Atkinson v. Lutin ( 1994 )

USCA1 Opinion

          December 29, 1994
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT





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        No. 93-2294

                                 D.S. ATKINSON, INC.,

                                 Plaintiff, Appellee,

                                          v.

                    LUTIN CENTRAL SERVICES COMPANY, INC., ET AL.,

                               Defendants, Appellants.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                  [Hon. Edward F. Harrington, sU.S. District Judge]
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                                        Before

                                  Cyr, Circuit Judge,
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                          Bownes, Senior Circuit Judge, and
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                                Stahl, Circuit Judge.
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            Gary Lutin on brief pro se.
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            Hugh W. Samson,  Colon, Samson & Conlon on brief for appellee.
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                 Per Curiam.   Pro se appellant  Gary Lutin, a  corporate
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            officer  and sole owner  of Lutin Central  Services Co., Inc.

            [LCS], appeals the denial by the district court of his motion

            for reconsideration,1  pursuant to Fed. R. Civ.  P. 60(b), of

            the judgment granting the  motion of appellee, D.S. Atkinson,

            Inc.,  to enforce a settlement agreement.2   Lutin claims (1)

            that the district court lacked subject matter jurisdiction to

            enforce  the agreement;  (2) that  the court  lacked personal

            jurisdiction over him; and (3) that the district court abused

            its  discretion in  declining to  grant his  requested relief

            from judgment.  We affirm.

                 The Supreme Court recently  has indicated that, when, as

            in  the  instant  case,  a  federal  district  court  neither

            embodies a settlement agreement  in its judgment of dismissal

            nor  retains  jurisdiction  over  it,   "enforcement  of  the

            settlement  agreement is  for state  courts, unless  there is
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            some independent  basis for federal  jurisdiction."  Kokkonen
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            1.  Lutin  also purports to represent LCS.  However, a pro se
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            appellant cannot  represent a  corporation.  Eagle  Assoc. v.
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            Bank  of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991) (citing
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            cases).

            2.  Lutin  did not  file a  formal motion  but rather  sent a
            letter  to the  district court asking  the court  to "remove,
            vacate or  reconsider the order and to suspend the judgment."
            Like the district court,  we treat this as a  motion pursuant
            to Fed. R. Civ. P. 60(b).  On appeal, Lutin  asserts that his
            letter  also could be construed as a motion to amend judgment
            pursuant  to Rule 59(e).  However, since there is no evidence
            the  letter  was  ever  "served"  upon  appellee,  it  cannot
            function as  a Rule  59(e) motion.   Fed.  R. Civ.  P. 59(e);
            Rivera v. M/T Fossarina, 840 F.2d 152, 154 (1st Cir. 1988).
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            v. Guardian Life Insurance  Co. of Am., 114 S.Ct.  1673, 1677
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            (1994).   Since  this  is  an  action  where  the  matter  in

            controversy  is more  than  $50,000 and  between citizens  of

            different states,  28 U.S.C.   1332  provides "an independent

            basis  for  federal  jurisdiction."     The  district   court

            therefore  possessed  subject  matter jurisdiction  over  the

            motion  to  enforce the  settlement  agreement.   See  United
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            States v. Baus,  834 F.2d  1114, 1127 n.  13 (1st Cir.  1987)
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            (court possessed jurisdiction  over enforcement of settlement

            agreement because fact  that United States  was party to  the

            contract  gave  court   an  independent  basis   for  federal

            jurisdiction).

                 The  claim  that  the  court did  not  possess  personal

            jurisdiction  over Lutin  was not  clearly raised  before the

            district court and thus  has been waived.  See  Marcial Ucin,
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            S.A., v. SS  Galicia, 723  F.2d 994, 996-97  (1st Cir.  1983)
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            (claim  of lack of personal jurisdiction may be waived if not

            asserted in a timely fashion).

                 Finally, we find no abuse of  discretion in the district

            court's  denial of Lutin's motion to vacate the judgment. See
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            de la Torre v. Continental Ins. Co., 15 F.3d 12, 14 (1st Cir.
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            1994) (order denying motion for reconsideration in discretion

            of  court).   Insofar as  that motion  was predicated  upon a

            claim that his attorney's  failure to appear for the  April 7

            hearing prevented Lutin from  presenting his arguments to the



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            district court, the  attorney was  aware of the  date of  the

            hearing  and chose  not  to attend  even  though he  had  not

            obtained a  continuance.   Such "inexcusable neglect"  by his

            attorney  does  not  entitle   Lutin  to  relief  under  Rule

            60(b)(1).  See  Link v. Wabash R.  Co., 370 U.S.  626, 633-36
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            (1962);  Vargas v.  Gonzalez,  975 F.2d  916,  918 (1st  Cir.
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            1993).

                 Lutin also  seeks  relief pursuant  to Fed.  R. Civ.  P.

            60(b)(6).  However, this  court has frequently indicated that

            "Rule  60(b)(6) may not be used as a back-door substitute for

            an omitted  appeal,  and, in  all  but the  most  exceptional

            circumstances,  a party's  neglect  to  prosecute  a  timeous

            appeal  will bar  relief under  the rule."   Cotto  v. United
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            States, 993 F.2d 274, 278 (1st Cir. 1993) (citing cases).  We
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            have  reviewed carefully  the  record in  this  case and  the

            briefs of the parties and find no "exceptional circumstances"

            which would entitle Lutin to relief.

                 Affirmed.
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