Opinion
No. 14–P–1803.
08-18-2016
MASSACHUSETTS INSTITUTE OF TECHNOLOGY v. Adriana GUZMAN & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Adriana Guzman, a former graduate student at the Massachusetts Institute of Technology (MIT), appeals from judgment entered in favor of MIT after a jury-waived trial in Superior Court of its action to collect on multiple outstanding educational loans. Guzman asserts numerous errors, all of which revolve around her primary contention that MIT's wrongful termination of her doctoral candidacy suspended her obligation to repay the loans. We affirm.
Orbanes served as guarantor on several of Guzman's loans. MIT resolved its claim against him prior to trial, and he is not a party to this appeal.
Background. 1. Factual background. Guzman began her graduate studies at MIT in 1995. She earned a master of science degree in the construction management division of the Department of Civil and Environmental Engineering (CEE) in June, 1998. She enrolled in an interdepartmental doctoral program at MIT in the fall of 1998. Students approved for that program must nevertheless be enrolled in a specific academic department, and Guzman was enrolled in CEE. As finally constituted, her doctoral committee included professors from CEE (Fred Moavenzadeh and David Marks), a professor of political science (Nazli Choucri), and an economics professor (Roberto Rigobon) from MIT's Sloan School of Management. As will be seen, the dispute at the heart of this case arises from the sometimes conflicting views of Guzman's academic progress of her interdepartmental committee and her home department of CEE, and the question of which group had the final authority to evaluate that progress.
We recite the facts as found by the trial judge.
Loans. Guzman financed her studies at least partially through various loans obtained through the MIT student loans program. She executed twelve promissory notes totaling the principal amount of $115,300. The notes obligated her “to repay the loan, principal and interest beginning 10 months after [she] cease[d] to be at least a half time student.” Guzman also agreed to pay MIT “all reasonable collection costs, including attorney fees and other charges necessary for the collection of any amount not paid when due .”
2. Procedural background. MIT determined that Guzman ceased to be at least a half-time student in May, 2005, and that the first payment on her student loans was due on March 12, 2006. Guzman did not make any payment. MIT filed suit to collect on the outstanding loans on November 8, 2007. Guzman counterclaimed, seeking reinstatement (specifically that she be permitted to re-register at MIT and write her doctoral thesis) and asserting claims for breach of contract, violation of the Americans with Disabilities Act and G.L. c. 93A, and seeking money damages for acceleration of the promissory notes, immigration problems, diminution in earning power, and damage to her credit and reputation (in general and specifically in Costa Rica and with the Organization of American States). All of the counterclaims arose from MIT's refusal to allow her to complete her degree.
Although not remarked on by the trial judge, the record indicates that some of Guzman's notes were due sooner than ten months from May, 2005, because they had come due during her previous leave.
Guzman is from Costa Rica.
It was only after Guzman filed her counterclaim that Chancellor Phillip Clay directed an investigation of the formal grievance Guzman had lodged with MIT. Clay acknowledged at trial that the investigation into the grievance was not conducted in a timely fashion. He issued a final ruling on July 14, 2008, upholding CEE's decision to dismiss Guzman from the doctoral program.
Guzman was notified on June 14, 2005, by Isaac Colbert, dean for graduate students, that she was dismissed from the doctoral program. She filed a “complaint” with Chancellor Clay on July 15, which she considered to be a “grievance,” but Clay did not. Guzman subsequently wrote to MIT President Susan Hockfield on December 22, 2005. Clay deemed that to be a formal grievance.
Meanwhile, the civil case proceeded in Superior Court. About a week prior to trial, Guzman moved for a continuance due to the unavailability of Professor Moavenzadeh, who was out of the country. The trial judge denied the motion because it was not clear that he would be back within a reasonable time. However, the judge indicated that he was prepared to hear from Moavenzadeh by some alternative mode, and agreed to keep the evidence open at the conclusion of the trial for that purpose. Subsequently, Guzman's counsel indicated that he had still not heard from Moavenzadeh and would proceed to file requests for findings and rulings without his testimony.
