          United States Court of Appeals
                        For the First Circuit


No. 13-1266

                           JANAT NANSAMBA,

                        Plaintiff, Appellant,

                                  v.

               NORTH SHORE MEDICAL CENTER, INC. ET AL.,

                        Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Patti B. Saris, U.S. District Judge]


                                Before

                     Howard, Selya and Thompson,
                           Circuit Judges.



     Godfrey K. Zziwa, with whom Alanna G. Cline, Law Office of
Alanna G. Cline, and Law Office of Godfrey K. Zziwa were on brief,
for appellant.
     Eugene J. Sullivan III, with whom Nicole Forbes and Holtz &
Reed, LLP were on brief, for appellees.



                           August 12, 2013
            SELYA, Circuit Judge. When litigation goes awry, lawyers

sometimes scramble to find a scapegoat.          So it is here: having

conspicuously failed to protect the record, the plaintiff's lawyers

attempt to shift the blame to their opposing counsel.         Concluding,

as we do, that this diversionary tactic lacks force, we affirm the

district court's denial of the plaintiff's motion for relief from

judgment.

I.   BACKGROUND

            The facts that gave rise to the underlying litigation are

chronicled in the opinion below, see Nansamba v. N. Shore Med.

Ctr., Inc., No. 11-11459, 2012 WL 1856950, at *1-2 (D. Mass. May

21, 2012), and there is no need to rehearse them here.            We offer

instead a brief sketch of the genesis and travel of the case and

supplement that sketch with a more detailed discussion of the

events upon which the issues before us rest.

            In 2002, defendant-appellee North Shore Medical Center,

Inc.   hired   plaintiff-appellant    Janat   Nansamba   as   a   technical

nursing assistant.      While so employed, the plaintiff developed

hemorrhoids.      During the early morning hours of May 7, 2010, she

felt ill and left her overnight shift.            Later that day, she

informed her manager, defendant-appellee Ellen Bova, that she would

need time off to undergo a colonoscopy.        Three days later, North

Shore cashiered the plaintiff.       In doing so, it cited performance-

related reasons.


                                  -2-
          The plaintiff repaired to a Massachusetts state court,

contending that the defendants had orchestrated her firing in

retaliation for her hemorrhoids-induced absences in violation of

the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654.

She added a medley of state-law claims.    Citing the presence of a

federal question, the defendants removed the case to the federal

district court.   See 28 U.S.C. §§ 1331, 1441.

          After a period of pretrial discovery and the dismissal of

some of the plaintiff's causes of action, the defendants moved for

summary judgment on, pertinently, the FMLA claim.1     They argued,

among other things, that the plaintiff's inability to show that she

suffered a "serious health condition" as defined by the FMLA and

its accompanying regulations, see 29 U.S.C. § 2611(11); 29 C.F.R.

§§ 825.113-.115, doomed her FMLA claim.    The plaintiff opposed the

motion, but the district court deemed the "no serious health

condition" argument convincing and granted summary judgment.    See

Nansamba, 2012 WL 1856950, at *5.     The court declined to exercise

supplemental jurisdiction over the plaintiff's remaining state-law

claim.   See id.; see also 28 U.S.C. § 1367(c).      Final judgment

entered on May 24.

          On May 29, the plaintiff moved for reconsideration,

alleging that certain medical records — her own — constituted newly


     1
       The defendants filed their summary judgment motion on
February 15, 2012. Unless otherwise indicated, all dates mentioned
hereafter refer to the year 2012.

                                -3-
discovered evidence showing that her hemorrhoids satisfied the

FMLA's definition of a "serious health condition."2        The saga of

these records is of central importance to what next transpired.

              During pretrial discovery, the parties jockeyed over the

production of the plaintiff's complete medical file.           She first

produced a set of her medical records on December 13, 2011,

responding to a discovery request.       The defendants complained that

the release form used to obtain those records requested only a

"medical record abstract," not the plaintiff's complete medical

file.       Four days after this complaint was made, the plaintiff

executed and delivered a new release form.       Although this form was

broader in scope, it still excepted the release of photographs,

radiation reports, x-ray reports, and "personal information not

related to treatment."

