Lundborg v. Phoenix ( 1996 )


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    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________

    No. 95-2278

    SUSAN D. LUNDBORG, ETC.,

    Plaintiff, Appellant,

    v.

    PHOENIX LEASING, INC., ET AL.,

    Defendants, Appellees.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MAINE

    [Hon. Gene Carter, U.S. District Judge] ___________________

    ____________________

    Before

    Boudin, Circuit Judge, _____________

    Campbell, Senior Circuit Judge, ____________________

    and Lynch, Circuit Judge. _____________

    ____________________

    Ralph A. Dyer with whom Law Offices of Ralph A. Dyer, P.A. was on _____________ ___________________________________
    briefs for appellant.
    David M. Wiseblood with whom Robert B. Kaplan, Joseph N. Demko, ___________________ _________________ ________________
    Frandzel & Share, Anthony Perkins and Bernstein, Shur, Sawyer & Nelson ________________ _______________ ________________________________
    were on brief for appellees.


    ____________________

    August 5, 1996
    ____________________




















    BOUDIN, Circuit Judge. In this case, the district court _____________

    dismissed claims brought by Susan Lundborg against Phoenix

    Leasing, Inc. ("Phoenix Leasing"), on the ground that they

    were barred by res judicata. We affirm the district court's ____________

    judgment of dismissal but are compelled to do so on a ground

    that leaves open to Lundborg the opportunity to pursue a

    central aspect of her claims by an independent action in

    Maine state court. For reasons that will become apparent,

    such a suit is not a promising venture.

    I.

    The facts of the case are complicated and its procedural

    history involved; we offer a condensed version here. Because

    the district court dismissed the claims at issue on a motion

    to dismiss, the underlying "facts" described below are

    primarily drawn from the allegations of the complaint,

    Rockwell v. Cape Cod Hospital, 26 F.3d 254, 256 (1st Cir. ________ __________________

    1994), supplemented by pleadings in related cases of which

    the district court took judicial notice. In fact, there are

    six other related cases. ___

    Susan Lundborg, a resident of Florida, was the sole

    shareholder of Community Cable Services of Maine, Inc.

    ("Community Cable"), which in 1988 became a general partner

    in Merlin Cable Operators ("Merlin"), a Maine general

    partnership. Soon after its formation, Merlin secured

    franchises to construct and operate two cable television



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    systems in Maine. The partnership sought to borrow $850,000

    of the estimated $1,000,000 cost of these projects.

    In early 1989, Phoenix Leasing, a California

    corporation, agreed to loan Merlin that sum at an annual

    interest rate of 18 percent. The terms of the loan also

    required Merlin to pay Phoenix Leasing 25 percent of the

    value of the projects up to $150,000, plus an additional

    $50,000 for each year the loan was outstanding after 1990,

    amounting to what Lundborg claims was an effective annual

    interest rate in excess of 40 percent. The loan was secured

    by the cable systems and by Lundborg's personal guaranty,

    itself secured in part by a mortgage on her house in Suffolk

    County, New York.

    In 1990, two additional cable television operators owned

    wholly or in part by Lundborg agreed to borrow money from

    Phoenix Leasing. The loans to Cable One CATV ("Cable One"),

    a New Hampshire limited partnership, and Sure Broadcasting,

    Inc. ("Sure"), a Delaware corporation, also imposed high

    rates of interest and demanding terms. Lundborg personally

    guaranteed the loans to Cable One and Sure, again giving

    Phoenix Leasing a mortgage on her Suffolk County house. The

    total of the three loans exceeded $4 million.

    By December 1990, all three borrowers had stopped making

    payments to Phoenix Leasing and in April 1991, Phoenix

    Leasing began court actions to recover upon the loan



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    agreements and to foreclose on the various properties

    securing the loans and Lundborg's personal guaranty. These

    included state court actions in Maine (against Merlin,

    Community Cable, and others) and New York (against Lundborg),

    and federal suits in New Hampshire (against Cable One and

    others) and Nevada (against Sure).1 Phoenix Leasing later

    filed claims in Merlin's federal bankruptcy proceeding in

    Maine and in Cable One's similar proceeding in New

    Hampshire.2

    Phoenix Leasing has prevailed in every case that has

    reached decision. In May 1991, Phoenix Leasing began a Maine

    state court action to recover on the original $850,000 loan.

