Lundborg v. Phoenix Leasing, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-2278

SUSAN D. LUNDBORG, ETC.,

Plaintiff, Appellant,

v.

PHOENIX LEASING, INC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Boudin, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Ralph A. Dyer with whom Law Offices of Ralph A. Dyer, P.A. was on

briefs for appellant.
David M. Wiseblood with whom Robert B. Kaplan, Joseph N. Demko,

Frandzel & Share, Anthony Perkins and Bernstein, Shur, Sawyer & Nelson

were on brief for appellees.

August 5, 1996

BOUDIN, Circuit Judge. In this case, the district court

dismissed claims brought by Susan Lundborg against Phoenix

Leasing, Inc. ("Phoenix Leasing"), on the ground that they

were barred by res judicata. We affirm the district court's

judgment of dismissal but are compelled to do so on a ground

that leaves open to Lundborg the opportunity to pursue a

central aspect of her claims by an independent action in

Maine state court. For reasons that will become apparent,

such a suit is not a promising venture.

I.

The facts of the case are complicated and its procedural

history involved; we offer a condensed version here. Because

the district court dismissed the claims at issue on a motion

to dismiss, the underlying "facts" described below are

primarily drawn from the allegations of the complaint,

Rockwell v. Cape Cod Hospital, 26 F.3d 254, 256 (1st Cir.

1994), supplemented by pleadings in related cases of which

the district court took judicial notice. In fact, there are

six other related cases.

Susan Lundborg, a resident of Florida, was the sole

shareholder of Community Cable Services of Maine, Inc.

("Community Cable"), which in 1988 became a general partner

in Merlin Cable Operators ("Merlin"), a Maine general

partnership. Soon after its formation, Merlin secured

franchises to construct and operate two cable television

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systems in Maine. The partnership sought to borrow $850,000

of the estimated $1,000,000 cost of these projects.

In early 1989, Phoenix Leasing, a California

corporation, agreed to loan Merlin that sum at an annual

interest rate of 18 percent. The terms of the loan also

required Merlin to pay Phoenix Leasing 25 percent of the

value of the projects up to $150,000, plus an additional

$50,000 for each year the loan was outstanding after 1990,

amounting to what Lundborg claims was an effective annual

interest rate in excess of 40 percent. The loan was secured

by the cable systems and by Lundborg's personal guaranty,

itself secured in part by a mortgage on her house in Suffolk

County, New York.

In 1990, two additional cable television operators owned

wholly or in part by Lundborg agreed to borrow money from

Phoenix Leasing. The loans to Cable One CATV ("Cable One"),

a New Hampshire limited partnership, and Sure Broadcasting,

Inc. ("Sure"), a Delaware corporation, also imposed high

rates of interest and demanding terms. Lundborg personally

guaranteed the loans to Cable One and Sure, again giving

Phoenix Leasing a mortgage on her Suffolk County house. The

total of the three loans exceeded $4 million.

By December 1990, all three borrowers had stopped making

payments to Phoenix Leasing and in April 1991, Phoenix

Leasing began court actions to recover upon the loan

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agreements and to foreclose on the various properties

securing the loans and Lundborg's personal guaranty. These

included state court actions in Maine (against Merlin,

Community Cable, and others) and New York (against Lundborg),

and federal suits in New Hampshire (against Cable One and

others) and Nevada (against Sure).1 Phoenix Leasing later

filed claims in Merlin's federal bankruptcy proceeding in

Maine and in Cable One's similar proceeding in New

Hampshire.2

Phoenix Leasing has prevailed in every case that has

reached decision. In May 1991, Phoenix Leasing began a Maine

state court action to recover on the original $850,000 loan.

Merlin raised several affirmative defenses, including the

defense of usury, and brought several compulsory

counterclaims, see Me. R. Civ. P. 13(a), including claims for

fraud, breach of duty of good faith, negligence, and abuse of

process. The usury defense was cast in general terms and the

fraud claims related to alleged actions of Phoenix Leasing

quite different than the fraud charges that are now advanced.

1Phoenix Leasing Inc. v. Merlin Cable Partners, No. CV-

91-343 (Me.Sup.Ct. York Cty.); Phoenix Leasing Inc. v. Susan

Lundborg, No. 91-08094 (N.Y.Sup.Ct. Suffolk Cty.); Phoenix

Leasing, Inc. v. Cable One CATV Limited Partnership, Civ. No.