On May 10, 2012, judgment was entered, ordering that MIT recover from Guzman the sum of $177,719.47, with interest in the amount of $11,608.12 and fees and costs in the amount of $9,669.90. All counts of the counterclaim were dismissed. Thereafter, Guzman moved to amend the findings and judgment and for a new trial. Those motions were denied.
Discussion. Guzman does not dispute that she incurred the debt, but maintains that she should not be required to pay it back in light of the manner in which her education was terminated (specifically, the conflict between her interdepartmental committee and CEE) and MIT's failure to properly process her grievances protesting that termination. On appeal, Guzman appears to pursue only those claims related to her request for injunctive relief and damages for breach of contract.
1. Standard of review. Upon appeal from a jury-waived trial, “we accept a trial judge's findings of fact unless they are clearly erroneous and do not review questions of fact if any reasonable view of the evidence and the rational inferences to be drawn therefrom support the judge's findings. We uphold the findings of a judge who saw and heard the witnesses unless we are of the definite and firm conviction that a mistake has been made.... Our review of a trial judge's conclusions of law, however, is de novo.” Martin v. Simmons Properties, LLC, 467 Mass. 1, 8 (2014) (internal quotation marks and citations omitted).
2. Challenged factual findings. Guzman contends that several of the trial judge's findings of fact were not supported by adequate evidence. We are not persuaded that any mistakes were made by the judge in his thorough memorandum of decision.
Guzman did not identify the specific findings with which she takes issue. This falls short of the level of appellate argument required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Nevertheless, we agree with MIT's identification of the likely targets of Guzman's challenges and address them accordingly.
a. E-mail messages from Moavenzadeh and Guzman. Guzman contends that the judge's interpretation of certain electronic mail (e-mail) messages was not plausible.
Specifically, by e-mail dated December 22, 2004, Professor Moavenzadeh reported to Professor Andrew Whittle (then the graduate officer in CEE), Cynthia Stewart (then the graduate administrator in CEE), and Isaac Colbert (then the dean for graduate students) that the interdepartmental committee and Guzman had agreed that she would prepare three brief papers and would take her general examination in May, 2005. Moavenzadeh stated that he hoped that the plan he outlined “meets with your [Whittle's] approval” and that, “[s]hould you [Whittle] need any additional information please let me know.” From that e-mail, the judge inferred that Professor Moavenzadeh understood that authority for approval of the substance and timing of the requirements for Guzman's program needed to be sought from CEE.
On the basis of a March 25, 2005, e-mail that Guzman sent to the members of her interdepartmental committee, the judge found that Guzman understood the requirements she was expected to fulfill and the time frame for their completion, and was aware that CEE set the terms for satisfaction of her general examination requirement. In that e-mail Guzman requested that she “be allowed to finish the proposed plan, which was that I would write three papers this term and take the general exam in May as had been agreed to by all of us, and requested by the Department.”
Based on the e-mails themselves, which were admitted as exhibits at trial, and our review of the record, Guzman has not persuaded us that the judge's findings with respect to these e-mails were clearly erroneous. In fact, they are consistent with other evidence showing that Moavenzadeh and Guzman shared the understanding that CEE had the ultimate say on her doctoral program, including the granting of extensions to deadlines. For example, on May 19, 2005, Guzman sent an e-mail to Stewart (the CEE administrator) promptly after she received feedback on a draft of a second paper that needed to be revised accordingly. Evidently, both Moavenzadeh and Guzman realized that she was running out of time and that CEE was the proper entity from which to seek relief as, according to Guzman's e-mail, Moavenzadeh had directed her to call Stewart as soon as possible, inform her of the status of the paper, and request an extension with assurances that Moavenzadeh could provide any material Stewart might need to support the request.
b. Timing of reduction of written requirement. Guzman contends that the judge erroneously concluded that the interdepartmental committee had not agreed to reduce the written portion of her general examination from three papers to two until after CEE's grades meeting. Indeed, the evidence presents a confusing picture of events in May and June, 2005, between various partially overlapping groups that did not necessarily share the same interpretation of applicable protocols. Determining who agreed to what and when is no simple matter.
