[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1117
JAMES E. COFIELD, JR. AND JUAN M. COFIELD,
Plaintiffs, Appellants,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Stahl, Circuit Judges.
Edwin A. McCabe, Philip Y. Brown and McCabe Brown on brief for
appellants.
James C. Heigham and Choate, Hall & Stewart on brief for
appellee.
August 25, 1997
Per Curiam. We have carefully reviewed the record
and read the briefs on appeal. We affirm the district
court's judgment dismissing the complaint of appellant James
E. Cofield for essentially the reasons stated in the court's
Memorandum and Order, dated October 31, 1996. See Local Rule
27.1. We add only two comments.
1. Statute of Limitations. We assume, without
deciding, that appellant argued below that Fannie Mae had
perpetrated a fraud on the bankruptcy court. Nonetheless,
the claim cannot succeed. Simply, appellant may not pursue
the fraud claim now, either via motion or in an independent
action, because he could have litigated it in the adversary
proceeding. That is, from the undisputed facts, it is plain
that appellant knew of Fannie Mae's alleged fraud before the
adversary proceeding was dismissed. As we pointed out in a
recent case, Fed. R. Civ. P. 60(b) does not permit a party to
relitigate, in an independent action or by motion, issues
that the party had a fair opportunity to litigate in the
former action. See Geo. P. Reintjes Co. v. Riley Stoker
Corp., 71 F.3d 44, 49 (1st Cir. 1995) (citing 7 J. Moore,
Moore's Federal Practice 60.37 (1995)). At the least,
appellant could have filed a motion for reconsideration of
the order of dismissal.
2. Malicious Prosecution. Appellant's reliance on
comment j to 674 of the Restatement (Second) of Torts
-2-
(1977) does not help him. That comment emphasizes that
"[w]hether a withdrawal or an abandonment constitutes a final
termination of the case in favor of the person against whom
the proceedings are brought . . . depends upon the
circumstances under which the proceedings are withdrawn."
Id. cmt. j (emphasis added). The circumstances surrounding
Fannie Mae's decision to let the bankruptcy order of
dismissal stand, even assuming such decision amounts to
abandonment, establish that, as the district court found, the
adversary proceeding, in relation to Fannie Mae's claims
against appellant, did not terminate in either party's favor.
We therefore summarily affirm the judgment of the
district court and, as per counsel's representation in the
reply brief, withdraw the appeal of Juan M. Cofield.
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Cofield v. Federal National
Combined Opinion