil Rule 60(b) so that this Court could consider the new evidence and determine whether the evidence was such that the summary judgment entered in favor of Allen should be vacated.
(D.I. 29)
(D.I. 30)
(D.I. 31)
Albu Trading, Inc. v. Allen Family Foods, Inc., Del. Supr., No. 487, 2001, Steele, J. (Feb. 20, 2002) (ORDER).
In compliance with the Supreme Court's remand order, Albu has filed a Motion to Alter or Amend Judgment which asks the Court to vacate its summary judgment in favor of Allen on the ground that this Court based its decision on an inaccurate interpretation of the facts. Specifically, Albu contends that the Court improperly relied upon certain certifications of the Food Safety and Inspection Service of the U.S. Department of Agriculture ("FSIS") which purported to attest that the FSIS had tested the chicken backs before they were delivered to Albu and found them to be free of salmonella contamination. In this regard, Albu claims that it received information on December 27, 2001 from representatives of FSIS indicating that "no salmonella testing had in fact been conducted." Based on this new information, Albu argues that "this court's decision is undercut factually by the inaccuracy of the government supplied information upon which that decision was based" and that this "newly discovered evidence" provides a basis for the Court to reopen its judgment. Allen opposes Albu's motion arguing that Albu has failed to satisfy any of the factors traditionally considered by this Court before it will alter or amend a final judgment. Albu has filed a reply memorandum in support of its motion. Appended to Albu's reply is a letter from an attorney with the U.S. Department of Agriculture ("USDA") which indicates that FSIS has now "determined that there had been no salmonella testing conducted on the product in question."
Albu's Motion at ¶ 9 (Feb. 27, 2002).
Id. at ¶ 10.
Albu filed its reply memorandum on March 21, 2002 without leave of Court. In a letter dated February 21, 2002, the Court ordered Albu to file its motion under Rule 60 on or before February 27, 2002 and ordered Allen to file its response to the motion on or before March 8, 2002. No reply submission was authorized by the Court's order. Notwithstanding that Albu again has filed an untimely and/or unauthorized pleading, the Court will consider Albu's reply in ruling on its motion.
(D.I. 42)
To follow is this Court's ruling on Albu's Motion to Alter or Amend Judgment. This ruling also will serve as this Court's report to the Supreme Court of Delaware following remand.
II. FACTS
The facts giving rise to this controversy are recited at some length in the Court's decision on Allen's Motion for Summary Judgment. Of particular relevance to the motion sub judice is the Court's prior determination that Allen had established as a matter of undisputed fact that it "delivered the chicken to US Storage [on May 14, 1998] in a frozen condition, that the chicken showed no signs of salmonella contamination, that it was fit for export under USDA testing requirements, and that at all times between inspection and delivery it was maintained at a temperature where salmonella is incapable of growth and reproduction." The Court's findings were based in part on three certificates entitled "Veterinary Certificate for Poultry Meat Exported to Romania" issued by a veterinarian from the USDA. The certificates indicate that the chicken was tested prior to delivery to Albu and that the chicken showed no evidence of salmonella infection.
Albu Trading, Inc. v. Allen Family Foods, Inc., C.A. No. 00C-05-131, Slights, J. (Aug. 30, 2001) (ORDER).
Id. at 5.
The certificates bear two different dates. One date, located on the top of document, indicates that the inspection of the chicken occurred on May 14, 1998 (the date of delivery to Albu). The second date, May 18, 1998, is adjacent to the veterinarian's signature at the bottom of the document. The Court concluded from the express terms of the certificates that the inspection occurred on May 14, 1998 and that the certification of the testing results was "made on" May 18, 1998.
Id.
