June 5, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1161
YASAMIN PAKIZEGI,
Plaintiff, Appellant,
v.
FIRST NATIONAL BANK OF BOSTON,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Stahl, Circuit Judges.
Yasamin Pakizegi on brief pro se.
Robert B. Gordon, Richard P. Ward and Ropes & Gray on brief for
appellee.
Per Curiam. Appellant Yasamin Pakizegi appeals
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).
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
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
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)
motion, appellant must show that these alleged
misrepresentations prevented her from "fully and fairly"
presenting her defense to the summary judgment motion. See
In re M/V Peacock, 809 F.2d 1403, 1404-05 (9th Cir. 1987).
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
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.
"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.
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
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
appellant's request for oral argument is denied.
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