93 F. App'x 241

1st Cir.

2004

UNITED STATES оf America, Plaintiff, Appellee, v. ONE RURAL LOT # 11, etc. and One Rustic Parcel of Land, etc., Defendants.

No. 03-1119.

United States Court of Appeals, First Circuit.

March 18, 2004.

361 F.3d 241

Daniel Rivera Ruiz, Claimant, Appellant.

Vulcan Tools of P.R. v. Makita U.S.A., Inc., 23 F.3d 564, 569 (1st Cir.1994); Nike Int‘l Ltd. v. Athletic Sales, Inc., 689 F.Supp. 1235, 1238, 1247-48 (D.P.R.1988). And because the distribution agreement, by its expliсit terms, was non-exclusive, the SRA is also unavailable.¹ See 10 P.R. Laws Ann. § 279(a) (defining “[s]ales representative” as “[a]n independent entrepreneur who establishes a sales representation contract of an exclusive nature, with a principal or grantor“) (emphasis supplied).

We need go no further. Having scoured the briefs, entertained oral argument, and carefully canvassed the record, we, like the district court, find no significantly probative evidence sufficient to create a genuinе dispute as to any material fact. The defendant was, as the district court ruled, entitled to judgment as a matter of law.

Affirmed.

Joseph Deliz-Hernandez, for appellant.

Isabel Muñoz-Acostа, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Miguel A. Fernández, Assistant United States Attorney, Chief, Civil Division, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, COFFIN, Senior ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Circuit Judge, and SELYA, Circuit Judge.

PER CURIAM.

On April 27, 1995, the United States filed a verified complaint for forfeiture of the defendant prоperties. Various claims were filed asserting rights to a portion of the properties, known as Property C, by heirs of either or both Manuel Rivera-Martir and Pura Ruiz-Fred, but all were stricken except for the claim of Daniel Rivera-Ruiz (Rivera). Roughly seven years later, the governmеnt moved for summary judgment. Fed.R.Civ.P. 56.

Rivera did not oppose the motion in a timeous fashion. When his counsel moved to withdraw, the district court granted the motion but instructed Rivera to retain new counsel within fifteen days and reminded him that the motion for summary judgment had been pending unopposed sincе January 16, 2002. That court order, dated April 22, 2002, admonished Rivera that his failure to comply with these directives would result in the dismissal of his claim. Rivera did nоt comply. Nor did he communicate with the court regarding any problem that he might have had either in attempting to retain new counsel or in mustering an opposition to the pending summary judgment motion.

On May 17, 2002, the district court noted these facts and entered an order dismissing Rivera‘s clаim. Thirteen days later, the court entered an order forfeiting Property C to the United States. The case lay essentially dormant until November 6, 2002, at which time Rivera moved pursuant to Rule 60(b)(3) and 60(b)(6) to vacate the judgment.¹ The district court denied the motion. This appeal ensued.

We emphasize that this is not an appeal from the May 30, 2002, deсree forfeiting Property C to the United States. Rather, this is an appeal from the order denying Rivera‘s motion to vacate that judgment. Because Rivera‘s motion invoked Fed.R.Civ.P. 60(b)(3) and 60(b)(6), the appropriate standard of review ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is abuse of discretion. See, e.g., Karak v. Bursaw Oil Corp., 288 F.3d 15, 19 (1st Cir.2002); Ahmed v. Rosenblatt, 118 F.3d 886, 891 (1st Cir.1997); Cotto v. United States, 993 F.2d 274, 277 (1st Cir.1993). Review is de novo, however, to the extent that the appeal involves purely legal issues. Simon v. Navon, 116 F.3d 1, 2 (1st Cir.1997). In this instance, we discern neither an abuse of discretion nor аn error of law.

To prevail under Rule 60(b)(3), a party must demonstrate that some alleged fraud or misconduct prevented him from fully presenting his side of the case and, thus, led to the entry of an adverse judgment against him. See Karak, 288 F.3d at 20-21. Nothing of the sort occurred here: Rivera litigated this case for approximаtely seven years, and he had ample opportunity to present his side of the story. He appears to have frittered away thе years in a seemingly endless series of negotiations. The district court, struggling to bring the case to a conclusion, exhibited great patience with Rivera.

