USCA1 Opinion

December 11, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 95-1214

RANDOLPH L. WHITE, II AND RANDOLPH DEVELOPMENT GROUP, INC.,

Plaintiffs, Appellants,

v.

NATIONAL CREDIT UNION ADMINISTRATION BOARD, AS LIQUIDATION

AGENT OF BLUE HILL FEDERAL CREDIT UNION, AND PAUL A. SODANO,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Selya and Cyr, Circuit Judges.
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Frank R. Caruso and John R. Sherman on brief for appellants.

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_______________
Harvey Weiner, R. Alan Fryer,
______________ ______________

John J. O'Connor and

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Arnold on brief for appellees.

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____________________

Peabod
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____________________

Per Curiam.
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On

March 17, 1994, two days

after denying

plaintiffs' motion for a preliminary injunction, the district

court issued a sua sponte margin order dismissing this breach

__________

of

contract action

on the ground

insist they never received notice

clerk's

opposing

of mootness.

of such dismissal from the

office, averring that they first

counsel on

August 3,

Plaintiffs

1994.

learned of it from

Nearly

three months

later, on October 27, plaintiffs filed a motion under Fed. R.

Civ.

P. 60(b) to vacate

argued

that

the

the order of

mootness

determination

damages

claim in their complaint.

denied.

A motion for

the same fate.

affirm.

dismissal; they there

had

overlooked a

This motion was summarily

reconsideration followed, only to meet

Plaintiffs having now appealed, we

summarily

At the

outset, we note

appreciate all that

is before

notice of appeal listed

motion and

that plaintiffs have

the denial

us for review.

they now "concede" that we lack

because

no timely appeal

defendant is an

the sixty-day

4(a)(1) was triggered.

was filed two days

Rule 60(b)

for reconsideration,

was filed therefrom.

Yet because

States," Carpenter v.
_________

F.3d 143, 144 n.1 (6th

appeal period

their

jurisdiction over the former

"agency of the United

Western Credit Union, 62

____________________

While

both the denial of their

of their motion

failed to

prescribed by

Cir. 1995),

Fed. R.

App. P.

And plaintiffs' appeal, it turns out,

short of this deadline.

-2-

Whether through

happenstance

or otherwise,

the denial

of their

Rule 60(b)

motion is thus properly subject to review.1

Nonetheless,

"[B]ecause

Rule

relief,' motions

under

plaintiffs' claim

60(b)

is

invoking the

exceptional

vehicle

F.3d

for

the merits.

'extraordinary

rule should be

circumstances.'"

Continental Ins. Co., 15

______________________

falters on

granted 'only

de
la Torre
______________

12, 14-15

(1st

v.

Cir. 1994)

(quoting

1986)).

Lepore v. Vidockler,
______
_________

792 F.2d

272, 274

No such circumstances are present here.

significant

that, at the time

they learned of

(1st Cir.

We think it

the March 17

dismissal, plaintiffs could have moved to reopen the time for

appeal pursuant to Fed. R. App. P. 4(a)(6)--a remedy that was

designed

to

themselves.

waited

vacate.

against

address the

very

Plaintiffs

failed

nearly three

months

Such inaction

on

the availability of

plight in

to do

so.

before filing

their

which

they found

Instead,

their motion

part militates

Rule 60(b) relief.

they

to

strongly

See, e.g.,
___ ____

____________________

1.

The argument actually advanced

that the district court abused

motion for reconsideration--can

by plaintiffs on appeal--

its discretion in denying the

be readily

rejected.

That

motion
60(b)

complained solely of legal error

denial and so, by definition, sought relief under Fed.

R. Civ. P.
16, 19

in the court's Rule

59(e).

See, e.g.,
___ ____

n.3 (1st Cir. 1991).

Feinstein v. Moses, 951

_________
_____
Yet it was

applicable ten-day limit, rendering such

See, e.g., Acevedo-Villalobos v.
___ ____ __________________

served outside the

relief unavailable.

Hernandez, 22 F.3d 384, 390

_________

(1st Cir.), cert. denied, 115 S. Ct. 574 (1994).

____________
construed
motion

as seeking
would

"exceptional
first motion.

border

relief
on

circumstances"

under Rule
the

F.2d

And even if

60(b), the

frivolous--inasmuch

surrounded

the denial

second
as
of

no
the

See, e.g., Rodriguez-Antuna v. Chase Manhattan

___ ____ ________________
_______________

Bank Corp., 871 F.2d 1, 3 (1st Cir. 1989).

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-3-

Jenkins v. Burtzloff,
_______
_________

(10th

Cir. 1995)

pursue Rule

appeal");

___ F.3d

___, 1995 WL

(holding that,

4(a)(6) relief,

failed to

"Rule 60(b)(1) cannot

As well, whatever the

the court's mootness determination,

merit.

where plaintiff

*4

save his

Zimmer St. Louis, Inc. v. Zimmer Co., 32 F.3d 357,

______________________
__________

360-61 (8th Cir. 1994).2

reveals

640413, at

that plaintiffs'

Given this

validity of

our review of the record

underlying action

was of

dubious

set of circumstances, we find no abuse of

discretion.

Affirmed. See Loc. R. 27.1.

____________________________

____________________

2.

The Zimmer
______

court went so

far as to hold

advent of Rule 4(a)(6), "district

discretion" to

the expiration

courts no longer have

grant Rule 60(b)(6) relief

of lack of notice"--even

that, with the

"to cure problems

when such notice is acquired

of Rule 4(a)(6)'s

the

180-day deadline.

after
See 32
___

F.3d

at 361.

here.

We have no

Assuming arguendo
________

available in

this

occasion to
that

context, we

denied.

-4-

Rule
find

address that holding

60(b) relief
that it

was

remains
properly