
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1911                                  VINCENT F. ZARRILLI,                                Plaintiff, Appellant,                                          v.                              CAPITOL BANK & TRUST CO.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. W. Arthur Garrity, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Vincent F. Zarrilli on brief pro se.            ___________________            Ann  S. DuRoss,  Assistant General  Counsel, Richard  J. Osterman,            ______________                               _____________________        Jr., Senior Counsel, Robert D. McGillicuddy, Deputy Senior Counsel, J.        ___                  ______________________                         __        Scott  Watson,  Senior  Attorney,  and  J.  Kendall  Rathburn,  Senior        _____________                      __________________________        Attorney,  Federal   Deposit  Insurance  Corporation,  on   brief  for        appellee.                                 ____________________                                     May 11, 1993                                 ____________________            Per Curiam.  We  have reviewed the parties' briefs and the  record            __________        on appeal.  We conclude that  there was no abuse of discretion in  the        district court's denial of appellant's  motion, filed pursuant to Fed.        R. Civ. P.  60(b)(6), which  sought to  vacate a  judgment entered  in        February 1980.   Appellant has  given no explanation, much  less shown                                              __        extraordinary  circumstances,  to excuse  his  failure to  appeal that        judgment.  "Rule 60(b)(6) may  not be used to escape the  consequences        of the movant's dilatory  failure to take a timely  appeal."  Mitchell                                                                      ________        v. Hobbs, 951 F.2d 417, 420 (1st Cir. 1991).           _____            And, his explanation  for the 11 year delay in presenting his Rule        60(b)(6) motion  to the  district court  - that he  believed that  the        district  court should  have before  it the  bankruptcy court  record,        which had been, and still is, lost - does not constitute extraordinary        circumstances.   Appellant learned in  September 1981 that  the record        was  lost.   If,  as  appellant  claims,  this bankruptcy  record  was        important to his district court case, he could have, and should  have,        filed his  Rule 60(b) motion at that time,  along with the notice from        the Federal Archives  and Record Center and appellant's  own copies of        the  bankruptcy  record  documents   which  he  has  had   all  along.        Appellant's waiting until 1991 to do what he could have done ten years        earlier does not warrant vacating the underlying judgment.            In any event, we  have reviewed the grounds that appellant  raises        for  vacating  the 1980  district  court  judgment  and they  have  no        merit.*            Affirmed.            _________                                    ____________________        *Appellant has moved for leave to file a supplemental appendix.   From        aught we can tell, none of the documents in that supplemental appendix        were before  the district court  and so are  not properly part  of the        record on  appeal.   See  Fed.  R. App.  P.  10(a).   The  motion  is,                             ___        therefore, denied.   In any event, we have  reviewed that supplemental                   _______        appendix.  Nothing therein changes our disposition of this appeal.