    Merlin raised several affirmative defenses, including the

    defense of usury, and brought several compulsory

    counterclaims, see Me. R. Civ. P. 13(a), including claims for ___

    fraud, breach of duty of good faith, negligence, and abuse of

    process. The usury defense was cast in general terms and the

    fraud claims related to alleged actions of Phoenix Leasing

    quite different than the fraud charges that are now advanced.


    ____________________

    1Phoenix Leasing Inc. v. Merlin Cable Partners, No. CV- _____________________ _____________________
    91-343 (Me.Sup.Ct. York Cty.); Phoenix Leasing Inc. v. Susan ____________________ _____
    Lundborg, No. 91-08094 (N.Y.Sup.Ct. Suffolk Cty.); Phoenix ________ _______
    Leasing, Inc. v. Cable One CATV Limited Partnership, Civ. No. _____________ __________________________________
    91-164-D (D.N.H.); Phoenix Leasing Inc. v. Sure Broadcasting, ____________________ __________________
    Inc., No. CV-N-91-185-ECR (D.Nev.). ____

    2In re Merlin Cable Partners, BK No. 93-10067 _________________________________
    (Bankr.D.Me.); In re Cable One CATV Limited Partnership, BK __________________________________________
    No. 91-12387-JEY (Bankr.D.N.H.).

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    Phoenix Leasing's Maine state court suit against Merlin

    was dismissed after Merlin filed for bankruptcy in August

    1991. In September 1992, the Maine state court entered a

    default judgment against Community Cable on Phoenix Leasing's

    claims and Community Cable's counterclaims. In early 1994,

    the federal bankruptcy court in Maine awarded Phoenix Leasing

    cash and a promissory note on account of its claim against

    Merlin.

    Phoenix Leasing also prevailed in February 1992 in its

    suit in New York state court against Lundborg to foreclose on

    her mortgage. In New Hampshire, Cable One declared

    bankruptcy after Phoenix Leasing brought suit in district

    court; but in the ensuing bankruptcy proceeding in New

    Hampshire, the court in December 1992 approved a settlement

    in favor of Phoenix Leasing and in July 1993 confirmed the

    plan of liquidation. In March 1995, Phoenix Leasing won its

    suit in the federal district court in Nevada to recover on

    the loan to Sure.

    In February 1994, Lundborg learned that the loans to

    Merlin, Cable One, and Sure were not funded by Phoenix

    Leasing, but rather by two limited partnerships, in each of

    which Phoenix Leasing was general partner. This fact emerged

    during the deposition of Gary Martinez, Phoenix Leasing's

    executive vice president, in the Sure litigation in district ____

    court in Nevada. Lundborg alleges that these limited



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    partnerships, and not Phoenix Leasing, were the "actual

    lenders" in the loan transactions.

    This is said to matter because Phoenix Leasing, as a

    licensed personal property broker, was admittedly exempt from

    California's usury laws which cap the interest rate that an

    unlicensed lender may charge. The limited partnerships,

    Lundborg claims, were not exempt and the loans were therefore

    usurious and fraudulent. Moreover, Lundborg asserts that by

    suing in its own name, Phoenix Leasing misrepresented its

    standing to recover upon the loans in the various court

    actions, and Lundborg says this amounted to additional fraud.

    Based on the Martinez deposition, Lundborg in June 1994

    moved in the New York state suit to set aside the judgment on

    the ground that Phoenix Leasing lacked standing to foreclose

    on the mortgage because it was not the true lender; the New

    York court denied this motion and Lundborg did not appeal.

    In the then pending Nevada federal action, Sure moved for

    summary judgment on similar grounds; in December 1994, the

    district court rejected this argument and in March 1995

    entered judgment for Phoenix Leasing, a ruling later upheld

    by the Ninth Circuit in an unpublished opinion.

