

                    [NOT FOR PUBLICATION]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  &amp;  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                                                                         

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(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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