The Court also relied upon two unrebutted affidavits submitted by Allen: one, sworn by Patricia C. Sigler, Allen's Corporate Director of Quality Control, indicates that salmonella microorganisms are incapable of growth and reproduction at temperatures below 44 degrees Fahrenheit; the second, sworn by Ronald K. Longhany, Plant Manager for US Cold Storage, indicates that Allen delivered the chicken to them between February 4 and 13, 1998, that it was frozen upon delivery and maintained at 0 degrees Fahrenheit, and that a USDA inspector inspected the chicken on May 14, 1998 with negative results.
Id. at 3-5.
In an attempt to establish a material factual controversy with respect to Allen's motion for summary judgment, Albu offered a March 21, 2001 letter it received in response to a Freedom of Information Act ("FOIA") request directed to the USDA. In that letter, the USDA states that salmonella testing occurred for the first time on May 18, 1998, not May 14, 1998, as indicated by the FSIS certificates. The Court easily reconciled the FOIA response and the FSIS certificates and concluded that the FOIA response "does not create a material factual controversy because it neither establishes that the inspection did not take place nor does it cast doubt on the accuracy of the USDA certificates or the testing results they report." Because the undisputed evidence of record established that the chicken backs were not contaminated with salmonella either at the time (May 14, 1998) or after (May 18, 1998) the risk of loss passed to Albu, the Court granted Allen's motion for summary judgment.
Id. at 6-7.
Id.
In its present motion, Albu asserts that a more recent product of its FOIA requests directed to the USDA, a letter dated December 27, 2001, states that the prior FOIA response concerning salmonella testing was erroneous in that no salmonella testing had occurred on May 18, 1998. In its reply, Albu attached yet another FOIA response, this time a March 19, 2002 letter from an attorney with the USDA stating that the chicken backs were never tested for salmonella. Albu contends that this "newly discovered evidence" reveals a material factual dispute with respect to the condition of the chicken backs at the time they were delivered by Allen. Because the Court based its prior decisions on the absence of a material factual dispute, Albu urges the Court to vacate its prior decisions and allow the case to proceed on the merits.
III. DISCUSSION A. Standard of Review
Superior Court Civil Rule 60(b)(2) ("Rule 60(b)(2)") provides in pertinent part:
On motion and upon such terms as are just, the Court may relieve a party or a party's legal representative from a final judgment, order or proceeding for the following reasons: (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).
Super.Ct.Civ.R. 60(b)(2).
Interpreting Rule 60(b)(2), our Supreme Court has outlined five predicates for relief on a motion to alter or amend a final judgment:
[T]he newly discovered evidence has come to the [proponent's] knowledge since the trial; that it could not, in the exercise of reasonable diligence, have been discovered for use at trial; that it is so material and relevant that it will probably change the result if a new trial is granted; that it is not merely cumulative or impeaching in character; and that it is reasonably possible that the evidence will be produced at trial.
Levine v. Smith, 591 A.2d 194, 202 (Del.Supr. 1991), overruled on other grounds by Brehm v. Eisner, 746 A.2d 244 (Del.Supr. 2000).
Albu has the burden of establishing that its "newly discovered evidence" satisfies each of the above criteria before the Court will alter, amend, or vacate its prior judgment.
Id.
B. Albu Has Not Established Due Diligence
In order to qualify as newly discovered evidence, the Court must be satisfied that Albu, with the exercise of reasonable diligence, could not have discovered the information prior to the Court's decision on Allen's motion for summary judgment. In this regard, Albu has stated only that it "believed [the March 21, 2001 letter] to be erroneous and attempted to obtain correct information from FSIS by requesting administrative review of its response." Albu's request for administrative review, however, was not made until August 27, 2001, over five months after receiving the letter it believed to be erroneous, four months after the discovery cut-off, and eleven days after the oral argument on Allen's motion.Albu has failed even to address, much less adequately explain, how its efforts constitute due diligence. Had Albu made its request for administrative review shortly after its receipt of the March 21, 2001 letter which it believed to be erroneous, it likely would have received the "new" information before the Court issued its opinion granting Allen's motion for summary judgment. More importantly, Albu never once advised the Court (or Allen) that additional time for discovery was required or that pending requests for information had gone unanswered.