That said, we agree with MIT that Guzman has misread the judge's finding, which states that: “As of the time of the CEE grades meeting, there had been no request from the interdepartmental committee to change the requirements of Ms. Guzman's program and no notice of or approval for the proposed change from three to two papers.” It appears the judge was addressing not the deliberations within Guzman's interdepartmental committee, but rather the communication between that committee and CEE.
Nevertheless, in light of our review of the record, Guzman has not persuaded us that the judge would have clearly erred in concluding that the interdepartmental committee had not internally resolved the question of the change of requirements prior to the grades meeting, which conclusion would then support the finding the judge actually made that no formal request for that change had come from the interdepartmental committee or been approved by CEE. In an e-mail dated April 6, 2005, Guzman reported to Stewart that Moavenzadeh had discussed with her the possibility of writing two longer papers instead of three shorter ones if she were able to complete the first paper satisfactorily, a feat that Guzman had not yet accomplished. Even as reported by Guzman, this appears to have been only a hypothetical position entertained by Moavenzadeh individually, not the position of the entire committee subsequent to an evaluation of the completed first paper. Whittle testified that Guzman's interdepartmental committee did not formally petition to change the components of her general examination from three papers to two prior to the grades meeting. Indeed, the only documented concerted action by the committee came after the grades meeting. On June 1, 2005, Moavenzadeh sought the “urgent concurrence” of his fellow interdepartmental committee members with the “proposition” that the two papers Guzman had submitted to date “constitutes her passing the written portion of the general exam and the oral portion of the exam should be completed by the end of June.” On its own, that e-mail permits the conclusion that no agreement in this regard had been reached up to that point.
The e-mail to Stewart is simply Guzman's account of a meeting with Moavenzadeh; Moavenzadeh was not copied on it.
We note in this regard, however, that Professor Choucri did not seem to believe that her assent was necessary.
c. Characterization of Clay letter. Guzman contends that the judge erred in accepting Chancellor's Clay conclusion that the letter Guzman wrote to him in July, 2005, was not a formal grievance, and that this was critical because a proper evaluation of CEE's termination of her student status at that early date could have resulted in her reinstatement in the fall of 2005 without a break. However, the grievance review that Clay belatedly initiated affirmed CEE's decision. Guzman was therefore not prejudiced by any mischaracterization of her submission to Clay, if indeed it was mischaracterized.
3. Breach of contract. Guzman contends that only the members of the interdepartmental committee selected to administer her program—and not her home department of CEE—had the authority to evaluate her academic progress and specifically the timeliness of her substantive submissions. According to Guzman, while the judge concluded that an unwritten rule established that the home department, not the interdepartmental committee, had the authority to decide whether she had competently and timely completed her general examination requirements, MIT's written policy concerning interdepartmental programs supported the opposite conclusion.
Guzman contends that once an interdepartmental committee has been created and approved, it becomes the student's “department” and monitors her academic progress while the home department's role becomes limited to serving as a conduit for information to the graduate dean. Guzman further suggests that the policy of allowing home department control was not made clear to her. Guzman concedes that the graduate dean had ultimate authority to oversee any graduate program, but maintains that if the interdepartmental committee had been treated as her department, the dean would have agreed to the changes in her examination requirements and allowed her to continue in her program.
Guzman relies almost exclusively on language from an MIT publication titled “Graduate Policies & Procedures,” providing that once the dean for graduate students has formally approved the program and appointed the interdepartmental committee, “the student's interdepartmental committee is responsible for supervising the entire degree program.... In the case of the doctorate, the interdepartmental committee must approve the program, set and evaluate a general examination consisting of both oral and written parts at such a time and in such a manner as the committee shall approve, supervise the research program, administer the thesis examination, and finally, recommend to the department of registration that the doctoral degree be awarded.”
