White v. National Credit

December 11, 1995 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1214

RANDOLPH L. WHITE, II AND RANDOLPH DEVELOPMENT GROUP, INC.,

Plaintiffs, Appellants,

v.

NATIONAL CREDIT UNION ADMINISTRATION BOARD, AS LIQUIDATION
AGENT OF BLUE HILL FEDERAL CREDIT UNION, AND PAUL A. SODANO,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

Before

Torruella, Chief Judge,

Selya and Cyr, Circuit Judges.

Frank R. Caruso and John R. Sherman on brief for appellants.

Harvey Weiner, R. Alan Fryer, John J. O'Connor and Peabody &

Arnold on brief for appellees.

Per Curiam. On March 17, 1994, two days after denying

plaintiffs' motion for a preliminary injunction, the district

court issued a sua sponte margin order dismissing this breach

of contract action on the ground of mootness. Plaintiffs

insist they never received notice of such dismissal from the

clerk's office, averring that they first learned of it from

opposing counsel on August 3, 1994. Nearly three months

later, on October 27, plaintiffs filed a motion under Fed. R.

Civ. P. 60(b) to vacate the order of dismissal; they there

argued that the mootness determination had overlooked a

damages claim in their complaint. This motion was summarily

denied. A motion for reconsideration followed, only to meet

the same fate. Plaintiffs having now appealed, we summarily

affirm.

At the outset, we note that plaintiffs have failed to

appreciate all that is before us for review. While their

notice of appeal listed both the denial of their Rule 60(b)

motion and the denial of their motion for reconsideration,

they now "concede" that we lack jurisdiction over the former

because no timely appeal was filed therefrom. Yet because

defendant is an "agency of the United States," Carpenter v.

Western Credit Union, 62 F.3d 143, 144 n.1 (6th Cir. 1995),

the sixty-day appeal period prescribed by Fed. R. App. P.

4(a)(1) was triggered. And plaintiffs' appeal, it turns out,

was filed two days short of this deadline. Whether through

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happenstance or otherwise, the denial of their Rule 60(b)

motion is thus properly subject to review.1

Nonetheless, plaintiffs' claim falters on the merits.

"[B]ecause Rule 60(b) is a vehicle for 'extraordinary

relief,' motions invoking the rule should be granted 'only

under exceptional circumstances.'" de la Torre v.

Continental Ins. Co., 15 F.3d 12, 14-15 (1st Cir. 1994)

(quoting Lepore v. Vidockler, 792 F.2d 272, 274 (1st Cir.

1986)). No such circumstances are present here. We think it

significant that, at the time they learned of the March 17

dismissal, plaintiffs could have moved to reopen the time for

appeal pursuant to Fed. R. App. P. 4(a)(6)--a remedy that was

designed to address the very plight in which they found

themselves. Plaintiffs failed to do so. Instead, they

waited nearly three months before filing their motion to

vacate. Such inaction on their part militates strongly

against the availability of Rule 60(b) relief. See, e.g.,

1. The argument actually advanced by plaintiffs on appeal--
that the district court abused its discretion in denying the
motion for reconsideration--can be readily rejected. That
motion complained solely of legal error in the court's Rule
60(b) denial and so, by definition, sought relief under Fed.
R. Civ. P. 59(e). See, e.g., Feinstein v. Moses, 951 F.2d

16, 19 n.3 (1st Cir. 1991). Yet it was served outside the
applicable ten-day limit, rendering such relief unavailable.
See, e.g., Acevedo-Villalobos v. Hernandez, 22 F.3d 384, 390

(1st Cir.), cert. denied, 115 S. Ct. 574 (1994). And even if

construed as seeking relief under Rule 60(b), the second
motion would border on the frivolous--inasmuch as no
"exceptional circumstances" surrounded the denial of the
first motion. See, e.g., Rodriguez-Antuna v. Chase Manhattan

Bank Corp., 871 F.2d 1, 3 (1st Cir. 1989).

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Jenkins v. Burtzloff, F.3d , 1995 WL 640413, at *4

(10th Cir. 1995) (holding that, where plaintiff failed to

pursue Rule 4(a)(6) relief, "Rule 60(b)(1) cannot save his

appeal"); Zimmer St. Louis, Inc. v. Zimmer Co., 32 F.3d 357,

360-61 (8th Cir. 1994).2 As well, whatever the validity of

the court's mootness determination, our review of the record

reveals that plaintiffs' underlying action was of dubious

merit. Given this set of circumstances, we find no abuse of

discretion.

Affirmed. See Loc. R. 27.1.

2. The Zimmer court went so far as to hold that, with the

advent of Rule 4(a)(6), "district courts no longer have the
discretion" to grant Rule 60(b)(6) relief "to cure problems
of lack of notice"--even when such notice is acquired after
the expiration of Rule 4(a)(6)'s 180-day deadline. See 32

F.3d at 361. We have no occasion to address that holding
here. Assuming arguendo that Rule 60(b) relief remains

available in this context, we find that it was properly
denied.

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