
USCA1 Opinion

	




          March 18, 1993        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2161                                            VALERIE A. BRAYALL AND                                 RICHARD M. BRAYALL,                               Plaintiffs, Appellants,                                          v.                               DART INDUSTRIES, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ___________________               Richard M. Brayall and Valerie A. Brayall on brief pro se.               _________________________________________               Christopher  R. O'Hara, Nutter, McClennen & Fish, and Ray C.               ______________________  ________________________      ______          Stoner,    Eckert,  Seamans,  Cherin  &  Mellott,  on  brief  for          ______     _____________________________________          appellees.                                  __________________                                  __________________                      Per  Curiam.   This  is an  appeal from  a district                      ___________            court order refusing to reopen a judgment entered pursuant to            a  settlement agreement.    Appellants, Valerie  and  Richard            Brayall, filed their motion to reopen almost two years  after                                                         _________            the settlement order of dismissal.                                            I.                                          _                      The Brayalls, former Tupperware distributors, filed            an action in May 1987 in Massachusetts superior court against            appellees, Dart Industries  and various individuals ("Dart").            The complaint contained charges  that Dart had violated RICO.            Essentially,   the   Brayalls   were   unhappy   with   their            distributorship,  claiming that  they were  misled as  to how            much money they would earn.  As a result of  the RICO claims,            Dart removed the action to the Massachusetts federal district            court.   The district court then remanded the state claims to            state court.                      On August  30, 1989, the attorney  for the Brayalls            sent a letter  to the  district court informing  it that  the            RICO  claim had  been settled.   The  letter stated  that the            parties  had  reached  an   agreement  "in  principle"  which            included the  dismissal of  the RICO claim  "with prejudice."            The letter went on to provide that the parties "shall soon be            filing  the required paperwork."   Accordingly,  the district            court  issued, on  August  31, 1989,  a  settlement order  of            dismissal.   The  order provided  for the  dismissal "without                                         -2-            prejudice to the  right of  any party upon  good cause  shown            within 60 days,  to reopen  the action if  settlement is  not            consummated."  Nothing happened until  May 20, 1991, when the            Brayalls, now appearing pro se, filed their motion to reopen.                      As support for this motion, they argued that (1) no            "settlement papers or signed  agreements" had been filed with            the  court;  (2)  a  "suggestion   of  bankruptcy,"  although            docketed  on February  20, 1990,  should have operated  as an            automatic stay of  the RICO  action; (3)  their attorney  had            resigned  before the 60-day  period had ended;  (4) they were            forced into bankruptcy due to the cost of the litigation; (5)            evidence  was withheld  concerning  the RICO  claim; and  (6)            there existed "overwhelming evidence" of mail and wire fraud.                      Dart opposed  this motion and moved  to enforce the            settlement.   Attached to  Dart's motion  was a letter  dated            August  28, 1989, sent  by the Brayalls'  attorney to counsel            for Dart.  This  letter set forth  the specific terms of  the            agreement; it not only  affirmed that the RICO action  was to            be dismissed  but also  detailed the financial  terms of  the            settlement  of  a  collection  action (also  pending  in  the            district court) initiated by Dart against the Brayalls.                      In further support of  its opposition to the motion            to  reopen,  Dart submitted  an  affidavit  of the  Brayalls'            attorney filed in state court in which he stated:                                         -3-                      Agreements  were reached  to  settle  the  two                 Federal Court  litigations in August of  1989.  The                 terms were set  out in letter form and  the Federal                 Court was notified.  However, the Brayalls withdrew                 their  approval  of   the  settlements  before  the                 confirmatory paperwork was  prepared and  executed.                 The  Brayalls also discharged me, after I indicated                 that I was not willing to renege on the agreements.            Also attached to Dart's  opposition was a letter sent  by the            Brayalls  to a superior court  judge.  In  it, they indicated            that they had  agreed to  the settlement so  that they  could            proceed to trial in the state case.                       The  Brayalls  filed an  answer  to  the motion  to            enforce  the settlement in which they  argued, in addition to            the claims in their motion to reopen, that their attorney had            failed to notify  the district  court that the  terms of  the            settlement  had   not  been  fully  agreed   upon,  that  the            settlement agreement  was unfair, that they  had settled only            because they were facing bankruptcy, that Dart had refused to            engage  in discovery  and that  the Brayalls  had not  waived            their right to reopen the case.                                         II.                                         __                      "The decision to grant or deny a motion  for relief            from a final judgment is committed to the sound discretion of            the  trial court."   United States v.  Boch Oldsmobile, Inc.,                                 _____________     _____________________            909 F.2d 657, 660 (1st Cir. 1990).  Thus, we will reverse the            district court's decision only  upon a demonstration of abuse            of  discretion.    Id.    Where  litigants  have  voluntarily                               __            determined  not to  pursue  their claims,  the party  seeking                                         -4-            relief bears an especially heavy burden  to show the presence            of  "extraordinary circumstances."   Id.   The considerations                                                 __            relevant to  our inquiry on  appeal are whether  the Brayalls            can  show  a good  reason for  not  taking action  sooner and            whether Dart has  been prejudiced by the  delay.  See  id. at                                                              ___  __            661.                      The  reasons   stated  by   the  Brayalls   do  not            adequately  explain the length  of time between  the order of            dismissal and the filing of the motion to reopen.  It appears            that within the 60-day  period they had in fact  decided that            they  did  not  wish to  settle.    In  his affidavit,  their            attorney  states that  they  withdrew their  approval of  the            settlement terms and, as a result, discharged him.   Further,            according  to  the  Brayalls  themselves,   their  attorney's            "resignation" occurred before the  expiration of the 60 days.            Thus, it appears that the Brayalls were in a position to file            a motion to reopen within the time  limit set by the district            court or at  least very  shortly thereafter.   Yet two  years            elapsed before they did so.                      Even if we disregarded the remarkable length of the            delay, it is impossible to discern from the Brayalls' filings            any substantial  basis to  justify undoing a  final judgment.            References to  exhaustion,  duress and  coercion abound,  but            there is no coherent account of facts to support such claims.            It  may well  be that  the expense  and burden  of litigation                                         -5-            impelled the  Brayalls to countenance a  settlement, but that            is part of many settlement equations and no basis for setting            one aside.   Nor is the strength of their  claims a basis for            reopening or else no such dismissal would ever be final.                      The Brayalls argue that there was no meeting of the            minds as to their  settlement and that no signed  papers were            ever filed.  This  argument misses the essential point:   the            Brayalls  are  attacking a  judgment  dismissing  their case.                                        ________            Having discharged  their  attorney and  taken the  litigation            into  their own hands, it was their responsibility to file in            the district  court promptly if the  settlement collapsed and            they wished  to reopen.   They did not  do so and,  absent an            extraordinary  excuse for  the lengthy lapse,  may not  do so            now.                      For  the  foregoing reasons,  the  judgment  of the            district court is affirmed.                               ________                                         -6-