The evidence in this case reflects apparent disagreement between certain faculty members and administrators concerning the authority possessed by an interdepartmental doctoral student's committee, her home department, the dean for graduate students, and the Committee on Graduate School Programs (CGSP). The intra-university wrangling on display here provides a colorful illustration of why “courts are chary about interfering with academic and disciplinary decisions made by private colleges and universities.” Schaer v. Brandeis Univ., 432 Mass. 474, 482 (2000). This is all the more true in cases such as this that involve “core academic issues.” Sullivan v. Boston Architectural Center, Inc., 57 Mass.App.Ct. 771, 774 (2003). “We ... do not second-guess or supplement the processes developed by the [school], which address and seek to resolve important and at times conflicting concerns of students, teachers and administrators.” Ibid.
Nonetheless, courts generally agree that the relationship between a university and its students is essentially a contractual one. Mangla v. Brown Univ., 135 F.3d 80, 83 (1st Cir.1998) ; Dinu v. President & Fellows of Harvard College, 56 F.Supp.2d 129, 130 (D.Mass.1999) (“That the relationship between a university and its students has a strong, albeit flexible, contractual flavor is an idea pretty well accepted in modern case law”); Doe vs. Brandeis Univ., U.S. Dist. Ct. No. 15–11557, at *25 (D.Mass. Mar. 31, 2016). However, “[e]ven though ‘some elements of the law of contracts are used and should be used in the analysis of the relationship between [student] and the university,’ because ‘[t]he student-university relationship is unique,’ contract law need not be ‘rigidly applied.’ “ Guckenberger v. Boston Univ., 974 F.Supp. 106, 150151 (D.Mass.1997), quoting from Lyons v. Salve Regina College, 565 F.2d 200, 202 (1st Cir.1977). See Doe vs. Brandeis Univ., supra at *41.
The terms of the student-university relationship are informed by, inter alia, written policies. See Mangla, 135 F.3d at 83 (“The terms of the contract may include statements provided in student manuals and registration materials”); Guckenberger, 974 F.Supp. at 150 (“Under Massachusetts law, the promise, offer, or commitment that forms the basis of a valid contract can be derived from statements in handbooks, policy manuals, brochures, catalogs, advertisements, and other promotional materials”); Dinu, 56 F.Supp.2d at 130. However, the terms of the flexible, contractually flavored relationship between student and university are not exclusively defined by such written policies. See Mangla, 135 F .3d at 83 (school catalog not a wholly integrated contract but only one part of a more complex contractual relationship that could, in certain circumstances, include obligations incurred from the actions and oral statements of school officials despite catalog language).
Instead, in the context of the unique relationship between a student and her university, we employ the “reasonable expectation” standard of Cloud v. Trustees of Boston Univ., 720 F.2d 721, 724 (1st Cir.1983), to determine what meaning the university should reasonably expect students to give to its various manifestations. See Schaer, 432 Mass. at 478 ; Driscoll v. Trustees of Milton Academy, 70 Mass.App.Ct. 285, 293 (2007). Here, the question becomes whether Guzman, upon reading the provisions of “Graduate Policies & Procedures” and in light of the interactions between all relevant parties up until May, 2005, could “reasonably believe,” Dinu, 56 F.Supp.2d at 132, that CEE lacked authority to override the interdepartmental committee in terms of determining her continued eligibility for remaining in the program. We have little difficulty concluding that any such belief would not have been reasonable.
Guzman claimed in posttrial briefing that her case “was tried and prepared in significant part on the ambiguities created by the date error in the January 2005 letter” and that the language she relies on from “Graduate Policies & Procedures” did not come to light until discovery in the instant litigation. Guzman has not explained how her expectations as a student were shaped by a university manifestation that she did not see until years after the fact. Cf. Guckenberger, 974 F.Supp. at 151 (even assuming arguendo that statements in a university's promotional materials can form basis of a binding contract with students, no breach of contract where students did not receive or rely on brochure). However, in the absence of a finding on this point by the trial judge and in an abundance of caution, we nonetheless entertain this argument, which has been fully briefed.
