-
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 94-1319
JOHN VASAPOLLI, ET AL.,
Plaintiffs, Appellants,
v.
STEVEN M. ROSTOFF, ET AL.,
Defendants, Appellees.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge] ___________________
_________________________
Before
Selya, Circuit Judge, _____________
Coffin, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
_________________________
Chester A. Janiak, with whom Andrew P. Botti and Burns & _________________ _______________ ________
Levinson were on brief, for appellants. ________
Christopher J. Bellotto, Counsel, with whom Ann S. Duross, ________________________ _____________
Assistant General Counsel, Robert D. McGillicuddy, Senior _________________________
Counsel, A. Van C. Lanckton, Laurie A. Parrott, and Craig and ___________________ _________________ __________
Macauley Professional Corporation were on brief, for appellee __________________________________
Federal Deposit Insurance Corporation.
_________________________
November 8, 1994
_________________________
SELYA, Circuit Judge. It is trite, but true, that not SELYA, Circuit Judge. _____________
every wrong has a remedy much less a remedy wholly satisfactory
to the purported victims. This litigation illustrates the point
in the context of an appeal matching the plaintiffs, a group of
borrowers who complain that they were swindled, against the
Federal Deposit Insurance Corporation (FDIC), in its capacity as
liquidating agent for the now defunct Bank for Savings (the
Bank). Specifically, plaintiffs challenge district court orders
granting summary judgment against them in respect to (1) claims
that they originally brought against the Bank, and (2)
counterclaims pressed against them by the FDIC to recover amounts
allegedly due on certain promissory notes payable to the Bank.
In disposing of the matter, the district court wrote at some
length, see Vasapolli v. Rostoff, ___ F. Supp. ___ (D. Mass. ___ _________ _______
1994) [No. 92-11501-K], and we agree with that court's central
conclusions: plaintiffs' claims for fraudulent inducement,
misrepresentation, and negligence are barred by the D'Oench, ________
Duhme doctrine and 12 U.S.C. 1823(e); plaintiffs' claims of _____
duress and fraud in the factum cannot survive scrutiny;
plaintiffs' affirmative defenses to the counterclaims are
impuissant; and none of the plaintiffs is entitled to benefit
from a belated effort to interject into the decisional calculus
an incorrectly computed figure contained in a writ of execution
issued by a Maine state court in a related proceeding.
Consequently, we affirm the judgment below.
I. BACKGROUND I. BACKGROUND
2
We abjure a detailed, fact-laden account in favor of a
simple sketch. Because two of the orders that we are reviewing
arose under the aegis of Fed. R. Civ. P. 56, we construct this
sketch, and limn the material facts, in the light most hospitable
to the appellants.
The myriad plaintiffs in this civil action are bound
together by what appears in retrospect to have been a serious
error in judgment: they all borrowed money from the Bank in
connection with the purchase of condominium units from Steven M.
Rostoff or business entities controlled by him. Although each
plaintiff's predicament is slightly different, the record reveals
a consistent pattern of chicanery practiced by Rostoff and
certain bank employees. In a typical instance, a plaintiff
purchased a condominium based on multiple misrepresentations by
Rostoff such as: that the unit had been completely renovated and
was being sold at a substantial discount from market value; that
the unit could be resold profitably through Rostoff at the end of
one year; and that the unit owner would incur no out-of-pocket
expenses during the period of his ownership. Bank officials
abetted these misrepresentations in divers ways, including the
procurement of inflated appraisals.
Rostoff's scheme climaxed in a string of high-pressure
closings scheduled at 15-minute intervals on the Bank's premises.
The plaintiffs received little notice of when the closings were
to occur many of them were held at night and Rostoff did not
provide them with the relevant documents until they arrived at
3
the Bank. Rostoff appeared to have free run of the Bank's
offices, sometimes opening the outer door to let purchasers
enter.
Among other things, the plaintiffs allege that,
although they had applied to the Bank for long-term loans, the
actual documents presented to them for signature were short-term
notes, each of which necessitated a balloon payment at the end of
a one year or three-year term.1 If a plaintiff objected, he was
told that he would lose his deposit unless he signed the papers
then and there.
