Pakizegi v. First National ( 1995 )

USCA1 Opinion

          June 5, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 95-1161



                                  YASAMIN PAKIZEGI,



                                Plaintiff, Appellant,



                                          v.



                            FIRST NATIONAL BANK OF BOSTON,



                                 Defendant, Appellee.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                           Selya and Stahl, Circuit Judges.
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            Yasamin Pakizegi on brief pro se.
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            Robert B. Gordon, Richard  P. Ward and  Ropes & Gray on brief  for
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        appellee.





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                      Per  Curiam.   Appellant  Yasamin  Pakizegi appeals
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            from  the denial of her motion for relief from judgment filed



            under Fed. R. Civ. P. 60(b)(3).



                      "[T]he  treatment  of   a  Rule  60(b)   motion  is



            committed  to the discretion of the district court and may be



            reversed only upon a finding of an abuse of that discretion."



            Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 28 (1st Cir. 1988).
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            We  find an abuse of  discretion if we  become convinced that



            "the court below committed  a clear error of judgment  in the



            conclusion it reached  upon a  weighing of  all the  relevant



            factors."  United  States v. Boch Oldsmobile, Inc.,  909 F.2d
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            657, 660 (1st Cir. 1990).  Finally, our review is confined to



            the denial  of the  Rule 60(b)  motion; we do  not treat  the



            merits of the  underlying judgment.  Ojeda-Toro,  853 F.2d at
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            28.



                      Rule  60(b)(3)  allows  relief  from  judgment  for



            "fraud   (whether   heretofore   denominated   intrinsic   or



            extrinsic),  misrepresentation,  or  other misconduct  of  an



            adverse  party."    Appellant  alleges  that  appellee  First



            National   Bank  of   Boston  (the   "Bank")  made   numerous



            misrepresentations of fact in its motion for summary judgment



            on appellant's  claim that  her  employment at  the Bank  was



            terminated   based  on  her   national  origin  (Iranian)  in



            violation of  Title VII of the  Civil Rights Act  of 1964, 42



            U.S.C.    2000e  et seq.   To  prevail on  her Rule  60(b)(3)
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            motion,    appellant   must    show   that    these   alleged



            misrepresentations  prevented  her  from  "fully  and fairly"



            presenting her defense  to the summary judgment  motion.  See
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            In  re M/V Peacock, 809  F.2d 1403, 1404-05  (9th Cir. 1987).
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            Misrepresentations can have this effect only when a party did



            not  have knowledge of the alleged  inaccuracies or access to



            information which  could have  resulted in this  knowledge at



            the  time of the alleged misconduct.  Ojeda-Toro, 853 F.2d at
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            29.



                      In  support  of  her   claim  that  the  Bank  made



            misrepresentations  of  fact   in  the  motion   for  summary



            judgment, appellant points to  the documents submitted by the



            Bank in support of the motion and the documents she submitted



            in opposition to the  motion.  Indeed, appellant specifically



            states  in her brief on  appeal that she  brought the alleged



            misrepresentations to  the  attention of  the district  court



            prior to its grant of summary judgment.
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                      "Even  where misrepresentations  are made  during a



            litigation, it is not  an abuse of discretion to  deny relief



            to  the losing party under Rule 60(b)(3), where the party had



            access  to accurate  information."   7 J.  Moore &  J. Lucas,



            Moore's Federal  Practice    60.24[5],  at 90  (2d ed.  Supp.
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            1994-95)  (footnote omitted).   Because appellant already had



            presented  her position to the district  court, we cannot say



            that  the  Bank's supposed  misrepresentations  prevented her







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            from  fully presenting her case.   See In re M/V Peacock, 809
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            F.2d at 1405.  Thus,  the court did not abuse  its discretion



            in determining  that appellant could  not rely on  the Bank's



            alleged fraud as a reason for relief from judgment under Rule



            60(b)(3).  We  therefore need not reach  the question whether



            appellant's  Rule   60(b)(3)  motion   was  filed   within  a



            reasonable time.



                      The judgment of the  district court is affirmed and
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            appellant's request for oral argument is denied.
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