                       Note: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                       2007-1396


                               DONALD C. HUTCHINS,

                                                      Plaintiff-Appellant,

                                           v.

                           ZOLL MEDICAL CORPORATION,

                                                      Defendant-Appellee.


      Donald C. Hutchins, of Longmeadow, Massachusetts, pro se.

      John C. Englander, Goodwin Procter LLP, of Boston, Massachusetts, for
defendant-appellee. With him on the brief was John T. Bennett.

Appealed from: United States District Court for the District of Massachusetts

Judge Michael A. Ponsor
                        NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                         2007-1396


                                 DONALD C. HUTCHINS,

                                                    Plaintiff-Appellant,

                                             v.

                            ZOLL MEDICAL CORPORATION,

                                                    Defendant-Appellee.

                            ____________________________

                              DECIDED: November 6, 2007
                            ____________________________


Before MAYER, LOURIE, and PROST, Circuit Judges.

PER CURIAM.
                                         DECISION

       Donald C. Hutchins appeals from the final judgment of the United States District

Court for the District of Massachusetts dismissing his complaint that alleged claims of

patent infringement of U.S. Reissue Patent Re. 34,800 (“the ’800 Patent”). Hutchins v.

Zoll Medical Corp., No. 06-12021 (D. Mass. Apr. 24, 2007). Because Hutchins fails to

identify grounds for reversible error, we affirm.

                                      BACKGROUND

       Hutchins is the owner of two patents that are relevant to this suit, viz., U.S.

Patent 5,913,685 (“the ’685 patent”) and the ’800 patent. On June 22, 2004, Hutchins

filed a complaint in the United States District Court for the District of Massachusetts
alleging that the AED Plus device manufactured by Zoll Medical Corporation (“Zoll”)

infringed certain claims of the ’685 patent. In the counts relating to patent infringement,

Hutchins further alleged in his complaint that he “petitions the Court to apply Claims [1-

14] of Hutchins’ Patent Number Re. 34,800 to this Complaint” and to substitute those

claims for the ’685 patent claims in the event “the microprocessors contained in the

AED Plus [device are not] defined as computer chips by the Court.” App. to Opp’n Br.

(“App.”) at 66-67. That case (“the ’121 litigation”) was assigned to Judge Ponsor.

       Early in the proceedings, Hutchins submitted a claim construction memorandum

that only referenced the ’685 patent. Zoll wrote to Hutchins seeking clarification as to

whether he still intended to assert the ’800 patent. Zoll’s letter stated:

       We understand your claim construction memorandum to mean that only
       the ’685 patent is currently being asserted against Zoll.    If this
       understanding is incorrect, please advise us as to when you will be
       providing a proposed claim construction for the ’800 patent.

In   response,   Hutchins    submitted    “Plaintiff’s   Amendment     Claim   Construction

Memorandum For United States Patent No. 5,913,685 To Include U.S. Patent No. Re.

34,800.” In that memorandum, Hutchins stated that he “respectfully requests this Court

to interpret these Claims of Patent No. 5,913,685 and Patent No. Re. 34,800 in the

manner explained in this Memorandum and the Affidavit of Donald C. Hutchins.” In

opposition to Zoll’s summary judgment motion, however, Hutchins argued that he was

not asserting the ’800 patent, but used “the ’800 patent only for reference to show that

the AED Plus microprocessor is a Reduced Instruction Set Computer rather than the

simple microprocessor taught by the ’800 patent.” App. at 89. On May 11, 2006, Judge

Ponsor granted summary judgment for Zoll on every count of the complaint and entered

judgment in favor of Zoll. Hutchins appealed that decision to this court, and that appeal

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                                         -2-
is currently pending.

       On November 3, 2006, Hutchins filed another complaint in the United States

District Court for the District of Massachusetts, alleging that Zoll’s AED Plus device

infringed the ’800 patent. That case was initially assigned to Judge Harrington and

Magistrate Judge Dein. On November 13, 2006, the case was reassigned to Judge

Gertner. On November 22, 2006, Zoll moved to reassign the case to Judge Ponsor and

to dismiss the complaint on grounds of res judicata. Hutchins opposed both motions.

