Raymone K. Bain and Davis, Bain & Associates, Inc. v. Mjj Productions, Inc. and Estate of Michael Joseph Jackson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 2013 Decided May 13, 2014
No. 12-7061
RAYMONE K. BAIN AND DAVIS, BAIN & ASSOCIATES, INC.,
APPELLANTS
v.
MJJ PRODUCTIONS, INC. AND ESTATE OF MICHAEL JOSEPH
JACKSON,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-00826)
Joseph M. Creed argued the cause for appellants. With him
on the briefs were Steven M. Pavsner and Levi S. Zaslow.
Henry W. Asbill argued the cause for appellees. With him
on the briefs were Jennifer Bradley Lichter, Howard L.
Weitzman, and Jeremiah T. Reynolds. Ryan J. Watson entered
an appearance.
Before: BROWN and SRINIVASAN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

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SRINIVASAN, Circuit Judge: In December 2003, the late
entertainer Michael Jackson retained Davis, Bain & Associates,
Inc., to act as his public relations firm. One of the firm’s
founders, Raymone Bain, began serving as a spokesperson and
publicist for Jackson, later becoming his general manager. In
May 2009, Ms. Bain and her firm (collectively, Bain) sued
Jackson and his production company, MJJ Productions, Inc.,
claiming to be owed substantial sums for various services
rendered. Those services included arranging the release of a
25th anniversary edition of Jackson’s album, Thriller, generally
recognized to be the best-selling album in history. The
defendants (collectively, MJJ) moved to dismiss, relying
principally on a December 2007 release agreement signed by
Jackson and Bain. In the release agreement, Bain broadly
relinquished any claims against Jackson and his business
entities. The district court granted summary judgment in favor
of MJJ, holding that the release agreement precluded Bain’s
claims.
Five months later, Bain moved for relief from judgment
under Federal Rule of Civil Procedure 60(b)(2). Rule 60(b)(2)
allows for relief based on “newly discovered evidence that, with
reasonable diligence, could not have been discovered in time to
move for a new trial.” The “newly discovered evidence” cited
by Bain was an April 2008 letter from Jackson to Bain, in which
Jackson stated that he had no awareness of, and had never
signed, the release agreement on which the district court had
grounded its grant of summary judgment. The district court
denied the Rule 60(b)(2) motion. Because we find no abuse of
discretion in the district court’s ruling that Bain failed to
exercise reasonable diligence in seeking out the April 2008
letter, we affirm.

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I.
According to the complaint, in May 2006, Bain and Jackson
entered into a Personal Services Agreement. The agreement
authorized Bain to incorporate a new company (the Michael
Jackson Company) on Jackson’s behalf, and appointed her the
new company’s president and chief operating officer. As
compensation, she would receive a “10% Finder’s fee of any
Agreement(s) entered into by Michael Jackson, or the Michael
Jackson Company, generated by, or due to the direct efforts of
Bain and/or Bain’s contacts.” J.A. 31. Bain alleged that she
initiated a number of such projects, for which she claims to be
owed compensation amounting to at least $44 million. Bain
brought suit against MJJ in federal district court, invoking the
court’s diversity jurisdiction.
MJJ moved to dismiss the complaint based on a “Payment
and Release Agreement” (the Release) signed by Bain in
December 2007, which MJJ claimed absolved it of liability
under the Personal Services Agreement. The Release provided
that Jackson would render a payment to Bain in the amount of
$488,820.05, as “full and final satisfaction of any [and] all
monies, known or unknown, to be owed to you by the Jackson
Parties with respect to any and all agreements whether verbal or
written that you may have entered into with the Jackson Parties
from the beginning of time until December 27, 2007.” J.A. 104.
One week after MJJ filed its motion to dismiss, Jackson
unexpectedly died.
In opposing dismissal, Bain argued that the Release was
defective due to fraud in the inducement, misrepresentation, and
mistake. Bain also contended that the Release was facially
ambiguous, permitting consideration of parol evidence to
interpret the contract. Bain asserted that she intended to
discharge claims for past debts and liabilities, not claims
concerning future work or deals yet to be finalized. In addition,