    In the bankruptcy courts in Maine and New Hampshire,

    Lundborg made somewhat broader efforts to reopen the

    judgments but with the same result. In January 1995, the

    Maine bankruptcy court (in circumstances more fully described



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    hereafter) rejected Lundborg's motion for relief from

    judgment on account of fraud and based upon the Martinez

    deposition. In November 1995, the New Hampshire bankruptcy

    court rejected Cable One's effort to set aside the earlier

    settlement of the case, ruling that the limited partnerships

    involved in the Cable One loan in fact had licenses

    permitting them to exceed the usual usury limit under

    California law. At least one of the limited partnerships in

    the Merlin transaction was evidently not involved with the

    Cable One loan.

    No comparable effort was made by Lundborg to reopen the

    earlier Maine state court default judgment entered against

    Community Cable in September 1992. Instead, in December

    1994, Lundborg filed the present action against Phoenix

    Leasing and others in the federal district court in Maine,

    both on her own behalf and as successor in interest to Merlin

    and Community Cable. The gravamen was the same set of fraud

    allegations stemming from the Martinez deposition but the

    complaint set forth a welter of claims.

    Lundborg's complaint included nine counts: a statutory

    claim for perjury arising under Maine law (count I); abuse of

    process in connection with the litigation in New York (count

    II); common law conversion, fraud, breach of duty of good

    faith, and interference with economic opportunity (counts

    III-VI); violation of California's usury statute (count VII);



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    unjust enrichment (count VIII); and violation of the federal

    civil RICO statute (count IX). Additional defendants were

    the limited partnerships that allegedly funded the Merlin

    loan, Gus Constantin (the chairman of Phoenix Leasing) and

    Martinez.

    All defendants in the Maine district court moved to

    dismiss. Adopting the able recommended decision of the

    magistrate judge, the district court granted this motion on

    September 6, 1995, without a separate opinion. The district

    court found that Lundborg had failed to articulate a RICO

    claim; in the absence of that claim the court held that it

    had no personal jurisdiction over the individual defendants

    as to any of the counts. Lundborg does not appeal these

    rulings.

    The district court further held that the September 1992

    judgment in Maine state court barred all of Lundborg's claims

    on res judicata grounds and, further, that Lundborg was _____________

    estopped by judgments in New York and in the Maine bankruptcy

    court from relitigating the issue of Phoenix Leasing's fraud.

    Lundborg appeals this ruling as to counts I, III, IV, V, VII

    and VIII with respect to Phoenix Leasing and the limited

    partnerships.

    II.

    As an initial matter, Lundborg argues as a matter of law

    that her count I claim for perjury, pursuant to 14 Me. R.S.A.



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    870, cannot be precluded by the earlier judgment in Maine

    state court. Section 870 creates a cause of action "[w]hen a

    judgment has been obtained against a party by the perjury of

    a witness introduced at trial by the adverse party," and

    provides that "the judgment in the former action is no bar"

    to such a suit. Phoenix Leasing insists that Lundborg waived

    this argument by failing to articulate it in the district

    court.

    We affirm the dismissal of the perjury count because

    Lundborg has not stated a claim under the statute. Lundborg

    alleges that pleadings and affidavits submitted in the Maine

    state court action were perjurious. But section 870 applies

    only to testimony "introduced at trial by the adverse party,"

    and the Maine action was decided prior to trial. The Maine

    Supreme Judicial Court has made clear that section 870 is to

    be construed strictly, Spickler v. Greenberg, 644 A.2d 469, ________ _________

    472 (Me. 1994); and we have no qualm in holding Lundborg to

    "the terms of the statute." Id. (quoting Milner v. Hare, 135 ___ ______ ____

    A. 522 (Me. 1926)).

    This brings us to the heart of Lundborg's remaining

    claims. California law, which governed the Merlin loan,

    limits the amount of interest that can be charged on any

    loan; the law exempts certain classes of loans and lenders

    from its provisions. Cal. Const. Art. 15, 1. Phoenix

    Leasing was a "personal property broker" and therefore exempt



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    from the usury statute. Former Cal. Fin. Code 22009. (The

    current version of the statute refers to lenders like Phoenix

    Leasing as "finance lenders" but the change appears to be one

    of name only.)

