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USCA1 Opinion

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
_________________________
No. 94-1319
JOHN VASAPOLLI, ET AL.,
Plaintiffs, Appellants,
v.
STEVEN M. ROSTOFF, ET AL.,
Defendants, Appellees.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________
_________________________
Before
Selya, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
_________________________
Chester A. Janiak, with whom Andrew P. Botti
_________________
_______________
Levinson were on brief, for appellants.

and Burns &


________

________
Christopher J. Bellotto, Counsel, with whom Ann S. Duross,
________________________
_____________
Assistant General
Counsel, Robert D.
McGillicuddy, Senior
_________________________
Counsel, A. Van C. Lanckton, Laurie A. Parrott, and Craig and
___________________
_________________
__________
Macauley Professional Corporation were on brief, for appellee
__________________________________
Federal Deposit Insurance Corporation.
_________________________
November 8, 1994
_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
_____________

It is trite, but true, that not

every wrong has a remedy

much less a remedy wholly satisfactory

to the purported victims.

This litigation illustrates

in the context of
borrowers

who

an appeal matching the plaintiffs,

complain that

they

Federal Deposit Insurance Corporation


liquidating
Bank).

agent

for the

now

Specifically, plaintiffs

granting summary judgment

were

the point

a group of

swindled, against

the

(FDIC), in its capacity as

defunct Bank

for

Savings (the

challenge district court orders

against them in respect

to (1) claims

that

they

originally

brought

against

the

Bank,

and

(2)

counterclaims pressed against them by the FDIC to recover amounts


allegedly due
In

on certain promissory

disposing of

length,

the matter,

see Vasapolli
___ _________

1994) [No.

Duhme doctrine
_____
and

U.S.C.

in

the

a belated effort to

factum

by

Maine

barred

cannot
to

the

by

inducement,

the D'Oench,
________

claims of

survive

scrutiny;

counterclaims
entitled to

are

benefit

interject into the decisional calculus

state

contained in a writ of execution

court

in

Consequently, we affirm the judgment below.


I.
I.

court's central

fraudulent

plaintiffs is

incorrectly computed figure

issued

for

at some

(D. Mass.

1823(e); plaintiffs'

defenses

none of the

Supp. ___

agree with that

claims

the Bank.

court wrote

___ F.

negligence are

affirmative

impuissant; and

an

and

and 12
fraud

plaintiffs'

from

v. Rostoff,
_______

plaintiffs'

misrepresentation,

duress

the district

92-11501-K], and we

conclusions:

notes payable to

BACKGROUND
BACKGROUND
2

related

proceeding.

We abjure a detailed, fact-laden account in favor of


simple sketch.
arose under

Because two of the orders that we are reviewing

the aegis of Fed.

R. Civ. P. 56,

we construct this

sketch, and limn the material facts, in the light most hospitable
to the appellants.
The myriad
together by what
error in

plaintiffs in

appears in

judgment:

retrospect to have

they all

borrowed money

connection with the purchase of


Rostoff or business

this civil action

are bound

been a

serious

from the

Bank in

condominium units from Steven M.

entities controlled by

him.

Although

each

plaintiff's predicament is slightly different, the record reveals


a

consistent

certain

bank

pattern

of

employees.

chicanery practiced
In

purchased a condominium based


Rostoff such as:
was

a typical

by

Rostoff

instance,

and

a plaintiff

on multiple misrepresentations

by

that the unit had been completely renovated and

being sold at a substantial discount from market value; that

the unit could be resold profitably through Rostoff at the end of


one

year; and that the

expenses during
abetted

unit owner would

the period

of

incur no out-of-pocket

his ownership.

these misrepresentations

in divers ways,

Bank

officials

including the

procurement of inflated appraisals.


Rostoff's scheme climaxed in

a string of high-pressure

closings scheduled at 15-minute intervals on the Bank's premises.


The plaintiffs received little
to occur
provide

notice of when the closings

many of them were held at


them with the

night

and Rostoff did not

relevant documents until


3

were

they arrived at

the Bank.
offices,

Rostoff appeared
sometimes

to

opening the

have free
outer

run

door

of the

to let

Bank's

purchasers

enter.
Among
although

other

things,

they had applied to

the

plaintiffs

the Bank for

actual documents presented to

allege

that,

long-term loans, the

them for signature were short-term

notes, each of which necessitated a balloon payment at the end of


a one year or three-year term.1
told that

If a plaintiff objected, he was

he would lose his deposit

unless he signed the papers

then and there.


After

they

discovered

Rostoff's

cozenage,

plaintiffs ceased payment on the notes; the Bank


of

the

mortgages;

eventually

group composed

and

federal

convicted) Rostoff

criminal charges.

action

and

While

and

foreclosed many

prosecutors
certain

the

indicted

Bank

(and

employees

the prosecution was still embryonic,

of allegedly defrauded borrowers

on

brought a civil

in a Massachusetts state court against Rostoff, the Bank,

other

defendants.2

In

variegated relief under theories


contract,

negligence,

their

suit,

plaintiffs

sought

of fraud, conspiracy, breach of

racketeering, deceptive

trade practices,

and the like.


plaintiffs

The Bank counterclaimed, seeking recovery from the

under their

promissory notes.

