Limerick v. Greenwald

• Decision Date: 03 December 1984
• Docket Number: 83-1842,Nos. 83-1773,s. 83-1773
• Citation: 749 F.2d 97
• Parties: Thomas F. LIMERICK, et al., Plaintiffs, Appellants, v. Carol S. GREENWALD, et al., Defendants, Appellees. ROSLINDALE COOPERATIVE BANK OF BOSTON, et al., Plaintiffs, Appellants, v. Carol S. GREENWALD, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 97

749 F.2d 97

40 Fed.R.Serv.2d 907

Thomas F. LIMERICK, et al., Plaintiffs, Appellants, v. Carol S. GREENWALD, et al., Defendants, Appellees.

ROSLINDALE COOPERATIVE BANK OF BOSTON, et al., Plaintiffs, Appellants, v. Carol S. GREENWALD, et al., Defendants, Appellees.

Nos. 83-1773, 83-1842.

United States Court of Appeals, First Circuit.

Submitted March 9, 1984.

Decided Dec. 3, 1984.

Albert G. Tobin and Tobin & Tobin, Roslindale, Mass., on brief, for plaintiffs, appellants.

Richard A. Gross, and Wald, Harkrader & Ross, Washington, D.C., on brief, for defendant, appellee Carol S. Greenwald.

Francis X. Bellotti, Atty. Gen., and Stephen S. Ostrach, Asst. Atty. Gen., Boston, Mass., on brief, for state defendants.

John J. McCarthy, Stanley V. Ragalevsky, and Warner & Stackpole, Boston, Mass., on brief, for Central Bank defendants.

Before CAMPBELL, Chief Judge, and COFFIN and BREYER, Circuit Judges.

PER CURIAM.

This is the latest appeal in two actions brought under 42 U.S.C. Sec. 1983 and seeking to invoke pendent jurisdiction over certain state-law claims. Further background information can be found in our prior published opinions in these cases. See Roslindale Cooperative Bank v. Greenwald, 638 F.2d 258 (1st.Cir.), cert. denied, 454 U.S. 831, 1025 S.Ct. 128, 70 L.Ed.2d 108 (1981) and Limerick v. Greenwald, 666 F.2d 733 (1st.Cir.1981).

Despite the outpouring of pleadings from appellants' counsel, the issues actually presented in these appeals are narrow.

The Roslindale appeal is taken, according to the appellants' docketing statement, from the district court's action in some forty instances. In fact, though, the overwhelming majority of those actions are not before us. They involve either attacks on the judgment in Roslindale previously affirmed or efforts to revive Roslindale through means other than Rules 50, 52, 59 or 60 F.R.Civ.P.

These means include post-judgment motions to amend the complaint and for summary judgment. The above-cited rules provide the basic forms of post-judgment relief and the district court quite properly denied the other facially-invalid requests.

These various motions had one objective: reopening of the long-closed Roslindale case. This was also the objective of various motions captioned under Rule 59 or Rule 60 F.R.Civ.P. whose denial is the subject of the remainder of this appeal.

As to motions under Rule 59 there appear to be two such motions--one filed on March 25, 1980. That motion may have been timely but any appeal from its denial should have been brought within 30 days of the denial--not three years later. See Rule 4(a) F.R.A.P.

The second 59(e) motion was not filed until October, 1981, more than a year after the March, 1980 judgment. As such it was untimely since Rule 59(e) motions must be filed within 10 days. Thus denial of the Rule 59(e) motions was also proper.

One motion, also filed in October of 1981, was captioned under Rule 60 F.R.Civ.P. It did not specify what subsection of Rule 60 was relied on. Motions under Rule 60(a) have no time limit but the motion is limited to correction of clerical mistakes in the terms of the judgment. See Elias v. Ford Motor Co., 734 F.2d 463, 466 (1st Cir.1984). Clerical error is not the basis for appellants' claims.

Under Rule 60(b)(1),(2) or (3) the motion must be made within one year. Again the time limits were not met. Under Rule 60(b)(4), (5) or (6) the motion must be made within a reasonable time and, of course, the grounds stated in the motion must fit within the description provided in one of those subsections. Even if the motion is properly made under Rule 60(b)(4), (5) or (6) and is found to have been filed within a reasonable time, its denial is reviewed only for abuse of discretion. Browder v. Director, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978).

The relevant motion is that of October 27, 1981. Its arguments may be fairly characterized as averring that an error of law was made. We have held, in accord with other courts and leading commentators, that if such arguments are cognizable under Rule 60(b) the "reasonable time" for doing so is the time allowed for an appeal (normally 30 days after judgment). See Scola v. Boat Frances, R., Inc., 618 F.2d 147, 154 (1st Cir.1980). Here, that appeal period had long since lapsed.