After they discovered Rostoff's cozenage, the
plaintiffs ceased payment on the notes; the Bank foreclosed many
of the mortgages; and federal prosecutors indicted (and
eventually convicted) Rostoff and certain Bank employees on
criminal charges. While the prosecution was still embryonic, a
group composed of allegedly defrauded borrowers brought a civil
action in a Massachusetts state court against Rostoff, the Bank,
and other defendants.2 In their suit, plaintiffs sought
variegated relief under theories of fraud, conspiracy, breach of
contract, negligence, racketeering, deceptive trade practices,
and the like. The Bank counterclaimed, seeking recovery from the
plaintiffs under their promissory notes. In response to the
____________________
1Eleven plaintiffs extended the terms of their loans by
subsequent written agreement with the Bank.
2The complaint was subsequently amended to add additional
plaintiffs and defendants. A total of 17 borrowers appear as
appellants in this proceeding.
4
counterclaims, the plaintiffs asserted numerous affirmative
defenses, averring, among other things, that they had been
fraudulently induced to sign the notes.
The Bank capsized in March of 1992. The FDIC stepped
in as liquidating agent and, after it had replaced the Bank in
the pending civil action, removed that action to the United
States District Court for the District of Massachusetts. In due
course, the FDIC sought, and attained, summary judgment. See ___
Vasapolli, ___ F. Supp. at ___ [slip op. at 22]. In essence, the _________
lower court found that plaintiffs' claims of fraudulent
inducement, misrepresentation, and negligence were barred by the
D'Oench, Duhme rule and 12 U.S.C. 1823(e), and that plaintiffs' ______________
claims of economic duress and fraud in the factum were rendered
nugatory by the lack of a sufficient factual predicate. See ___
Vasapolli, ___ F. Supp. at ___ [slip op. at 9-21]. _________
Consistent with these determinations, the court granted
brevis disposition on all remaining causes of action urged by the ______
plaintiffs against the FDIC. At the same time, the court
resolved thirteen counterclaims in the FDIC's favor, and,
thereafter, permitted the FDIC to file five more counterclaims,
which the court then resolved on the same basis. Finding no
satisfactory reason for delay, the court entered a final judgment
disposing of all claims and counterclaims between the plaintiffs
and the FDIC. See Fed. R. Civ. P. 54(b). ___
The plaintiffs then moved for relief from judgment,
asserting for the first time that sums used in a previous Maine
5
proceeding, though incorrectly calculated, were entitled to full
faith and credit. The district court denied the motion. This
appeal followed.
II. APPLICABLE LEGAL PRINCIPLES II. APPLICABLE LEGAL PRINCIPLES
We set out in somewhat abbreviated form the two sets of
legal principles that together electrify the beacon by which we
must steer.
A. The Summary Judgment Standard. A. The Summary Judgment Standard. _____________________________
Summary judgment is appropriate when the record
reflects "no genuine issue as to any material fact and . . . the
moving party is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(c). For purposes of this determination, the term
"genuine" means that "the evidence about the fact is such that a
reasonable jury could resolve the point in favor of the nonmoving
party . . . ." United States v. One Parcel of Real Property, _____________ _____________________________
Etc. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 _____________________________________________
(1st Cir. 1992). Similarly, the term "material" means that the
fact has the potential to "affect the outcome of the suit under
the governing law." Id. (quoting Anderson v. Liberty Lobby, ___ ________ _______________
Inc., 477 U.S. 242, 248 (1986)). ____
An order granting summary judgment engenders de novo __ ____
review. See Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993); ___ ______ _____
Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir. _______________ _____________
1992). In performing this chore, we scrutinize the summary
judgment record in the light most congenial to the losing party,
and we indulge all reasonable inferences in that party's favor.