91-164-D (D.N.H.); Phoenix Leasing Inc. v. Sure Broadcasting,

Inc., No. CV-N-91-185-ECR (D.Nev.).

2In re Merlin Cable Partners, BK No. 93-10067

(Bankr.D.Me.); In re Cable One CATV Limited Partnership, BK

No. 91-12387-JEY (Bankr.D.N.H.).

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Phoenix Leasing's Maine state court suit against Merlin

was dismissed after Merlin filed for bankruptcy in August

1991. In September 1992, the Maine state court entered a

default judgment against Community Cable on Phoenix Leasing's

claims and Community Cable's counterclaims. In early 1994,

the federal bankruptcy court in Maine awarded Phoenix Leasing

cash and a promissory note on account of its claim against

Merlin.

Phoenix Leasing also prevailed in February 1992 in its

suit in New York state court against Lundborg to foreclose on

her mortgage. In New Hampshire, Cable One declared

bankruptcy after Phoenix Leasing brought suit in district

court; but in the ensuing bankruptcy proceeding in New

Hampshire, the court in December 1992 approved a settlement

in favor of Phoenix Leasing and in July 1993 confirmed the

plan of liquidation. In March 1995, Phoenix Leasing won its

suit in the federal district court in Nevada to recover on

the loan to Sure.

In February 1994, Lundborg learned that the loans to

Merlin, Cable One, and Sure were not funded by Phoenix

Leasing, but rather by two limited partnerships, in each of

which Phoenix Leasing was general partner. This fact emerged

during the deposition of Gary Martinez, Phoenix Leasing's

executive vice president, in the Sure litigation in district

court in Nevada. Lundborg alleges that these limited

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partnerships, and not Phoenix Leasing, were the "actual

lenders" in the loan transactions.

This is said to matter because Phoenix Leasing, as a

licensed personal property broker, was admittedly exempt from

California's usury laws which cap the interest rate that an

unlicensed lender may charge. The limited partnerships,

Lundborg claims, were not exempt and the loans were therefore

usurious and fraudulent. Moreover, Lundborg asserts that by

suing in its own name, Phoenix Leasing misrepresented its

standing to recover upon the loans in the various court

actions, and Lundborg says this amounted to additional fraud.

Based on the Martinez deposition, Lundborg in June 1994

moved in the New York state suit to set aside the judgment on

the ground that Phoenix Leasing lacked standing to foreclose

on the mortgage because it was not the true lender; the New

York court denied this motion and Lundborg did not appeal.

In the then pending Nevada federal action, Sure moved for

summary judgment on similar grounds; in December 1994, the

district court rejected this argument and in March 1995

entered judgment for Phoenix Leasing, a ruling later upheld

by the Ninth Circuit in an unpublished opinion.

In the bankruptcy courts in Maine and New Hampshire,

Lundborg made somewhat broader efforts to reopen the

judgments but with the same result. In January 1995, the

Maine bankruptcy court (in circumstances more fully described

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hereafter) rejected Lundborg's motion for relief from

judgment on account of fraud and based upon the Martinez

deposition. In November 1995, the New Hampshire bankruptcy

court rejected Cable One's effort to set aside the earlier

settlement of the case, ruling that the limited partnerships

involved in the Cable One loan in fact had licenses

permitting them to exceed the usual usury limit under

California law. At least one of the limited partnerships in

the Merlin transaction was evidently not involved with the

Cable One loan.

No comparable effort was made by Lundborg to reopen the

earlier Maine state court default judgment entered against

Community Cable in September 1992. Instead, in December

1994, Lundborg filed the present action against Phoenix

Leasing and others in the federal district court in Maine,

both on her own behalf and as successor in interest to Merlin

and Community Cable. The gravamen was the same set of fraud

allegations stemming from the Martinez deposition but the

complaint set forth a welter of claims.

Lundborg's complaint included nine counts: a statutory

claim for perjury arising under Maine law (count I); abuse of

process in connection with the litigation in New York (count

II); common law conversion, fraud, breach of duty of good

faith, and interference with economic opportunity (counts

III-VI); violation of California's usury statute (count VII);

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unjust enrichment (count VIII); and violation of the federal

civil RICO statute (count IX). Additional defendants were

the limited partnerships that allegedly funded the Merlin

loan, Gus Constantin (the chairman of Phoenix Leasing) and

Martinez.

