DocketNumber： 93-2294
Filed Date： 12/29/1994
Status： Precedential
Modified Date： 9/21/2015
December 29, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-2294
D.S. ATKINSON, INC.,
Plaintiff, Appellee,
v.
LUTIN CENTRAL SERVICES COMPANY, INC., ET AL.,
Defendants, Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, sU.S. District Judge] ____________________
____________________
Before
Cyr, Circuit Judge, _____________
Bownes, Senior Circuit Judge, and ____________________
Stahl, Circuit Judge. _____________
____________________
Gary Lutin on brief pro se. __________
Hugh W. Samson, Colon, Samson & Conlon on brief for appellee. ______________ ______________________
____________________
____________________
Per Curiam. Pro se appellant Gary Lutin, a corporate __________ ___ __
officer and sole owner of Lutin Central Services Co., Inc.
[LCS], appeals the denial by the district court of his motion
for reconsideration,1 pursuant to Fed. R. Civ. P. 60(b), of
the judgment granting the motion of appellee, D.S. Atkinson,
Inc., to enforce a settlement agreement.2 Lutin claims (1)
that the district court lacked subject matter jurisdiction to
enforce the agreement; (2) that the court lacked personal
jurisdiction over him; and (3) that the district court abused
its discretion in declining to grant his requested relief
from judgment. We affirm.
The Supreme Court recently has indicated that, when, as
in the instant case, a federal district court neither
embodies a settlement agreement in its judgment of dismissal
nor retains jurisdiction over it, "enforcement of the
settlement agreement is for state courts, unless there is ________________
some independent basis for federal jurisdiction." Kokkonen _________________________________________________ ________
____________________
1. Lutin also purports to represent LCS. However, a pro se ___ __
appellant cannot represent a corporation. Eagle Assoc. v. ____________
Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991) (citing _________________
cases).
2. Lutin did not file a formal motion but rather sent a
letter to the district court asking the court to "remove,
vacate or reconsider the order and to suspend the judgment."
Like the district court, we treat this as a motion pursuant
to Fed. R. Civ. P. 60(b). On appeal, Lutin asserts that his
letter also could be construed as a motion to amend judgment
pursuant to Rule 59(e). However, since there is no evidence
the letter was ever "served" upon appellee, it cannot
function as a Rule 59(e) motion. Fed. R. Civ. P. 59(e);
Rivera v. M/T Fossarina, 840 F.2d 152, 154 (1st Cir. 1988). ______ _____________
v. Guardian Life Insurance Co. of Am., 114 S.Ct. 1673, 1677 __________________________________
(1994). Since this is an action where the matter in
controversy is more than $50,000 and between citizens of
different states, 28 U.S.C. 1332 provides "an independent
basis for federal jurisdiction." The district court
therefore possessed subject matter jurisdiction over the
motion to enforce the settlement agreement. See United ___ ______
States v. Baus, 834 F.2d 1114, 1127 n. 13 (1st Cir. 1987) ______ ____
(court possessed jurisdiction over enforcement of settlement
agreement because fact that United States was party to the
contract gave court an independent basis for federal
jurisdiction).
The claim that the court did not possess personal
jurisdiction over Lutin was not clearly raised before the
district court and thus has been waived. See Marcial Ucin, ___ _____________
S.A., v. SS Galicia, 723 F.2d 994, 996-97 (1st Cir. 1983) ___ ___________
(claim of lack of personal jurisdiction may be waived if not
asserted in a timely fashion).
Finally, we find no abuse of discretion in the district
court's denial of Lutin's motion to vacate the judgment. See ___
de la Torre v. Continental Ins. Co., 15 F.3d 12, 14 (1st Cir. ___________ ___________________
1994) (order denying motion for reconsideration in discretion
of court). Insofar as that motion was predicated upon a
claim that his attorney's failure to appear for the April 7
hearing prevented Lutin from presenting his arguments to the
-3-
district court, the attorney was aware of the date of the
hearing and chose not to attend even though he had not
obtained a continuance. Such "inexcusable neglect" by his
attorney does not entitle Lutin to relief under Rule
60(b)(1). See Link v. Wabash R. Co., 370 U.S. 626, 633-36 ___ ____ _____________
(1962); Vargas v. Gonzalez, 975 F.2d 916, 918 (1st Cir. ______ ________
1993).
Lutin also seeks relief pursuant to Fed. R. Civ. P.
60(b)(6). However, this court has frequently indicated that
"Rule 60(b)(6) may not be used as a back-door substitute for
an omitted appeal, and, in all but the most exceptional
circumstances, a party's neglect to prosecute a timeous
appeal will bar relief under the rule." Cotto v. United _____ ______
States, 993 F.2d 274, 278 (1st Cir. 1993) (citing cases). We ______
have reviewed carefully the record in this case and the
briefs of the parties and find no "exceptional circumstances"
which would entitle Lutin to relief.
Affirmed. ________
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United States v. Bernard v. Baus , 834 F.2d 1114 ( 1987 )
Kokkonen v. Guardian Life Insurance Co. of America , 114 S. Ct. 1673 ( 1994 )
Evelyn Cotto and Edwin Torres, Etc. v. United States , 993 F.2d 274 ( 1993 )
Eagle Associates v. Bank of Montreal , 926 F.2d 1305 ( 1991 )
De La Torre v. Continental Insurance , 15 F.3d 12 ( 1994 )
Jose Rivera v. M/t Fossarina , 840 F.2d 152 ( 1988 )
marcial-ucin-sa-v-ss-galicia-her-engines-tackle-etc-v-perez-y , 723 F.2d 994 ( 1983 )