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33. Is there a course of action available to the radiologist's attorney to reverse the judgment?
Three months later, while sorting through her old files, the radiologist found a handwritten letter to her from the contractor that states «Thank you so much for so promptly paying the $115,000 due on the service contract. Always a pleasure doing business with you!» The radiologist then immediately contacted her attorney.
A contractor filed a diversity action against a radiologist in federal court in State A, alleging that the radiologist failed to pay $115,000 due on a valid service contract. The radiologist does not dispute that there was a contract, but testified before the jury that she paid the debt. The contractor testified before the jury that the radiologist never paid the debt due pursuant to the contract and that the $115,000 the radiologist paid to the contractor was for a painting that the contractor had sold to the radiologist. The jury returned a verdict for the contractor, which the judge immediately entered.
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Under FRCP 59, a motion for a new trial must be filed no later than 28 days after the judgment is entered.
C is correct. The radiologist's attorney may file a motion for relief from judgment on the basis that the letter confirming payment constitutes newly discovered evidence. However, this motion is not likely to succeed because had the radiologist exercised due diligence in going through her files in preparation for trial, she could have discovered the letter in time to move for a new trial. There is no evidence indicating that the letter was not in the radiologist's possession or that any other facts stood in the way of discovering it.
A is incorrect. The radiologist's attorney may not move for a new trial because three months had passed when the radiologist discovered the letter, and a motion for a new trial may be filed no later than 28 days after a final judgment has been entered.
B is incorrect. Although the radiologist's attorney is able to file a motion for relief from judgment, it is incorrect that it is likely to be successful. On the contrary, there is no evidence to suggest that the letter could not have been discovered during or even before the trial. In fact, by finding the letter in her files, had she exercised due diligence, she likely would have discovered it.
D is incorrect. It is incorrect that the radiologist's attorney has no options once a final judgment from a district court has been entered. As explained above, even if it is unlikely to succeed, the attorney may file a motion for relief from judgment on the basis of newly discovered evidence.