All defendants in the Maine district court moved to

dismiss. Adopting the able recommended decision of the

magistrate judge, the district court granted this motion on

September 6, 1995, without a separate opinion. The district

court found that Lundborg had failed to articulate a RICO

claim; in the absence of that claim the court held that it

had no personal jurisdiction over the individual defendants

as to any of the counts. Lundborg does not appeal these

rulings.

The district court further held that the September 1992

judgment in Maine state court barred all of Lundborg's claims

on res judicata grounds and, further, that Lundborg was

estopped by judgments in New York and in the Maine bankruptcy

court from relitigating the issue of Phoenix Leasing's fraud.

Lundborg appeals this ruling as to counts I, III, IV, V, VII

and VIII with respect to Phoenix Leasing and the limited

partnerships.

II.

As an initial matter, Lundborg argues as a matter of law

that her count I claim for perjury, pursuant to 14 Me. R.S.A.

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870, cannot be precluded by the earlier judgment in Maine

state court. Section 870 creates a cause of action "[w]hen a

judgment has been obtained against a party by the perjury of

a witness introduced at trial by the adverse party," and

provides that "the judgment in the former action is no bar"

to such a suit. Phoenix Leasing insists that Lundborg waived

this argument by failing to articulate it in the district

court.

We affirm the dismissal of the perjury count because

Lundborg has not stated a claim under the statute. Lundborg

alleges that pleadings and affidavits submitted in the Maine

state court action were perjurious. But section 870 applies

only to testimony "introduced at trial by the adverse party,"

and the Maine action was decided prior to trial. The Maine

Supreme Judicial Court has made clear that section 870 is to

be construed strictly, Spickler v. Greenberg, 644 A.2d 469,

472 (Me. 1994); and we have no qualm in holding Lundborg to

"the terms of the statute." Id. (quoting Milner v. Hare, 135

A. 522 (Me. 1926)).

This brings us to the heart of Lundborg's remaining

claims. California law, which governed the Merlin loan,

limits the amount of interest that can be charged on any

loan; the law exempts certain classes of loans and lenders

from its provisions. Cal. Const. Art. 15, 1. Phoenix

Leasing was a "personal property broker" and therefore exempt

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from the usury statute. Former Cal. Fin. Code 22009. (The

current version of the statute refers to lenders like Phoenix

Leasing as "finance lenders" but the change appears to be one

of name only.)

Lundborg alleges that the Merlin loan was funded by two

limited partnerships, Phoenix Leasing Cash Distribution Fund

III and Phoenix Leasing Income Fund 1975 ALP, and that these

partnerships were not then licensed as personal property

brokers. Lundborg insists that the partnerships were the

actual lenders in the Merlin transaction, that Phoenix either

assigned the loan to the partnerships or held it as their

agent and that the loan was therefore usurious. The

complaint seeks actual damages of over $6 million.

This set of allegations and arguments gives rise to

Lundborg's remaining claims. Counts III, IV, V, and VIII,

while variously styled, all charge that Phoenix Leasing

defrauded Merlin and Lundborg by failing to disclose the

identity of the "actual lenders" at the time the loan was

negotiated and thereafter, particularly when Phoenix Leasing

pursued legal claims against Merlin and Lundborg in its own

name. Count VII is a claim for treble damages under the

civil remedy provision of California's usury law. Cal. Civ.

Code 1916-3.

It is far from clear that the funding arrangement

alleged by Lundborg was illegal under California law. See,

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e.g., Strike v. Trans-West Discount Corp., 155 Cal. Rptr.

132, 139 (Cal.Ct.App.), appeal dismissed, 444 U.S. 948

(1979). Phoenix Leasing points out that a licensed lender

may assign a high-interest loan to an unlicensed third party;

elsewhere Phoenix Leasing has argued that despite the

internal accounting arrangements that it made, it remained

the holder of the Merlin note under California law. An

argument by Sure that challenged the funding arrangement of

its own loan was rejected by the Nevada district court in

Phoenix Leasing Inc. v. Sure Broadcasting, Inc., CV-N-91-185-

ECR, slip op. at 8-9 (D. Nev. Dec. 18, 1994):

Phoenix's continued possession of the
promissory note appears to preclude any
negotiation of the promissory note.
Cal.Comm. 3201. Regardless of whether
Phoenix transferred ownership or the
right to receive monies under the note,
Phoenix may remain the holder of the
note. Cal. Comm 3201 & 3203. Phoenix
may also enforce the note even if it is
not the owner of the note. Cal.Comm.
3301.

