USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1590
No. 96-2005
JOHN E. PARIGIAN, INDIVIDUALLY AND AS TRUSTEE OF
CLIFTON HEIGHTS REALTY TRUST,
Plaintiff, Appellant,
v.
RICHARD G. LEBLANC AND NANCY E. LEBLANC, INDIVIDUALLY AND AS
TRUSTEES OF R & N REALTY TRUST,
Defendants, Appellees.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. W. Arthur Garrity, Senior U.S. District Judge] __________________________
____________________
Before
Selya, Circuit Judge, _____________
Cyr, Senior Circuit Judge, ____________________
and Boudin, Circuit Judge. _____________
____________________
John E. Parigian on brief pro se. ________________
J. Allen Holland, John R. Cavanaugh and Lynch, Brewer, Hoffman & ________________ __________________ _________________________
Sands, LLP on brief for appellees. __________
____________________
January 6, 1998
____________________
Per Curiam. Plaintiff-appellant John E. Parigian, ___________
individually and as trustee of Clifton Heights Realty Trust
("the Trust"), appeals pro se from the district court's
Amended Order and Judgment, dated April 19, 1996 (Appeal No.
96-1590) and from the district court's Memorandum and Order
Under Fed. R. Civ. P. 11(c)(1)(B), dated August 8, 1996
(Appeal No. 96-2005). We affirm the district court in both
cases and deny the parties' requests for oral argument.
I. Amended Order and Judgment (Appeal No. 96-1590) _______________________________________________
A. Jurisdiction ____________
The district court correctly ruled that the judgment
entered by the Court "fits within the description in Kokkanen ________
v. Guardian Life Ins. Co., 511 U.S. 375 (1994), of judgments _________________________
in which the Court has retained jurisdiction for purposes of
enforcement." Memorandum and Order on Motion to Enforce
Judgment. In this case, "the parties' obligation to comply
with the terms of the settlement agreement had been made part
of the order." Kokkanen, 511 U.S. at 381. The district ________
court's Agreement for Judgment and Order incorporated the
parties' settlement agreement by ordering Parigian,
individually and as trustee of the Trust, to make specific
payments to appellees, Richard G. LeBlanc and Nancy E.
LeBlanc ("the LeBlancs"). Therefore, it is clear that "a
breach of the agreement [is] a violation of the order, and
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ancillary jurisdiction to enforce the agreement . . .
exist[s]." Id. ___
B. Whether the Trust is Bound by the Amended Judgment __________________________________________________
The counterclaim itself is ambiguous with regard to
whether Parigian, in his capacity as trustee of the Trust, is
a counterclaim defendant. The rest of the record, however,
strongly suggests that the parties understood the
counterclaim to be against Parigian individually and as
trustee. The counterclaim was based on a promissory note
executed by Parigian, individually and as trustee. In
answering the counterclaim, Parigian identified himself as
"Defendant-in-counterclaim, John E. Parigian and John E.
Parigian as trustee of Clifton Heights Realty Trust."
While the counterclaim was ambiguous about whether
Parigian was included in both capacities, the Agreement for
Judgment and Order was not. The Agreement announced
"[j]udgment for the Plaintiffs-in-Counterclaim Richard G.
LeBlanc and Nancy E. LeBlanc ('the LeBlancs') on the
Counterclaim against Defendant-in-Counterclaim John E.
Parigian, individually and as Trustee of the Clifton Heights
Realty Trust (collectively 'Parigian'), in the amount of
$213,125.00." By agreeing to the entry of that Judgment and
Order, Parigian waived the right to appeal from it. "[A]
party who has agreed to the entry of a judgment without any
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reservation may not thereafter seek to upset the judgment,
save for lack of actual consent or a failure of subject
matter jurisdiction." Cotto v. United States, 993 F.2d 274, _____ _____________
279 n.5 (1st Cir. 1993).
Finally, even if Parigian had not waived the right to
appeal, we would affirm the district court's ruling that "the
terms of the Agreement identifying Parigian as trustee of the
Clifton Heights Realty Trust supersede any failure to plead a
compulsory counterclaim. . . . [T]he pleadings may be deemed
to have been amended so as to allow for the aforesaid
action." Memorandum and Order on Motion to Enforce Judgment.
Under Fed. R. Civ. P. 15(b), implied consent to amend a
pleading may be found where a claim is "introduced outside
the complaint [or counterclaim] . . . and then treated by the
opposing party as having been pleaded, either through his
effective engagement of the claim or through his silent
acquiescence." Rodriguez v. Doral Mortgage Corp., 57 F.3d _________ ____________________
1168, 1172 (1st Cir. 1995).
In this case, the issue of Parigian's obligation as
trustee was introduced by the attachment to the counterclaim
of a promissory note (which the counterclaim sought to
enforce) executed by Parigian in his individual and trustee
capacities. Parigian clearly treated the counterclaim as
though it had named him in his capacity as trustee by
answering it in both capacities and by agreeing to the terms
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of the Agreement for Judgment and Order which expressly
included Parigian in both capacities. Under these
circumstances, amendment of the counterclaim could not have
prejudiced Parigian and there was no abuse of discretion by
the district court in finding an implied amendment of the
counterclaim. See Lynch v. Dukakis, 719 F.2d 504, 509 (1st ___ _____ _______
Cir. 1983).
II. Sanction (Appeal No. 96-2005) _____________________________
"It is apodictic that a district court's decision to
impose Rule 11 sanctions is reviewable under an abuse-of-
discretion rubric. Because the decision about whether a
litigant's (or lawyer's) actions merit the imposition of
sanctions is heavily dependent upon the district court's
first-hand knowledge of the case and its nuances, appellate
review is deferential. Thus, a party protesting an order in
respect to sanctions bears a formidable burden in attempting
to convince the court of appeals that the district judge
erred in finding that Rule 11 was or was not violated."
Navarro-Ayala v. Nunez, 968 F.2d 1421, 1425 (1st Cir. 1992) _____________ _____
(citations omitted).
Parigian has not overcome that formidable burden in this
case. The record fully supports the district court's finding
that Parigian violated Fed. R. Civ. P. 11(b)(2) and (3) when
he represented to the court that "[the LeBlancs] are fully
secured in their position as mortgage holder upon the
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property which is valued at in excess of $800,000." At the
time that he made that statement, the Agreement for Judgment
and Order had entered. It has consistently been Parigian's
position that the mortgage became a nullity after that
judgment entered. The district court did not abuse its
discretion in determining that Parigian's conduct violated
Rule 11. 1 1
The district court's Amended Order and Judgment, dated
April 19, 1996, and the district court's Memorandum and Order
Under Fed. R. Civ. P. 11(c)(1)(B), dated August 8, 1996, are
affirmed. Appellees' Motion to Schedule Oral Argument is ________
denied. ______
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1 Although Parigian has not specifically challenged the 1
amount of the sanction, we note that the district court's
findings fully justify the sanction amount which "falls
within the minimum range reasonably required to deter the
abusive behavior." Navarro-Ayala, 968 F.2d at 1426. _____________
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