
USCA1 Opinion

	




          September 27, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No.  94-1341                                  LEANDERS H. SMITH,                                Plaintiff, Appellant,                                          v.                                       WGBH-TV,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Leanders H. Smith on brief pro se.            _________________            Alan D.  Rose, Paul  G. Lannon  and  Nutter, McClennen  & Fish  on            _____________  _______________       _________________________        Memorandum In Support Of Motion for Summary Disposition for appellee.                                  ____________________                                 ____________________                      Per Curiam.  Leanders H. Smith appeals the district                      __________            court's  order denying his motion under Fed. R. Civ. P. 60(b)            to reopen Smith's previously dismissed case against  appellee            WGBH Educational Foundation, Inc.  We affirm.1                        Smith's motion  alleged that Smith had new evidence            that the  court's dismissal of  his Title VII  action against            WGBH had been  based on WGBH's "fraud, misrepresentation, . .            .  or other  misconduct."   According  to Smith's  affidavit,            which was attached to the  motion, the tape given by WGBH  to            the  district  court  in   1989  recorded  a  1981  telephone            conversation with  his supervisor at WGBH,  John Plausse, and            not a  face-to-face conversation with Plausse  in 1984-85, as            WGBH  had apparently  represented.   Smith  also submitted  a            notation  made  by a  union  attorney,  Eugene Salisbury,  in            connection  with  a  1982  labor grievance  settlement.    In            relevant  part,  the  notation  stated  simply  "tapes,"  but            Salisbury's  December 1993  letter  to Smith  explained  that            "[t]he notation with  respect to  tapes has to  do with  your            destroying  certain tapes  which you  alleged  contained John            Plausse's voice in some threatening episodes and to furnish a            copy to the company."                                              ____________________            1.  Since  the  facts  and  legal  arguments  are  adequately            presented in the briefs and record and our decisional process            would not be  significantly aided by oral argument, we hereby            deny Smith's motion  for oral argument.  See Fed.  R. App. P.                                                     ___            34(a).                      Smith's  motion clearly  had  no merit.   As  Smith            himself acknowledges  in his brief, he  had already presented            the same  argument about WGBH's  alleged misrepresentation to            the  district court in his Motion for Relief From All Pending            Orders  of the  Court  and for  the  Court to  Enter  Default            Judgment Against WGBH, dated February 27, 1990.   That motion            also indicated that  Smith had actually  submitted a copy  of            the 1981 tape to  the court.  In  hearings before the  court,            Smith had also  testified that  the tape given  the court  by            WGBH dated from  before 1982.   The court's order  dismissing            the  case explicitly rejected that testimony, concluding that            at least portions  of the  tape had dated  from the  relevant            time period (March 15, 1982-June 4, 1986).                        Nor does Salisbury's notation or  letter constitute            evidence of  misrepresentation by  WGBH.  Neither  one states            that the  tape WGBH  gave the district  court was one  of the            tapes  involved in the  1982 grievance settlement,  or a tape            that  did  not  date from  1984-85,  as  WGBH  had apparently            asserted.  It is  Smith's affidavit that does  so.  But  that            affidavit was based on knowledge Smith obviously possessed in            1990, when he submitted  his Motion for Relief to  the court,            and  so was  not newly discovered  evidence.   Therefore, the            court did not abuse its  discretion in denying Smith's motion            to  reopen  his  case on  the  ground  that  Smith had  newly            discovered evidence about WGBH's alleged misrepresentation.                                         -3-                      Smith  also  argues that  Salisbury's  notation and            letter  show that the tape presented to the court was subject            to the  1982 labor  grievance settlement,  in which  WGBH had            waived  its right to litigate  any claims arising  out of the            grievance.  For that reason, argues Smith, the district court            had  no jurisdiction to base  its dismissal of  his Title VII            action against WGBH on that tape.                        Smith's  argument  in  this  respect  fails  for  a            variety  of reasons.  First, no one questioned that the court            had jurisdiction over Smith's Title VII action.  WGBH had not            given  the  court  the  tape  in  an  attempt  to  relitigate            substantive issues resolved in the 1982 grievance settlement,            but to  show the  court that  Smith had tapes  he had  denied            possessing,  a  relevant  question  in the  Title  VII  case.            Second,  Smith's argument assumes that the  tape given to the            court was a  tape dating from 1981,  but the court  had found            that  at least portions of  the tape dated  from the relevant            portion of the 1982-86  discovery period.  Third, Salisbury's            notation  and letter  do not  say, let  alone show,  that the            tapes  discussed  in  connection   with  the  1982  grievance            settlement included  the one  actually given to  the district            court in 1989  by WGBH.  Finally, Smith failed  to explain to            the district  court when he had  first discovered Salisbury's            notation, or why he could not have discovered the notation at            some earlier  time.  (On appeal  to this court, he  says that                                         -4-            the notation was sent  to him anonymously in  December 1993.)            Thus,  the  district court  had  no  reason  to believe  that            Smith's motion  met the  requirements for Rule  60(b) relief.            See  Fed. R. Civ. P. 60(b)(2) (permitting relief from a final            ___            judgment on the ground of newly discovered evidence "which by            due  diligence could not have been discovered in time to move            for a  new trial under Rule  59(b)"); Fed. R. Civ.  P. 59 (b)            (permitting a motion for  a new trial to be brought within 10            days of entry of final judgment).                      As  the  above  discussion  shows,  Smith's  motion            lacked any  merit,  and Smith  had  no legitimate  basis  for            believing that the court would  reopen his case against WGBH.            This is  especially so, since the allegedly  new evidence did            not  show   that  WGBH  had  intentionally   engaged  in  any            misrepresentation  as alleged,  nor did  it relieve  Smith of            culpability for  the other instances of  misconduct which had            motivated the court to dismiss his action in the first place.            Accordingly, we  think that this appeal  was frivolous within            the meaning of Fed. R. App. P. 38, and we  award double costs            to WGBH.                          Affirmed.  Double costs awarded to appellee WGBH.                        _________________________________________________                                         -5-
