Zarrilli v. Capitol Bank & Trust ( 1993 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1911
VINCENT F. ZARRILLI,
Plaintiff, Appellant,
v.
CAPITOL BANK & TRUST CO.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. W. Arthur Garrity, U.S. District Judge]
Before
Torruella, Cyr and Boudin,
Circuit Judges.
Vincent F. Zarrilli on brief pro se.
Ann S. DuRoss, Assistant General Counsel, Richard J. Osterman,
Jr., Senior Counsel, Robert D. McGillicuddy, Deputy Senior Counsel, J.
Scott Watson, Senior Attorney, and J. Kendall Rathburn, Senior
Attorney, Federal Deposit Insurance Corporation, on brief for
appellee.
May 11, 1993
Per Curiam. We have reviewed the parties' briefs and the record
on appeal. We conclude that there was no abuse of discretion in the
district court's denial of appellant's motion, filed pursuant to Fed.
R. Civ. P. 60(b)(6), which sought to vacate a judgment entered in
February 1980. Appellant has given no explanation, much less shown
extraordinary circumstances, to excuse his failure to appeal that
judgment. "Rule 60(b)(6) may not be used to escape the consequences
of the movant's dilatory failure to take a timely appeal." Mitchell
v. Hobbs, 951 F.2d 417, 420 (1st Cir. 1991).
And, his explanation for the 11 year delay in presenting his Rule
60(b)(6) motion to the district court - that he believed that the
district court should have before it the bankruptcy court record,
which had been, and still is, lost - does not constitute extraordinary
circumstances. Appellant learned in September 1981 that the record
was lost. If, as appellant claims, this bankruptcy record was
important to his district court case, he could have, and should have,
filed his Rule 60(b) motion at that time, along with the notice from
the Federal Archives and Record Center and appellant's own copies of
the bankruptcy record documents which he has had all along.
Appellant's waiting until 1991 to do what he could have done ten years
earlier does not warrant vacating the underlying judgment.
In any event, we have reviewed the grounds that appellant raises
for vacating the 1980 district court judgment and they have no
merit.*
Affirmed.
*Appellant has moved for leave to file a supplemental appendix. From
aught we can tell, none of the documents in that supplemental appendix
were before the district court and so are not properly part of the
record on appeal. See Fed. R. App. P. 10(a). The motion is,
therefore, denied. In any event, we have reviewed that supplemental
appendix. Nothing therein changes our disposition of this appeal.