UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Chasrick Heredia

v. Case No. 21-cv-198-PB Opinion No.

Michael Roscoe et al.

MEMORANDUM AND ORDER

The plaintiff, Chasrick Heredia, sued Michael Roscoe and several other

members of the Manchester Police Department for violating his

constitutional rights while effectuating an arrest. At the end of a four-day

trial, the jury found for Heredia only as to his excessive force claim against

Roscoe and awarded nominal and punitive damages. The parties now move

for an indicative ruling on their joint motion to vacate the judgment in order

to facilitate settlement. After considering the parties’ circumstances and the

public interest, I conclude that vacatur is not warranted.

I. BACKGROUND

Heredia filed a complaint in this court against Manchester Police

Officers Michael Roscoe, Canada Stewart, Matthew Nocella, and Nathan

Harrington, alleging that they (1) used excessive force while arresting

Heredia, (2) denied Heredia necessary medical treatment, and (3) fabricated

evidence against Heredia. Doc. 33 at 5-8. The defendants first encountered Heredia while responding to a noise complaint at a local bar and, after a

confrontation instigated by Heredia, they placed him under arrest for

disorderly conduct. Heredia struggled with Officer Stewart as she was

attempting to place him into custody, causing her to sustain a concussion.

Officer Roscoe intervened by repeatedly punching Heredia’s head using both

fists. Officers Stewart and Nocella were later able to bring Heredia to the

ground, at which point Roscoe shot Heredia with a taser. Heredia alleged

that the officers denied him necessary medical treatment while he was in

custody and subsequently filed police reports containing intentional

falsehoods.

Following an unsuccessful motion for judgment on the pleadings, the

case proceeded to a jury trial. The jury ultimately found for the defendants on

all counts except for the excessive force claim against Roscoe. Doc. 88. On

that claim, the jury did not find any compensatory damages, but awarded one

dollar in nominal damages and $2,000 in punitive damages. Id. at 1-2.

Roscoe subsequently filed a motion for judgment as a matter of law

under Rule 50 of the Federal Rules of Civil Procedure or, in the alternative,

for remitter as to the punitive damages under Rule 59. Doc. 89 at 1. I denied

Roscoe’s motion and entered judgment in accordance with the jury verdict.

Doc. 91. Roscoe appealed the entry of judgment, which is currently pending

2 before the First Circuit, Doc. 96, and Heredia moved for attorney’s fees and

costs, which is currently pending before me, Doc. 92.

The parties subsequently participated in a settlement conference with

the First Circuit’s Office of Settlement Counsel and arrived at a post-

judgment settlement agreement. Doc. 111-1 at 1-2. The settlement agreement

is contingent upon vacatur, and provides that Heredia will receive a lump

sum amount in exchange for his release of claims, including his motion for

attorney’s fees. Id. at 16-17. The agreement makes clear that Roscoe denies

responsibility, but provides that a copy of the settlement agreement will be

“kept on file at the municipal clerk’s office and made available for public

inspection[.]” Id. at 15, 19. The agreement further provides that “[a]ny

reporting requirements that existed prior to the judgment and verdict being

vacated still exist even after the judgment and verdict are vacated” and that

“any discretionary reporting that would have been made in the absence of

[the settlement agreement] shall still be made notwithstanding [the

agreement].” Id. at 19. The parties now move for an indicative ruling on their

joint motion to vacate the judgment pursuant to Federal Rule of Civil

Procedure 60(b) in order to effectuate their settlement agreement. Doc. 111.

II. STANDARD OF REVIEW

As a general rule, filing a notice of appeal divests a district court of

jurisdiction over all matters pertaining to the appeal. United States v.

3 Rodriguez-Rosado,

(1st Cir. 2018). Nonetheless, Rule 62.1

of the Federal Rules of Civil Procedure allows a district court to issue a so-

called “indicative ruling” on motions it lacks authority to grant, thereby

“inform[ing] the parties and [the circuit] court how it would rule on the

merits of certain motions after an appeal has been filed[.]” LFoundry

Roussett, SAS v. Atmel Corp.,

(2d Cir. 2017). When

presented with a request for an indicative ruling on a particular motion, “the

court may: (1) defer considering the motion; (2) deny the motion; or (3) state

that it would grant the motion if the court of appeals remands for that

purpose or that the motion raises a substantial issue.” Fed. R. Civ. P. 62.1(a).