6
See Pagano, 983 F.2d at 347. ___ ______
B. The D'Oench, Duhme Doctrine. B. The D'Oench, Duhme Doctrine. ___________________________
The FDIC assumes two separate roles when a bank
collapses. As receiver, the FDIC manages the failed bank's
assets; in its corporate capacity, the FDIC insures the failed
bank's deposits. See Timberland Design, Inc. v. First Serv. Bank ___ _______________________ ________________
for Sav., 932 F.2d 46, 48 (1st Cir. 1991) (per curiam). The ________
FDIC's options when the death knell sounds include liquidating
the failed bank or, preferably, arranging the purchase and
assumption of some or all of its assets and liabilities by a
healthy bank. If undue disruption is to be avoided, a purchase
and assumption arrangement often must be executed in great haste.
It follows, therefore, that both in deciding what course of
action to take regarding a failed bank and thereafter in
effectuating the course of action chosen, the FDIC must be able
to rely confidently on the bank's records as an accurate
portrayal of its assets.
Mindful of this reality, the Supreme Court more than
half a century ago acted to protect the FDIC and the public funds
it administers by formulating a special doctrine of estoppel.
See D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942). The ___ _____________________ ____
D'Oench, Duhme doctrine prohibits bank borrowers and others from ______________
relying upon secret pacts or unrecorded side agreements to
diminish the FDIC's interest in an asset by, say, attempting to
thwart its efforts to collect under promissory notes, guarantees,
7
and kindred instruments acquired from a failed bank.3
Borrowers' claims and affirmative defenses are treated the same
under the doctrine. See Timberland, 932 F.2d at 49-50. Of ___ __________
particular pertinence to this case, the secret agreements
prohibited by the D'Oench, Duhme rule are not limited to promises ______________
to perform acts in the future. See, e.g., Langley v. FDIC, 484 ___ ____ _______ ____
U.S. 86, 92, 96 (1987) (holding that the doctrine extends to
conditions to payment of a note, including the truth of express
____________________
3Congress subsequently codified the D'Oench, Duhme doctrine. ______________
The codification provides:
No agreement which tends to diminish or
defeat the interest of the [FDIC] in any
asset acquired by it under this section or
section 1821 of this title, either as
security for a loan or by purchase or as
receiver of any insured depository
institution, shall be valid against the
[FDIC] unless such agreement
(1) is in writing,
(2) was executed by the depository
institution and any person claiming an
adverse interest thereunder, including the
obligor, contemporaneously with the
acquisition of the asset by the depository
institution,
(3) was approved by the board of
directors of the depository institution or
its loan committee, which approval shall be
reflected in the minutes of said board or
committee, and
(4) has been, continuously, from the
time of its execution, an official record of
the depository institution.
12 U.S.C.A. 1823(e) (West 1989). It remains an open question
whether the judicially created doctrine and its statutory
counterpart are coterminous. See Bateman v. FDIC, 970 F.2d 924, ___ _______ ____
926-27 (1st Cir. 1992). This appeal does not require us to probe
the point. Accordingly, we shall use phrases like "the D'Oench, ________
Duhme doctrine" to refer indiscriminately both to the judicially _____
spawned doctrine and to its statutory reincarnation.
8
warranties).
III. ANALYSIS III. ANALYSIS
Appellate courts have no monopoly either on sagacity or
on clarity of expression. Thus, when a district court produces a
cogent, well-reasoned opinion that reaches an eminently correct
result, a reviewing tribunal should not write at exceptional
length merely to put matters in its own words. See, e.g., In re ___ ____ _____
San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d 36, 38 (1st _________________________________________
Cir. 1993). So it is here. We, therefore, affirm the judgment
for substantially the reasons articulated in the lower court's
opinion. We add only a few observations, largely parallel to
that court's holdings, to place the facts and controlling legal
principles in proper perspective.
First: It is settled beyond peradventure that both First: _____
misrepresentation and fraudulent inducement are within D'Oench, ________
Duhme's sphere of influence. See Levy v. FDIC, 7 F.3d 1054, 1057 _____ ___ ____ ____
n.6 (1st Cir. 1993); McCullough v. FDIC, 987 F.2d 870, 874 (1st __________ ____
Cir. 1993); In re 604 Columbus Ave. Realty Trust, 968 F.2d 1332, ____________________________________
1346-47 (1st Cir. 1992). Undaunted, the plaintiffs argue that
D'Oench does not apply here for two reasons: because the fraud _______
infected appraisals that form part of the Bank's official
records, and because the unusual terms of the transactions should
have alerted even a casual reader of those records to the fraud.