    Lundborg alleges that the Merlin loan was funded by two

    limited partnerships, Phoenix Leasing Cash Distribution Fund

    III and Phoenix Leasing Income Fund 1975 ALP, and that these

    partnerships were not then licensed as personal property

    brokers. Lundborg insists that the partnerships were the

    actual lenders in the Merlin transaction, that Phoenix either

    assigned the loan to the partnerships or held it as their

    agent and that the loan was therefore usurious. The

    complaint seeks actual damages of over $6 million.

    This set of allegations and arguments gives rise to

    Lundborg's remaining claims. Counts III, IV, V, and VIII,

    while variously styled, all charge that Phoenix Leasing

    defrauded Merlin and Lundborg by failing to disclose the

    identity of the "actual lenders" at the time the loan was

    negotiated and thereafter, particularly when Phoenix Leasing

    pursued legal claims against Merlin and Lundborg in its own

    name. Count VII is a claim for treble damages under the

    civil remedy provision of California's usury law. Cal. Civ.

    Code 1916-3.

    It is far from clear that the funding arrangement

    alleged by Lundborg was illegal under California law. See, ____



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    e.g., Strike v. Trans-West Discount Corp., 155 Cal. Rptr. ____ ______ __________________________

    132, 139 (Cal.Ct.App.), appeal dismissed, 444 U.S. 948 _________________

    (1979). Phoenix Leasing points out that a licensed lender

    may assign a high-interest loan to an unlicensed third party;

    elsewhere Phoenix Leasing has argued that despite the

    internal accounting arrangements that it made, it remained

    the holder of the Merlin note under California law. An

    argument by Sure that challenged the funding arrangement of

    its own loan was rejected by the Nevada district court in

    Phoenix Leasing Inc. v. Sure Broadcasting, Inc., CV-N-91-185- ____________________ _______________________

    ECR, slip op. at 8-9 (D. Nev. Dec. 18, 1994):

    Phoenix's continued possession of the
    promissory note appears to preclude any
    negotiation of the promissory note.
    Cal.Comm. 3201. Regardless of whether
    Phoenix transferred ownership or the
    right to receive monies under the note,
    Phoenix may remain the holder of the
    note. Cal. Comm 3201 & 3203. Phoenix
    may also enforce the note even if it is
    not the owner of the note. Cal.Comm.
    3301.

    But it is not certain that the facts surrounding the

    Sure loan are identical to those respecting the earlier loan

    to Merlin and the facts concerning the Merlin loan were not

    developed in the district court. Indeed, in briefing this

    case Phoenix Leasing has devoted relatively little attention

    to California law, understandably relying primarily on the

    res judicata rationale of the district court. Thus, the _____________

    question for us is whether the district court's rationale can



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    be sustained, a matter we review de novo. Apparel Art ________ ____________

    Internat'l, Inc. v. Amertex Enterprises Ltd., 48 F.3d 576, _________________ _________________________

    582 (1st Cir. 1995).

    Were it not for Lundborg's allegations of fraud, the

    application of res judicata doctrine to bar this present _____________

    action would be straightforward. Under Maine law, which

    governs the preclusive effect of the Maine state court

    judgment, e.g., Diversified Foods, Inc. v. First Nat'l Bank ____ ________________________ _________________

    of Boston, 985 F.2d 27, 30 (1st Cir.), cert. denied, 113 S. _________ ____________

    Ct. 3001 (1993), a valid prior judgment in an action between

    the same parties or their privies bars relitigation with

    respect to the same claims of "all issues that were tried, or

    may have been tried" in the prior action. Currier v. Cyr, _______ ___

    570 A.2d 1205, 1208 (Me. 1990).

    Functionally, this familiar doctrine--known in the past

    as the merger and bar branch of res judicata and now as claim ____________

    preclusion--prevents a plaintiff or counterclaimant from

    splitting its related claims among several suits. Apparel _______

    Art, 48 F.3d at 583. Such a policy responds to the parties' ___

    interest in repose and the courts' desire to avoid needless

    litigation. Maine follows the modern rule and defines the

    claims that must be brought in one action by use of a

    transactional test, so that

    a subsequent suit that arises out of the same
    aggregate of operative facts shall be barred even
    though the second suit relies upon a legal theory
    not advanced in the first case, seeks different


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    relief than that sought in the first case, and
    involves evidence different from the evidence
    relevant to the first case.