To the extent we apply contract law principles, contract interpretation is a question of law subject to our de novo review on appeal. Buchanan v. Contributory Retirement Appeal Bd., 65 Mass.App.Ct. 244, 247 n. 5 (2005) ; Driscoll, 70 Mass.App.Ct. at 293. Under the Schaer/Cloud standard and based on the facts found, we agree with the judge that while Guzman would read the word “only” or “solely” into the “Graduate Policies & Procedures” document to give her interdepartmental committee exclusive authority over her program, the text relied on by Guzman does not preclude CEE, the dean for graduate students, or the CGSP from setting deadlines for the completion of basic requirements and determining whether a candidate should be allowed further registration at the school.
Indeed, the text supports the conclusion that while the interdepartmental committee was assigned certain responsibilities in connection with running the program, the ultimate authority for evaluating her performance rested with CEE, her department of registration and the department that would award her degree. The text also indicates that the interdepartmental committee lacked authority to modify the “general examination consisting of both oral and written parts” by, for example, eliminating its oral component. Beyond the substantive limitations this imposes on the committee's power to shape the examination, this provision also implicitly indicates a body above the committee that would police the committee's compliance with overarching university requirements. Such an interpretation is consistent with the trial testimony of several MIT officials and with documentary evidence demonstrating that formal petitions for certain changes to Guzman's program required the approval of, inter alia, a departmental representative and the dean for graduate students.
It would be illogical to interpret this provision to mean that CEE had no role to play prior to the final step in Guzman's doctoral process. Such an interpretation would permit the interdepartmental committee to ignore the home department's concerns up until the degree-award stage, at which point the home department would nonetheless be free to decline to award the degree based on concerns it had harbored since the general examination.
The evidence indicates that at least some members of Guzman's interdepartmental committee were prepared in early June to deem the oral component satisfied based on a written submission, even in the absence of an oral presentation.
MIT also points to language in the “Faculty Oversight” section of “Graduate Policies & Procedures” that “[e]ach department exercises a large measure of autonomy for its graduate program under policies established for [MIT] as a whole” and that departmental graduate committees act “with power” on, inter alia, “[t]he program of subjects, research, and examinations (other than language examinations) leading to any advanced degree for each graduate student registered in its department,” and “recommends action upon,” inter alia, “[c]ases of failure to meet scholastic requirements.” This language further supports the general principle of home department oversight and control. Cf. Mangla, 135 F.3d at 83 (terms of provision in graduate school catalog, of which university could reasonably expect students to be aware, divested faculty members of authority to promise admission or to determine the necessary prerequisites for admission and, thus, it was reasonable for university to expect students not to rely on oral statements by individual faculty members as binding promises by the university).
Not only is Guzman's reading of “Graduate Policies & Procedures” not supported by its text and in conflict with the descriptions of interdepartmental programs generally at trial, it is also inconsistent with the manner in which Guzman's program was actually supervised and overseen. At trial, MIT's witnesses testified to operating procedures that demonstrated the allocation of authority between Guzman's home department and her interdepartmental committee. As the judge's careful and thorough factual findings indicate, her progress was being monitored and assessed by the dean for the graduate students, CGSP, and CEE in addition to her interdepartmental committee. Indeed, the dean repeatedly sent Guzman letters warning that CGSP found her progress inadequate and setting deadlines. These letters informed her that CEE was providing input to the dean and CGSP about her status, and directed her to consult and coordinate with personnel within CEE. Finally, as discussed above, the evidence supports the judge's conclusion that both Guzman and Professor Moavenzadeh understood at the time that ultimate authority rested with CEE.
Therefore, based on the written materials governing Guzman's program and the substantial contemporaneous evidence indicating what Guzman objectively should have understood, and subjectively did understand—that CEE had the final say on her progress—Guzman could not have established a reasonable expectation that her interdepartmental committee had sole and exclusive authority over her program. CEE had oversight authority and, it appears, determined at the grades meeting that, despite numerous warnings over many years, Guzman's progress and academic performance were still inadequate.
