
USCA1 Opinion

	




          March 18, 1993    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-1883        No. 92-1394                                    MORGAN JAMES,                                Plaintiff, Appellant,                                          v.                 NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, ET AL.,                                Defendants, Appellees.                                 ____________________                                     ERRATA SHEET            The opinion of this  Court issued on March 9, 1993, is amended  as        follows:            Page 2, Footnote 2, line 4:  "procedure" should be "Procedure".            Page   4,  Footnote   3,  line   1:    "impartiality"   should  be        "partiality".            Page  4,   Footnote  3,  line   7:     "impartiality"  should   be        "partiality".             Page 6,  Footnote 5,  paragraph 2, line  7:   "parties" should  be        "parties'".            Page 7, line 9:  "both" should be "either".        March 9, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-1883        No. 92-1394                                             MORGAN JAMES,                                Plaintiff, Appellant,                                          v.                 NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Joyce L. Alexander, U.S. Magistrate Judge]                                 ____________________                                        Before                               Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Willie James Wheaton on brief for appellant.            ____________________            John  D. Corrigan, on  brief for  appellee, New  England Telephone            _________________        and Telegraph Company.                                 ____________________                                 ____________________                      Per Curiam.    This case began  in March 1981  with                      __________            the    filing    of    plaintiff-appellant   Morgan    James'            discrimination  complaint against  the New  England Telephone            Company  ("NET"),  his  employer  from  1974  to  1983.    It            concluded in January  1991 when summary  judgment entered  in            favor  of NET.1   Before  us are  two companion  appeals: the            first purports  to appeal from the  adverse summary judgment;            the second is from the denial of plaintiff's motion, pursuant            to Fed.  R. Civ. P. 60(b),  to reconsider.   We conclude that            the plaintiff has effectively waived all appellate claims  in            the first appeal, find  no abuse of discretion in  the denial            of the Rule 60(b) motion, and affirm both judgments.                             THE SUMMARY JUDGMENT APPEAL                             THE SUMMARY JUDGMENT APPEAL                             ___________________________                      Appellant's  brief2 in  this  appeal argues  solely            that later  discovered  evidence  would  have  shown  that  a            genuine and  material factual dispute existed  as to pretext,            McDonnell  Douglas Corp. v. Green, 411  U.S. 792, 804 (1973),            ________________________    _____                                            ____________________            1.   A magistrate-judge decided the  case by agreement of the            parties under 28 U.S.C.   636(c).            2.   Only two issues are raised:                      (1).  Whether  the  Court  below   is  required  to            consider newly discovered evidence  pursuant to Rule 60(b) of            the  Federal  Rules  of   Civil  Procedure,  when,  with  due            diligence, the movant could  not have discovered the evidence            at [the] time of the original proceeding.                      (2). Whether  the newly discovered evidence  was of            such a  material and controlling  nature as to  have affected            the outcome of the original proceeding.            precluding summary judgment against him.  The brief, filed by            plaintiff's counsel, concedes that:                 Appellant   did   not   successfully   oppose   the                 Appellee's Motion  for  Summary Judgment  at  court                 below because  there was  evidence  that tended  to                 refute   and    otherwise   contradict   Appellee's                 witnesses   that  was  not,   with  due  diligence,                 available  to Appellant when Appellant as Plaintiff                 below  filed its  Motion in  Opposition to  Summary                 Judgment.                 Plaintiff-Appellant's  failure  to supply  specific                 facts of a genuine and material issue in dispute in                 court   below  was  due  entirely  [to]  Plaintiff-                 Appellant's  inability to obtain  all of the needed                 affidavits timely, even with diligence; and because                 many of the affidavits were not yet discovered.            The  brief does not address how the district court's judgment            was in error, or otherwise contend that the plaintiff had, at            the summary  judgment stage,  established the existence  of a            genuine and material issue  sufficient to rebut NET's motion.            See Mesnick v. General  Electric Co., 950 F.2d 816,  822 (1st            ___ _______    _____________________            Cir. 1991), cert. denied, 112 S. Ct. 2965 (1992).  These, and                        _____ ______            other  statements  filed in  this  court,  indicate that  the            appellant  has unambiguously  waived  the right  to have  the            correctness of the grant  of summary judgment in  NET's favor            reviewed by this court.   Jusino v. Zayas, 875 F.2d 986,  993                                      ______    _____            n.9 (1st Cir. 1989) (challenges to the lower court's judgment            that are neither briefed or argued are waived); Pignons  S.A.                                                            _____________            de  Mecanique  v. Polaroid,  701 F.2d  1,  3 (1st  Cir. 1983)            _____________     ________            ("[A]n appellee is  entitled to  rely on the  contents of  an            appellant's brief for the scope of  the issues appealed . . .                                         -3-            .").   Nor  can plaintiff's  pro se  attacks3 on  the summary                                         ___ __            judgment decision, made after the appellee's brief was filed,            extinguish that waiver.  