III. ANALYSIS

The parties are seeking vacatur pursuant to Federal Rule of Civil

Procedure 60(b)(6). Rule 60(b)(6) authorizes district courts “to vacate

judgments whenever such action is appropriate to accomplish justice,”

including, in certain circumstances, to facilitate settlement. Klapprott v.

United States,

(1949); see also Wal-Mart Stores, Inc. v.

Rodriguez,

(1st Cir. 2003). Although “Rule 60(b) vests wide

discretion in courts,” Buck v. Davis,

(2017), vacatur under

the rule should only be granted in “unusual and extreme situations where

principles of equity mandate relief.” Blue Diamond Coal Co. v. Tr. of the

UMWA Combined Ben. Fund,

(6th Cir. 2001) (quoting Olle

4 v. Henry & Wright Corp.,

(6th Cir. 1990)) (emphasis in

original). To this end, “the burden is on the Rule 60 movant to demonstrate

the existence of exceptional circumstances justifying relief from judgment.” 1

U-Nest Holdings, Inc. v. Ascensus Coll. Sav. Recordkeeping Servs., LLC,

(1st Cir. 2023). “In determining whether [such] circumstances

are present, a court may consider a wide range of factors,” including the

interests of the parties as well as the public. Buck,

.

In United States Bancorp Mortgage Co. v. Bonner Mall,

(1994), the Supreme Court held that appellate courts may not vacate the

decisions of lower courts purely as a result of post-judgment settlement. The

Court noted that, although settlement may occasionally warrant vacatur,

“the determination is an equitable one” that must be supported by

“exceptional circumstances” and account for the public interest.

.

Although Bancorp considered the ability of appellate courts to vacate

lower court decisions pursuant to

, some courts have applied

its reasoning to motions under Rule 60(b)(6). See, e.g., Amoco Oil Co. v. U.S.

1 Courts have used “the terms ‘extraordinary circumstances’ and ‘exceptional circumstances’ interchangeably when discussing Rule 60(b)(6).” Budget Blinds, Inc. v. White,

, 255 n.13 (3d Cir. 2008). I use “exceptional circumstances” because it is the phrase most recently employed by the First Circuit, see U-Nest Holdings, Inc.,

, but nonetheless understand it to be coterminous with “extraordinary circumstances,” see Vertex Surgical, Inc v. Paradigm Biodevices, Inc.,

(D. Mass. 2009).

5 Envtl. Prot. Agency,

(10th Cir. 2000); Tustin v. Motorists

Mut. Ins. Co.,

(N.D. W. Va. 2009). Other courts have

concluded that district courts are not cabined by Bancorp’s presumption

against vacatur, and may instead engage in a more flexible inquiry that

considers the balance of the equities. See, e.g., Marseilles Hydro Power LLC

v. Marseilles Land & Water Co.,

, 1003 (7th Cir. 2001); Am.

Games, Inc. v. Trade Prods., Inc.,

(9th Cir. 1998).

The First Circuit has not taken an explicit position on the matter.

But I need not resolve whether Bancorp applies to vacatur under Rule

60(b) because, under any standard, the existence of exceptional

circumstances and the public interest are of paramount importance. See

Bancorp,

; Buck,

; Ungar v. Palestine

Liberation Org.,

(1st Cir. 2010). Cf. Valero Terrestrial Corp.

v. Paige,

(4th Cir. 2000) (“the standards under [Bancorp]

and Rule 60(b) are essentially the same.”); Vertex Surgical, Inc.,

(concluding that Bancorp effectively adopted the Rule

60(b)(6) standard). Those considerations are determinative here. See Bouret-

Echevarria v. Caribbean Aviation Maint. Corp.,

(1st Cir.

