
USCA1 Opinion

	




        December 11, 1995       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1214                      RANDOLPH L. WHITE, II AND RANDOLPH DEVELOPMENT GROUP, INC.,                               Plaintiffs, Appellants,                                          v.              NATIONAL CREDIT UNION ADMINISTRATION BOARD, AS LIQUIDATION             AGENT OF BLUE HILL FEDERAL CREDIT UNION, AND PAUL A. SODANO,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Frank R. Caruso and John R. Sherman on brief for appellants.            _______________     _______________            Harvey  Weiner, R.  Alan Fryer,  John  J.  O'Connor and  Peabody &            ______________  ______________   __________________      _________        Arnold on brief for appellees.        ______                                 ____________________                                 ____________________                 Per Curiam.  On  March 17, 1994, two days  after denying                 __________            plaintiffs' motion for a preliminary injunction, the district            court issued a sua sponte margin order dismissing this breach                           __________            of  contract action  on the ground  of mootness.   Plaintiffs            insist they never received notice  of such dismissal from the            clerk's  office, averring that they first  learned of it from            opposing  counsel on  August 3,  1994.   Nearly  three months            later, on October 27, plaintiffs filed a motion under Fed. R.            Civ.  P. 60(b) to vacate  the order of  dismissal; they there            argued  that  the  mootness  determination  had  overlooked a            damages  claim in their complaint.  This motion was summarily            denied.  A motion for  reconsideration followed, only to meet            the same fate.  Plaintiffs having now appealed, we  summarily            affirm.                 At the  outset, we note  that plaintiffs have  failed to            appreciate all that  is before  us for review.   While  their            notice of appeal listed  both the denial of their  Rule 60(b)            motion and  the denial  of their motion  for reconsideration,            they now "concede" that we lack  jurisdiction over the former            because  no timely appeal  was filed therefrom.   Yet because            defendant is an  "agency of the United  States," Carpenter v.                                                             _________            Western Credit Union, 62  F.3d 143, 144 n.1 (6th  Cir. 1995),            ____________________            the sixty-day  appeal period  prescribed by  Fed. R.  App. P.            4(a)(1) was triggered.  And plaintiffs' appeal, it turns out,            was filed two days  short of this deadline.   Whether through                                         -2-            happenstance  or otherwise,  the denial  of their  Rule 60(b)            motion is thus properly subject to review.1                 Nonetheless,  plaintiffs' claim  falters on  the merits.            "[B]ecause   Rule  60(b)  is  a  vehicle  for  'extraordinary            relief,' motions  invoking the  rule should be  granted 'only            under   exceptional  circumstances.'"     de   la  Torre   v.                                                      ______________            Continental  Ins.  Co., 15  F.3d  12, 14-15  (1st  Cir. 1994)            ______________________            (quoting  Lepore v. Vidockler,  792 F.2d  272, 274  (1st Cir.                      ______    _________            1986)).  No such circumstances are present here.  We think it            significant  that, at the time  they learned of  the March 17            dismissal, plaintiffs could have moved to reopen the time for            appeal pursuant to Fed. R. App. P. 4(a)(6)--a remedy that was            designed  to  address the  very  plight in  which  they found            themselves.   Plaintiffs  failed  to do  so.   Instead,  they            waited  nearly three  months  before filing  their motion  to            vacate.    Such inaction  on  their  part militates  strongly            against  the availability of  Rule 60(b) relief.   See, e.g.,                                                               ___  ____                                            ____________________            1.  The argument actually advanced  by plaintiffs on appeal--            that the district court abused  its discretion in denying the            motion for reconsideration--can  be readily  rejected.   That            motion  complained solely of legal error  in the court's Rule            60(b)  denial and so, by definition, sought relief under Fed.            R. Civ. P.  59(e).  See, e.g.,  Feinstein v. Moses, 951  F.2d                                ___  ____   _________    _____            16, 19  n.3 (1st Cir. 1991).   Yet it was  served outside the            applicable ten-day limit, rendering such  relief unavailable.            See, e.g., Acevedo-Villalobos v.  Hernandez, 22 F.3d 384, 390            ___  ____  __________________     _________            (1st Cir.), cert. denied, 115 S. Ct. 574 (1994).  And even if                        ____________            construed  as seeking  relief  under Rule  60(b), the  second            motion   would  border  on   the  frivolous--inasmuch  as  no            "exceptional  circumstances"  surrounded  the denial  of  the            first motion.  See, e.g., Rodriguez-Antuna v. Chase Manhattan                           ___  ____  ________________    _______________            Bank Corp., 871 F.2d 1, 3 (1st Cir. 1989).            __________                                         -3-            Jenkins v. Burtzloff,  ___ F.3d  ___, 1995 WL  640413, at  *4            _______    _________            (10th  Cir. 1995)  (holding that,  where plaintiff  failed to            pursue Rule  4(a)(6) relief,  "Rule 60(b)(1) cannot  save his            appeal");  Zimmer St. Louis, Inc. v. Zimmer Co., 32 F.3d 357,                       ______________________    __________            360-61 (8th Cir. 1994).2   As well, whatever the  validity of            the court's mootness determination,  our review of the record            reveals  that plaintiffs'  underlying action  was of  dubious            merit.  Given this  set of circumstances, we find no abuse of            discretion.                 Affirmed.  See Loc. R. 27.1.                 ____________________________                                            ____________________            2.  The Zimmer  court went so  far as to hold  that, with the                    ______            advent of Rule 4(a)(6), "district  courts no longer have  the            discretion" to  grant Rule 60(b)(6) relief  "to cure problems            of lack of notice"--even  when such notice is acquired  after            the expiration  of Rule 4(a)(6)'s  180-day deadline.   See 32                                                                   ___            F.3d  at 361.   We have no  occasion to  address that holding            here.    Assuming arguendo  that  Rule  60(b) relief  remains                              ________            available in  this  context, we  find  that it  was  properly            denied.                                            -4-