              The new release form instructed that the records be sent

directly to defense counsel.       But those additional records, when

received, did not assuage the defendants' concerns. On February 3,

defense counsel e-mailed plaintiff's counsel lamenting that:

              We have received part of [the plaintiff's]
              medical record — but, once again, only part of
              it.

              You will see that — once again — [the
              plaintiff] has signed the medical release, but


        2
       We assume for argument's sake that the plaintiff's full
medical file would suffice to make out a genuine issue of material
fact about whether she suffered from a "serious health condition."
The defendants dispute this conclusion.

                                   -4-
            specifically instructed the physician not to
            provide the entire medical file.

Attached to this e-mail were the records that defense counsel had

received pursuant to the second release form.

            The plaintiff's lawyers did not bother to open or examine

the attachment. On February 14, however, the plaintiff executed an

unrestricted release form.            Using this third release form, the

defendants garnered more records in April.                 What they received,

however, did not differ in any meaningful way from what they

previously had sent to plaintiff's counsel in February.

            This   brings    us     back   to   the   plaintiff's    motion    for

reconsideration of the summary judgment order. In that motion, the

plaintiff — not realizing that the records produced in April (after

the summary judgment motion had been briefed but before it was

decided)   were    materially       identical    to   those    attached   to   the

February 3 e-mail — argued that the April records constituted newly

discovered evidence.        The district court demurred, observing that

virtually all the records on which the motion relied had been e-

mailed to plaintiff's counsel on February 3 and had languished in

their possession since that time.

            The plaintiff did not take a timely appeal from either

the entry of summary judgment or the denial of her motion for

reconsideration.     On November 13, however, she moved for relief

from the judgment.     In that motion, she characterized her lawyers'

failure    to   introduce     the    medical     records      contained   in   the

                                       -5-
attachment to the February 3 e-mail as the product of either

excusable neglect or fraud.                See Fed. R. Civ. P. 60(b)(1), (3).

Reiterating that "no justifiable reason" had emerged to explain the

plaintiff's        delay    in    obtaining    her    own    medical      records,   the

district court denied the motion.                  This appeal followed.

II.    ANALYSIS

                 We preface our analysis with an inventory of what is

properly before us and what is not.                         Although the plaintiff

endeavors to challenge the district court's order for summary

judgment, that challenge is out of time.                     The plaintiff did not

file her notice of appeal until February 22, 2013 — more than four

months       after    the        district     court    denied      her     motion    for

reconsideration of the summary judgment order. Although the appeal

period      is    tolled    upon     the     filing    of    a   timely    motion    for

reconsideration,3 an order disposing of the motion restarts the

appeal clock.         See Young v. Gordon, 330 F.3d 76, 80 (1st Cir.

2003).      Thus, the plaintiff's notice of appeal was untimely as to

both       the    entry     of     summary     judgment      and    the     denial    of

reconsideration.           See Fed. R. App. P. 4(a)(1)(A) (stipulating

thirty-day appeal period).

                 The plaintiff's motion for relief from judgment, filed

outside the thirty-day appeal period, did not resurrect her expired


       3
       For this purpose, a motion for reconsideration is timely
only if it is filed within twenty-eight days of the entry of the
order to be reconsidered. See Fed. R. Civ. P. 59(e).

                                             -6-
right of appeal.   See de la Torre v. Cont'l Ins. Co., 15 F.3d 12,

13 n.2 (1st Cir. 1994).     As we have explained, "an appeal from the

denial of a Rule 60(b) motion is not a surrogate for a seasonable

appeal of the underlying judgment." Karak v. Bursaw Oil Corp., 288

F.3d 15, 19 (1st Cir. 2002).

          Our inquiry, then, is confined to the supportability of

the district court's denial of the motion for relief from judgment.

Familiar principles guide this inquiry: "relief under Rule 60(b) is

extraordinary in nature and [] motions invoking that rule should be

granted sparingly."   Id.    Finality is an important element in the

judicial process, and setting aside a final judgment requires more

than the frenzied brandishing of a cardboard sword.     Such a motion

must satisfy a special set of criteria; it is not enough merely to

cast doubt on the soundness of the underlying judgment. See Fisher

v. Kadant, Inc., 589 F.3d 505, 512 (1st Cir. 2009).