    Currier, 570 A.2d at 1208; see Beegan v. Schmidt, 451 A.2d _______ ___ ______ _______

    642, 645 (Me. 1982) (citing Restatement (Second), Judgments _______________________________

    24 (1982)).

    Lundborg's claims at issue here all arise out of the

    alleged wrongdoing of Phoenix Leasing and the limited

    partnerships in connection with the making and enforcement of

    the Merlin loan. But Merlin and Community Cable previously

    brought claims against Phoenix Leasing arising out of that

    same loan as counterclaims in the Maine state court action. _____________

    Although Merlin was dismissed from the action when it filed

    for bankruptcy, a default judgment was entered against

    Community Cable in that action, and a default judgment has

    the same claim-preclusive effect as a judgment on the merits.

    Irving Pulp & Paper Ltd. v. Kelly, 654 A.2d 416, 418 (Me. _________________________ _____

    1995).

    Lundborg asserts in conclusory fashion that the default

    judgment was never made final but offers no argument in

    support of this claim, nor do we detect any basis for it.

    Nor can Lundborg seriously deny that she and Merlin are in

    privity with Community Cable, which was wholly owned by

    Lundborg and was a general partner of Merlin. Restatement, ___________

    supra, 59(3), 60(2). Under the circumstances, Lundborg's _____

    present claims arise out of the same transaction as the



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    counterclaims in the earlier action and are barred by res ___

    judicata, absent some exception to the general rule. ________

    III.

    Thus far our view is the same as that of the district

    court. Where we part company--with some reluctance for the

    issue is very close--concerns a possible escape hatch from

    res judicata invoked by Lundborg in this case. It is _____________

    Lundborg's position that the 1992 default judgment against

    Community Cable in the Maine state court cannot be considered

    a valid judgment for purposes of res judicata because it was _____ ____________

    tainted by an aspect of the same fraud that is the basis of

    Lundborg's present claims, namely, the alleged fraud in the

    litigation to enforce the original loan to Merlin.

    Otherwise, claim preclusion applies to underlying fraud

    charges no less than to other tort theories.

    This contention takes us to a body of doctrine that has

    few peers in the common law as a source of confusion for

    lawyers and judges alike, namely, the rules that govern

    independent actions that collaterally attack a prior

    judgment. Partly, the problem is one of confusing

    terminology, see Restatement, supra, ch. 5 intro. note, and, ___ ___________ _____

    in addition, the law in this area is neither uniform nor

    stable. But so far as the law permits collateral attacks,

    the rules are effectively a set of exceptions to claim

    preclusion.



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    In the past some courts have been unwilling to treat

    all litigation fraud as an exception to res judicata; it has ___ ____________

    sometimes been said that only special categories of fraud,

    such as bribery of a judge, would permit a collateral attack.

    See Restatement, supra, 68 cmt. a, 70 cmt. c. The modern ___ ___________ _____

    approach has been to lower the substantive bar to collateral

    attack while insisting on severe conditions to the assertion

    of such a claim, due diligence in the discovery of the fraud

    in the original action and clear and convincing evidence of

    fraud in the collateral one. Id. 70 cmt. d.; cf. Spickler ___ ___ ________

    v. Greenberg, 644 A.2d 469, 471 (Me. 1994). _________

    In considering Lundborg's claim to a fraud exception,

    our concern is with Maine law because a federal district

    court in Maine has been asked to permit a collateral attack

    on a Maine state court judgment. 7 Moore, Federal Practice, ________________

    60.37[3], at 60-395 (2d ed. 1995). Maine law, in accord

    with the Restatement, no longer rigidly adheres to the ___________

    traditional labels of extrinsic and intrinsic fraud in

    determining which circumstances justify overturning a prior

    judgment. Society of Lloyd's v. Baker, 673 A.2d 1336, 1339 ___________________ _____

    (Me. 1996). We read Kradoska v. Kipp, 397 A.2d 568-69 (Me. ________ ____

    1979), to suggest that Maine is more interested in whether

    the fraud claim was known or should have been known at the

    time of the earlier action. See 11 Wright, Miller & Kane, ___

    Federal Practice and Procedure, 2868, at 400-01 (2d ed. _______________________________



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    1995).