On December 29, 2006, Judge Gertner granted the motion to reassign.

       On April 24, 2007, the district court granted Zoll’s motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6). The court concluded that Hutchins’ claims of

infringement of the ’800 patent were barred under the doctrine of res judicata because

Hutchins asserted that same claim in the ’121 litigation. The court rejected Hutchins’

argument that res judicata did not apply because he abandoned his claim on the ’800

patent prior to the court’s ruling on summary judgment and because that case is

pending on appeal.      The court concluded that res judicata precludes litigants “from

relitigating claims that were raised or could have been raised” in an earlier action. App.

at 2 (citing Maher v. GSI Lumonics, Inc., 433 F.3d 123, 126 (1st Cir. 2005) (emphasis in

original)). The court determined that Hutchins could have raised, and actually did raise,

a claim of infringement of the ’800 patent. In addition, the court concluded that “a

federal court judgment has res judicata effect as soon as it is issued notwithstanding the

possibility or even pendency of an appeal.” App. at 3 (citing Washington v. State St.

Bank & Trust Co., 14 Fed. Appx. 12 (1st Cir. 2001); Taunton Gardens Co. v. Hills, 577

F.2d 877 (1st Cir. 1977)).



2007-1396
                                        -3-
         Hutchins then filed a motion for relief from judgment pursuant to Federal Rules of

Civil Procedure 60(a), 60(b)(1), and 60(b)(3). The court denied that motion on May 16,

2007. Hutchins timely appealed to this court. We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(1).

                                        DISCUSSION

         On appeal, Hutchins argues that reversal is warranted because the district court

violated Local Rule 16.1 of the United States District Court of the District of

Massachusetts. Hutchins further asserts that the district court committed legal error by

denying his motion for relief under Federal Rules of Civil Procedure 60(b)(1) and

60(b)(3). In response, Zoll argues that reversal is not warranted. According to Zoll,

Hutchins lacks standing to bring this appeal because he filed for bankruptcy. In the

alternative, Zoll argues that, even if Hutchins did have standing, the district court

properly dismissed his complaint because his claims were barred under the doctrine of

res judicata.

         We agree with Zoll that Hutchins fails to identify grounds for reversal. “On

procedural issues not unique to this court’s exclusive jurisdiction, this court applies the

procedural law of the regional circuit,” which, in this case, is the United States Court of

Appeals for the First Circuit. Genentech, Inc. v. Amgen, Inc., 289 F.3d 761, 768 (Fed.

Cir. 2002). In the First Circuit, the district court’s application of its local rules is reviewed

for an abuse of discretion. NEPSK, Inc. v. Town of Houlton, 283 F.3d 1, 5 (1st Cir.

2002).

         We are not persuaded by Hutchins’ assertion that his case should be remanded

because the district court violated Local Rules 16.1(A)-(H). Local Rule 16.1, which is



2007-1396
                                           -4-
entitled “Early Assessment of Cases,” sets forth, among other things, rules governing

scheduling conferences in civil cases, the obligation of counsel to confer, settlement

proposals, and joint statements by the parties. LR 16.1(A)-(D). Hutchins, however, fails

to establish that the district court abused its discretion by dismissing his complaint prior

to invoking that local rule. Indeed, nothing in Local Rule 16.1 precludes the application

of Federal Rule of Civil Procedure 12(b)(6), which allows a defendant to move for

dismissal of a complaint because it fails to state a claim upon which relief can be

granted. Moreover, most of the sections of Local Rule 16.1 indicate that those rules are

discretionary. See LR 16.1 (B), (C), & (D) (indicating that the rules apply “[u]nless

otherwise ordered by the judge”). Thus, Hutchins’ assertion that his case should be

remanded based on a purported violation of Local Rule 16.1 is without merit. 1

       We are further unpersuaded by Hutchins’ assertion that reversal is warranted

because the district court erroneously denied him relief under Federal Rules of Civil