          The criteria for Rule 60(b) relief are well-established.

A party seeking such relief must demonstrate "that his motion is

timely;   that     exceptional     circumstances   exist,   favoring

extraordinary relief; that if the judgment is set aside, he has the

right stuff to mount a potentially meritorious claim or defense;

and that no unfair prejudice will accrue to the opposing parties

should the motion be granted."          Id. (internal quotation mark

omitted). Because the district court is best positioned to examine




                                  -7-
these criteria, we review an order granting or denying a Rule 60(b)

motion solely for abuse of discretion.            See Karak, 288 F.3d at 19.

               Against this backdrop, we turn to the substance of the

present appeal.          Rule 60(b) plots six different paths, each of

which may lead to relief from judgment.                 See Fed. R. Civ. P.

60(b)(1)-(6).         The plaintiff tries to traverse two of these paths:

clause (1) and clause (3).4               As to both paths, the defendants

concede (at least implicitly) that the motion for relief from

judgment was filed within a reasonable time and, thus, satisfies

Rule 60(b)'s temporal requirement. Our focus, therefore, is on the

existence       vel    non    of    exceptional   circumstances     warranting

extraordinary relief.5         See Fisher, 589 F.3d at 512.

                               A.    Rule 60(b)(1).

               We   start    with   the   plaintiff's   assertion   that   Rule

60(b)(1), which permits a court to set aside a judgment in cases of

"mistake, inadvertence, surprise, or excusable neglect," applies

here.       The plaintiff trains her sights on the "excusable neglect"

prong.       In her view, the excusable neglect that occurred here


        4
       In her brief, the plaintiff also mentions clause (6) but
offers no developed argumentation supporting an application of that
clause. We therefore treat any such argument as waived. See de la
Torre, 15 F.3d at 15 n.5; United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).
        5
       Because we uphold the district court's determination that
the plaintiff has failed to show exceptional circumstances
sufficient to warrant relief from judgment, we need not consider
either the merits of the plaintiff's FMLA claim or the degree of
prejudice that setting aside the judgment might entail.

                                          -8-
comprises an exceptional circumstance that should justify relief

from judgment.

           Neglect is not the issue.      The plaintiff admits that her

lawyers failed to open the February 3 e-mail attachment containing

her medical records.        She likewise admits that they failed to

introduce any of those records in opposition to the summary

judgment motion.      This is neglect on steroids, and the fact that

the   neglect   was   the   attorneys'   rather   than   the   client's   is

irrelevant. Attorneys act for their clients, and the neglect of an

attorney acting within the scope of his or her authority is

attributable to the client.       See Thibeault v. Square D Co., 960

F.2d 239, 246 (1st Cir. 1992) (rejecting argument that attorney's

sins should not be visited upon client); Damiani v. R.I. Hosp., 704

F.2d 12, 16 (1st Cir. 1983) (same).

           Even so, Rule 60(b)(1) requires more than a showing of

neglect simpliciter; it requires a further showing that the neglect

is excusable. The plaintiff labors to make this further showing by

suggesting that the wording of defense counsel's February 3 e-mail

lulled her legal team into inaction.        That suggestion exalts hope

over reason.

           The Supreme Court has described "excusable neglect" as

encompassing "inadvertence, mistake, or carelessness, as well as []

intervening circumstances beyond the party's control."             Pioneer

Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 388


                                   -9-
(1993); see Aguiar-Carrasquillo v. Agosto-Alicea, 445 F.3d 19, 28

(1st Cir. 2006). The "determination is at bottom an equitable one,

taking    account   of   all   relevant      circumstances   surrounding    the

party's    omission."      Pioneer,    507     U.S.   at   395.    Within   the

constellation of relevant factors, the most important is the reason

for the particular oversight.         See Dimmitt v. Ockenfels, 407 F.3d

21, 24 (1st Cir. 2005).         "At a bare minimum, a party who seeks

relief from judgment on the basis of excusable neglect must offer

a convincing explanation as to why the neglect was excusable."