    In the present case, the district court assumed, as we

    do, that fraud in the course of the earlier Maine state court

    litigation might give rise to an exception to claim

    preclusion. But it held that the issue whether fraud had _______

    occurred had itself been resolved on the merits, adversely to

    Lundborg, in the New York state court and the Maine

    bankruptcy court. As already noted, after the Martinez

    deposition, Lundborg sought in 1994 to reopen the judgments

    in both of those courts based on some of the same assertions

    that are the bases for Lundborg's affirmative claims in the

    district court.

    The district court's ruling that the fraud issue had

    earlier been resolved rested upon the other branch of res ___

    judicata known as collateral estoppel or issue preclusion. ________

    This doctrine bars the relitigation between the same parties

    of any issue of fact or law that was actually litigated

    between them, was determined and was necessary to a final,

    valid judgment in a prior case. Restatement, supra, 27; ___________ _____

    Spickler v. York, 505 A.2d 87, 88 (Me. 1986). Unlike claim ________ ____

    preclusion, this doctrine requires an actual determination of

    the issue.

    We do not share the district court's view that the

    decision of the New York state court that Phoenix Leasing had

    standing to enforce Lundborg's loan guaranties precludes



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    Lundborg's claims here. As far as we can tell from the

    papers submitted to us, Lundborg did not raise her usury

    claims and the related fraud claims in seeking to reopen the

    New York action; and a holding that Phoenix Leasing had

    standing to enforce the loan is not necessarily inconsistent

    with the possibility that the loans' terms were originally

    made by the partnerships and were usurious under California

    law, and that Phoenix Leasing concealed this information from

    the Lundborg entities in prior litigation.

    The Maine bankruptcy decision is a closer call. Merlin

    filed for bankruptcy in August 1991; a plan of reorganization

    was confirmed in May 1994, awarding Phoenix Leasing $900,000.

    In November 1994, Lundborg filed a motion under Fed. R. Civ.

    P. Rule 60(b) for relief from the judgment based on the

    February 1994 deposition, arguing that the deposition

    testimony revealed that the Merlin loan was fraudulent,

    usurious, and not enforceable by Phoenix Leasing. Lundborg's

    Rule 60(b) motion thus raised the same factual and legal

    arguments that she asserts in this case.

    Phoenix Leasing opposed the motion on two grounds:

    first, that the motion was untimely under the one-year

    limitation on Rule 60(b) motions grounded in fraud; and

    second, that on the merits the loan was not fraudulent or

    usurious and could be collected by Phoenix Leasing. In

    denying Lundborg's Rule 60(b) motion, the bankruptcy court



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    found tersely that Lundborg had stated "no basis" for

    granting the motion. The result is that we cannot tell

    whether the bankruptcy court rested on lack of timeliness or

    on the merits in denying the motion to reopen.

    Thus Phoenix Leasing cannot carry its burden, as the

    party claiming the benefit of issue preclusion, to show that

    the fraud issue was actually decided in the prior case by the

    Maine bankruptcy court. See Dowling v. United States, 493 ___ _______ ______________

    U.S. 342, 350 (1990). Lundborg may therefore be free under

    Maine law to press her collateral attack on the earlier Maine

    state judgment, assuming that she can prove her charge of

    fraud in the prior proceeding and meet the other requirements

    for such an attack. At least, this possibility is not

    foreclosed by issue preclusion.

    IV.

    To say that the claims may survive a res judicata ____________

    defense is not to say that the district court was wrong in

    dismissing the case. In order to reach the merits on the

    counts in question (e.g., fraud, conversion), Lundborg must ____

    first succeed in her collateral attack on the Maine state

    court judgment. Although in form she does not ask for a

    declaration or injunction, in substance this is a collateral

    attack because the relief sought would undo the Maine

    judgment and because res judicata bars the claims unless the ____________

    Maine judgment is held to be vitiated by fraud. See Griffith ___ ________



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    v. Bank of New York, 147 F.2d 899, 901 (2d Cir. 1945). ________________

    But "[t]he principle" is that, where possible in

    collateral attacks, "relief should ordinarily be sought in

    the court that rendered the judgment" being thus challenged.