But it is not certain that the facts surrounding the

Sure loan are identical to those respecting the earlier loan

to Merlin and the facts concerning the Merlin loan were not

developed in the district court. Indeed, in briefing this

case Phoenix Leasing has devoted relatively little attention

to California law, understandably relying primarily on the

res judicata rationale of the district court. Thus, the

question for us is whether the district court's rationale can

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be sustained, a matter we review de novo. Apparel Art

Internat'l, Inc. v. Amertex Enterprises Ltd., 48 F.3d 576,

582 (1st Cir. 1995).

Were it not for Lundborg's allegations of fraud, the

application of res judicata doctrine to bar this present

action would be straightforward. Under Maine law, which

governs the preclusive effect of the Maine state court

judgment, e.g., Diversified Foods, Inc. v. First Nat'l Bank

of Boston, 985 F.2d 27, 30 (1st Cir.), cert. denied, 113 S.

Ct. 3001 (1993), a valid prior judgment in an action between

the same parties or their privies bars relitigation with

respect to the same claims of "all issues that were tried, or

may have been tried" in the prior action. Currier v. Cyr,

570 A.2d 1205, 1208 (Me. 1990).

Functionally, this familiar doctrine--known in the past

as the merger and bar branch of res judicata and now as claim

preclusion--prevents a plaintiff or counterclaimant from

splitting its related claims among several suits. Apparel

Art, 48 F.3d at 583. Such a policy responds to the parties'

interest in repose and the courts' desire to avoid needless

litigation. Maine follows the modern rule and defines the

claims that must be brought in one action by use of a

transactional test, so that

a subsequent suit that arises out of the same
aggregate of operative facts shall be barred even
though the second suit relies upon a legal theory
not advanced in the first case, seeks different

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relief than that sought in the first case, and
involves evidence different from the evidence
relevant to the first case.

Currier, 570 A.2d at 1208; see Beegan v. Schmidt, 451 A.2d

642, 645 (Me. 1982) (citing Restatement (Second), Judgments

24 (1982)).

Lundborg's claims at issue here all arise out of the

alleged wrongdoing of Phoenix Leasing and the limited

partnerships in connection with the making and enforcement of

the Merlin loan. But Merlin and Community Cable previously

brought claims against Phoenix Leasing arising out of that

same loan as counterclaims in the Maine state court action.

Although Merlin was dismissed from the action when it filed

for bankruptcy, a default judgment was entered against

Community Cable in that action, and a default judgment has

the same claim-preclusive effect as a judgment on the merits.

Irving Pulp & Paper Ltd. v. Kelly, 654 A.2d 416, 418 (Me.

1995).

Lundborg asserts in conclusory fashion that the default

judgment was never made final but offers no argument in

support of this claim, nor do we detect any basis for it.

Nor can Lundborg seriously deny that she and Merlin are in

privity with Community Cable, which was wholly owned by

Lundborg and was a general partner of Merlin. Restatement,

supra, 59(3), 60(2). Under the circumstances, Lundborg's

present claims arise out of the same transaction as the

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counterclaims in the earlier action and are barred by res

judicata, absent some exception to the general rule.

III.

Thus far our view is the same as that of the district

court. Where we part company--with some reluctance for the

issue is very close--concerns a possible escape hatch from

res judicata invoked by Lundborg in this case. It is

Lundborg's position that the 1992 default judgment against

Community Cable in the Maine state court cannot be considered

a valid judgment for purposes of res judicata because it was

tainted by an aspect of the same fraud that is the basis of

Lundborg's present claims, namely, the alleged fraud in the

litigation to enforce the original loan to Merlin.

Otherwise, claim preclusion applies to underlying fraud

charges no less than to other tort theories.

