USCA1 Opinion

June 16, 1994

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1896
No. 93-1897
COOL LIGHT COMPANY, INC.,
Plaintiff, Appellant,
v.
GTE PRODUCTS CORPORATION,
Defendant, Appellee.
_____________________

ERRATA SHEET

Please make the following correction in the opinion in

the above case released on May 25, 1994:
Page 2, line 8:

delete the word "counsel"

Page 2, line 9:

insert the word "been"

and "raised"

Page 6, line 10:

insert, after
the open parenthesis,
"belonging to a different law firm than
the firm representing GTE on appeal,
and"

between "have"

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1896
No. 93-1897
COOL LIGHT COMPANY, INC.,
Plaintiff, Appellant,
v.
GTE PRODUCTS CORPORATION,
Defendant, Appellee.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________

____________________
Before
Breyer, Chief Judge,
___________
Torruella and Stahl, Circuit Judges.
______________
____________________

Edwin A. McCabe with whom Karen Chinn Lyons, Joseph P. Davis,

_______________
_________________ _________________
and The McCabe Group were on brief for appellant.
________________
Allan van Gestel with whom Marie P. Buckley, John B. Daukas,
_________________
________________
______________
Goodwin, Procter & Hoar were on brief for appellee.
_______________________
____________________
May 25, 1994
____________________

BREYER,
Company,

Inc.

Chief Judge.
___________

("Cool

Light"),

The appellant,
asks for

relief

Cool Light
from

an

adverse judgment,
that

Fed. R. Civ.

Judge McNaught,

the

P. 60(b)(6), on

judge who

the ground

initially tried

this

case, was prejudiced -- or, at least, gave the appearance of

prejudice

-- against

it.

28 U.S.C.

455(a),

(b).

In

deciding whether or not Rule 60(b)(6) relief is appropriate,

we

have

examined

impropriety
purely

that have

for

demonstrate
appearance

the

charges

counter-charges

been raised.

We have

sake,

Cool

argument's
a

and

significant

of partiality)

that

degree
on the

of

assumed, but
Light

partiality

part of

of

could
(or

Judge McNaught.

And, we have asked whether any such partiality would justify

the type of relief that Cool Light now seeks.
Upon

examining

the record,

we

found that

Cool

Light has already received what was, in essence, a new trial

on
to

the key issues and that Judge Keeton (the judge assigned
this

matter

upon

Judge

McNaught's

retirement)

independently reviewed Judge McNaught's decision

new trial.

to grant a

Cool Light would have received no more had Judge

McNaught

decided to recuse himself.

conclude

that Judge

Keeton's

60(b) relief was lawful.

-33

And, that being so, we

decision not

to grant

Rule

-44

I
Background
__________
A
The Dispute Between the Parties
_______________________________
In
sell
which

the 1970's,

Cool Light

tried to

develop and

a special kind of lighting, to be used by film-makers,

would

customarily

generate
used.

less
As

contacted

the appellee,

and

parties

the

developing
reflectors.
reflectors;

and

heat than

part of

GTE Products

discussed
supplying

Cool

this

Light

the
the
placed

the

lighting

effort,

then

Cool Light

Corporation ("GTE"),

possibility
necessary
purchase

of

GTE's

special

light

orders

for

it later found GTE's reflectors unsatisfactory;

it refused to
stopped

pay money that GTE

supplying the

thought it owed;

reflectors.

Eventually,

and GTE

Cool Light

went out of business.

B
Cool Light's Lawsuit
____________________
In 1984,
The heart of

Cool Light filed a

lawsuit against GTE.

the lawsuit consisted of a claim

that GTE had

failed to supply the reflectors it had promised and that, as

a result,
view,

Cool Light went out of business.

the

core

facts

that

Cool

Light

In Cool Light's
alleged

(when

-55

supplemented by various
it

alleged subsidiary facts)

entitled

to damages under several different legal theories.

Cool

Light said that GTE's failure to supply proper reflectors 1)

violated the
violated

express terms

an implied term in

of

its contract

its contract to

with GTE,

2)

deal in "good

faith,"

and 3) demonstrated

statements about
other lighting
said

that various

GTE pre-contract

the reflectors and GTE's

plans to produce

products were

fraudulent.

Cool

Light also

that GTE's course of behavior amounted to 4) an unfair

trade

practice,

Mass.

competition, Cal.
tried the first

Gen.

