

                    [NOT FOR PUBLICATION]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 &amp; 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  &amp;                                                                              
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.                  

                                                    

   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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