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Bain expressed doubt about the authenticity of Jackson’s
signature on the Release. Finally, she requested the opportunity
to conduct discovery to support her challenges.
Because the defendants’ motion to dismiss relied on matters
outside the pleadings—namely, the Release—the district court
converted the motion into one for summary judgment. The
court granted both sides additional time to supplement the
record with “all the material that is pertinent to the motion.”
J.A. 274-75. Bain’s attorney filed an affidavit under Federal
Rule of Civil Procedure 56(d), stating that, if permitted by the
court, Bain would conduct discovery concerning Jackson’s
intent in the Release and the authenticity of his signature.
On May 7, 2010, the district court granted summary
judgment in favor of the defendants, holding that the
unambiguous language of the Release barred Bain’s claims. See
Bain v. Jackson, 783 F. Supp. 2d 13, 17 (D.D.C. 2010). The
court rejected Bain’s contentions that the Release was voidable
due to fraud in the inducement or mistake. Id. at 17-18. The
court also denied Bain’s requests for discovery. Id. at 18 n.4.
Bain did not appeal the district court’s grant of summary
judgment against her.
On October 4, 2010, Bain moved for relief from judgment
based on “newly discovered evidence,” pursuant to Rule
60(b)(2). The “newly discovered” evidence cited in support of
the motion was an April 24, 2008, letter faxed from Jackson to
Bain. The letter stated:
I have never terminated your services nor did I null and
void any of your Agreements. I know nothing about a
release form. I neither authorized or signed the same.
Therefore, I am authorizing you to continue to
communicate with Mr. Yakoob regarding the Sultan’s
property in Las Vegas, and to continue your role as my

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General Manager and President/COO of The Michael
Jackson Company.
J.A. 414.
In an accompanying affidavit, Bain explained that she had
received the letter “in connection with the work Mr. Jackson
expected me to continue to perform on his behalf.” Bain Aff. ¶
4. Bain now says that the letter referenced “the Sultan’s
property” because, at the time, Jackson had been searching for
a permanent residence and had expressed interest in a property
owned by the Sultan of Brunei. When Jackson inquired about
the property in early 2008, Bain raised the issue of the Release.
Jackson responded with the April 2008 letter.
According to Bain’s affidavit, an unnamed consultant who
worked for the Michael Jackson Company had taken a collection
of files from Bain’s office, and those files included the April 24,
2008, letter. The consultant had been handling real estate
matters for Jackson. When the consultant completed his
responsibilities in 2008, he “boxed up the information regarding
properties and took that information home with him, including
the file on the Sultan of Brunei’s property,” which contained the
April letter. Bain Aff. ¶ 4. The consultant returned the box of
files to Bain in “late June, or early July, 2010,” after Jackson’s
death, and after the district court’s entry of summary judgment.
Id.
Bain stated that she “did not know the April 24, 2008, letter
was in this box, or that it was in the Sultan of Brunei’s file,” and
she did not examine the contents of the box until late August
2010. Id. ¶ 5. When she opened the Sultan’s file, she
discovered the letter, which “had been misfiled . . . in a file
labeled, ‘The Sultan of Brunei Finance.’” Id. She further stated:

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Not in my wildest imagination did I suspect that a box
containing documents relating to real properties would
contain any material relating to my relationship or
employment with Mr. Jackson before this Court. I
knew I had correspondence from Mr. Jackson, but I
could not find it. I made a diligent search of all the
records and files in my office. I did not know, nor was
I able to look in the Sultan of Brunei’s file, which was
in the possession of the consultant. I looked for this
file for months, spending many, many hours looking
into all of the files which were in my office, but it was
no where [sic] to be found.
Id.
On June 7, 2012, the district court denied Bain’s Rule
60(b)(2) motion. Bain v. Jackson, No. 09-826, Mem. Op. &
Order (D.D.C. June 7, 2012). The court based its denial on two
independent grounds. First, the court held that, because Bain
knew about Jackson’s April 2008 letter at the time of trial, the
letter could not be considered “newly discovered” evidence
within the meaning of Rule 60(b)(2). Id. at 4. Second, the court
held that Bain failed to exercise “due diligence” in attempting to
discover the letter. Id. at 4-5. The court explained that Bain
made no reference to the letter in any filings, and thus “cannot
be said to have conducted due diligence in attempting to procure
it.” Id. at 5.
II.
Federal Rule of Civil Procedure 60(b) sets forth various
grounds upon which a party may obtain relief from a judgment.
Rule 60(b)(2) allows for relief based on “newly discovered
evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial.” Fed. R. Civ. P.
60(b)(2). A district court considering a motion for relief from

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judgment under Rule 60(b) must “strike a ‘delicate balance
between the sanctity of final judgments . . . and the incessant
command of a court’s conscience that justice be done in light of
all the facts.’” Twelve John Does v. District of Columbia, 841
F.2d 1133, 1138 (D.C. Cir. 1988) (alteration in original)
(quoting Good Luck Nursing Home, Inc. v. Harris, 636 F.2d
572, 577 (D.C. Cir. 1980)) (some internal quotation marks
omitted). The trial judge, “who is in the best position to discern
and assess all the facts, is vested with a large measure of
discretion in deciding whether to grant a Rule 60(b) motion.”
Id. We thus review the denial of a Rule 60(b)(2) motion for
abuse of discretion, but we consider underlying legal issues de
novo. Marino v. Drug Enforcement Admin., 685 F.3d 1076,
1080 (D.C. Cir. 2012). Here, we disagree with the district
court’s first ground for denying Bain’s Rule 60(b)(2) motion,
but we affirm on the basis of the district court’s second ground.
A.
The district court first held that Bain’s knowledge of
Jackson’s April 2008 letter at the time of trial precluded the
grant of Rule 60(b)(2) relief. In the court’s view, “‘evidence
cannot be newly discovered’” for purposes of Rule 60(b)(2) “‘if
it was known to the party at the time of trial.’” Mem. Op. at 4
(quoting Lightfoot v. District of Columbia, 555 F. Supp. 2d 61,
68 (D.D.C. 2008)). We disagree.
It is true that Bain “knew” of the letter at the time of trial in
the sense that she then knew of its existence. In the view of MJJ
and the district court, awareness of evidence during trial
necessarily compels denying relief under Rule 60(b)(2),
regardless of the evidence’s availability at that time. Evidence
known to a party at trial, MJJ argues, cannot qualify as “newly
discovered” in a post-judgment motion. MJJ emphasizes one
definition of “discover”: “to obtain for the first time sight or
knowledge of.” Webster’s Third New International Dictionary

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647 (3d ed. 1986). “Discover,” however, can also mean “to
detect the presence of,” i.e., to “find,” id.; or “to make known or
visible,” i.e., to “expose,” Merriam-Webster’s Collegiate
Dictionary 357 (11th ed. 2011); see also Webster’s New
International Dictionary 647 (2d ed. 1947) (similar definitions).
Under those definitions, evidence that was lost, hidden, or
unavailable during trial could qualify as “newly discovered
evidence” when later found, even if the evidence was known to
the movant at the time of trial.
We think that understanding better squares with the purpose
and operation of Rule 60(b)(2) than one in which mere
awareness of evidence would forever preclude its consideration
as “newly discovered.” If awareness of evidence alone were
automatically to foreclose its treatment as “newly discovered,”
evidence known to a party could never form the basis of Rule
60(b)(2) relief even if it had been unavailable during trial or
summary judgment proceedings due to circumstances entirely
beyond the party’s control. For instance, if critical documentary
evidence were known to have existed at one time but had been
presumed by all to have been destroyed in a natural disaster, a
party would have no ability to seek relief from judgment even if
the pivotal document were later discovered unexpectedly to have
been moved before the disaster and to have survived in an
unanticipated place. See Serio v. Badger Mut. Ins. Co., 266 F.2d
418 (5th Cir. 1959). We perceive no basis for concluding that
Rule 60(b)(2) categorically precludes the grant of relief in such
situations, with no consideration given to the particular
circumstances. Rather, Rule 60(b), while respecting “the
sanctity of final judgments,” allows that “justice be done in light
of all the facts.” Twelve John Does, 841 F.2d at 1138 (internal
quotation marks omitted).
No decision of this Court suggests that mere awareness of
evidence during trial, standing alone, categorically precludes
later treating the evidence as “newly discovered” under Rule