Cintrón-Lorenzo v. Departamento de Asuntos del Consumidor, 312 F.3d

522, 527 (1st Cir. 2002).           This is especially true when the

question of excusable neglect arises out of a party's delay in

presenting available evidence to the court.            See, e.g., Barrett v.

Lombardi, 239 F.3d 23, 28-29 (1st Cir. 2001); Mas Marques v.

Digital Equip. Corp., 637 F.2d 24, 29-30 (1st Cir. 1980).

            In the case at hand, the plaintiff asseverates that the

defendants' e-mailed February 3 statement that they had "received

part of [the plaintiff's] medical record — but, once again, only

part of it" led her lawyers to believe that the records attached to

that e-mail were the same records that the plaintiff originally had

produced (and therefore not worthy of examination).               The district

court found this explanation unpersuasive.             So do we.

            The text of the February 3 e-mail does not bear out the

interpretation that the plaintiff seeks to impress upon it; it is


                                      -10-
entirely silent on the issue of whether the defendants, in response

to the submission of the second release form, had received anything

more than what the plaintiff had originally produced.            To bridge

this   gap,     the   plaintiff   relies   on   her   lawyers'   subjective

understanding that the two productions were identical.                This

reliance is mislaid: unilateral assumptions about the meaning of

correspondence, without more, are insufficient to excuse neglect.

See Easley v. Kirmsee, 382 F.3d 693, 697-98 (7th Cir. 2004).

              Here, there is no "more."     Indeed, we are puzzled about

how the plaintiff's lawyers could reasonably have arrived at their

professed understanding of the February 3 e-mail.            Fairly read,

nothing about either the contents or the context of that e-mail

provides even the slightest justification for the lawyers' failure

to open the attachment.      The e-mail specifically noted: "You will

see that — once again — [the plaintiff] has signed the medical

release, but specifically instructed the physician not to provide

the entire medical file."         This appears to be an invitation to

examine the contents of the attachment rather than an exhortation

to shun such an examination.

              Two additional facts cut sharply against the plaintiff's

position.      First, her attorneys never sought clarification of the

February 3 e-mail that she now suggests was ambiguous.            Second —

and more damning — the plaintiff offers no plausible rationale for

bringing an FMLA claim, yet not taking the initiative to obtain her


                                    -11-
complete medical record in order to prosecute that claim.                One

would have expected that the lawyers would have obtained their

client's complete medical file before bringing an FMLA action, cf.

Fed.   R.   Civ.    P.   11(b)   (requiring   good-faith   basis   for   the

allegations in a pleading); or at any rate would have used the

roughly seven months that elapsed between the commencement of the

action and the filing of the summary judgment opposition to procure

that file.

             To say more on this point would be supererogatory. Given

the plaintiff's failure to offer a convincing explanation for the

patent lack of diligence exhibited here, the district court acted

well within the broad compass of its discretion in denying the

motion for relief from judgment under Rule 60(b)(1).

                            B.    Rule 60(b)(3).

             The plaintiff's remaining claim implicates Rule 60(b)(3),

which permits a court to relieve a party from a judgment upon a

showing that the adverse party has committed "fraud (whether

previously called intrinsic or extrinsic), misrepresentation, or

misconduct."       There are two prerequisites to such relief.      In the

first place, the moving party must prove the adverse party's

culpable misconduct by clear and convincing evidence. See Anderson

v. Cryovac, Inc., 862 F.2d 910, 926 (1st Cir. 1988).         In the second

place, the moving party must show by a preponderance of the

evidence that the culpable misconduct "substantially interfered


                                     -12-
with [her] ability fully and fairly to prepare for, and proceed [to

judgment]."   Id.    The moving party must carry the devoir of

persuasion as to each of these prerequisites.   See Karak, 288 F.3d

at 21.

          In framing this claim, the plaintiff starts with the

defendants' argument, made in support of their summary judgment

motion, that her hemorrhoids did not satisfy the FMLA's definition

of a "serious health condition."        She then asserts that this

argument was fraudulent because defense counsel must have read the

medical records attached to the February 3 e-mail (even though her

counsel did not) and realized that their argument was belied by

those records. With this patchwork foundation in place, she posits

that the argument was knowingly untrue.