Assuming for argument's sake that the transactions were
patently bogus, and that a routine analysis of the Bank's records
9
would have indicated as much,4 this set of circumstances still
would not suffice to salvage the plaintiffs' case. The D'Oench, ________
Duhme doctrine comes into play to pretermit many transactional _____
claims against the FDIC even when due diligence could easily have
unmasked the fraud and plaintiffs' claims of misrepresentation
and fraudulent inducement fall within this generality.
There is, to be sure, an exception for claims that are
premised on a breach of an agreement or warranty that is itself
contained in the failed bank's records. In this case, however,
the plaintiffs have not succeeded in identifying any violation of
a specific contractual provision or assurance contained in the
Bank's records. It follows inexorably that the district court
properly invoked the D'Oench, Duhme doctrine in granting summary _______________
judgment to the FDIC despite the plaintiffs' claims of
misrepresentation and fraudulent inducement. See McCullough, 987 ___ __________
F.2d at 873-74; 604 Columbus, 968 F.2d at 1346-47. ____________
Second: Conventional wisdom holds that claims or Second: ______
affirmative defenses premised on duress are within the orbit of,
and barred by, the D'Oench, Duhme rule. See, e.g., Newton v. _______________ ___ ____ ______
Uniwest Fin. Corp., 967 F.2d 340, 347 (9th Cir. 1992) (holding ___________________
that duress renders an agreement voidable, not void, and that the
D'Oench, Duhme rule applies to agreements that are voidable); _______________
Bell & Murphy & Assocs. v. Interfirst Bank Gateway, N.A., 894 ________________________ ______________________________
F.2d 750, 754 (5th Cir.) (holding that the presence of economic
____________________
4We hasten to add that, given Rostoff's wiliness, this
assumption seems something of a stretch.
10
duress is irrelevant to the operation of the D'Oench, Duhme ______________
rule), cert. denied, 498 U.S. 895 (1990). A few courts have _____ ______
suggested that, in certain circumstances, claims of duress can
escape the clutches of the D'Oench, Duhme doctrine. See, e.g., ______________ ___ ____
Desmond v. FDIC, 798 F. Supp. 829, 836-39 (D. Mass. 1992) _______ ____
(distinguishing between duress in the negotiating process and
"external" duress, and applying the D'Oench, Duhme doctrine only ______________
to the former); see also RTC v. Ruggiero, 977 F.2d 309, 314 (7th ___ ____ ___ ________
Cir. 1992) (declining to reach question of whether duress is
covered by D'Oench); FDIC v. Morley, 867 F.2d 1381, 1385 n.5 _______ ____ ______
(11th Cir.) (similar; citing district court cases on both sides
of the proposition), cert. denied, 493 U.S. 819 (1989); cf. RTC _____ ______ ___ ___
v. North Bridge Assocs., Inc., 22 F.3d 1198, 1208 (1st Cir. 1994) __________________________
(permitting further discovery anent duress despite RTC's argument
that D'Oench bars such a defense). _______
The plaintiffs invite us to lurch into this wilderness,
asserting that their case exemplifies the sort of "external
duress" that can sidestep the D'Oench, Duhme rule. We decline ______________
the invitation. The short, dispositive reason for refusing to
embark on this journey is that the facts of this case, even when
viewed most sympathetically to the plaintiffs, cannot support a
finding of duress.
Under Massachusetts law, a party claiming duress can
prevail if he shows that (1) "he has been the victim of a
wrongful or unlawful act or threat" of a kind that (2) "deprives
the victim of his unfettered will" with the result that (3) he
11
was "compelled to make a disproportionate exchange of values."