Procedure 60(b)(1) and 60(b)(3). We again apply the law of the regional circuit in

reviewing the denial of a Rule 60(b) motion. Marquip, Inc. v. Fosber Am., Inc., 198 F.3d

1363, 1369 (Fed. Cir. 1999) (citing Amstar Corp. v. Envirotech Corp., 823 F.2d 1538,

1550 (Fed. Cir. 1987)). In the First Circuit, a denial of a motion under Rule 60(b) is

reviewed for an abuse of discretion with “the understanding that relief under Rule 60(b)

is extraordinary in nature and that motions invoking that rule should be granted

sparingly.” U.S. Steel v. M. DeMatteo Constr. Co., 315 F.3d 43, 51 (1st Cir. 2002)



       1
         Although not entirely clear, Hutchins also appears to argue that he was
prejudiced by the four-month period of inactivity in his case docket. That conclusory
statement, however, fails to establish reversible error, particularly in light of the wide
discretion district courts enjoy in managing their cases. U.S. v. Tracy, 989 F.2d 1279,
1285 (1st Cir. 1993) (“A district court enjoys wide latitude in managing its docket.”).
2007-1396
                                         -5-
(quoting Karak v. Bursaw Oil Corp., 288 F.3d 15, 19 (1st Cir. 2002)). The court will find

an abuse of discretion only it is “left with a definite and firm conviction that the lower

court committed a clear error of judgment in the conclusion it reached when weighing all

the relevant factors.” Ahmed v. Rosenblatt, 118 F.3d 886, 891 (1st Cir. 1997).

       Under Rule 60(b)(1), a party is entitled to relief from judgment for “mistake,

inadvertence, surprise or excusable neglect.” Hutchins argues that he is entitled to

relief under Rule 60(b)(1) because Judge Gertner’s decision to transfer his case to

Judge Ponsor was based on an error.            In particular, Hutchins asserts that Judge

Gertner wrongly concluded that Hutchins brought a claim of infringement of the ’800

patent in the ’121 litigation.

       We find no error in the court’s decision to deny Hutchins’ motion on that basis. In

Counts III and IV of the complaint filed in the earlier action, Hutchins raised claims for

patent infringement alleging that Zoll’s AED Plus device infringed certain claims of the

’685 patent. Significantly, Hutchins further alleged the following in those counts:

       Should the microprocessors contained in the AED Plus devise [sic] not be
       defined as computer chips by the Court, Hutchins petitions the Court to
       apply Claims [1-14] of Hutchins’ Patent Number Re. 34,800 to this
       Complaint and substituted [sic] in this Complaint for those Claims cited in
       Hutchins’ Patent [No.] 5,913,685.

App. at 66-67 (emphasis added). Thus, the record indicates that Hutchins asserted

both the ’685 and ’800 patents against Zoll in the earlier litigation, and the district court

did not err in denying Hutchins’ motion based on Rule 60(b)(1).

       Hutchins also claims that he was entitled to relief under Rule 60(b)(3), which

provides for relief of judgment in the event of “fraud . . . , misrepresentation, or other

misconduct of an adverse party.” To obtain relief from judgment under Rule 60(b)(3),



2007-1396
                                         -6-
“the movant must demonstrate misconduct by clear and convincing evidence.” U.S.

Steel, 315 F.3d at 53. Here, Hutchins alleges that Zoll made false allegations that he

asserted the ’800 patent in the ’121 litigation. Hutchins further appears to argue that he

was unduly burdened with discovery requests. According to Hutchins, those tactics

were intended to discourage him because he was proceeding as a pro se plaintiff.

       We likewise find those arguments unpersuasive. As to Hutchins’ first claim, as

discussed above, the record belies his assertion that the ’800 patent was not asserted

in the earlier litigation. With regard to Hutchins’ allegation that Zoll engaged in tactics

designed to discourage him from prosecuting his claims, that allegation is

unsubstantiated, and thus does not amount to clear and convincing evidence of

misconduct.    As such, we find that the district court did not abuse its discretion in

denying his motion for relief under Rule 60(b)(3). Accordingly, because we conclude

that Hutchins fails to identify reversible error, we affirm.




2007-1396
                                          -7-
