Zarrilli v. Capitol Bank & Trust ( 1993 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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        No. 92-1911 

                                 VINCENT F. ZARRILLI,

                                Plaintiff, Appellant,

                                          v.

                              CAPITOL BANK & TRUST CO.,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon. W. Arthur Garrity, U.S. District Judge]
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                                        Before

                              Torruella, Cyr and Boudin,
                                   Circuit Judges.
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            Vincent F. Zarrilli on brief pro se.
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            Ann  S. DuRoss,  Assistant General  Counsel, Richard  J. Osterman,
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        Jr., Senior Counsel, Robert D. McGillicuddy, Deputy Senior Counsel, J.
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        Scott  Watson,  Senior  Attorney,  and  J.  Kendall  Rathburn,  Senior
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        Attorney,  Federal   Deposit  Insurance  Corporation,  on   brief  for
        appellee.


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                                     May 11, 1993
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            Per Curiam.  We  have reviewed the parties' briefs and the  record
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        on appeal.  We conclude that  there was no abuse of discretion in  the

        district court's denial of appellant's  motion, filed pursuant to Fed.

        R. Civ. P.  60(b)(6), which  sought to  vacate a  judgment entered  in

        February 1980.   Appellant has  given no explanation, much  less shown
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        extraordinary  circumstances,  to excuse  his  failure to  appeal that

        judgment.  "Rule 60(b)(6) may  not be used to escape the  consequences

        of the movant's dilatory  failure to take a timely  appeal."  Mitchell
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        v. Hobbs, 951 F.2d 417, 420 (1st Cir. 1991).
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            And, his explanation  for the 11 year delay in presenting his Rule

        60(b)(6) motion  to the  district court  - that he  believed that  the

        district  court should  have before  it the  bankruptcy court  record,

        which had been, and still is, lost - does not constitute extraordinary

        circumstances.   Appellant learned in  September 1981 that  the record

        was  lost.   If,  as  appellant  claims,  this bankruptcy  record  was

        important to his district court case, he could have, and should  have,

        filed his  Rule 60(b) motion at that time,  along with the notice from

        the Federal Archives  and Record Center and appellant's  own copies of

        the  bankruptcy  record  documents   which  he  has  had   all  along.

        Appellant's waiting until 1991 to do what he could have done ten years

        earlier does not warrant vacating the underlying judgment.

            In any event, we  have reviewed the grounds that appellant  raises

        for  vacating  the 1980  district  court  judgment  and they  have  no

        merit.*

            Affirmed.
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        *Appellant has moved for leave to file a supplemental appendix.   From
        aught we can tell, none of the documents in that supplemental appendix
        were before  the district court  and so are  not properly part  of the
        record on  appeal.   See  Fed.  R. App.  P.  10(a).   The  motion  is,
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        therefore, denied.   In any event, we have  reviewed that supplemental
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        appendix.  Nothing therein changes our disposition of this appeal.