In

response

to the

____________________
1Eleven plaintiffs extended the terms of
subsequent written agreement with the Bank.

their loans

by

2The complaint was subsequently amended to add additional


plaintiffs and defendants.
A total of 17 borrowers appear as
appellants in this proceeding.
4

counterclaims,
defenses,

the

averring,

plaintiffs
among

asserted

other

numerous

things, that

affirmative

they

had

been

fraudulently induced to sign the notes.


The Bank capsized in
in as
the

March of 1992.

liquidating agent and, after


pending civil

States

FDIC stepped

it had replaced the

United

District Court for the District of Massachusetts.

In due

FDIC sought,

removed that

action

Bank in

to the

course, the

action,

The

and attained, summary

judgment.

See
___

Vasapolli, ___ F. Supp. at ___ [slip op. at 22].


_________

In essence, the

lower

of

court

found

that

plaintiffs'

claims

fraudulent

inducement, misrepresentation, and negligence were barred


D'Oench, Duhme rule and 12 U.S.C.

by the

1823(e), and that plaintiffs'

______________
claims of economic duress

and fraud in the factum

nugatory

a sufficient

by the

lack of

were rendered

factual predicate.

See
___

Vasapolli, ___ F. Supp. at ___ [slip op. at 9-21].


_________

Consistent with these determinations, the court granted

brevis disposition on all remaining causes of action urged by the


______
plaintiffs
resolved

against
thirteen

the

the court

At

counterclaims

thereafter, permitted
which

FDIC.

the

in

the

the FDIC to file

then resolved

same

on the

time, the

FDIC's

favor,

court

and,

five more counterclaims,


same basis.

Finding no

satisfactory reason for delay, the court entered a final judgment


disposing of all claims
and the FDIC.

and counterclaims between the plaintiffs

See Fed. R. Civ. P. 54(b).


___

The plaintiffs
asserting for the first

then

moved for

relief from

time that sums used in

judgment,

a previous Maine

proceeding, though incorrectly calculated,


faith and credit.

were entitled to full

The district court denied

the motion.

This

appeal followed.
II.
II.

APPLICABLE LEGAL PRINCIPLES


APPLICABLE LEGAL PRINCIPLES

We set out in somewhat abbreviated form the two sets of


legal principles that together

electrify the beacon by which

we

must steer.
A.
A.
Summary

The Summary Judgment Standard.


The Summary Judgment Standard.
_____________________________
judgment

reflects "no genuine

56(c).

appropriate

when

the

record

issue as to any material fact and . . . the

moving party is entitled to


R. Civ. P.

is

judgment as a matter of law."

For purposes of

"genuine" means that "the

Fed.

this determination, the term

evidence about the fact is such that a

reasonable jury could resolve the point in favor of the nonmoving


party . .

. ."

United States v.
_____________

One Parcel of Real Property,


_____________________________

Etc. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d


_____________________________________________

200, 204

(1st Cir. 1992).

that the

Similarly, the term "material" means

fact has the potential to


the governing

law."

"affect the outcome of the

Id.
___

(quoting Anderson
________

suit under

v. Liberty Lobby,
_______________

Inc., 477 U.S. 242, 248 (1986)).


____
An order
review.

judgment engenders de
__

See Pagano v. Frank, 983 F.2d 343, 347


___ ______
_____

Rivera-Muriente
_______________
1992).

granting summary

In

v. Agosto-Alicea,
_____________

performing

this chore,

959 F.2d
we

novo
____

(1st Cir. 1993);

349, 352

scrutinize the

(1st Cir.

summary

judgment

record in the light most congenial to the losing party,

and we indulge

all reasonable inferences in that

party's favor.

See Pagano, 983 F.2d at 347.


___ ______

B.
B.
The
collapses.
assets; in

FDIC
As

two

separate

FDIC

its corporate capacity,

failed

48 (1st

when the

bank

assumption of some
healthy bank.

roles

manages the

when

failed

the FDIC insures

bank

bank's

the failed

See Timberland Design, Inc. v. First Serv. Bank


___ _______________________
________________

932 F.2d 46,

FDIC's options
the

assumes

receiver, the

bank's deposits.
for Sav.,
________

The D'Oench, Duhme Doctrine.


The D'Oench, Duhme Doctrine.
___________________________

or,

Cir. 1991) (per

death knell sounds


preferably, arranging

or all

of its

assets and

If undue disruption is to

curiam).

The

include liquidating
the

purchase

liabilities by

and

be avoided, a purchase

and assumption arrangement often must be executed in great haste.


