      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                    For the First Circuit



No. 00-2201

                     KEITH D. WASHINGTON,

                    Plaintiff, Appellant,

                              v.

                STATE STREET BANK & TRUST CO.;
   STATE STREET BANK & TRUST CO., AS SPONSOR & FIDUCIARY OF
           THE SHORT AND LONG TERM DISABILITY PLAN;
           PRUDENTIAL INSURANCE COMPANY OF AMERICA,

                    Defendants, Appellees.




No. 00-2202

                     KEITH D. WASHINGTON,

                    Plaintiff, Appellant,

                              v.

                  STATE STREET BANK & TRUST CO.;
     MASTERMAN, CULBERT & TULLY LLP; MARY E. O’NEIL, Esq.;
     PATRICIA A. GRANGER, Esq.; EDWARD I. MASTERMAN, Esq.;
          ANDREW C. CULBERT, Esq.; NEAL C. TULLY, Esq.;
        PAUL L. BACCARI, Esq.; JAMES D. MASTERMAN, Esq.;
            JEFFREY H. LERER, Esq.; PAUL J. MCNAMARA;
 ROBERT D. WILLIAMS, Esq.; LIBERTY MUTUAL INSURANCE COMPANY;
   LOIS DEHARO; LATRONICO & WHITESTONE; JEAN M. SHEA, Esq.;
                      ROBERT M. WEINER, M.D.,

                    Defendants, Appellees.
        APPEALS FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Douglas P. Woodlock, U.S. District Judge]


                            Before

                    Torruella, Circuit Judge,
                 Bownes, Senior Circuit Judge,
                   and Lipez, Circuit Judge.



     Keith D. Washington on briefs pro se.
     Mary E. O’Neil, Patricia A. Granger, and Masterman, Culbert
& Tully LLP on brief for appellees State Street Bank & Trust
Co.; State Street Bank & Trust Co., as Sponsor and Fiduciary of
the Short and Long Term Disability Plan in No. 00-2201.
     Mary E. O’Neil, Patricia A. Granger, and Masterman, Culbert
& Tully LLP on brief for appellees State Street Bank & Trust
Co.;   Masterman, Culbert & Tully LLP; Mary E. O’Neal, Esq.;
Patricia A. Granger, Esq.; Edward I. Masterman, Esq.; Andrew C.
Culbert, Esq.; Neal C. Tully, Esq.; Paul L. Baccari, Esq.; James
D. Masterman, Esq.; Jeffrey H. Lerer, Esq.; Paul J. McNamara,
Esq. and Robert D. Williams, Esq. in No. 00-2202.
     Edward P. O’Leary and Fitzhugh & Associates on brief for
appellee The Prudential Insurance Company of America.
     Marc Lacasse and McCormack & Epstein on brief for appellees
Liberty Mutual Insurance Company, Lois Deharo, Latronico &
Whitestone, and Jean M. Shea, Esq.
     Janet J. Bobit, Lisa M. Maloney, and Hunter & Bobit, P.C.
on brief for appellee Robert Weiner, M.D.




                         July 19, 2001
    Per Curiam. Following his resignation as an employee of

State Street Bank & Trust Company ("SSB"), plaintiff-appellant

Keith D. Washington filed three consecutive                   pro se lawsuits

against SSB and other defendants attempting to right various

wrongs he believes he suffered both during his employment at SSB

and in connection with his termination and subsequent attempt to

get benefits.        Taken together, Washington's complaints allege

discrimination in violation of Title VII of the Civil Rights Act

and the Americans With Disabilities Act, breach of fiduciary

duty and wrongful denial of benefits, defamation, conspiracy to

deprive     him     of     his   civil    rights,     wrongful      termination,

intentional infliction of emotional distress, interference with

contractual        relations,     obstruction        of   justice,    vicarious

liability,        gross     negligence,        retaliation,   and    breach    of

contract.     The instant pro se appeals stem from the first and

third lawsuits.          For the following reasons, we affirm.

    Appeal No. 00-2201 arises from the first lawsuit and is from

the denial of a second motion for relief pursuant to Fed. R.

Civ. P. 60(b).            The underlying lawsuit alleged,           inter alia,

discrimination on the basis of race and mental disability.                    The

district court granted summary judgment in favor of SSB on the


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ground that these claims are time-barred.             In his post-judgment

motion, Washington came forward with new factual information

about the chain of events leading to his resignation which, he

suggests, alters the analysis as to the triggering event for the

running of the statute of limitations.            The motion is premised

on   Rule   60(b)(1)    (excusable    neglect),      Rule   60(b)(2)   (newly

discovered evidence), and Rule 60(b)(3) (fraud).

      Our review is limited to the denial of the Rule 60(b)

motion, not the underlying judgment, and is solely for abuse of

discretion.     See Hoult v. Hoult, 57 F.3d 1, 3 (1st Cir. 1995).

