White v. National Credit ( 1995 )

USCA1 Opinion

        December 11, 1995       [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT





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        No. 95-1214





             RANDOLPH L. WHITE, II AND RANDOLPH DEVELOPMENT GROUP, INC.,



                               Plaintiffs, Appellants,



                                          v.



              NATIONAL CREDIT UNION ADMINISTRATION BOARD, AS LIQUIDATION

             AGENT OF BLUE HILL FEDERAL CREDIT UNION, AND PAUL A. SODANO,



                                Defendants, Appellees.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



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



                                Torruella, Chief Judge,
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                            Selya and Cyr, Circuit Judges.
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            Frank R. Caruso and John R. Sherman on brief for appellants.
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            Harvey  Weiner, R.  Alan Fryer,  John  J.  O'Connor and  Peabody &
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        Arnold on brief for appellees.
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                 Per Curiam.  On  March 17, 1994, two days  after denying
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            plaintiffs' motion for a preliminary injunction, the district



            court issued a sua sponte margin order dismissing this breach
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            of  contract action  on the ground  of mootness.   Plaintiffs



            insist they never received notice  of such dismissal from the



            clerk's  office, averring that they first  learned of it from



            opposing  counsel on  August 3,  1994.   Nearly  three months



            later, on October 27, plaintiffs filed a motion under Fed. R.



            Civ.  P. 60(b) to vacate  the order of  dismissal; they there



            argued  that  the  mootness  determination  had  overlooked a



            damages  claim in their complaint.  This motion was summarily



            denied.  A motion for  reconsideration followed, only to meet



            the same fate.  Plaintiffs having now appealed, we  summarily



            affirm.



                 At the  outset, we note  that plaintiffs have  failed to



            appreciate all that  is before  us for review.   While  their



            notice of appeal listed  both the denial of their  Rule 60(b)



            motion and  the denial  of their motion  for reconsideration,



            they now "concede" that we lack  jurisdiction over the former



            because  no timely appeal  was filed therefrom.   Yet because



            defendant is an  "agency of the United  States," Carpenter v.
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            Western Credit Union, 62  F.3d 143, 144 n.1 (6th  Cir. 1995),
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            the sixty-day  appeal period  prescribed by  Fed. R.  App. P.



            4(a)(1) was triggered.  And plaintiffs' appeal, it turns out,



            was filed two days  short of this deadline.   Whether through







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            happenstance  or otherwise,  the denial  of their  Rule 60(b)



            motion is thus properly subject to review.1



                 Nonetheless,  plaintiffs' claim  falters on  the merits.



            "[B]ecause   Rule  60(b)  is  a  vehicle  for  'extraordinary



            relief,' motions  invoking the  rule should be  granted 'only



            under   exceptional  circumstances.'"     de   la  Torre   v.
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            Continental  Ins.  Co., 15  F.3d  12, 14-15  (1st  Cir. 1994)
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            (quoting  Lepore v. Vidockler,  792 F.2d  272, 274  (1st Cir.
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            1986)).  No such circumstances are present here.  We think it



            significant  that, at the time  they learned of  the March 17



            dismissal, plaintiffs could have moved to reopen the time for



            appeal pursuant to Fed. R. App. P. 4(a)(6)--a remedy that was



            designed  to  address the  very  plight in  which  they found



            themselves.   Plaintiffs  failed  to do  so.   Instead,  they



            waited  nearly three  months  before filing  their motion  to



            vacate.    Such inaction  on  their  part militates  strongly



            against  the availability of  Rule 60(b) relief.   See, e.g.,
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            1.  The argument actually advanced  by plaintiffs on appeal--

            that the district court abused  its discretion in denying the

            motion for reconsideration--can  be readily  rejected.   That

            motion  complained solely of legal error  in the court's Rule

            60(b)  denial and so, by definition, sought relief under Fed.

            R. Civ. P.  59(e).  See, e.g.,  Feinstein v. Moses, 951  F.2d
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            16, 19  n.3 (1st Cir. 1991).   Yet it was  served outside the

            applicable ten-day limit, rendering such  relief unavailable.

            See, e.g., Acevedo-Villalobos v.  Hernandez, 22 F.3d 384, 390
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            (1st Cir.), cert. denied, 115 S. Ct. 574 (1994).  And even if
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            construed  as seeking  relief  under Rule  60(b), the  second

            motion   would  border  on   the  frivolous--inasmuch  as  no

            "exceptional  circumstances"  surrounded  the denial  of  the

            first motion.  See, e.g., Rodriguez-Antuna v. Chase Manhattan
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            Bank Corp., 871 F.2d 1, 3 (1st Cir. 1989).
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            Jenkins v. Burtzloff,  ___ F.3d  ___, 1995 WL  640413, at  *4
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            (10th  Cir. 1995)  (holding that,  where plaintiff  failed to



            pursue Rule  4(a)(6) relief,  "Rule 60(b)(1) cannot  save his



            appeal");  Zimmer St. Louis, Inc. v. Zimmer Co., 32 F.3d 357,
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            360-61 (8th Cir. 1994).2   As well, whatever the  validity of



            the court's mootness determination,  our review of the record



            reveals  that plaintiffs'  underlying action  was of  dubious



            merit.  Given this  set of circumstances, we find no abuse of



            discretion.



                 Affirmed.  See Loc. R. 27.1.
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            2.  The Zimmer  court went so  far as to hold  that, with the
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            advent of Rule 4(a)(6), "district  courts no longer have  the

            discretion" to  grant Rule 60(b)(6) relief  "to cure problems

            of lack of notice"--even  when such notice is acquired  after

            the expiration  of Rule 4(a)(6)'s  180-day deadline.   See 32
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            F.3d  at 361.   We have no  occasion to  address that holding

            here.    Assuming arguendo  that  Rule  60(b) relief  remains
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            available in  this  context, we  find  that it  was  properly

            denied.



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