4. Substantial performance. Guzman also contends that the trial judge erred in concluding that the doctrine of substantial performance does not apply to the contractual relationship between a university and a doctoral student. Citing Russell v. Salve Regina College, 938 F.2d 315, 317–318 (1st Cir.1991), she argues that the doctrine of substantial performance can be applied to contracts between students and educational institutions. But Guzman's reliance on Russell is misplaced as the court's application of the doctrine of substantial performance to the “novel” “fact pattern” of a “weight-loss ‘contract’ “ between a student and a college “simply does not implicate concerns such as a school's academic integrity.” Id. at 316, 317–318. The same cannot be said here.
There is ample reason to doubt the applicability of the doctrine of substantial performance to an educational institution's assessment of its students' academic performance. In Sullivan, 57 Mass.App.Ct. at 775 n. 5, we quoted Justice Powell's concurring opinion in Board of Curators, Univ. of Mo.v. Horowitz, 435 U.S. 78, 96 n. 6 (1978), itself quoted in Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 n. 11 (1985), recognizing that “[u]niversity faculties must have the widest range of discretion in making judgments as to the academic performance of students and their entitlement to promotion or graduation.” See Mangla, 135 F.3d at 84.
However, we need not decide whether the doctrine of substantial performance is applicable in this case, as the trial judge did not actually decline to analyze that claim as a matter of law. Instead, the judge concluded that, “[t]o the extent that that doctrine is applicable to these circumstances, it does not support [Guzman's] claims. She had completed certain steps, but had not done substantial work that was necessary and about which she had been warned.”
The evidence amply supports this conclusion. After being enrolled for five years in her doctoral program (excluding a two-year medical leave), Guzman had yet to complete the general examination requirement that is generally completed after just two years of graduate study.
Guzman was warned about her progress in September of 2000, June of 2001, June of 2004, and January of 2005. She was given four successive deadlines to schedule and complete her general examination, first by the end of the Fall 2000 term, then by the end of the Fall 2001 term, then by January 31, 2005, and finally, if somewhat ambiguously, by May 24, 2005. To the extent that Guzman contends she was close to completing the requirements by the end of the fourth deadline, we note that the only basis on which she could plausibly claim that she was approaching completion was that her interdepartmental committee adjusted those requirements in an attempt to make it easier for her to fulfill them notwithstanding the extensions she had already been granted through nonenforcement of previous deadlines.
Under the school's policies, the CEE faculty was authorized to reject the committee's attempts to lower the academic bar to enable Guzman to meet a deadline set by Dean Colbert based on their input. As Colbert explained at trial, the CEE department faculty were the “watchdogs” who determined whether deadlines were met because they are the ones who would put their “stamp of approval” on whether Guzman met the intellectual and academic standards of the department. Although not stated explicitly in the judge's findings, it appears that, as in Mangla, CEE determined that Guzman “did not demonstrate an ability to undertake the research or independent work required.” 135 F.3d at 84.
Thus, even if the doctrine of substantial performance is applicable, it is apparent that the home department determined that Guzman's performance was not substantial enough. There being no basis for us to conclude that this conclusion was “such a substantial departure from accepted academic norms as to demonstrate that the persons or committee responsible did not actually exercise professional judgment,” Mangla, supra at 84, quoting from Ewing, 474 U.S. at 225, “we decline to interject the court further into academic decision-making,” Sullivan, 57 Mass.App.Ct. at 775 n. 5. The trial judge therefore properly concluded that Guzman did not substantially perform her obligations as a student in the doctoral program. Cases cited by Guzman, Salem Realty Co. v. Matera, 384 Mass. 803, 804 (1981), J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 796–797 (1986), and Metropolitan Life Ins. Co. v. Cotter, 464 Mass. 623, 644 (2013), do not aid her cause.
Guzman contends that even if the home department did have controlling authority, a student should not be deprived of the time and money invested in pursuit of a graduate degree “arbitrarily or in haste.” Given the numerous warnings she received and the advisors and administrators to whom she had access and with whom she was encouraged to consult at each step of her halting way, it is difficult to see how she could seriously contend that her termination was arbitrarily or hastily effected.
