
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                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                         -2-            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                                         -3-            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                                         -4-            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                                         -5-            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.            ______                                            ____________________               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.                                _____________                                         -6-