2015) (quoting Ungar,

) (noting that, in evaluating a motion

under Rule 60(b), “[t]here is no ironclad rule requiring an in-depth, multi-

6 factored analysis in every case” and that “[s]ometimes one factor

predominates to such an extent that it inexorably dictates the result”).

Here, the parties have not demonstrated the existence of “exceptional

circumstances justifying extraordinary relief.” See Paul Revere Variable

Annuity Ins. Co. v. Zang,

(1st Cir. 2001) (quoting Ahmed v.

Rosenblatt,

(1st Cir. 1997)). The parties assert that the

exceptional circumstances are twofold: first, that Heredia would recover more

than the jury awarded him and, second, that Roscoe would avoid potentially

devastating consequences to his career. Doc. 111-1 at 8. But the fact that

Heredia would recover more is hardly extraordinary; indeed, it seems likely

that a plaintiff will usually receive greater recompense pursuant to a post-

judgment settlement, or else he would have little incentive to settle.

And the assertion that vacatur will eradicate the threats to Roscoe’s

career is too speculative to support exceptional circumstances. See Amoco Oil

Co.,

(declining to find exceptional circumstances based on a

speculative threat of future harm). The parties’ concerns about the impact of

the jury’s verdict on Roscoe’s career are premised on

-d, which provides for the maintenance of a public “exculpatory

evidence schedule” (EES) that consists of “a list of all current or former law

enforcement officers whose personnel information contain potentially

exculpatory evidence.” An officer’s placement on the EES is entrusted to the

7 discretion of his employing law enforcement agency.

-d, III. “The listing is a form of official public branding by the state.

The effects of such an official public branding on one wishing to work as a

police officer are likely to be immediate and concrete.” Doe v. Town of Lisbon,

(1st Cir. 2023). Although Roscoe could not represent whether

the Manchester Police Department would elect to place him on the EES, he

contends that, if they did, it would be “potentially detrimental to [his] future

career in law enforcement.” Doc. 111-1 at 9.

Setting aside the fact that Roscoe’s placement on the list is itself

speculative, there is nothing to support the parties’ assertion that vacatur

would mitigate the threats to Roscoe’s career posed by the EES. Because the

settlement agreement explicitly provides that it will not impact any required

or discretionary reporting, granting vacatur would not permit Roscoe to avoid

placement on the EES or its concomitant consequences. Although Roscoe

contends that the impact of being placed on the EES would be lessened if it

were reported that he had “judgment against him,” as opposed to a “jury

finding against him,” he does not offer any support for his contention. Such

speculation is insufficient to establish exceptional circumstances. See

Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local 59 v.

Superline Transp. Co.,

(1st Cir. 1992) (noting that, in ruling

on a Rule 60(b)(6) motion, courts should not “give credence to the movant’s

8 bald assertions, unsubstantiated conclusions, periphrastic circumlocutions, or

hyperbolic rodomontade”).

Furthermore, it is worth noting that the parties’ asserted “exceptional

circumstances” were entirely foreseeable. Of course, anytime a plaintiff elects

to go to trial, it is possible that he will be awarded less than he would have

received had he settled. And, because

-d was in

effect prior to the start of trial, Roscoe knew or should have known that the

jury could render a verdict warranting placement on the EES. Accordingly,

these are not the sort of unknowable repercussions that the parties could not

have anticipated sooner, but rather the inherent risks of litigation that the

parties voluntarily incurred by proceeding to trial. That such consequences

came to pass, while undoubtedly disappointing to both parties, does not give

rise to exceptional circumstances. See Atkinson v. Prudential Prop. Co.,

, 373 (9th Cir. 1994) (“’Exceptional circumstances’ are not present

every time a party is subject to potentially unfavorable consequences as a

result of an adverse judgment properly arrived at.”).

