Kushner v. U.S. Dept. Rural ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1654
LOUIS KUSHNER,
Plaintiff, Appellant,
v.
UNITED STATES RURAL ECONOMIC
AND COMMUNITY DEVELOPMENT AGENCY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Selya, Boudin and Lynch,
Circuit Judges.
Louis Kushner on brief pro se.
Donald K. Stern, United States Attorney, and Christopher Alberto,
Assistant United States Attorney, on Motion for Summary Disposition
for appellee.
February 3, 1997
Per Curiam. The district court dismissed appellant
Louis Kushner's complaint against the United States Rural
Economic and Community Development Agency ("RECD") for
failing to show good cause for not effecting service on the
RECD. However, appellant never filed a notice of appeal from
this dismissal; as such, it is not before us. The only
orders from which a timely appeal has been taken are the
denial of appellant's motion to reopen and the denial of the
accompanying motion for emergency relief. Because we find
that the district court did not abuse its discretion when it
refused to reopen the case, we need not address the propriety
of the latter motion.
Although not labelled as a motion for relief from
judgment under Fed. R. Civ. P. 60(b), we shall construe
appellant's motion to reopen as such a motion. See 7 J.
Moore, Moore's Federal Practice 60.18[8], at 60-139 (2d ed.
1996). We review a district court's denial of a Rule 60(b)
motion for abuse of discretion. Dankese v. Defense Logistics
Agency, 693 F.2d 13, 15 (1st Cir. 1982). Two subsections of
Rule 60(b) possibly are applicable to appellant's motion:
(1) Rule 60(b)(3) which provides for relief from judgment for
the "misconduct of an adverse party"; and (2) Rule 60(b)(6)
which provides for relief from judgment for "any other
reason."
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To prevail under Rule 60(b)(3), appellant must show
how the RECD's alleged misconduct prevented him from fully
presenting his case in the district court. See Perez-Perez
v. Popular Leasing Rental, Inc., 993 F.2d 281, 285 (1st Cir.
1993). The motion to reopen, which is a typewritten version
of appellant's complaint, offers no explanation concerning
this issue. Although appellant sets out how the RECD
allegedly prohibited him from pursuing an administrative
appeal, he does not describe any improper conduct by the RECD
with regard to the dismissal of appellant's complaint or
error in the district court's dismissal of appellant's action
for failure to effectuate service.
As for Rule 60(b)(6), it cannot be used "to escape
the consequences of failure to take a timely appeal." Cotto
v. United States, 993 F.2d 274, 278 (1st Cir. 1993). Thus,
"[a]bsent exceptional and compelling circumstances, a party
will not be granted relief from a judgment under clause (6).
. . ." Moore's Federal Practice, supra, 60.27[1], at 60-
269; Cotto, supra. To meet this standard, appellant must
show that he was not at fault for not taking a timely appeal
from the dismissal of his complaint. See Cotto, 993 F.2d at
280. Because the motion to reopen does not address this
question, appellant was not entitled to relief under Rule
60(b)(6).
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For the foregoing reasons, the judgment of the
district court is affirmed.
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