International Underwater Contractors, Inc. v. New England Tel. & __________________________________________ __________________
Tel. Co., 393 N.E.2d 968, 970 (Mass. App. Ct. 1979) (citations _________
omitted). Alternatively, a party claiming duress can prevail by
showing:
(1) That [he] involuntarily accepted the terms of
another; (2) that circumstances permitted no other
alternative; and (3) that said circumstances were the
result of coercive acts of the opposite party.
Ismert & Assocs., Inc. v. New England Mut. Life Ins. Co., 801 _______________________ ________________________________
F.2d 536, 544 (1st Cir. 1986) (citations omitted).
Here, the plaintiffs seek to ground their duress claim
on the high-pressure atmosphere of the closings and the lack of
sufficient time to examine the closing documents. This is simply
not the type and kind of duress that Massachusetts law credits.
Coercion and fear, rather than greed, are the stuff of duress.
Thus, the authorities are consentient that the presence of a
profit motive negates the coercion or fear that is a sine qua non ____ ___ ___
for a finding of duress. See 13 Samuel Williston, A Treatise on ___ _____________
the Law of Contracts 1604 (3d ed. 1970); see also Coveney v. _____________________ ___ ____ _______
President & Trustees of Coll. of Holy Cross, 445 N.E.2d 136, 140 ___________________________________________
(Mass. 1983). Since any pressure that permeated the closings
took a toll only because the plaintiffs feared losing out on a
potentially profitable business opportunity, their claim of
duress is a mirage.
In the alternative, plaintiffs assert that the prospect
of losing their deposits created coercion. But even if they felt
this fear, the threat, at worst, was that they would have to
12
bring a legal action to recover their deposits, not that the
deposits would be lost altogether. We concur with the lower
court, ___ F. Supp. at ___ [slip op. at 12-15], that the
circumstances of the closings, taken in the light most favorable
to the plaintiffs, could not constitute legally cognizable
duress. See, e.g., Ismert, 801 F.2d at 549-50; International ___ ____ ______ _____________
Halliwell Mines, Ltd. v. Continental Copper & Steel Indus., Inc., _____________________ _______________________________________
544 F.2d 105, 108-09 (2d Cir. 1976). Hence, the district court
appropriately granted summary judgment on this issue.5
Third: Relying on New Connecticut Bank & Trust Co. v. Third: _____ ________________________________
Stadium Mgmt. Corp., 132 B.R. 205, 210 (D. Mass. 1991), a case ___________________
which held that the D'Oench, Duhme rule does not prohibit claims ______________
for negligent impairment of the collateral securing a loan, the
plaintiffs assign error to the district court's conclusion that
plaintiffs' claims for negligent misrepresentation are barred.
Though we eschew comment on the correctness of New Connecticut ________________
Bank, we nonetheless reject plaintiffs' asseveration. ____
New Connecticut Bank involved guarantors who alleged _____________________
negligence on the part of a financial institution in its exercise
of control over the operations of the company whose loans had
been guaranteed. Id. at 207 n.1. The case at hand is readily ___
____________________
5The plaintiffs' claim of duress is flawed in another
respect as well. A contract signed under duress is voidable, but
not automatically void. See Newton, 967 F.2d at 347; DiRose v. ___ ______ ______
PK Mgmt. Corp., 691 F.2d 628, 633-34 (2d Cir. 1982), cert. _______________ _____
denied, 461 U.S. 915 (1983). By accepting the funds and failing ______
to seek a remedy based on duress within a reasonable time after
executing the notes, the plaintiffs forfeited any entitlement to
relief on this basis. See In re Boston Shipyard Corp., 886 F.2d ___ ___________________________
451, 455 (1st Cir. 1989).