    Restatement, supra, 79, cmt. b: see also id. 79 cmt. d. ___________ _____ ________ ___

    This preference is not merely a matter of comity but also

    reflects practical considerations: here, the Maine state

    court has the advantage over all other courts, both in

    deciding whether fraud occurred in its own prior proceedings

    and in determining whether Lundborg adequately pursued

    discovery efforts in that case.

    Maine's own Rule 60, like the federal rule, recognizes

    that an independent collateral attack based on litigation

    fraud may be brought even after the one-year period for a

    motion to reopen has passed. Me. R. Civ. P. 60(b); Lewien v. ______

    Cohen, 432 A.2d 800 (Me. 1981). Quite apart from _____

    administrative reasons for this distinction between reopening

    and collateral attack, the conditions on relief are more

    severe when it is made by independent action. Restatement, ___________

    supra, 78 cmt. c. The Maine state courts are thus an _____

    available forum.

    The Supreme Court has warned that federal courts are not

    lightly to relinquish jurisdiction, and that even a difficult

    issue of state law or parallel pending state litigation is

    not automatically a warrant to abstain. See Wright, Federal ___ _______



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    Courts 52 (5th ed. 1994)(collecting the pertinent cases). ______

    Yet the Court has said that its own abstention decisions are

    not "rigid pigeonholes," Pennzoil v. Texaco, Inc., 481 U.S. ________ ____________

    1, 11 n.9, 107 S. Ct. 1519, 1526 n.9 (1987), but reflect a

    skein of considerations that vary with the facts of each

    case. See Moses H. Cone Hospital v. Mercury Construc. Corp., ___ ______________________ _______________________

    460 U.S. 1, 19-26 (1983). And no Supreme Court decision

    deals directly with a case such as ours involving a

    collateral attack under state law upon a prior state court

    judgment.3

    Here, we think that in the peculiar circumstances of

    this case, abstention is appropriate. There is a complete

    assurance that relief, if available at all, is fully

    available in the Maine state court; indeed, Maine's own law

    controls on this issue. Conversely, and of great importance,

    there is no direct federal interest nor any issue of federal

    law presented either by the collateral attack or by the

    underlying claims in the complaint. Compare Cone, 460 U.S at _______ ____

    23, 26 (noting the pertinence of an available state remedy

    (or lack thereof) and of federal issues) with Colorado River ____ ______________

    Water Cons. Dist. v. United States, 424 U.S. 800, 819 (1976) _________________ ______________

    ____________________

    3Similarly, federal appellate decisions in this area are
    sparse and the few cases we have found are divided. Compare _______
    Lapin v. Shulton, Inc., 333 F.2d 169 (9th Cir.), cert. _____ ______________ _____
    denied, 379 U.S. 904 (1964), and Carr v. District of ______ ____ ____________
    Columbia, 543 F.2d 917, 927 (D.C. Cir. 1976), with Locklin v. ________ ____ _______
    Switzer Bros., Inc., 335 F.2d 331, 334-35 (7th Cir. 1964), ____________________
    and Wohl v. Keene, 476 F.2d 171 (4th Cir. 1973). ____ _____

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    (emphasizing the existence of a state remedy).

    Further, this suit is effectively an attempt to undo a

    preexisting, final judgment of a state court based upon

    matters pertaining solely to the conduct of prior litigation

    in that court. While there is no flat bar to conducting this

    autopsy in a federal court, the considerations of "comity and

    orderly administration of justice" that point toward the

    rendering court as the preferable forum, Lapin, 333 F.2d at _____

    172, may have special weight where the latter is a state

    court. Cf. Younger v. Harris, 401 U.S. 37, 43-45 (1971); 28 ___ _______ ______

    U.S.C. 2283 (ordinarily barring federal courts from

    enjoining state proceedings).

