Kushner v. U.S. Dept. Rural ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 96-1654



                                    LOUIS KUSHNER,



                                Plaintiff, Appellant,



                                          v.



                             UNITED STATES RURAL ECONOMIC

                          AND COMMUNITY DEVELOPMENT AGENCY,



                                 Defendant, Appellee.



                                 ____________________





                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                  [Hon. George A. O'Toole, Jr., U.S. District Judge]



                                 ____________________



                                        Before



                               Selya, Boudin and Lynch,

                                   Circuit Judges.
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                                 ____________________



            Louis Kushner on brief pro se.
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            Donald K. Stern, United States Attorney, and Christopher  Alberto,
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        Assistant United  States Attorney,  on Motion for  Summary Disposition

        for appellee.





                                 ____________________



                                   February 3, 1997

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                      Per Curiam.  The district court dismissed appellant
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            Louis Kushner's  complaint  against the  United States  Rural



            Economic  and  Community   Development  Agency  ("RECD")  for



            failing to show good  cause for not effecting service  on the



            RECD.  However, appellant never filed a notice of appeal from



            this  dismissal;  as such,  it is  not before  us.   The only



            orders  from which  a timely  appeal has  been taken  are the



            denial  of appellant's motion to reopen and the denial of the



            accompanying motion  for emergency  relief.  Because  we find



            that  the district court did not abuse its discretion when it



            refused to reopen the case, we need not address the propriety



            of the latter motion.



                      Although not  labelled as a motion  for relief from



            judgment  under Fed.  R.  Civ. P.  60(b),  we shall  construe



            appellant's  motion to  reopen as such  a motion.   See  7 J.
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            Moore, Moore's Federal Practice   60.18[8], at 60-139 (2d ed.
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            1996).  We review  a district court's denial of a  Rule 60(b)



            motion for abuse of discretion.  Dankese v. Defense Logistics
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            Agency, 693 F.2d 13,  15 (1st Cir. 1982).  Two subsections of
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            Rule  60(b) possibly  are applicable  to appellant's  motion:



            (1) Rule 60(b)(3) which provides for relief from judgment for



            the "misconduct  of an adverse party"; and  (2) Rule 60(b)(6)



            which  provides  for  relief  from judgment  for  "any  other



            reason."











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                      To prevail under Rule 60(b)(3), appellant must show



            how the  RECD's alleged  misconduct prevented him  from fully



            presenting his case  in the district court.   See Perez-Perez
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            v.  Popular Leasing Rental, Inc., 993 F.2d 281, 285 (1st Cir.
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            1993).   The motion to reopen, which is a typewritten version



            of  appellant's complaint,  offers no  explanation concerning



            this  issue.   Although  appellant  sets  out  how  the  RECD



            allegedly  prohibited  him  from  pursuing  an administrative



            appeal, he does not describe any improper conduct by the RECD



            with  regard to  the  dismissal of  appellant's complaint  or



            error in the district court's dismissal of appellant's action



            for failure to effectuate service.



                      As for Rule 60(b)(6), it cannot be used "to  escape



            the  consequences of failure to take a timely appeal."  Cotto
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            v. United  States, 993 F.2d 274, 278  (1st Cir. 1993).  Thus,
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            "[a]bsent exceptional and  compelling circumstances, a  party



            will  not be granted relief from a judgment under clause (6).



            . . ."   Moore's Federal Practice, supra,    60.27[1], at 60-
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            269; Cotto, supra.   To  meet this  standard, appellant  must
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            show that  he was not at fault for not taking a timely appeal



            from  the dismissal of his complaint.  See Cotto, 993 F.2d at
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            280.   Because  the motion  to reopen  does not  address this



            question,  appellant was  not entitled  to relief  under Rule



            60(b)(6).











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                      For  the  foregoing reasons,  the  judgment  of the



            district court is affirmed.
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