L.

ch. 93A,

Bus. & Prof. Code

and

17200.

three of these claims to a

5)

unfair

Cool Light

jury.

It tried

the latter two claims to Judge McNaught for decision without

a jury.
Judge McNaught found against Cool Light on each of
the

non-jury

Light's

claims.

The

favor on the

It assessed

jury, however,

breach of contract

damages of

$3.694 million

found

in Cool

and fraud claims.

for

breach of

the

express terms of the contract; of $2.8 million for breach of

the implied "good faith" dealing contract term; and of $9.45
million for

fraud.

Judge McNaught

verdicts were inconsistent.

found that

the jury's

He set them aside and ordered a

new trial.
-66

At the
to

second trial, Cool Light

a jury trial

on its contract

waived its right

and fraud-related claims.

Both parties asked Judge Keeton -- replacing Judge McNaught,

who had retired

-- to make findings

of both fact and

law,

based on the record of the first trial plus the testimony of

certain

additional witnesses.

found in GTE's

favor.

Cool

Judge Keeton

did so, and he

Light then appealed,

claiming

that Judge McNaught should have accepted the jury's findings

and not ordered a new trial.
found that
affirmed

the order for

After examining the record, we

a new

trial was

lawful, and

we

the judgment for GTE that Judge Keeton had entered

after that new

973 F.2d

trial.

Cool Light Co. v.

______________

GTE Prods. Corp.,

________________

31 (1st Cir. 1992), cert. denied, 113 S. Ct. 1417

_____________

(1993).
We add one
this case involved
that

GTE

had

confidential

further background point.

a further

set of claims

misappropriated various
business

information.

expositional clarity, we shall postpone

claims

until

explain why

Part IIB

of

their initial

this

difference to our result.

C

by Cool

Light

trade

secrets

and

For

purposes

of

discussion of these

opinion,

presence in

Initially,

where we

this case

shall

makes no

-77

Cool Light's Rule 60(b) Motion

______________________________
On December 1, 1992,
60(b)(6),
Light
had

for relief

from Judge

said in its motion

contacted

Cool Light moved, under Rule

Keeton's judgment.

that jurors from

Cool Light's

owner, George

Cool

the first trial

Panagiotou, and

Cool Light's lawyer, Edwin A. McCabe, and had told them that
Judge

McNaught

had spoken

reached their verdict.

told them

to

According

after

they had

to the jurors, the

judge

1) that he strongly disagreed with their verdict,

and 2) that

he knew that

been "belonging

to

George Panagiotou previously

a different

representing GTE on appeal, and

Light

the jurors

said

involvement)

that this
showed

last
that

law

the

firm

involved with drugs."

Cool

mentioned
Judge

firm thatn

had

remark (about

McNaught

was

drug

prejudiced

against it and meant that Judge McNaught should have recused

himself.

Cool Light added that, during the first trial, Mr.

Panagiotou
Judge

saw one of GTE's

McNaught)

unaccompanied
concluded

enter

by

lawyers

that, as

reinstatement
independent

of

lawyers (once a
Judge
for

the

determination, and

it

Light.

Judge

jury

chambers
Cool

was legally

first-trial

reexamination of

McNaught's

Cool

a result,

law clerk for

Light

entitled to

verdict,

McNaught's

to

new

an
trial

to an independent reexamination of Judge

-88

McNaught's determination

of the

non-jury issues --

or, in

the alternative, to a new trial.

Judge

Keeton

Cool Light Co.

______________
Mass. 1993).

denied

the Rule

60(b)(6)

v. GTE Prods. Corp., 832

_________________
He found

motion.

F. Supp. 449

that his further,

(D.

and independent,

review of the entire

record led him to the

same conclusion

that

had reached,

to say,

Judge McNaught

presided

at the

first trial,

that is

he would

have set

had he
the jury

verdict aside and

ordered a new trial.

Id.
___

at 460.

Judge

Keeton also said that, had Judge McNaught recused himself as

Cool Light says he should have done, Cool Light would simply
have received a
Cool Light,

new trial.

Id. at 461.
___

He concluded that

in essence, had already received

the law would entitle

partiality true.

it were its claims of

that to which
impropriety or

Id. at 460-61.
___

Judge Keeton did not characterize Judge McNaught's

alleged
proper.

remark to the
He

did,

jury either
however,

accusations of misconduct by
wholly

unsupported."

as inappropriate

characterize

Cool

or as
Light's

opposing counsel as "vague and

He also found that there was "a prima

facie basis" for believing that Cool Light, and its counsel,
Mr. McCabe, had
contact

violated the rules

with jurors."