    In addition, the Maine state court is obviously the

    forum that can most readily determine whether in fact fraud _______

    occurred in its own prior proceedings and whether diligent

    discovery by the plaintiff in those proceedings would have

    uncovered in a more timely fashion the information now

    claimed to be vital. This appraisal is likely to be informed

    not only by the records possessed by the Maine state court

    but also by that court's superior knowledge of how its

    proceedings are customarily conducted and what discovery is

    available.

    Finally, in deciding to defer to the Maine state courts,

    it is significant, see Quackenbush v. Allstate Ins. Co., 116 ___ ___________ _________________

    S. Ct. 1712, 1721-22 (1996), that the implicit threshold



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    relief required to entertain Lundborg's claims--the

    collateral attack on the Maine judgment--is itself an

    equitable remedy within the sound discretion of the court.

    Despite some limited common law antecedents, equity has been

    the main source of collateral relief from judgments, and the

    independent action is treated as equitable in character.

    Wright, Miller & Kane, supra, 2868, at 396 (citing cases); _____

    see, e.g., Lewien v. Cohen, 432 A.2d at 805. ___ ____ ______ _____

    This appraisal leads us to affirm the dismissal of count

    I on the merits but to affirm the dismissal of counts III,

    IV, V, VII and VIII on a ground different than that adopted

    by the district court and with different consequences. In

    principle, Lundborg may pursue these counts by filing suit in

    Maine state court and by persuading the state court that a

    collateral attack on the 1992 Maine state court judgment

    should be allowed.

    V.

    It may be of help to the parties, and to any Maine state

    court that may grapple with this matter, to explain our

    concerns about Lundborg's collateral attack. Our problem is

    not with Lundborg's attempt to avoid on technical grounds the

    loan obligations that she or her companies took on in a

    commercial venture. Technical defenses are sometimes

    narrowly read, but Lundborg is as free to argue for them as

    she would be to invoke a statute of limitations to avoid an



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    otherwise just debt.

    Rather, our concern is primarily with the timing of this

    defense. It is uncertain whether the news that the

    partnerships were involved came as a complete surprise to

    Lundborg in 1994. Cf. In re Cable One CATV Limited ___ _________________________________

    Partnership, BK No. 91-12387-JEY, slip op. at 6 (Bankr. ___________

    D.N.H., Nov. 29, 1995) ("[I]t is difficult to find any

    misrepresentation since the principal [Lundborg] had the

    checks involved and was on notice as to who was advancing the

    monies."). But assuming surprise, it is doubtful whether

    Lundborg can be excused for not discovering this possible

    defense in the course of lawsuits brought in 1992.

    This is not a case of forged documents or bribery of

    jurors or other kinds of litigation fraud uniquely hard to

    imagine or uncover. Phoenix Leasing was licensed to exceed

    the usury restriction and it is a fair guess that, if the

    Merlin loan ran afoul of the restriction because of the

    limited partnerships, which is far from clear, it was due to

    routine planning decisions made for tax or similar reasons.

    Lundborg knew full well of the usury laws--a boilerplate

    defense bearing this label was actually asserted--and she was

    free in the Maine state court action to explore the

    underpinnings of the loan.

    It is possible, but we think unlikely, that a potential

    usury claim based on the role of the limited partnerships was



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    so substantial but at the same time so thoroughly concealed

    that it would have escaped even a diligent effort at

    discovery. Under the Restatement, the failure to exercise ___________

    due diligence to unearth such a claim in the earlier case

    would itself bar a later collateral attack. Restatement, ___________

    supra, 70 cmt. d. In sum, even assuming that there was a _____

    usury defense, we are very doubtful that the possible usury

    defense was diligently pursued or that fraud can be said to

    infect the Maine state judgment.

    Our substantial doubts are not a legal defense against a

    new state court action. But given the sanctions available

    for unfounded lawsuits, Lundborg ought to give careful

    consideration to her own position--and to her succession of

    seven straight litigation defeats in related cases--before

    she embarks upon an eighth lawsuit bearing a strong family

    resemblance. "The law abhors fraud and perjury. It also

    abhors interminable litigation." Cole v. Chellis, 119 A.2d ____ _______

    623, 625 (Me. 1923).

    Affirmed. ________















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