Albu made its request on August 27, 2001 and received a response on December 27, 2001-four months later. Had Albu made its request shortly after receipt of the March 21, 2001 letter, it appears that Albu would have received the new information before the Court's August 30, 2001 ruling on Allen's motion for summary judgment.
The Court's inquiry ends with its finding that Albu did not exercise due diligence. Due diligence must be demanded of the party who moves for relief under Rule 60(b)(2) in all instances; it is not a standard to be applied half-heartedly just because the consequences of strict adherence are severe. As Professor Moore explains:
Until receipt of the latest letter from the USDA dated March 19, 2002, the Court was not satisfied that Albu's new evidence was "so material and relevant that it will probably change the result." Bachtle, 494 A.2d at 1255-56. Albu misstated what the USDA's December 27, 2001 letter actually revealed. In its motion, Albu averred the letter proved "that no salmonella testing had in fact been conducted." But the December letter actually states that "[t]here were no Salmonella test conducted on May 18, 1998." (emphasis supplied) The Court already had concluded that the FSIS certificates reveal that the testing occurred on May 14, 1998 (as opposed to May 18, 1998). The December letter was not inconsistent with this conclusion. The March 19, 2002 letter, on the other hand, although ambiguous, does appear to indicate that the chicken was not tested for salmonella at all. This letter, if explained, may have changed the Court's ruling on Allen's motion for summary judgment.
Although newly-discovered evidence must be likely to change the outcome of a case in order to justify relief from a judgment, this does not mean that any other requirement of the rule may be abandoned when it is shown that the newly-discovered evidence is conclusive and would definitely change the outcome of the case. In particular, the requirement of due diligence in discovering the evidence must still be satisfied in order to obtain relief, even when the newly-discovered evidence might be considered "conclusive". (footnote omitted) Because the language of Rule 60(b)(2) expressly states that it provides relief for newly-discovered evidence only when the moving party has shown "due diligence," (footnote omitted) there would seem to be little room for a court to claim that it could provide relief, even when a moving party fails to meet the criteria of the rule, because there is newly-discovered evidence that is arguably "conclusive." (footnote omitted)
12 James Wm. Moore et al., Moore's Federal Practice ¶ 60.42(10) (3d ed. 1997).
Delaware's courts do not interpret the rule differently. "[T]he notion that a `manifest miscarriage of justice' will occur if a party is not permitted to reopen the record to introduce `practically conclusive evidence' that concededly could have been presented earlier had the moving party been diligent . . . has not been accepted as the law in Delaware." Albu has failed to show why its "newly discovered evidence" could not have been secured prior to the discovery cut-off or, at least, prior to the Court's decision granting summary judgment to Allen. Consequently, Albu has not established its reasonable diligence.
Ross Systems Corp. v. Ross, 1994 WL 198718 (Del.Ch.) at *2 ("In Delaware, a motion for a new trial will normally be denied where the moving party fails to show that by exercising reasonable diligence it could not have discovered the evidence before trial."
It is a well-founded requirement that a party must demonstrate its efforts to secure available evidence prior to judgment as a predicate to relief based on evidence discovered after judgment. As the court noted in Ross,
[The movant] is misguided in suggesting that the goal of reaching a just result based on all the facts is the only principle to be considered. To the contrary, the Court must also consider an equally valid principle, namely, that judicial determinations, once made, are usually final and that litigation at some point must conclude. In balancing those potentially conflicting principles, the need for finality of a judgment will sometimes outweigh the need to consider all available facts (particularly when the trial is long over) to reach the just result.
Id.
IV. CONCLUSION
Based on the foregoing, the Court concludes that Albu has failed to establish that it is entitled to relief under Rule 60(b). Accordingly, Albu's Motion to Alter or Amend Judgment must be DENIED.IT IS SO ORDERED.