This contention takes us to a body of doctrine that has

few peers in the common law as a source of confusion for

lawyers and judges alike, namely, the rules that govern

independent actions that collaterally attack a prior

judgment. Partly, the problem is one of confusing

terminology, see Restatement, supra, ch. 5 intro. note, and,

in addition, the law in this area is neither uniform nor

stable. But so far as the law permits collateral attacks,

the rules are effectively a set of exceptions to claim

preclusion.

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In the past some courts have been unwilling to treat

all litigation fraud as an exception to res judicata; it has

sometimes been said that only special categories of fraud,

such as bribery of a judge, would permit a collateral attack.

See Restatement, supra, 68 cmt. a, 70 cmt. c. The modern

approach has been to lower the substantive bar to collateral

attack while insisting on severe conditions to the assertion

of such a claim, due diligence in the discovery of the fraud

in the original action and clear and convincing evidence of

fraud in the collateral one. Id. 70 cmt. d.; cf. Spickler

v. Greenberg, 644 A.2d 469, 471 (Me. 1994).

In considering Lundborg's claim to a fraud exception,

our concern is with Maine law because a federal district

court in Maine has been asked to permit a collateral attack

on a Maine state court judgment. 7 Moore, Federal Practice,

60.37[3], at 60-395 (2d ed. 1995). Maine law, in accord

with the Restatement, no longer rigidly adheres to the

traditional labels of extrinsic and intrinsic fraud in

determining which circumstances justify overturning a prior

judgment. Society of Lloyd's v. Baker, 673 A.2d 1336, 1339

(Me. 1996). We read Kradoska v. Kipp, 397 A.2d 568-69 (Me.

1979), to suggest that Maine is more interested in whether

the fraud claim was known or should have been known at the

time of the earlier action. See 11 Wright, Miller & Kane,

Federal Practice and Procedure, 2868, at 400-01 (2d ed.

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1995).

In the present case, the district court assumed, as we

do, that fraud in the course of the earlier Maine state court

litigation might give rise to an exception to claim

preclusion. But it held that the issue whether fraud had

occurred had itself been resolved on the merits, adversely to

Lundborg, in the New York state court and the Maine

bankruptcy court. As already noted, after the Martinez

deposition, Lundborg sought in 1994 to reopen the judgments

in both of those courts based on some of the same assertions

that are the bases for Lundborg's affirmative claims in the

district court.

The district court's ruling that the fraud issue had

earlier been resolved rested upon the other branch of res

judicata known as collateral estoppel or issue preclusion.

This doctrine bars the relitigation between the same parties

of any issue of fact or law that was actually litigated

between them, was determined and was necessary to a final,

valid judgment in a prior case. Restatement, supra, 27;

Spickler v. York, 505 A.2d 87, 88 (Me. 1986). Unlike claim

preclusion, this doctrine requires an actual determination of

the issue.

We do not share the district court's view that the

decision of the New York state court that Phoenix Leasing had

standing to enforce Lundborg's loan guaranties precludes

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Lundborg's claims here. As far as we can tell from the

papers submitted to us, Lundborg did not raise her usury

claims and the related fraud claims in seeking to reopen the

New York action; and a holding that Phoenix Leasing had

standing to enforce the loan is not necessarily inconsistent

with the possibility that the loans' terms were originally

made by the partnerships and were usurious under California

law, and that Phoenix Leasing concealed this information from

the Lundborg entities in prior litigation.

The Maine bankruptcy decision is a closer call. Merlin

filed for bankruptcy in August 1991; a plan of reorganization

was confirmed in May 1994, awarding Phoenix Leasing $900,000.

In November 1994, Lundborg filed a motion under Fed. R. Civ.

P. Rule 60(b) for relief from the judgment based on the

February 1994 deposition, arguing that the deposition

testimony revealed that the Merlin loan was fraudulent,

usurious, and not enforceable by Phoenix Leasing. Lundborg's

Rule 60(b) motion thus raised the same factual and legal

arguments that she asserts in this case.

Phoenix Leasing opposed the motion on two grounds:

first, that the motion was untimely under the one-year

limitation on Rule 60(b) motions grounded in fraud; and

second, that on the merits the loan was not fraudulent or

usurious and could be collected by Phoenix Leasing. In

denying Lundborg's Rule 60(b) motion, the bankruptcy court

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found tersely that Lundborg had stated "no basis" for

granting the motion. The result is that we cannot tell

whether the bankruptcy court rested on lack of timeliness or

on the merits in denying the motion to reopen.

