Kushner v. U.S. Dept. Rural
Case Date: 02/12/1997
Court: United States Court of Appeals
Docket No: 96-1654
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[NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 96-1654 LOUIS KUSHNER, Plaintiff, Appellant, v. UNITED STATES RURAL ECONOMIC AND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. ______________ ____________________ Louis Kushner on brief pro se. _____________ Donald K. Stern, United States Attorney, and Christopher Alberto, _______________ ____________________ Assistant United States Attorney, on Motion for Summary Disposition for appellee. ____________________ February 3, 1997 ____________________ Per Curiam. The district court dismissed appellant __________ 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. ___ Moore, Moore's Federal Practice 60.18[8], at 60-139 (2d ed. ________________________ 1996). We review a district court's denial of a Rule 60(b) motion for abuse of discretion. Dankese v. Defense Logistics _______ _________________ Agency, 693 F.2d 13, 15 (1st Cir. 1982). Two subsections of ______ 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." -2- 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 ___ ___________ v. Popular Leasing Rental, Inc., 993 F.2d 281, 285 (1st Cir. ____________________________ 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 _____ v. United States, 993 F.2d 274, 278 (1st Cir. 1993). Thus, ______________ "[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- ________________________ _____ 269; Cotto, supra. To meet this standard, appellant must _____ _____ 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 ___ _____ 280. Because the motion to reopen does not address this question, appellant was not entitled to relief under Rule 60(b)(6). -3- For the foregoing reasons, the judgment of the district court is affirmed. ________ -4- |