The district court properly concluded that Washington failed to

present     grounds    for   relief   under   Rule    60(b)(1)   (excusable

neglect).     Putting aside any question as to whether the new

information would have made a difference if timely presented,

Washington failed to provide sufficient excuse for the delay.

There is no suggestion that the information was unknown to him.

Rather, Washington makes reference to his lack of litigating

experience, the fact that certain documents were not readily

available due to his move from the Northeast to Atlanta, and his

mental difficulties.         However, the move to Atlanta occurred long

before the initiation of the lawsuit, and the limitations issue

had already been litigated, once before, in proceedings before

the Massachusetts Commission Against Discrimination and the


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Equal Employment Opportunity Commission.           Washington's alleged

mental difficulties did not otherwise interfere with his ability

to provide factual detail.

    It is even plainer that Washington failed to present grounds

for relief under Rule 60(b)(2) (newly discovered evidence) or

Rule 60(b)(3) (fraud).       A motion for relief from judgment based

on newly discovered evidence requires proof, inter alia, that

the evidence could not by due diligence have been discovered

earlier.    Mitchell v. United States, 141 F.3d 8, 18 (1st Cir.

1998).     To prevail on a Rule 60(b)(3) motion a movant must

demonstrate that alleged misrepresentations prevented him from

fully and fairly presenting his case.            Perez-Perez v. Popular

Leasing    Rental,   Inc.,   993   F.2d   281,    286   (1st    Cir.   1993).

Misrepresentations can have this effect only when a party did

not have knowledge of the alleged inaccuracies.                Ojeda-Toro v.

Rivera-Mendez, 853 F.2d 25, 29 (1st Cir. 1988).            In the instant

case, Washington's prior knowledge           defeats his attempt to

invoke either (b)(2) or (b)(3).

    Appeal No. 00-2202 is from the dismissal of Washington's

claims in the third lawsuit on the grounds of res judicata or

failure to state a claim upon which relief could be granted.

With the exception of Washington's breach of contract claim, we

affirm essentially for the reasons stated by the district court


                                   -5-
in its memorandum and order dated August 8, 2000.                        Contrary to

Washington's         suggestion,   a    federal      court      judgment     has   res

judicata effect as soon as it is issued notwithstanding the

possibility or even pendency of an appeal.                      See 18 James Wm.

Moore et al., Moore's Federal Practice § 131.30[2][c][ii], at

131-97 to -98 (3d ed. 1999).              In any event, our resolution of

Appeal No. 00-2201 forecloses any further argument that the

judgment   in    the     first   suit     should     not   be    given     preclusive

effect.

    As for Washington's breach of contract claim in his third

complaint, it is, perhaps, a close question as to whether the

district court properly dismissed this claim in its entirety

under Fed. R. Civ. P. 12(b)(6).                    We agree that Washington's

allegations      that     SSB    failed      to    provide      him   an   executive

severance package "consistent with what other senior executive

were afforded" is inadequate pleading of a contract claim.                         The

claim is not bolstered by references to an executive agreement

applying in the event of a change in control of the corporation.

There   was     no    such   change     in    control.          However,    arguably

Washington's         allegations    that      he    was    denied     compensation

"required" by SSB's guidelines, coupled with latter allegations

that an employee handbook establishes contractual rights to a

certain minimum salary, are sufficient to survive the Rule


                                        -6-
12(b)(6) hurdle.1

     We need not decide the issue since we think that the claim

is precluded.       This court has adopted a transactional approach

to determining whether causes of action are sufficiently related

to support a res judicata defense.             See Massachusetts Sch. of

Law at Andover, Inc. v. American Bar Ass'n, 142 F.3d 26, 38 (1st

Cir. 1998).     We consider such factors as whether the facts are

related in time, space, origin, or motivation; whether they form

a convenient trial unit; and whether their treatment as a unit

conforms to the parties' expectations.                Id.      In the first

lawsuit, Washington alleged that SSB discriminated against him

on   the    basis   of   race   by   failing    to   provide    appropriate

compensation.       The breach of contract claim seeks recovery for

the same failure, and the difference is a mere difference in

theory of liability.       Accordingly, the doctrine of res judicata

applies.2     Cf. Brzostowski v. Laidlaw Waste Systems, Inc., 49

F.3d 337 (7th Cir. 1995) (concluding that res judicata barred

employee's discrimination suit arising from the same events as

prior breach of contract suit).


     1
     We express no opinion as to whether the employee handbook
does, indeed, create any contractual rights.
     2We note that the judgment in the second suit arguably
reserved the breach of contract of claim for later litigation.
However, the same cannot be said of the judgment in the first
suit, a judgment which was handed down later in time.

                                     -7-
Affirmed.




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