          The plaintiff's thesis is a house of cards.    The office

of a summary judgment motion is to test the sufficiency of the

opposing party's evidence.       Thus, a party moving for summary

judgment is free to assert that the record before the court fails

to make out a trialworthy question of material fact as to a

dispositive issue.   Once the movant takes such a position, it is

the burden of the nonmoving party to proffer facts sufficient to

rebut the movant's assertions.    See Gulf Coast Bank & Trust Co. v.

Reder, 355 F.3d 35, 39 (1st Cir. 2004).       The plaintiff's Rule

60(b)(3) argument conflates and confuses these roles.




                                 -13-
             What happened here is a mundane example of the summary

judgment process at work.            The defendants, through their summary

judgment papers, asserted that the evidence of record did not show

a serious health condition.             The plaintiff was free to proffer

facts sufficient to counter this assertion.               She failed to do so

(even though such facts were readily available to her).                     That the

defendants      did   not   scour    the    discovery    materials      for    facts

supporting the plaintiff's position is not a badge of fraud but,

rather, a prudent refusal to make their adversary's case for her.

That is simply good lawyering, and we reject the plaintiff's brash

attempt    to    "transmogrify       advocacy    into    misrepresentation."

Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 3 n.3

(1st Cir. 1989).

             The same reasoning undermines the plaintiff's reliance on

certain statements made by defense counsel at the summary judgment

hearing.        There,     defense   counsel    stated    that    the   plaintiff

"received no medical treatment" since her colonoscopy and had

"received no medication" for her hemorrhoids. These statements are

properly   viewed     as    counsel's      characterization      of   the    summary

judgment record.6        So viewed, the statements were accurate.              After

all, the plaintiff testified on deposition that she had neither




     6
        Context makes this meaning pellucid: defense counsel
explicitly tied his recitation of facts to the record evidence.

                                        -14-
received medical treatment since her colonoscopy nor taken any

medication for her hemorrhoids.

            If more were needed — and we do not think that it is — we

explained in Karak that "[w]hen a party is capable of fully and

fairly   preparing   and    presenting     his    case   notwithstanding   the

adverse party's arguable misconduct, the trial court is free to

deny relief under Rule 60(b)(3)."          288 F.3d at 21-22.      Here, the

plaintiff    has   made    no   showing    that    any   misconduct   of   the

defendants' counsel inhibited her from fully and fairly preparing

her case.     It is transparently clear that, regardless of what

defense counsel may or may not have done, the plaintiff had at her

fingertips the records that would have laid bare what she now

asserts to be the true facts.         As in Karak, her pursuit of the

truth was not "hampered by anything except h[er] own reluctance to

undertake an assiduous investigation."            Id. at 22.

            The short of it is that the plaintiff, through her

attorneys, had in her possession prior to crafting her opposition

to the summary judgment motion all the medical records that she now

claims should have been submitted to the district court.                   The

failure of the plaintiff and her attorneys to examine and proffer

those records is no one's fault but their own.               Their effort to

pass the buck is a technique as old as time, see, e.g., Genesis

3:11-13, but its efficacy as a basis for relief has not improved

with age.


                                    -15-
            That ends this aspect of the matter.    Simply put, the

record does not reveal either fraud or any unfair impediment to the

plaintiff's ability fully and fairly to defend against the summary

judgment motion.      Consequently, the district court did not abuse

its discretion in denying the plaintiff's motion for relief under

Rule 60(b)(3).      See Ojeda-Toro v. Rivera-Mendez, 853 F.2d 25, 29

(1st Cir. 1988) (explaining "that a party may not prevail on a Rule

60(b)(3) motion on the basis of fraud where he or she has access to

disputed information . . . at the time of the alleged misconduct").

III.   CONCLUSION

            We need go no further. For the reasons elucidated above,

we uphold the district court's denial of the plaintiff's motion for

relief from judgment.



Affirmed.




                                  -16-