See United States v. Nueva, 979 F.2d                                     ___ _____________    _____            880, 885 n.8 (1st  Cir. 1992) (appellant may not  enlarge the            scope of the issues appealed  after initial briefing).  Thus,            any  challenge to the propriety of  summary judgment in favor            of the defendant has been waived.                                THE RULE 60(B) APPEAL                                THE RULE 60(B) APPEAL                                _____________________                      The  only  question  presented  by  this  appeal is            whether the district court  abused its discretion in deciding            that  plaintiff's motion  under  Fed. R.  Civ.  P. 60(b)  for            relief from summary judgment did not present newly discovered                                            ____________________            3.   In  particular, claims  of  judicial bias  or partiality            must first  be addressed to  the trial  judge.  In  re Abijoe                                                            _____________            Realty Corp., 943  F.2d 121,  126 (1st Cir.  1991); see  also            ____________                                        ___  ____            United States  v.  Chantal, 902  F.2d  1018, 1024  (1st  Cir.            _____________      _______            1990).   At  no time  during the  lengthy  proceedings below,            including the  request  for 60(b)  reconsideration,  did  the            plaintiff suggest partiality, thus effectively  immunizing it            from judicial scrutiny.  Abijoe Realty, 943 F.2d at 127.  The                                     _____________            plaintiff  offers no reason why the issue could not have been            put  before the  trial  court.   See  Playboy Enterprises  v.                                             ___  ___________________            Public  Service  Comm., 906  F.2d  25, 40  (1st  Cir.), cert.            ______________________                                  _____            denied, 111 S. Ct. 388 (1990).  No facts or circumstances are            ______            presented  that  would  lead  a  reasonable  person  to  even            remotely doubt the magistrate's impartiality.  Merely issuing            unfavorable rulings, Lisa v.  Fournier Marine Corp., 866 F.2d                                 ____     _____________________            530,  532 (1st  Cir. 1989),  or, as  here, suggesting  that a            party  file a  particular motion,  Noli v.  Commissioner, 860                                               ____     ____________            F.2d 1521, 1527 (9th  Cir. 1988), or other actions taken by a            judge or a  magistrate-judge in his or  her judicial capacity            during the course of  proceedings cannot form the basis  of a            disqualification  claim absent  a showing  of personal  bias,            Chantal, 902 F.2d at 1022-23 & n.9 (comparing standards under            _______            28 U.S.C.    144 and 455), an assertion not made here.                                          -4-            facts. Because of the  clear and thorough disposition  by the            magistrate  on summary judgment, we do not relate the details            of every claim  presented and decided below,  and repeat only            those facts and conclusions necessary to decide this appeal.                      Plaintiff's  employment  discrimination  complaints            revolve  around his demotion due to  a speech "problem" which            NET  claimed   seriously  interfered  with  his   ability  to            communicate  and perform.  The plaintiff is a black male who,            admittedly, speaks with a slight Jamacian/West  Indian accent            and speech pattern.   In  support of its  motion for  summary            judgment  NET offered  evidence that  plaintiff had  a speech            defect which  caused him,  despite speech therapy  during the            course of employment, to perform in an unsatisfactory manner.            On  motion for  reconsideration, filed  six months  after the            entry of summary judgment against him, plaintiff attempted to            show  that  newly  discovered  evidence  revealed   that  the            plaintiff had, in fact, no diagnosed speech  defect and that,            consequently,   NET's  rationale  for  its  decision  not  to            promote,   and  to   demote,   was  a   pretext  for   racial            discrimination.4                                              ____________________            4.   Much of  the  motion  to  reconsider,  like  appellant's            brief,  is devoted  to arguing the merits of his case against            NET.  As  this appeal  addresses only the  order denying  the            60(b)  motion, and  for  the reasons  discussed earlier,  the            merits of  the underlying grant  of summary judgment  are not            before us.   See, e.g., Parrilla-Lopez v. United  States, 841                         ___  ____  ______________    ______________            F.2d 16, 20 (1st Cir. 1988).                                             -5-                      The  "new"  evidence  supporting  plaintiff's  Rule            60(b)(2)  motion took the form of medical reports which post-            dated the entry of summary judgment in NET's favor and stated            that the plaintiff did not have the particular speech  defect            claimed  by NET as the reason for its employment decision not            to promote the plaintiff.   The reports presented evaluations            based  on  a  series  of assessments  of  plaintiff's  speech            patterns that were originally performed in 1978 and 1979, but            which, the plaintiff asserted, were heretofore available only            in  illegible  handwritten  form.    The  plaintiff professed            knowledge  of the reports at  the time his  opposition to the            motion for  summary judgment was  filed, but stated  that the            records  were  not,  despite  diligent efforts  to  obtain  a            "translation", available in legible form  at that time due to            difficulty in retrieving  the information from the  reporting            source.   The motion also stated that counsel's illness was a            contributing factor  in the inability to  properly respond at            the time the summary judgment opposition was filed.5                                            ____________________            5.   Plaintiff's counsel at the  Rule 60(b) stage had entered            the case  shortly before  NET's motion for  summary judgement            was  filed.  