Thus Phoenix Leasing cannot carry its burden, as the

party claiming the benefit of issue preclusion, to show that

the fraud issue was actually decided in the prior case by the

Maine bankruptcy court. See Dowling v. United States, 493

U.S. 342, 350 (1990). Lundborg may therefore be free under

Maine law to press her collateral attack on the earlier Maine

state judgment, assuming that she can prove her charge of

fraud in the prior proceeding and meet the other requirements

for such an attack. At least, this possibility is not

foreclosed by issue preclusion.

IV.

To say that the claims may survive a res judicata

defense is not to say that the district court was wrong in

dismissing the case. In order to reach the merits on the

counts in question (e.g., fraud, conversion), Lundborg must

first succeed in her collateral attack on the Maine state

court judgment. Although in form she does not ask for a

declaration or injunction, in substance this is a collateral

attack because the relief sought would undo the Maine

judgment and because res judicata bars the claims unless the

Maine judgment is held to be vitiated by fraud. See Griffith

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v. Bank of New York, 147 F.2d 899, 901 (2d Cir. 1945).

But "[t]he principle" is that, where possible in

collateral attacks, "relief should ordinarily be sought in

the court that rendered the judgment" being thus challenged.

Restatement, supra, 79, cmt. b: see also id. 79 cmt. d.

This preference is not merely a matter of comity but also

reflects practical considerations: here, the Maine state

court has the advantage over all other courts, both in

deciding whether fraud occurred in its own prior proceedings

and in determining whether Lundborg adequately pursued

discovery efforts in that case.

Maine's own Rule 60, like the federal rule, recognizes

that an independent collateral attack based on litigation

fraud may be brought even after the one-year period for a

motion to reopen has passed. Me. R. Civ. P. 60(b); Lewien v.

Cohen, 432 A.2d 800 (Me. 1981). Quite apart from

administrative reasons for this distinction between reopening

and collateral attack, the conditions on relief are more

severe when it is made by independent action. Restatement,

supra, 78 cmt. c. The Maine state courts are thus an

available forum.

The Supreme Court has warned that federal courts are not

lightly to relinquish jurisdiction, and that even a difficult

issue of state law or parallel pending state litigation is

not automatically a warrant to abstain. See Wright, Federal

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Courts 52 (5th ed. 1994)(collecting the pertinent cases).

Yet the Court has said that its own abstention decisions are

not "rigid pigeonholes," Pennzoil v. Texaco, Inc., 481 U.S.

1, 11 n.9, 107 S. Ct. 1519, 1526 n.9 (1987), but reflect a

skein of considerations that vary with the facts of each

case. See Moses H. Cone Hospital v. Mercury Construc. Corp.,

460 U.S. 1, 19-26 (1983). And no Supreme Court decision

deals directly with a case such as ours involving a

collateral attack under state law upon a prior state court

judgment.3

Here, we think that in the peculiar circumstances of

this case, abstention is appropriate. There is a complete

assurance that relief, if available at all, is fully

available in the Maine state court; indeed, Maine's own law

controls on this issue. Conversely, and of great importance,

there is no direct federal interest nor any issue of federal

law presented either by the collateral attack or by the

underlying claims in the complaint. Compare Cone, 460 U.S at

23, 26 (noting the pertinence of an available state remedy

(or lack thereof) and of federal issues) with Colorado River

Water Cons. Dist. v. United States, 424 U.S. 800, 819 (1976)

3Similarly, federal appellate decisions in this area are
sparse and the few cases we have found are divided. Compare

Lapin v. Shulton, Inc., 333 F.2d 169 (9th Cir.), cert.

denied, 379 U.S. 904 (1964), and Carr v. District of

Columbia, 543 F.2d 917, 927 (D.C. Cir. 1976), with Locklin v.

Switzer Bros., Inc., 335 F.2d 331, 334-35 (7th Cir. 1964),

and Wohl v. Keene, 476 F.2d 171 (4th Cir. 1973).

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(emphasizing the existence of a state remedy).

