Opinion
No. 3-03-CV-1104-P.
July 2, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
In a letter to the court dated March 25, 2004, Defendant Kevin Sowell states that he has withdrawn his agreement to settle this case. The court has construed the letter as a motion for new trial or, in the alternative, to set aside the judgment entered on March 23, 2004. For the reasons stated herein, the motion should be denied.
I.
This is one of more than 50 lawsuits brought by Plaintiff DirecTV, Inc. against purchasers and users of devices and equipment designed to gain unauthorized access to satellite communication signals in violation of the Cable Communications Privacy Act of 1984, 47 U.S.C. § 521, et seq., the Electronic Communications Privacy Act of 1986, 18 U.S.C. § 2510, et seq., and Texas law. As part of a comprehensive pretrial management plan, the court ordered many of the defendants in these cases, including Sowell, to participate in mediation during the week of February 9, 2004. Sowell attended the mediation and settled his dispute with plaintiff. A written settlement agreement was executed by the parties on February 13, 2004. (Plf. Resp., Exh. 1). In accordance with the terms of this agreement, Sowell made his first payment to plaintiff by credit card and agreed to a judgment in the amount of $30,000. The judgment was entered of record on March 23, 2004.
By order dated April 28, 2004, the court authorized plaintiff to file this settlement agreement under seal.
Two days after this judgment was entered, Sowell wrote a letter to the magistrate judge attempting to revoke his consent to the settlement. In his letter, Sowell writes:
Judge Kaplain [sic] I have return from my emergency trip checking on my father he is doing much better now. On my return I receive a letter from the lawyer of DirecTV stating that I have agreed to pay them a sum of $30,000 dollar. I revoked all my signature 4-1/2 weeks ago. So I don't know what they are trying to pull. We do not have a contract, in the case of Erie Vs Thomkins clearly states there is no contract and there is no case.
(Sowell Ltr., 3/25/04). The court construed the letter as a motion for new trial or, in the alternative, to set aside judgment and established a briefing schedule for the disposition of the motion. Plaintiff filed a response to the motion on April 20, 2004. Sowell was invited to file a reply, but has failed to do so. The motion is now ripe for determination.
Sowell submitted a document entitled "Notice of Surety Act and Bond" on April 19, 2004. However, this document, which was tendered to the district clerk the day before plaintiff filed its response, does not appear to relate to the pending motion.
II.
A district court may grant a new trial in actions tried without a jury "for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States." FED. R. Civ. P. 59(a). Although this rule does not specify the grounds upon which a new trial may be granted, it is widely recognized that a court has discretion to grant a new trial "where it is necessary `to prevent injustice.'" Smith v. EMC Corporation, 2003 WL 22846404 at *2 (N.D. Tex. Nov. 13, 2003) (Lynn, J.), quoting U.S. v. Flores, 981 F.2d 231, 237 (5th Cir. 1993). A court also may grant relief from a final judgment "upon such terms as are just . . ." FED.R.Civ.P. 60(b). These terms include: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or other misconduct of an adverse party; and (4) "any other reason justifying relief from the operation of the judgment." See id. However, relief under the "catch-all" provision of Rule 60(b)(6) is available "only if extraordinary circumstances are present." Bailey v. Ryan Stevedoring Co., Inc., 894 F.2d 157, 159 (5th Cir.), cert. denied, 111 S.Ct. 89 (1990).
Sowell fails to allege, much less prove, any grounds for granting a new trial or setting aside the judgment entered in this case. Although Sowell states that he revoked his consent to the settlement agreement shortly after it was signed, there is no evidence to support this self-serving assertion. Nor does Sowell claim that he signed the settlement documents as a result of mistake, inadvertence, surprise, excusable neglect, fraud, or any extraordinary circumstance that might conceivably justify setting aside the judgment and granting a new trial. In sum, there is absolutely no basis for vacating the judgment entered on March 23, 2004.
RECOMMENDATION
Defendant Kevin Sowell's a motion for new trial or, in the alternative, to set aside judgment should be denied.
A copy of this report and recommendation shall be sent to all counsel and any unrepresented parties. Any party may file written objections to this recommendation by July 16, 2004. The failure to file written objections shall bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error or manifest injustice. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).