During the  prior ten-year history  of the case,            plaintiff  was represented,  at various  times, by  two other            attorneys, or had appeared pro se.                                         ___ ___                 After NET  moved for  summary judgment,  plaintiff filed            two motions for a continuance of the summary judgment hearing            (each occasioned by the rescheduling of counsel's bone marrow            implant  operation);  both were  granted.    In allowing  the            second  continuance,  the  magistrate  indicated,  apparently            taking into account counsel's ill health, that the motion for            summary judgment would be decided on the parties' submissions            some six weeks  later.   At no time  did plaintiff's  counsel                                         -6-                      The magistrate refused to grant the motion because,            despite professing  earlier  knowledge of  the evidence,  the            plaintiff  did not request an extension of time to respond to            the summary  judgment motion,  Fed.  R. Civ.  P. 56(f)6,  and            could  not, given  the  lengthy  history  of  the  case  -  -            including the  allowance of  an extremely late  opposition to            the motion  for  summary  judgment, make  a  claim  that  the            documents  now  offered  were   difficult  to  obtain.    The            magistrate  concluded  that  the  plaintiff  had   failed  to            demonstrate either that the  evidence was newly discovered or            that  due  diligence could  not  have  uncovered it  earlier,            Nickerson  v. G.D. Searle & Co.,  900 F.2d 412, 417 (1st Cir.            _________     _________________            1990), and deemed the motion frivolous.  We review the denial            of  a Rule  60(b) motion  for abuse  of discretion,  Duffy v.                                                                 _____            Clippinger, 857  F.2d 877, 879  (1st Cir.  1988), and  cannot            __________                                            ____________________            seek an  extension of time to file an opposition.  Almost two            months after the grant of  the second continuance, and  three            months  after   the  summary  judgment   motion  was   filed,            plaintiff's  counsel  filed  a  request  for  leave  to  file            plaintiff's  opposition,  offering ill  health  and the  bone            marrow  operation as reason for the delay.  The only opposing            affidavit offered was that of the plaintiff.   The magistrate            allowed the request and considered the plaintiff's opposition            in  the ruling  on the  summary judgment  motion  three weeks            later.            6.   Rule 56(f) states, in relevant part:                 Should  it appear.  . .  that the  [opposing] party                 cannot  .  . .  present facts  .  . .  essential to                 justify the party's opposition, the court may . . .                 order  a continuance  to  permit  affidavits to  be                 obtained or depositions to be taken or discovery to                 be had or may make such other order as is just.                                         -7-            find that  an error of  judgment was committed  here.   It is            clear that the proffered  documents were not newly discovered            since the plaintiff  was aware of their  existence when NET's            motion  for summary  judgment was  filed.   Parrilla-Lopez v.                                                        ______________            United States, 841 F.2d 16, 19 (1st Cir. 1988).  Nor does the            _____________            plaintiff  assert  that  further  facts  became  known  after            summary  judgment  entered.    See  Mas  Marques  v.  Digital                                           ___  ____________      _______            Equipment Corp., 637 F.2d  24, 29 (1st Cir.  1980).  Even  if            _______________            the documents  remained illegible at the  time the opposition            was due, Rule 56(c),  it was incumbent upon the  plaintiff to            make known to  the magistrate  the existence of  any and  all            material  facts  bearing  on   summary  judgment  either   by            introducing affidavits from the treating sources or otherwise            utilizing the mechanisms of Rule 56(f).                      Rule  60(b)(2)  also requires  the moving  party to            show  due diligence in order  to secure relief from judgment.            The  plaintiff's  brief  argues  that  the  medical   records            purporting to show that  the plaintiff had no speech  or oral            communication  problem were  unavailable  because  they  were            unreadable and their conclusions had to be reconstructed from            the original speech and language  tests performed in 1978 and            1979.   However,  this  falls  short  of explaining  why  the            plaintiff  did not  at least  verify the  existence of  these                                                      _________            records  at the time the summary judgment was filed, or apply            for a continuance  as provided for in Rule 56(f).   Lepore v.                                                                ______                                         -8-            Vidockler,  792 F.2d  272, 274  (1st Cir.  1986).   Given the            _________            lengthy history  of the  case, including that  the magistrate            was clearly indulgent of counsel's difficulties, and  mindful            that  Rule 60(b)  affords  "extraordinary  relief"  available            "only under  exceptional circumstances," United States v. One                                                     _____________    ___            Urban Lot,  882 F.2d 582-83,  585 (1st Cir.  1989) (citations            _________            omitted),  we cannot find an  abuse of discretion in refusing            to reconsider summary judgment.7                      Accordingly,  the judgments  of the  district court            are  affirmed.   Appellees'  request for  an award  of double                 ________            costs and attorney's fees in the Rule 60(b) appeal is denied.                                            ____________________            7.   Since relief from judgment under Rule  60(b)(2) requires            that each of  four elements  be present, Duffy,  857 F.2d  at                                                     _____            879, we  need  not reach  appellant's  claim that  the  "new"            evidence would likely change the summary judgment outcome.                                           -9-
