United States Court of Appeals For the First Circuit

No. 20-1121

MARIA I. VILLENEUVE,

Plaintiff, Appellant,

v.

AVON PRODUCTS, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Dominguez, District Judge]

Before

Torruella, Kayatta and Barron, Circuit Judges.

Juan Frontera-Suau, Frontera Suau Law Offices, PSC, and Kenneth Cólon for appellant. Elizabeth Perez-Lleras, Schuster Aguiló LLC, and Lourdes C. Hernández-Venegas, for appellee.

October 7, 2020 Per Curiam. We return in this appeal to district court

litigation we reviewed previously in Villeneuve v. Avon Prod.,

Inc.,

(1st Cir. 2019). There, we affirmed judgment for

Avon Products, Inc. ("Avon"), on three claims brought by Appellant

María Villeneuve.

After our mandate issued, Avon sought to recover some of its

expenses, and moved the district court to tax costs. See

. The district court granted in part (and denied in part)

Avon's request. Villeneuve then appealed that ruling.

Before briefing on any claim of error, the parties filed a

joint motion, stating that they had settled the case "for the sole

purpose of avoiding litigation costs." The parties then made what

we construe to be two requests: first, that we enter "judgment with

prejudice disposing of" this appeal, and second, that we vacate

the district court's costs order. We address the parties' requests

by dismissing the appeal and by denying the request for vacatur,

without prejudice to seeking relief from the district court.

I.

Background

A. District Court Litigation and Prior Appeal

We previously recounted, in some detail, Villeneuve's suit

against Avon. See Villeneuve,

. We note here

only the new developments, and other key points, to lend context

- 2 - to the discussion.

Villeneuve worked for over 16 years for Avon, in various

roles, before Avon terminated her in July 2014.

. In

November of that year, Villeneuve filed suit against Avon in the

District Court for the District of Puerto Rico, bringing claims of

(1) age discrimination, (2) sexual-orientation discrimination, and

(3) unjust discharge, all based on Puerto Rico law.

.

The district court heard the case in diversity.

. Before

discovery, the district court granted Avon's motion to dismiss the

sexual-orientation discrimination claim.

. Discovery

then commenced on the remaining claims, and Avon eventually moved

for summary judgment.

. The district court granted the

motion.

. Between them, the district court's two rulings

had resolved all the claims from the operative complaint, teeing

up Villeneuve's appeal. See

. After oral argument, we

affirmed the relevant rulings in favor of Avon.

.1

B. Bill of Costs

In May 2017, before we decided the appeal, Avon, as the once

(and future) prevailing party, moved for an award of costs under

Federal Rule of Civil Procedure 54(d). The deputy clerk of court

for the District entered an order denying relief, without prejudice

to Avon refiling after "judgment on appeal is entered and the

1 We awarded Avon the costs of appeal.

(citing Fed. R. App. P. 39(a)(2)).

- 3 - appellate mandate becomes final." In April 2019, after the mandate

from our opinion in the original appeal issued, Avon timely filed

a motion restating its bill of costs, without any apparent material

change in the relief sought.

In its motion, as restated, Avon requested an award of costs

relating to: (1) copying, (2) translation and interpretation

services, (3) producing deposition transcripts, and (4) service of

process (as well as service of certain subpoenas). The parties

fully briefed the motion.

In December 2019, the district court issued an opinion and

order granting in part and denying in part Avon's restated motion.

In the order and opinion, the district court left open one item,

by indicating that denial of certain copying-related costs was

without prejudice and giving Avon time to provide "proper

documentation." After a responsive submission by Avon, the district

court issued an amended opinion and order.

All told, the district court awarded Avon costs amounting to

(1) $623.85 for production-related copying, (2) $675.00 for

Spanish-language interpretive services, (3) $1,491.40 for court

reporting of Villeneuve's deposition, and (4) $5,418.80 for

service. The district court, in calculating these amounts, declined

to award $374.40 relating to discovery-related subpoenas and

$2,420.60 for translation services.

- 4 - C. Instant Appeal

Villeneuve timely appealed the amended opinion and order. See

Fed. R. App. P. 4(a). Avon did not appeal from the partial denial

of relief, so the only sums in dispute on appeal were the costs

awarded to Avon.