4. Failure to follow grievance policy. Guzman contends that MIT's failure to follow its grievance policy prevented an expeditious resolution to her wrongful termination and justifies equitable relief. Guzman cites to then-Justice Ireland's dissenting opinion in Schaer, 432 Mass. at 483–485, that the university's failure to follow its own rules entitled the student to relief. She posits that, had the university complied with the grievance rules, there would have been an independent investigation of the circumstances that would have included interviews with all members of her interdepartmental committee and so would have clarified the timing of the agreement to alter the examination schedule, their evaluation of her academic performance, and their understanding of their own authority to alter the requirements.
However, the instant litigation encompassed all of the aspects of the investigation that Guzman says were lacking at the university level and the home department's decision was affirmed at trial. As noted above, Guzman's attempts to build an estoppel argument are doomed because she cannot show that she suffered a detriment where the grievance process as it actually played out supported the decision to deny her further registration.
5. New trial motion. Finally, Guzman contends that the judge should have ordered a new trial where the testimony of Professor Moavenzadeh, who was out of the country and unavailable for trial, constitutes newly discovered evidence.
Guzman also presses her motion to alter or amend the judge's factual findings. As discussed, Guzman has not persuaded us that the judge's findings were clearly erroneous.
“The purpose of [Mass.R.Civ.P.] 60, [365 Mass. 828 (1974),] which governs posttrial relief, is to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice should be done. A party seeking postjudgment relief on grounds of ‘newly discovered evidence’ invokes rule 60(b)(2), and must satisfy four requirements: ‘(1) the evidence has been discovered since the trial; (2) the evidence could not by due diligence have been discovered earlier by the movant; (3) the evidence is not merely cumulative or impeaching; and (4) the evidence is of such a nature that it would probably change the result were a new trial to be granted.’ “ Cahaly v. Benistar Property Exch. Trust Co., 451 Mass. 343, 361 (2008) (citation omitted). On appeal, we review for abuse of discretion and defer “broadly” to the decision of the trial judge who has “intimate, first-hand knowledge of the case.” Id. at 361–362. Although we have grave doubts that Guzman can satisfy any of the four requirements, we focus on her inability to show that she could not have obtained Moavenzadeh's testimony earlier by due diligence.
In Cahaly, supra at 358, 367 & n. 51, the obstructionist discovery tactics of the party opposing the new trial led to the belated discovery of evidence warranting a new trial. Here, however, the absence of any testimony from Moavenzadeh at trial was, like many aspects of this case, at least partly attributable to delays and failures by Guzman to meet deadlines. Although Guzman failed to conduct any depositions prior to the closure of discovery, an agreement was reached to allow her to conduct several depositions on the condition that her deposition be taken first. When Guzman did not make herself available for that deposition until a few days before the extended discovery deadline, that left her limited time to take any depositions of her own. Moavenzadeh then departed the Commonwealth for a position in Abu Dhabi and it appears that, despite the protracted pendency of the case, Guzman made no attempt to raise the issue of obtaining his testimony through alternate means until the eve of trial.
At trial, counsel represented that preservation of Moavenzadeh's testimony “could undoubtedly be accomplished in some manner arguably within the next thirty days.” The trial judge was open to an “arrangement [that] could be made for some alternative way ... of his testifying.” The burden was on Guzman and her counsel to make that happen.
Even as late as May, 2012 (more than a year after the trial), the best Guzman could say about Moavenzadeh's availability to testify was that, “[u]pon information and belief, he will be in Massachusetts at MIT in July.” In light of Guzman's failure to diligently pursue Moavenzadeh's testimony, her motion for new trial based on newly discovered evidence was properly denied. Cf. Cahaly, 451 Mass. at 366 (“This is not a case where the movant failed to exercise due diligence by failing to call an important witness of whom the moving party was aware before trial”).
Even if Guzman could overcome her own lack of diligence, she has also failed to show that the evidence would not be cumulative and that it would change the result. She has not provided sufficient detail about what she expects this elusive testimony to demonstrate.
Judgment affirmed.
Order denying motions to amend judgment and for new trial affirmed.