Id. at
___
-99

governing "post-verdict

467.

(Subsequently,

Bar

Counsel

wrote

existing

to Mr.
.

McCabe stating

case

law

that "[i]n

permitting

some

light of
level

of

investigation in response to unsolicited communications from

jurors," she was "not

pursuing this matter further," though

shesuggested"that inthefuture,"he "errontheside ofcaution.")

Ultimately,
denying Cool
judgment.

Judge Keeton

Light's Rule

entered

a final

60(b)(6) motion for

order

relief from

Cool Light now appeals from that order.

II
The Rule 60(b)(6) Decision
__________________________
In reviewing

the district court's denial

of Cool

Light's Rule 60(b)(6) motion, we need not explore the merits

of the various claims

of impropriety.

Indeed, it

would be

difficult to discover what, in fact, occurred, for the judge

in

question has died.

we shall simply

Rather, for purposes of this appeal,

assume, for argument's sake, that the judge

made the statements that Cool

we shall also assume

Light attributes to him,

circumstances such that the statements

would have called for recusal.

114

See Liteky v. United States,

___ ______
_____________

S. Ct. 1147, 1155-57 (1994).

favorable

to

Cool

and

Light,

Despite these assumptions

we nonetheless

find

that

the

district court's decision to deny the motion lay well within

the

scope

of its

broad Rule

60(b)

authority.

Cotto v.
_____

-1010

United States, 993 F.2d 274, 277 (1st Cir. 1993); Teamsters,
_____________
__________
Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v.
_________________________________________________________
Superline Transp. Co., 953 F.2d 17, 19 (1st Cir. 1992).
_____________________

-1111

A
The Parties' Contract and Fraud Disputes
________________________________________
Our reasoning in respect to the claims arising out
of the basic substantive dispute between the parties is
same

as that of Judge

himself,

Cool Light

different judge.

Keeton.

Had

would have

Pontarelli

the

Judge McNaught recused

had a

v. Stone,

new trial

before a

978 F.2d 773,

775

__________
(1st

Cir. 1992).

before a

_____

Cool Light, however, did have a new trial

different judge.

And,

the law entitles it

to no

more.
We
existence
result.
it

recognize

of special

that

Cool

circumstances

But, we do not agree.

Light

requiring a

First, Cool

the

different

Light says that

received a new trial only on the counts originally tried

to the jury (breach of contract; fraud).

a

suggests

new trial on the

counts tried to

Judge McNaught (unfair

trade practices; unfair competition).

convincing,
different
claims,
facts in

however,

primarily

judge-tried claims,

It did not receive

This argument is not

because

like its

Cool

Light's

various jury-tried

amount to dressing up what are essentially the same

different sets of

Judge Keeton's unappealed

did not cause the harm Cool

legal clothes.

In particular,

(second trial) findings

that GTE

Light alleged, that GTE had not

-1212

breached its agreement

commit

with Cool

fraud, and that

with sufficient

Cool Light failed

related

to the

not

to prove damages
estop Cool

the contrary in any further

judge-tried claims.

Dep't Stores, Inc. v. Moitie, 452 U.S. 394,

__________________
______
Sidney
______

GTE did

specificity, would collaterally

Light from successfully arguing

proceeding

Light, that

Federated
_________

398-402 (1981);

v. Zah, 718 F.2d 1453, 1457-58 (9th Cir. 1983); Itel

___
____

Capital Corp. v. Cups Coal Co., 707 F.2d 1253, 1260-61 (11th
_____________
_____________
Cir. 1983);
522

Hurley v. Beech Aircraft Corp., 355

______
_____________________

(7th Cir.), cert. denied, 385

____________

as the

briefs

between

the

and papers
two sets

would simply
makes
relief.

binding

before

us reveal,

appropriate, and

is

the

such that,

As far
overlap

given the

further trial on related matters

prove "an empty

exercise," which circumstance

lawful,

the denial

of Rule

60(b)

Cotto, 993 F.2d at 280; Superline, 953 F.2d at 20.