Further, this suit is effectively an attempt to undo a

preexisting, final judgment of a state court based upon

matters pertaining solely to the conduct of prior litigation

in that court. While there is no flat bar to conducting this

autopsy in a federal court, the considerations of "comity and

orderly administration of justice" that point toward the

rendering court as the preferable forum, Lapin, 333 F.2d at

172, may have special weight where the latter is a state

court. Cf. Younger v. Harris, 401 U.S. 37, 43-45 (1971); 28

U.S.C. 2283 (ordinarily barring federal courts from

enjoining state proceedings).

In addition, the Maine state court is obviously the

forum that can most readily determine whether in fact fraud

occurred in its own prior proceedings and whether diligent

discovery by the plaintiff in those proceedings would have

uncovered in a more timely fashion the information now

claimed to be vital. This appraisal is likely to be informed

not only by the records possessed by the Maine state court

but also by that court's superior knowledge of how its

proceedings are customarily conducted and what discovery is

available.

Finally, in deciding to defer to the Maine state courts,

it is significant, see Quackenbush v. Allstate Ins. Co., 116

S. Ct. 1712, 1721-22 (1996), that the implicit threshold

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relief required to entertain Lundborg's claims--the

collateral attack on the Maine judgment--is itself an

equitable remedy within the sound discretion of the court.

Despite some limited common law antecedents, equity has been

the main source of collateral relief from judgments, and the

independent action is treated as equitable in character.

Wright, Miller & Kane, supra, 2868, at 396 (citing cases);

see, e.g., Lewien v. Cohen, 432 A.2d at 805.

This appraisal leads us to affirm the dismissal of count

I on the merits but to affirm the dismissal of counts III,

IV, V, VII and VIII on a ground different than that adopted

by the district court and with different consequences. In

principle, Lundborg may pursue these counts by filing suit in

Maine state court and by persuading the state court that a

collateral attack on the 1992 Maine state court judgment

should be allowed.

V.

It may be of help to the parties, and to any Maine state

court that may grapple with this matter, to explain our

concerns about Lundborg's collateral attack. Our problem is

not with Lundborg's attempt to avoid on technical grounds the

loan obligations that she or her companies took on in a

commercial venture. Technical defenses are sometimes

narrowly read, but Lundborg is as free to argue for them as

she would be to invoke a statute of limitations to avoid an

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otherwise just debt.

Rather, our concern is primarily with the timing of this

defense. It is uncertain whether the news that the

partnerships were involved came as a complete surprise to

Lundborg in 1994. Cf. In re Cable One CATV Limited

Partnership, BK No. 91-12387-JEY, slip op. at 6 (Bankr.

D.N.H., Nov. 29, 1995) ("[I]t is difficult to find any

misrepresentation since the principal [Lundborg] had the

checks involved and was on notice as to who was advancing the

monies."). But assuming surprise, it is doubtful whether

Lundborg can be excused for not discovering this possible

defense in the course of lawsuits brought in 1992.

This is not a case of forged documents or bribery of

jurors or other kinds of litigation fraud uniquely hard to

imagine or uncover. Phoenix Leasing was licensed to exceed

the usury restriction and it is a fair guess that, if the

Merlin loan ran afoul of the restriction because of the

limited partnerships, which is far from clear, it was due to

routine planning decisions made for tax or similar reasons.

Lundborg knew full well of the usury laws--a boilerplate

defense bearing this label was actually asserted--and she was

free in the Maine state court action to explore the

underpinnings of the loan.

It is possible, but we think unlikely, that a potential

usury claim based on the role of the limited partnerships was

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so substantial but at the same time so thoroughly concealed

that it would have escaped even a diligent effort at

discovery. Under the Restatement, the failure to exercise

due diligence to unearth such a claim in the earlier case

would itself bar a later collateral attack. Restatement,

supra, 70 cmt. d. In sum, even assuming that there was a

usury defense, we are very doubtful that the possible usury

defense was diligently pursued or that fraud can be said to

infect the Maine state judgment.

Our substantial doubts are not a legal defense against a

new state court action. But given the sanctions available

for unfounded lawsuits, Lundborg ought to give careful

consideration to her own position--and to her succession of

seven straight litigation defeats in related cases--before

she embarks upon an eighth lawsuit bearing a strong family

resemblance. "The law abhors fraud and perjury. It also

abhors interminable litigation." Cole v. Chellis, 119 A.2d

623, 625 (Me. 1923).

Affirmed.

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