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60(b)(2). Nor, to our knowledge, has any other court of appeals
so held. MJJ cites the observation of the First Circuit in one
decision that, “[i]n order for evidence to be newly discovered,
the party seeking a new trial must be unaware of the existence
of the evidence before or during the trial.” Parrilla-Lopez v.
United States, 841 F.2d 16, 19 (1st Cir. 1988). In that case,
however, the court did not rely on the movant’s mere awareness
of the evidence. The court instead explained that the movant
knew of the evidence but chose not to “present[] [it] to the
district court because of [his] conscious decision on trial
strategy.” Id. Evidence intentionally withheld, the court
reasoned, “is not grounds for a new trial.” Id. Whereas the First
Circuit based its decision on a movant’s tactical decision to
withhold evidence accessible to him, here the district court held
that a movant’s awareness of evidence automatically precludes
relief under Rule 60(b)(2), regardless of the evidence’s
availability. We find that to be an unduly constricted
understanding of “newly discovered evidence” for purposes of
Rule 60(b)(2).
B.
While awareness of evidence, standing alone, does not
categorically preclude considering the evidence to be “newly
discovered” under Rule 60(b)(2), a party’s unannounced
awareness of evidence can affect the assessment of whether it
exercised the “reasonable diligence” contemplated by the Rule.
Fed. R. Civ. P. 60(b)(2). The district court held that Bain “failed
to exercise due diligence in seeking out the 2008 letter” because
Bain knew of the letter’s existence but made no mention of the
letter in any submission to the court. Mem. Op. at 4-5. The
district court did not abuse its discretion in so ruling.
According to Bain’s recital of the relevant events, the “newly
discovered” evidence at issue—the April 2008 letter—had been
faxed by Jackson to Bain in April of that year. The copy of the

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letter submitted by Bain thus bears facsimile time-stamps. The
necessary implication is that at least one copy other than the one
in Bain’s possession had been in existence: the original letter.
As Bain herself points out, that “original was presumably within
the possession, custody or control of Mr. Jackson’s Estate.” And
as Bain further observes, “[c]ounsel for [the Jackson Parties]
should have had . . . a copy of this document in their possession
since April, 2008.” Bain Aff. ¶ 3. In such circumstances, even
if the faxed copy was believed lost, missing, or destroyed, a party
exercising reasonable diligence should have sought to obtain the
original from the defendants, either by requesting the court’s
assistance or directly contacting the defendants. See Yachts Am.,
Inc. v. United States, 779 F.2d 656, 662 (Fed. Cir. 1985)
(affirming denial of Rule 60(b)(2) motion based in part on
movant’s failure to seek an alternate copy of a document from
the government, the adverse party).
Bain emphasizes her search of her own files to locate the
letter. But while Bain’s examination of her own files may bear
on the assessment of reasonable diligence, it does not end the
inquiry. Bain’s efforts to find her own copy of the letter did not
relieve her of all responsibility to undertake reasonable efforts to
obtain the original letter (or a separate copy) from Jackson, his
estate, or his counsel. And by failing to apprise the district court
of the letter, Bain denied the court any opportunity to assist with
locating it. See Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d
1281, 1290 (10th Cir. 2005) (finding lack of due diligence
because movant knew certain documentation was missing but
“made no attempt to explicitly include it in the discovery
process”); Lans v. Gateway 2000, Inc., 110 F. Supp. 2d 1, 6
(D.D.C. 2000) (denying Rule 60(b)(2) relief because movant
“should have notified the Court and the defendants as to [the
evidence’s] potential existence and requested time to locate it”).
Bain contends that she adequately sought the district court’s
assistance by requesting the court to permit discovery about the