In addition to the lack of exceptional circumstances, the public interest

counsels against vacatur. See Bancorp,

(noting that granting

equitable relief, including vacatur, requires consideration of the public

interest); accord Motta v. Dist. Dir. of I.N.S.,

(1st Cir. 1995);

Hartford Cas. Ins. Co. v. Crum & Forster Specialty Ins. Co.,

,

9 1337 (11th Cir. 2016). The parties contend that the public’s interest in the

judgment is minimal since it is non-precedential and does not identify which

use of force was excessive. While the parties are correct that the judgment

contributes little to the development of decisional law, they fail to account for

the strong public interest in maintaining the integrity of jury verdicts. “In

most situations, the sanctity of the jury trial would be compromised if parties

are allowed to weigh the cost benefits by proceeding to trial only to receive an

unfavorable decision that can be vacated by a way of subsequent settlement.”

See Jacobs v. Alexander, No. 1:05-cv-01625-SAB (PC),

, at

*2 (E.D. Cal. May 15, 2017). Here, eight members of the community spent

four days dutifully considering the evidence and ultimately rendered a

verdict that reflected thoughtful and considered deliberations. To discard

their decision would be to unfairly “trivialize the time, attention and effort

expended by the [jurors],” and could cause the jurors to ask themselves,

“‘Why did I bother to serve?’ or ‘Why should I bother to serve the next time

I’m called when my decision was discarded in [Heredia’s] case?’” Clarke,

at *3.

Moreover, “[t]he social value of this judgment, in particular, is

amplified by the nature of the case as a constitutional claim.” Evans v.

Mullins,

(W.D. Va. 2001). This judgment does not

resolve a purely private dispute, but rather speaks to a matter of significant

10 public concern; namely, the unlawful acts of a government official charged

with upholding the law. Judgments such as these belong, not only to the

parties, but to the community at large. See Bancorp,

. And the

community has a vital interest in both knowing when one of its law

enforcement officers violates the Constitution and deterring future

misconduct. See Waller v. Georgia,

(1984) (noting the “strong

[public] interest in exposing substantial allegations of police misconduct to

the salutary effects of public scrutiny”). Rendering the jury’s findings void

could ultimately undermine these important interests. See Evans,

.

Finally, while the parties are correct that vacatur would preserve

judicial resources moving forward by mooting Heredia’s motion for fees and

Roscoe’s appeal, they fail to appreciate the significant judicial resources that

have already been expended in resolving this case. See Clarke v. Castro, No.

10 Civ. 6330 (HBP),

, at *4 (S.D.N.Y. Feb. 26, 2013) (“the

expenditure of judicial resources is not just a prospective concern[.]”). In

addition to the time and effort volunteered by the jurors in this case, the

court and its personnel have allocated substantial time and resources to

resolving the parties’ various motions and trial objections, as well as

facilitating a multi-day jury trial. “Vacatur of the judgment would render the

11 foregoing efforts wasted and undermine the public’s interest in the productive

use of a court’s time and resources.”

In sum, considering the absence of exceptional circumstances and the

public’s interest in the finality of the judgment, I conclude that the parties

have not demonstrated that the extraordinary remedy of vacatur is

warranted. That said, I am mindful of the complexities raised by this case.

The evidence presented to the jury by both sides painted a picture of a chaotic

scene and a rapidly evolving situation fraught with uncertainties. The jury’s

verdict, much like the evidence, contains nuance: the finding of liability

combined with the relatively modest award reflects an understanding that

Roscoe was warranted in using some amount of force, but that the force

employed was nonetheless excessive and the product of Roscoe’s reckless

indifference to Heredia’s federally protected rights. This verdict, while

entirely appropriate and supported by the evidence, undoubtedly leaves both

parties in a suboptimal position. I also recognize that it would be unduly

harsh to judge Roscoe’s fitness to continue his career as a law enforcement

officer based solely on the conduct that led to the jury’s verdict. Accordingly, I

have no objection to granting vacatur should the First Circuit conclude that

such a remedy is appropriate. But, in the absence of such direction from the

First Circuit, I would exercise my discretion to deny the parties’ motion for

vacatur.

12 IV. CONCLUSION

For the foregoing reasons, the parties’ joint motion for an indicative

ruling on their motion to vacate judgment (Doc. 111) is denied.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

October 25, 2023

cc: Counsel of record

13