Anolik v. Howland, Esq. ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________





        No. 96-2268



                                  JEFFREY S. ANOLIK,



                                Plaintiff, Appellant,



                                          v.



                                RICHARD HOWLAND, ESQ.,



                                 Defendant, Appellee.



                                 ____________________





                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Michael A. Ponsor, U.S. District Judge]
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                                 ____________________



                                        Before



                                 Selya, Circuit Judge,
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                              Cyr, Senior Circuit Judge,
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                              and Lynch, Circuit Judge.
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                                 ____________________



            Jeffrey S. Anolik on brief pro se.
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            Charles K. Bergin, Jr. and Robinson  Donovan Madden & Barry,  P.C.
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        on brief for appellee.





                                 ____________________



                                     May 29, 1997

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                 Per  Curiam.  We have reviewed the briefs of the parties
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            and  the record on appeal.1   Because, as  the district court
1



            concluded, plaintiff cannot reject the settlement and  retain



            the  settlement proceeds  and because  the court  clearly was



            justified in  granting the  motion to enforce  the settlement



            agreement  and dismissing  plaintiff's action  when plaintiff



            failed  to submit  an  affidavit setting  forth his  position



            regarding the  return of  the settlement proceeds,  we affirm



            essentially for the reasons  stated by the district court  in



            its order dated September 17, 1996.2
2



                 Affirmed.  Loc. R. 27.1.
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               1Plaintiff failed  to obtain  and provide a  transcript of
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            the hearing on  the motion  to enforce the  settlement.   Any

            adverse  consequences rightly  fall  on the  plaintiff.   See
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            Moore v. Murphy, 47 F.3d 8, 10-11 (1st Cir. 1995).
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               2We are aware that plaintiff filed an affidavit after  the
2

            district  court's judgment in this case.  It was clearly out-

            of-time as  it was  not even  mailed before  its due  date of

            September 13.   In any event,  that affidavit was  inadequate

            as,  even  accepting  as  true plaintiff's  contention  of  a

            current  inability to  return the  proceeds, it  expressed no

            intent or willingness to do so at any time.



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