
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 97-1117                      JAMES E. COFIELD, JR. AND JUAN M. COFIELD,                               Plaintiffs, Appellants,                                          v.                        FEDERAL NATIONAL MORTGAGE ASSOCIATION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Patti B. Saris, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Edwin  A. McCabe,  Philip Y. Brown  and McCabe Brown  on brief for            ________________   _______________      ____________        appellants.            James  C.  Heigham  and  Choate,  Hall  &  Stewart  on  brief  for            __________________       _________________________        appellee.                                 ____________________                                   August 25, 1997                                 ____________________                      Per  Curiam.  We have carefully reviewed the record                      ___________            and  read the  briefs  on  appeal.   We  affirm the  district            court's judgment dismissing the complaint of  appellant James            E. Cofield for essentially the  reasons stated in the court's            Memorandum and Order, dated October 31, 1996.  See Local Rule                                                           ___            27.1.  We add only two comments.                      1.   Statute of  Limitations.   We assume,  without                           _______________________            deciding, that  appellant argued  below that  Fannie Mae  had            perpetrated  a fraud on  the bankruptcy court.   Nonetheless,            the claim cannot  succeed.  Simply, appellant may  not pursue            the fraud claim  now, either via motion or  in an independent            action, because  he could have litigated it  in the adversary            proceeding.  That is, from  the undisputed facts, it is plain            that appellant knew of Fannie Mae's alleged fraud  before the            adversary proceeding was  dismissed.  As we pointed  out in a            recent case, Fed. R. Civ. P. 60(b) does not permit a party to            relitigate, in  an independent  action or  by motion,  issues            that  the party  had a  fair opportunity  to litigate  in the            former  action.   See Geo.  P. Reintjes  Co. v.  Riley Stoker                              ___ ______________________     ____________            Corp., 71 F.3d  44, 49 (1st  Cir. 1995) (citing  7 J.  Moore,            _____            Moore's Federal  Practice    60.37  (1995)).   At the  least,            _________________________            appellant  could have filed  a motion for  reconsideration of            the order of dismissal.                      2.  Malicious Prosecution.  Appellant's reliance on                          _____________________            comment  j to    674  of  the Restatement  (Second) of  Torts                                          _______________________________                                         -2-            (1977) does  not  help him.    That comment  emphasizes  that            "[w]hether a withdrawal or an abandonment constitutes a final            termination of the  case in favor of the  person against whom            the  proceedings  are   brought  .  .  .   depends  upon  the                                                       __________________            circumstances  under which  the  proceedings are  withdrawn."            ___________________________________________________________            Id. cmt. j  (emphasis added).  The  circumstances surrounding            ___            Fannie   Mae's  decision  to  let  the  bankruptcy  order  of            dismissal  stand,  even  assuming such  decision  amounts  to            abandonment, establish that, as the district court found, the            adversary proceeding,  in  relation to  Fannie  Mae's  claims            against appellant, did not terminate in either party's favor.                      We therefore summarily  affirm the judgment  of the                                              ______            district  court and, as  per counsel's representation  in the            reply brief, withdraw the appeal of Juan M. Cofield.                                         -3-