Well before the deadline for Villeneuve's opening brief, the

parties filed a "Joint Motion Informing Settlement Agreement and

Requesting the Court to Vacate the District Court's Ruling That Is

Subject of the Present Appeal." The parties tell us that they "have

reached a settlement agreement in the present case, for the sole

purpose of avoiding litigation costs." The motion requests that

this court "issue a judgment with prejudice disposing of the

present case by vacating the District Court's rulings that are

subject to the appeal." The parties also request that any judgment

not impose costs or attorney's fees. Beyond the information about

the settlement and the parties' motivations for settling, the joint

motion offers no argument or authority in favor of the specific

relief sought.

II.

Analysis

The parties, by their joint motion, seek two distinct forms

of relief: first, dismissal, and second, vacatur. We address the

two requests in turn.

- 5 - A. Dismissal (and Mootness)

A case becomes moot on appeal "when the issues presented are

no longer live or when the parties lack a legally cognizable

interest in the outcome." Cruz v. Farquharson,

(1st Cir. 2001). In this situation, "a case or controversy ceases

to exist, and dismissal of the action is compulsory."

Here, the parties purport to have settled their dispute,

leaving neither party with an issue to pursue on appeal. Based on

the stipulated fact of settlement, we can only conclude that "the

issues presented in the initial appeal are 'no longer live,'"

meaning we must dismiss the appeal. Overseas Military Sales Corp.

v. Giralt-Armada,

, 17 (1st Cir. 2007) (quoting Cruz,

). Our conclusion on this point therefore resolves

the joint motion insofar as the parties seek disposition of this

appeal.

B. Vacatur

The parties also have asked this court to vacate the district

court's costs order. Our approach to a request of this kind usually

turns on what ruling a party seeks to vacate and the reasons offered

for doing so. Though sometimes we will entertain a direct request

to vacate a lower court ruling, we will not do so here, because

the Federal Rules of Civil Procedure afford a potential path to

relief before the district court.

Under Federal Rule of Civil Procedure 60(b)(5), "[o]n motion

- 6 - and just terms, the court may relieve a party or its legal

representative from a final judgment, order, or proceeding" if "the

judgment has been satisfied, released, or discharged; it is based

on an earlier judgment that has been reversed or vacated; or

applying it prospectively is no longer equitable." In this way,

"Rule 60(b)(5) describes three sets of circumstances in which

relief from a final judgment may be justified." Comfort v. Lynn

Sch. Comm.,

(1st Cir. 2009).

Here, the parties seek limited relief, concerning a monetary

award, after a settlement. This is a "set of circumstances" where

the award of costs "has been satisfied, released, or discharged,"

directly implicating Rule 60(b)(5). When relief under that

provision may be available, parties in these or similar

circumstances should first seek relief under Rule 60(b)(5) at the

district court, before making any request to this court.

The parties do not explain why relief under Rule 60(b)(5) is

not available, and the dismissal of the appeal should not affect

the parties' rights to invoke the provision. Thus, given the

enduring potential for relief under Rule 60(b)(5), we have no

reason at this time to take up the vacatur request lodged in this

court.

III.

Conclusion

We conclude that the undisputed fact of settlement moots any

- 7 - case or controversy, requiring dismissal of this appeal.

Therefore, the parties' joint motion is resolved as follows.

We DISMISS the appeal as moot, with the parties to bear their

own appellate costs and fees. We need not take up the parties'

vacatur request, but this decision is without prejudice to pursuit

of vacatur relief in the district court, a course we encourage for

parties who find themselves in similar positions in the future.

Any party wishing to seek review of subsequent district court

rulings in this case should file a new notice of appeal.2

2 Villeneuve designated multiple district court rulings (and party filings) in the operative notice of appeal. See Fed. R. App. P. 3(c)(1)(B). Based on the course we follow here, we need not decide whether the notice of appeal was timely as to all the district court rulings listed, nor whether each of the listed rulings is appealable as a general matter. The parties may seek vacatur of the district court orders of their choosing, and the district court may determine, in the first instance, which prior orders, if any, should be vacated.

- 8 -