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circumstances surrounding the Release, including the
authenticity of Jackson’s signature on the Release. But even if
she framed the scope of her intended discovery with sufficient
breadth to encompass Jackson’s April 2008 letter, there is a
material distinction between generally seeking discovery, on one
hand, and specifically mentioning the letter, on the other. Under
Rule 56(d), “a court may deny a motion for summary judgment
or order a continuance to permit discovery if the party opposing
the motion adequately explains why, at that timepoint, it cannot
present by affidavit facts needed to defeat the motion.” Strang
v. U.S. Arms Control & Disarmament Agency, 864 F.2d 859, 861
(D.C. Cir. 1989) (second emphasis added). In making that
determination, courts consider whether the movant offers
“specific reasons demonstrating the necessity and utility of
discovery to enable her to fend off summary judgment.” Id. In
our view, a reasonably diligent party seeking to oppose summary
judgment and convince a court to permit additional discovery
would ordinarily mention specific evidence it seeks that would
support its position. That is especially the case concerning
evidence a party considers to be as pivotal as Bain contends is
the case with Jackson’s April 2008 letter. Had she alerted the
court to the existence of the letter, she would have materially
strengthened her case in opposition to the grant of summary
judgment and in favor of an opportunity to conduct discovery.
Bain, however, ultimately offers no justification for her
failure to mention the 2008 letter to the district court, to seek the
court’s assistance in locating a copy, or to ask the defendants for
any copy in their possession. Nor does she suggest that any such
efforts to locate the letter could not have borne fruit. See In re
Hope 7 Monroe St. Ltd. P’ship, 743 F.3d 867, 873-74 (D.C. Cir.
2014). In those circumstances, the district court did not abuse its
discretion in finding that Bain failed to exercise reasonable
diligence.

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The circumstances of this case are far afield from those in
Serio v. Badger Mutual Insurance Company, on which Bain
heavily relies. The Rule 60(b) motion in Serio concerned
inventory records that had been inadvertently left outside a
factory’s fire-proof safe on the night the factory was destroyed
by a fire. 266 F.2d at 419. Some months later, the factory owner
discovered that an employee had moved the inventory records
into a storage room outside of the factory a few days before the
fire, where they had survived unscathed. Id. at 420. The Fifth
Circuit rejected the argument that the owner’s failure to search
for the records amounted to a lack of due diligence. Id. at 420-
21. In Serio, the inventory records were presumed to be
destroyed, and there was no reason to suppose that there existed
any additional copies. Here, by contrast, Bain’s own copy of the
letter was presumed to be missing rather than destroyed, and
there was every reason to suppose that there existed at least one
additional copy. The fact that Bain attempted to search her own
files—whereas the owner in Serio evidently undertook no
search—thus is of little assistance to her. The district court
committed no abuse of discretion by looking beyond Bain’s
efforts in searching her own files and considering whether she
mentioned the letter to the court or sought its assistance in
locating the evidence.
* * * * *
We affirm the district court’s judgment denying relief under
Rule 60(b)(2). Bain now, for the first time, also attempts to
invoke alternative Rule 60(b) grounds for relief, alleging
misconduct by the defense pursuant to Rule 60(b)(3) and error on
the part of her prior counsel pursuant to Rule 60(b)(6). Because
those arguments were not presented to the district court in the
first instance, we decline to entertain them. See Potter v. District
of Columbia, 558 F.3d 542, 550 (D.C. Cir. 2009) (“‘It is well
settled that issues and legal theories not asserted at the District
Court level ordinarily will not be heard on appeal.’”) (quoting

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District of Columbia v. Air Fla., Inc., 750 F.2d 1077, 1084 (D.C.
Cir. 1984)).
So ordered.

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