13
distinguishable, for the plaintiffs' claims of negligence are
based on alleged misrepresentations relating to the formation of
an agreement with the bank. In this sense, then, plaintiffs'
claims are fundamentally different from those asserted in New ___
Connecticut Bank. ________________
Moreover, negligent misrepresentations and intentional
misrepresentations are sisters under the skin. Each partakes of
the flavor of the secret agreements at which the D'Oench, Duhme ______________
rule is aimed. And plaintiffs cannot evade the rule by the
simple expedient of creatively relabelling what are essentially
misrepresentation claims as claims of negligence. See generally ___ _________
McCullough, 987 F.2d at 873 (extending 1823(e) to cover __________
misrepresentation by omission so that parties cannot avoid the
statute's effect by "artful pleading"); cf. Dopp v. Pritzker, ___ ___ ____ ________
F.3d ___, ___ (1st Cir. 1994) [No. 93-2373, slip op. at 12]
("[M]erely calling a dandelion an orchid does not make it
suitable for a corsage."). To hold otherwise would defy common
sense and eviscerate the D'Oench, Duhme doctrine. ______________
Because plaintiffs' claims of negligence are nothing
more than a rehash of their pretermitted misrepresentation
claims, the district court appropriately granted the FDIC's
motion for brevis disposition of those claims. See, e.g., ______ ___ ____
McCullough, 987 F.2d at 873; 604 Columbus, 968 F.2d at 1346-47. __________ ____________
Fourth: A claim premised on fraud in the factum is not Fourth: ______
foreclosed by the D'Oench, Duhme rule. See Langley, 484 U.S. at ______________ ___ _______
93-94. The plaintiffs attempt to squeeze within this isthmian
14
exception. Despite their strenuous efforts, they have presented
no adequate showing that the skulduggery of which they complain
amounted to fraud in the factum. We explain briefly.
Fraud in the factum occurs when a party is tricked into
signing an instrument without knowledge of its true nature or
contents. See id. at 93. Thus, to constitute fraud in the ___ ___
factum a misrepresentation must go to the essential character of
the document signed, not merely to its terms. See 604 Columbus, ___ ____________
968 F.2d at 1346-47 (citing other cases). For example, if a
person signs a contract, having been led to believe that it is
only a receipt, the stage may be set for the emergence of fraud
in the factum.
Here, the plaintiffs allege that they were the victims
of fraud in the factum because they thought they were signing
long-term notes when they actually signed short-term notes. We
agree with the district court, see Vasapolli, ___ F. Supp. at ___ ___ _________
[slip op. at 20], that this alleged disparity goes to the
transactional terms, not to the very nature of the agreements.
Since it is not disputed that the plaintiffs knew they were
signing promissory notes, the Bank's conduct, even if
unscrupulous, cannot be deemed fraud in the factum. Accordingly,
the district court lawfully granted summary judgment against the
plaintiffs on this issue.
Fifth: Following the entry of judgment, the plaintiffs Fifth: _____
moved under Fed. R. Civ. P. 60(b)(6) for relief from the
judgment. The district court treated the motion as a motion to
15
alter or amend the judgment under Fed. R. Civ. P. 59(e). We
agree both with the district court's approach and with its
recharacterization. In addressing a post-judgment motion, a
court is not bound by the label that the movant fastens to it.
If circumstances warrant, the court may disregard the movant's
taxonomy and reclassify the motion as its substance suggests.
See Vargas v. Gonzales, 975 F.2d 916, 917 (1st Cir. 1992). That ___ ______ ________
is the case here.
In their motion, the plaintiffs hinted at some
unhappiness with the use of Massachusetts law to calculate
amounts due on mortgage notes relating to certain properties in
Maine.6 The plaintiffs also made a more specific claim in
regard to two borrowers, asserting that the amounts calculated in
a prior Maine proceeding must be accorded full faith and credit
in the instant case.7 See 28 U.S.C. 1738 (1988). ___
We need not reach questions of whether Maine or
Massachusetts law governs the calculation of deficiency amounts,
or of whether the two plaintiffs are entitled to the benefit of
the errors committed in the course of the earlier action. We
review a trial court's decision denying a Rule 59(e) motion to
____________________
6When a mortgagee purchases foreclosed property at public
sale, Maine law limits deficiency amounts to the difference
between the fair market value of the mortgaged property at the
time of public sale and the amount that the court determines is
due on the mortgage. See Me. Rev. Stat. Ann. tit. 14, 6324 ___
(West 1980 & Supp. 1993).