Thus, no matter how we construe appellants' post-judgment motions, they were untimely and the district court would have abused its discretion only by granting them.

Appellants do not argue to the contrary. Indeed their whole effort is directed to arguing the merits of their original case, long since decided. While we need not reach those merits since their efforts to revive them were untimely, we think it appropriate to note that the basic arguments appellants present show a fundamental misunderstanding of this case and of federal law.

Appellants' main argument on the merits can be summarized as follows: Roslindale involved a deprivation of property or liberty without due process. This court in its earlier published Roslindale decision made a mistake when it held that, since there was an adequate state procedure which appellants could have availed themselves of, there was no federal claim. The mistake, according to appellants, was that this court's prior opinion required an exhaustion of state remedies prior to bringing an action under 42 U.S.C. Sec. 1983, in violation of a venerable line of Supreme Court decisions.

The argument is fundamentally flawed. In affirming the district court we did not conclude that appellants' claim suffered from the procedural defect of failure to exhaust state remedies. Rather, we concluded that their claim of lack of available due process failed on the merits because there was a process available under state law. That conclusion is fully consistent with Supreme Court precedents, see Parratt v. Taylor, 451 U.S. 527, 538, 101 S.Ct. 1908, 1914, 68 L.Ed.2d 420 (1981) and Hudson v. Palmer, --- U.S. ----, ----, 104 S.Ct. 3194, 3201-3205, 82 L.Ed.2d 393 (1984), and with our own cases. See Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 832 n. 9 (1st Cir.) cert. denied 459 U.S. 989, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982).

Thus even if the post-judgment motions had been timely and appropriate, they presented no basis for disturbing our prior ruling in this case.

For all of the reasons stated, we affirm the judgment of the district court in 83-1842.

The appeal in Limerick is in a somewhat different procedural posture. In our prior published opinion in this case, we affirmed the district court's judgment of dismissal in all respects but one. We remanded Count IV for further consideration because we believed that it contained a "minimally sufficient" stigmatization claim. Limerick, 666 F.2d at 735. In so doing we noted that, if appellants could establish their claim of deprivation of a liberty interest through loss of reputation, due process would have entitled them to an opportunity for a name clearing proceeding. Id. On remand the district court held that only defendant Greenwald made any statements that might be seen as stigmatizing and that a state procedure was available to meet any due process interests involved. The court granted summary judgment on this basis and, alternatively, dismissed the complaint as to Greenwald in her personal capacity because appellants had never served Greenwald. This appeal followed.

Early on in this appeal it became apparent that counsel for appellants in Limerick was completely ignoring the limited issues presented by the appeal in favor of using his clients' case as an instrument to reargue the Roslindale issues. On December 28, 1983 we issued an order advising counsel of the issues available for argument in Limerick and warning him that if further attempts were made to use Limerick as a vehicle to re-raise closed issues he would be responsible for any costs and fees incurred in answering those arguments. In addition, upon denial of a patently frivolous motion, we assessed attorney's fees of $1,095 against counsel personally.

Despite these forewarnings, much of appellants' brief in this case is simply a rehash of the Roslindale due process arguments. These we ignore except as they relate to the applications for costs and fees discussed infra.

For the moment, then, we proceed to the narrow issue in this case: did the district court properly grant summary judgment against appellants on their stigmitization claim? The simple answer is "yes." Indeed the claim has a full complement of fatal defects.

First and foremost among these is the defect relied on by the district court--no lack of due process.

This is not a state law libel case. ¹ It is a claim of the loss of a liberty interest through state action without due process brought under 42 U.S.C. Sec. 1983. ²

The district court found that, if a stigmatizing event had taken place, a name clearing procedure was available and thus the requirements of due process were met. It found that the provisions of Mass.Gen.Laws Ann. Ch. 167, Sec. 5 (now Sec. 12) provided an absolute right to such a hearing for the appellants but that they did not invoke that right.

Appellants do not really dispute the fact that Sec. 5 provided for a hearing. Rather they seem to question the adequacy of that section because of claimed procedural irregularities in its structure.

As to this issue we note two things. First, on July 29, 1984 the Superior Court for the Commonwealth of Massachusetts issued an opinion in Delosh v. Greenwald, C.A. No. 33144, a case arising out of the same facts as this one. That court found, inter alia, that the fact that the Banking Division had no clerk did not render a hearing under Sec. 5 improper. Appellants make this same argument here and we agree with the Superior Court. We see no reason why such a lack, even if unlawful, prejudiced appellants.

Second, appellants' claim that the Central Bank was required by state law to issue some type of...