USCA1 Opinion
September 27, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1341
LEANDERS H. SMITH,
Plaintiff, Appellant,
v.
WGBH-TV,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Leanders H. Smith on brief pro se.
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Alan D. Rose, Paul G. Lannon and Nutter, McClennen & Fish on
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Memorandum In Support Of Motion for Summary Disposition for appellee.
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Per Curiam. Leanders H. Smith appeals the district
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court's order denying his motion under Fed. R. Civ. P. 60(b)
to reopen Smith's previously dismissed case against appellee
WGBH Educational Foundation, Inc. We affirm.1
Smith's motion alleged that Smith had new evidence
that the court's dismissal of his Title VII action against
WGBH had been based on WGBH's "fraud, misrepresentation, . .
. or other misconduct." According to Smith's affidavit,
which was attached to the motion, the tape given by WGBH to
the district court in 1989 recorded a 1981 telephone
conversation with his supervisor at WGBH, John Plausse, and
not a face-to-face conversation with Plausse in 1984-85, as
WGBH had apparently represented. Smith also submitted a
notation made by a union attorney, Eugene Salisbury, in
connection with a 1982 labor grievance settlement. In
relevant part, the notation stated simply "tapes," but
Salisbury's December 1993 letter to Smith explained that
"[t]he notation with respect to tapes has to do with your
destroying certain tapes which you alleged contained John
Plausse's voice in some threatening episodes and to furnish a
copy to the company."
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1. Since the facts and legal arguments are adequately
presented in the briefs and record and our decisional process
would not be significantly aided by oral argument, we hereby
deny Smith's motion for oral argument. See Fed. R. App. P.
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34(a).
Smith's motion clearly had no merit. As Smith
himself acknowledges in his brief, he had already presented
the same argument about WGBH's alleged misrepresentation to
the district court in his Motion for Relief From All Pending
Orders of the Court and for the Court to Enter Default
Judgment Against WGBH, dated February 27, 1990. That motion
also indicated that Smith had actually submitted a copy of
the 1981 tape to the court. In hearings before the court,
Smith had also testified that the tape given the court by
WGBH dated from before 1982. The court's order dismissing
the case explicitly rejected that testimony, concluding that
at least portions of the tape had dated from the relevant
time period (March 15, 1982-June 4, 1986).
Nor does Salisbury's notation or letter constitute
evidence of misrepresentation by WGBH. Neither one states
that the tape WGBH gave the district court was one of the
tapes involved in the 1982 grievance settlement, or a tape
that did not date from 1984-85, as WGBH had apparently
asserted. It is Smith's affidavit that does so. But that
affidavit was based on knowledge Smith obviously possessed in
1990, when he submitted his Motion for Relief to the court,
and so was not newly discovered evidence. Therefore, the
court did not abuse its discretion in denying Smith's motion
to reopen his case on the ground that Smith had newly
discovered evidence about WGBH's alleged misrepresentation.
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Smith also argues that Salisbury's notation and
letter show that the tape presented to the court was subject
to the 1982 labor grievance settlement, in which WGBH had
waived its right to litigate any claims arising out of the
grievance. For that reason, argues Smith, the district court
had no jurisdiction to base its dismissal of his Title VII
action against WGBH on that tape.
Smith's argument in this respect fails for a
variety of reasons. First, no one questioned that the court
had jurisdiction over Smith's Title VII action. WGBH had not
given the court the tape in an attempt to relitigate
substantive issues resolved in the 1982 grievance settlement,
but to show the court that Smith had tapes he had denied
possessing, a relevant question in the Title VII case.
Second, Smith's argument assumes that the tape given to the
court was a tape dating from 1981, but the court had found
that at least portions of the tape dated from the relevant
portion of the 1982-86 discovery period. Third, Salisbury's
notation and letter do not say, let alone show, that the
tapes discussed in connection with the 1982 grievance
settlement included the one actually given to the district
court in 1989 by WGBH. Finally, Smith failed to explain to
the district court when he had first discovered Salisbury's
notation, or why he could not have discovered the notation at
some earlier time. (On appeal to this court, he says that
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the notation was sent to him anonymously in December 1993.)
Thus, the district court had no reason to believe that
Smith's motion met the requirements for Rule 60(b) relief.
See Fed. R. Civ. P. 60(b)(2) (permitting relief from a final
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judgment on the ground of newly discovered evidence "which by
due diligence could not have been discovered in time to move
for a new trial under Rule 59(b)"); Fed. R. Civ. P. 59 (b)
(permitting a motion for a new trial to be brought within 10
days of entry of final judgment).
As the above discussion shows, Smith's motion
lacked any merit, and Smith had no legitimate basis for
believing that the court would reopen his case against WGBH.
This is especially so, since the allegedly new evidence did
not show that WGBH had intentionally engaged in any
misrepresentation as alleged, nor did it relieve Smith of
culpability for the other instances of misconduct which had
motivated the court to dismiss his action in the first place.
Accordingly, we think that this appeal was frivolous within
the meaning of Fed. R. App. P. 38, and we award double costs
to WGBH.
Affirmed. Double costs awarded to appellee WGBH.
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