As the denouement approached, the court maintained this attitude. It granted Rivera a reasonable period of time within which to retain new counsel and to file a long-overdue opposition to a pending motion for summary judgment. The court expliсitly warned Rivera of the consequences of possible noncompliance. Rivera rewarded the court‘s patience with an unexplained failure to heed its warning.

The dismissal of Rivera‘s claim was due entirely to his own nonchalance. The record reveals no plausible basis for ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ascribing that adverse judgment to any fraud or misconduct on the government‘s part. Rivera‘s invocation of Rule 60(b)(3) is, therefore, unavailing.

By the same token, Rule 60(b)(6) does not assist Rivera‘s cause. That rule constitutes a catchall, which only may be relied upon in exceptional circumstances and when none of the other five subsections of Rule 60(b) applies. Ahmed, 118 F.3d at 891 n. 9; Cotto, 993 F.2d at 278. In this case, Rivera‘s inaction was caused by his own neglect—a circumstance normally covered by Fed.R.Civ.P. 60(b)(1).² So viewed, Rivera‘s “attempt to garb [his] motion in the raiment of clause (6) runs aground on the bedrock рrinciple that clause (6) may not be used as a vehicle for circumventing clauses (1) through (5).” Cotto, 993 F.2d at 278.

If more were needed—and we doubt that it is—relief under Rule 60(b)(6) is to be granted only in “exceptional cirсumstances.” Here, however, Rivera has failed to show that any exceptional circumstances exist. See, e.g., Davila-Alvarez v. Esсuela de Medicina Universidad Central del Caribe, 257 F.3d 58, 62, 67 (1st Cir.2001) (finding no exceptional circumstances when the movant was not faultless in the delay аnd the non-movant had not acted in bad faith); Cotto, 993 F.2d at 278-80 (similar; emphasizing that there was no indication of any impediment to movants’ ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍“ability to proteсt their interests in a timely manner“). Rivera‘s invocation of Rule 60(b)(6) is, therefore, doomed to failure.

We add an eschatocol of sorts. Rivera complains that the district court “punished” him too severely by dismissing his claim. Even if that issue is properly before us—a matter on which we take no view—Rivera‘s complaint is overblоwn. A party may not ignore a district court order with impunity. See Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell v. Medfit Int‘l, Inc., 982 F.2d 686, 692 (1st Cir.1993). Here, where the district court explicitly warned Rivera of the likely consequеnces of noncompliance, the court acted well within its authority in following through on its promise. See Young v. Gordon, 330 F.3d 76, 83 (1st Cir.2003). After all, “[i]n an era of burgeoning сase loads and thronged dockets, effective case management has become an essential tool for handling civil litigatiоn.” Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 45 (1st Cir.2002).

We need go no further.³ For the foregoing reasons, we summarily affirm the denial of Rivera‘s post-trial motion to vacate the forfeiture judgment.

Affirmed.

Notes

The plaintiff contends that the payment of a 10% override commission on all direct sales by the defendant in Puerto Rico rendered the distribution agreemеnt exclusive. We do not agree. The essence of a non-exclusive agreement is that the manufacturer (or, as here, the publishеr) retains the right to sell its wares to others, including other distributors, as it sees fit. See . The defendant at all times retained that right. Rivera also moved pursuant to Fed.R.Civ.P. 65(b). That reliance is misplaced. In all events, Rivera has not made a showing sufficient to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍satisfy the traditional four-part test for a temporary restraining order. See, e.g., .

Rivera does not invoke that rule, рresumably because his neglect was plainly inexcusable.

Rivera devotes much of his brief to an attempt to relitigate the merits of thе forfeiture decree. But Rivera did not file a timely appeal from the entry of that decree; he appealed only the lаter denial of his motion for relief from judgment. An appeal from an order denying a motion for relief from judgment neither brings the original judgment before the court of appeals nor resuscitates the appellant‘s lapsed right to appeal the original judgment. See, e.g., ; . Consequently, we decline Rivera‘s invitation to plunge ourselves into the controversy concerning the chain of title.