
USCA1 Opinion

	




          December 29, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2294                                 D.S. ATKINSON, INC.,                                 Plaintiff, Appellee,                                          v.                    LUTIN CENTRAL SERVICES COMPANY, INC., ET AL.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. Edward F. Harrington, sU.S. District Judge]                                              ____________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                          Bownes, Senior Circuit Judge, and                                  ____________________                                Stahl, Circuit Judge.                                       _____________                                 ____________________            Gary Lutin on brief pro se.            __________            Hugh W. Samson,  Colon, Samson & Conlon on brief for appellee.            ______________   ______________________                                 ____________________                                 ____________________                 Per Curiam.   Pro se appellant  Gary Lutin, a  corporate                 __________    ___ __            officer  and sole owner  of Lutin Central  Services Co., Inc.            [LCS], appeals the denial by the district court of his motion            for reconsideration,1  pursuant to Fed. R. Civ.  P. 60(b), of            the judgment granting the  motion of appellee, D.S. Atkinson,            Inc.,  to enforce a settlement agreement.2   Lutin claims (1)            that the district court lacked subject matter jurisdiction to            enforce  the agreement;  (2) that  the court  lacked personal            jurisdiction over him; and (3) that the district court abused            its  discretion in  declining to  grant his  requested relief            from judgment.  We affirm.                 The Supreme Court recently  has indicated that, when, as            in  the  instant  case,  a  federal  district  court  neither            embodies a settlement agreement  in its judgment of dismissal            nor  retains  jurisdiction  over  it,   "enforcement  of  the            settlement  agreement is  for state  courts, unless  there is                                                         ________________            some independent  basis for federal  jurisdiction."  Kokkonen            _________________________________________________    ________                                            ____________________            1.  Lutin  also purports to represent LCS.  However, a pro se                                                                   ___ __            appellant cannot  represent a  corporation.  Eagle  Assoc. v.                                                         ____________            Bank  of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991) (citing            _________________            cases).            2.  Lutin  did not  file a  formal motion  but rather  sent a            letter  to the  district court asking  the court  to "remove,            vacate or  reconsider the order and to suspend the judgment."            Like the district court,  we treat this as a  motion pursuant            to Fed. R. Civ. P. 60(b).  On appeal, Lutin  asserts that his            letter  also could be construed as a motion to amend judgment            pursuant  to Rule 59(e).  However, since there is no evidence            the  letter  was  ever  "served"  upon  appellee,  it  cannot            function as  a Rule  59(e) motion.   Fed.  R. Civ.  P. 59(e);            Rivera v. M/T Fossarina, 840 F.2d 152, 154 (1st Cir. 1988).            ______    _____________            v. Guardian Life Insurance  Co. of Am., 114 S.Ct.  1673, 1677               __________________________________            (1994).   Since  this  is  an  action  where  the  matter  in            controversy  is more  than  $50,000 and  between citizens  of            different states,  28 U.S.C.   1332  provides "an independent            basis  for  federal  jurisdiction."     The  district   court            therefore  possessed  subject  matter jurisdiction  over  the            motion  to  enforce the  settlement  agreement.   See  United                                                              ___  ______            States v. Baus,  834 F.2d  1114, 1127 n.  13 (1st Cir.  1987)            ______    ____            (court possessed jurisdiction  over enforcement of settlement            agreement because fact  that United States  was party to  the            contract  gave  court   an  independent  basis   for  federal            jurisdiction).                 The  claim  that  the  court did  not  possess  personal            jurisdiction  over Lutin  was not  clearly raised  before the            district court and thus  has been waived.  See  Marcial Ucin,                                                       ___  _____________            S.A., v. SS  Galicia, 723  F.2d 994, 996-97  (1st Cir.  1983)            ___      ___________            (claim  of lack of personal jurisdiction may be waived if not            asserted in a timely fashion).                 Finally, we find no abuse of  discretion in the district            court's  denial of Lutin's motion to vacate the judgment. See                                                                      ___            de la Torre v. Continental Ins. Co., 15 F.3d 12, 14 (1st Cir.            ___________    ___________________            1994) (order denying motion for reconsideration in discretion            of  court).   Insofar as  that motion  was predicated  upon a            claim that his attorney's  failure to appear for the  April 7            hearing prevented Lutin from  presenting his arguments to the                                         -3-            district court, the  attorney was  aware of the  date of  the            hearing  and chose  not  to attend  even  though he  had  not            obtained a  continuance.   Such "inexcusable neglect"  by his            attorney  does  not  entitle   Lutin  to  relief  under  Rule            60(b)(1).  See  Link v. Wabash R.  Co., 370 U.S.  626, 633-36                       ___  ____    _____________            (1962);  Vargas v.  Gonzalez,  975 F.2d  916,  918 (1st  Cir.                     ______     ________            1993).                 Lutin also  seeks  relief pursuant  to Fed.  R. Civ.  P.            60(b)(6).  However, this  court has frequently indicated that            "Rule  60(b)(6) may not be used as a back-door substitute for            an omitted  appeal,  and, in  all  but the  most  exceptional            circumstances,  a party's  neglect  to  prosecute  a  timeous            appeal  will bar  relief under  the rule."   Cotto  v. United                                                         _____     ______            States, 993 F.2d 274, 278 (1st Cir. 1993) (citing cases).  We            ______            have  reviewed carefully  the  record in  this  case and  the            briefs of the parties and find no "exceptional circumstances"            which would entitle Lutin to relief.                 Affirmed.                 ________                                         -4-