_____
_________
Second,

treat

U.S. 821 (1966).

of claims

second trial findings, any

F.2d 517,

Cool Light

Judge Keeton's
because

suggests that

unappealed second

it did

not

know

we should

trial findings

about Judge

not
as

McNaught's

remark either a) when it decided what evidence to present to

Judge Keeton,

or b) when

it filed its appeal.

has failed to

show us, however,

how any earlier

Cool Light
knowledge

could have made a significant difference.

Judge Keeton gave

-1313

Cool Light a full opportunity to present additional evidence

at the

second trial.

Cool Light

has not explained how, or

why, knowledge of Judge McNaught's

to

produce significantly

suggested

any legal

findings.
to

flaw

different evidence.
in Judge

Neither is there any

timing.

Cool

remark would have led it

Light, in

Nor

has it

Keeton's second

trial

unusual problem in respect

fact,

found out

about Judge

McNaught's remark after it received our opinion in its first

appeal but

while its petition for rehearing was pending and

about one month before our mandate

of

issued.

The consequence

Cool Light's failure to show why earlier knowledge would

have mattered,

in our view, is

that the law would

give to

Judge Keeton's findings their normal preclusive effect.

Third,
elementary

Cool

fairness,

Light
the

says
remedy

that,
for

on
Judge

grounds

of

McNaught's

"partiality," which (in

Cool Light's view)

aside the jury verdict is either 1)

the

led him to

set

simple reinstatement of

verdict or 2) an independent judicial review of the new

trial

decision.

Elementary

argue

for reinstatement of

fairness,
the verdict.

not ordinarily, the remedy for

new, better,

however,

Rather, often if

a serious procedural flaw is

and fairer procedure, not a

the losing party.

does not

monetary award to

Pontarelli, 978 F.2d at 775.

__________

Moreover,

-1414

despite
review

Cool Light's

strong

contrary

protestations,

our

of the record indicates that Judge Keeton gave Judge

McNaught's

"new

trial"

decision

that

very

new

and

independent review, with appropriate

deference for the jury

verdict, for which Cool Light argues.

Judge Keeton wrote:

[W]hen I now make an independent review

of the evidence offered in the two
trials combined I conclude that the

verdict [at the first trial] should have

been set aside and, at the least, a new
trial should have been
granted, if
indeed the court did not instead order
judgment
for
the
defendant
notwithstanding the verdict.
Cool Light, 832 F. Supp. at 461.
__________
For

these

Keeton's denial
all

counts

reasons,

we

consider

of the Rule 60(b)(6) motion,

related to

the

underlying

lawful

Judge

in respect to

contract or

fraud

disputes between the parties.

B
The Trade Secret Claims
_______________________
Cool Light,

in its

several other legal claims

initial complaint,

that we have not

Those claims essentially rested

had misappropriated trade
information.
theories that,

yet discussed.

upon its assertion that GTE

secrets and confidential business

Cool Light set forth

in its

set forth

several different legal

view, entitled
-1515

it to

damages based

upon that alleged theft.

Count IV (Taking of a
42); id. Count
___
contract and

See, e.g.,
__________

Plaintiff's Complaint

Trade Secret, Mass. Gen. L. ch.

VII (Unjust Enrichment).

93

As was true of the

fraud claims, Cool Light, at

the first trial,

tried some of its trade secret related claims to a jury

and

others to the judge.

contract
judge

The trade

secret related claims

and fraud

related claims,

and jury found against

___ ____

involving trade secrets.

retry

differ from

however, in

Cool Light on

that both
____

all the claims

Further, Cool Light chose

the jury-tried claims before Judge Keeton.

Light has

not provided

us with any

information suggesting

claims,

different

result.

Finally, Judge Keeton's binding findings

second

elements

of

trial,
the

trial

many of

trade

would

which

secrets

likely

respect

those

in the

new

not to

And, Cool

that, despite the jury's having found against it in

to

the

touch

claims,

produce

on
would

necessary
make

it

difficult, if not impossible, for Cool Light to prevail in a

new trial.
us

with

The
any

upshot is that Cool Light

reason

to

believe

it

has

has not provided

a

"potentially

meritorious" trade secret related claim, Superline, 953 F.2d

_________
at

20, or

that a

counts would be

new trial

other than

on

the trade

secret related

"an empty exercise,"

id.

For

___
-1616

these

reasons,

the district

court's

denial

of the

Rule

60(b)(6) motion inrespect to those claims waslegally proper.

The judgment of the district court is
Affirmed.
_________

-1717