7In regard to this aspect of plaintiffs' motion, it appears
that the FDIC's attorney made an error in the handling of the
Maine foreclosure actions. As a result, the Maine judgments
understated the liability of these two borrowers.
16
alter or amend a judgment for manifest abuse of discretion, see ___
Appeal of Sun Pipe Line Co., 831 F.2d 22, 24-25 (1st Cir. 1987), ____________________________
cert. denied, 486 U.S. 1055 (1988), and we discern no hint of any _____ ______
such abuse in this instance.
It is crystal clear that the plaintiffs were aware of
the earlier Maine actions at and after the time when the FDIC
first moved for summary judgment. Throughout the time between
the FDIC's first motion for summary judgment and the entry of
final judgment a period that lasted over one year the
plaintiffs failed either to request that the court apply Maine
law in lieu of Massachusetts law, or to raise the "full faith and
credit" argument. These ideas surfaced only after the district
court ruled against the plaintiffs and entered final judgment.
This was too late.
The plaintiffs have offered no plausible reason for
waiting until after the entry of judgment to inform the court of
the prior proceedings or to object to the amounts claimed all
along by the FDIC. By like token, having briefed and argued all
pertinent state-law issues in terms of Massachusetts law,
plaintiffs have no basis for condemning the district court's
unwillingness to take a second look after it had entered final
judgment. See Fashion House, Inc. v. K Mart Corp., 892 F.2d ___ ____________________ _____________
1076, 1095 (1st Cir. 1989) (explaining that courts will hold
parties to positions advanced before judgment regarding choice of
law).
Unlike the Emperor Nero, litigants cannot fiddle as
17
Rome burns. A party who sits in silence, withholds potentially
relevant information, allows his opponent to configure the
summary judgment record, and acquiesces in a particular choice of
law does so at his peril. In the circumstances of this case, we
cannot say that the district court's refusal to grant the
plaintiffs' post-judgment motion constituted an abuse of
discretion. See Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90 ___ _____ ______________________
n.3 (1st Cir. 1993) (affirming denial of relief under Rule 59(e)
where the information on which the movant relied was neither
unknown nor unavailable when the opposition to summary judgment
was filed), cert. denied, 114 S. Ct. 2133 (1994); Fragoso v. _____ ______ _______
Lopez, 991 F.2d 878, 887-88 (1st Cir. 1993) (explaining that the _____
district court is justified in denying a Rule 59(e) motion that
relies on previously undisclosed facts when the movant knew of
the facts, yet, without a good excuse, failed to proffer them in
a timeous manner); FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st ____ ________________
Cir. 1992) (holding that the district court has discretion to
deny a Rule 59(e) motion that rests on grounds "which could, and
should, have been [advanced] before judgment issued") (citation
omitted).8
____________________
8Even if plaintiffs' post-judgment motion were to be
considered under Rule 60(b)(6) rather than Rule 59(e), the
outcome would be the same. See Perez-Perez v. Popular Leasing ___ ___________ _______________
Rental, Inc., 993 F.2d 281, 284 (1st Cir. 1993) (concluding that, ____________
absent exceptional circumstances, motions under Rule 60(b)(6)
must raise issues not available to the moving party prior to the
time final judgment entered); see also Rodriguez-Antuna v. Chase ___ ____ ________________ _____
Manhattan Bank Corp., 871 F.2d 1, 3 (1st Cir. 1989) (holding that ____________________
abuse-of-discretion standard applies in reviewing trial court's
disposition of Rule 60(b) motions).
18
IV. CONCLUSION IV. CONCLUSION
We need go no further. In the end, the plaintiffs'
proposed causes of action are either barred, or unsubstantiated,
or both. Hence, the district court did not err in concluding
that the plaintiffs had failed to demonstrate a trialworthy issue
on their direct claims. By the same token, the court committed
no error in holding that the plaintiffs, as counterdefendants,
had exhibited no valid defense against the FDIC's particularized
demands for money due.
Affirmed. Affirmed. ________
19
Document Info
Docket Number： 94-1319
Filed Date： 11/8/1994
Precedential Status： Precedential
Modified Date： 9/21/2015