It follows,
action

to

therefore,
take

that both

regarding

in

failed

deciding what
bank

and

course

of

thereafter

in

effectuating the course of


to

rely

confidently

on

action chosen, the FDIC must


the

bank's

records

as

an

be able

accurate

portrayal of its assets.


Mindful of

this reality,

the Supreme Court

more than

half a century ago acted to protect the FDIC and the public funds
it
See
___

administers by

formulating a

D'Oench, Duhme & Co.


_____________________

v. FDIC,
____

D'Oench, Duhme doctrine prohibits


______________
relying

upon

secret

pacts

diminish the FDIC's interest

special doctrine
315 U.S.

of estoppel.

447 (1942).

The

bank borrowers and others from

or unrecorded

side

agreements

in an asset by, say,

to

attempting to

thwart its efforts to collect under promissory notes, guarantees,


7

and

kindred

instruments

Borrowers' claims
under the
particular

acquired

from

and affirmative defenses are

doctrine.
pertinence

See
___
to

Timberland, 932
__________
this

case,

the

failed

bank.3

treated the same

F.2d at
secret

49-50.

Of

agreements

prohibited by the D'Oench, Duhme rule are not limited to promises


______________
to perform acts

in the future.

See, e.g.,

Langley v. FDIC, 484

___
U.S.

86, 92,

96 (1987)

conditions to payment of

____

(holding that

_______

____

the doctrine

extends to

a note, including the truth

of express

____________________

3Congress subsequently codified the D'Oench, Duhme doctrine.


______________
The codification provides:
No agreement which tends to diminish or
defeat the interest of the [FDIC] in any
asset acquired by it under this section or
section 1821 of
this title, either
as
security for a loan or by purchase or as
receiver
of
any
insured
depository
institution, shall be valid
against the
[FDIC] unless such agreement
(1) is in writing,
(2) was executed by
the depository
institution and any
person claiming
an
adverse interest thereunder, including the
obligor,
contemporaneously
with
the
acquisition of the asset by the depository
institution,
(3) was approved
by the board
of
directors of the depository institution or
its loan committee, which approval shall be
reflected in the minutes of said board or
committee, and
(4) has been, continuously, from the
time of its execution, an official record of
the depository institution.

12 U.S.C.A.
1823(e) (West 1989). It remains an open question
whether the judicially created doctrine
and its statutory
counterpart are coterminous. See Bateman v. FDIC, 970 F.2d 924,
___ _______
____
926-27 (1st Cir. 1992). This appeal does not require us to probe
the point. Accordingly, we shall use phrases like "the D'Oench,
________
Duhme doctrine" to refer indiscriminately both to the judicially
_____
spawned doctrine and to its statutory reincarnation.
8

warranties).
III.
III.

ANALYSIS
ANALYSIS

Appellate courts have no monopoly either on sagacity or


on clarity of expression.
cogent, well-reasoned
result,

a reviewing

Thus, when a district court produces a

opinion that reaches


tribunal

should not

an eminently correct
write at

length merely to put matters in its own words.


San Juan Dupont Plaza Hotel Fire Litig.,
_________________________________________
Cir. 1993).

So it is here.

for substantially
opinion.
that

We

the reasons

add only

We,

exceptional

See, e.g.,
___ ____

989 F.2d 36,

In re
_____

38 (1st

therefore, affirm the judgment

articulated in the

a few observations,

court's holdings, to place the

lower court's

largely parallel

to

facts and controlling legal

principles in proper perspective.


First:
First:
_____

It

misrepresentation and

is settled

fraudulent inducement are

Duhme's sphere of influence.


_____
n.6

that both

within D'Oench,
________

See Levy v. FDIC, 7 F.3d 1054, 1057


___ ____
____

(1st Cir. 1993); McCullough v.


__________

Cir. 1993);

beyond peradventure

FDIC, 987 F.2d 870, 874 (1st


____

In re 604 Columbus Ave. Realty Trust, 968 F.2d 1332,


____________________________________

1346-47 (1st Cir.


D'Oench does
_______
infected

1992).

Undaunted,

not apply here for two

appraisals

that

form

the plaintiffs argue


reasons:

part

of

that

because the fraud

the

Bank's

official

records, and because the unusual terms of the transactions should


have alerted even a casual reader of those records to the fraud.

Assuming for argument's sake that the transactions were

patently bogus, and that a routine analysis of the Bank's records

would have indicated


would

as much,4 this

set of circumstances

not suffice to salvage the plaintiffs' case.

Duhme doctrine
_____

comes into

play to pretermit

still

The D'Oench,
________

many transactional

claims against the FDIC even when due diligence could easily have
unmasked the fraud

and plaintiffs' claims of misrepresentation

and fraudulent inducement fall within this generality.


There
premised on a

is, to be sure, an exception for claims that are


breach of an agreement or warranty

contained in the failed

bank's records.

In this

that is itself

case, however,

the plaintiffs have not succeeded in identifying any violation of

a specific

contractual provision

Bank's records.

It follows

or assurance contained

inexorably that the

in the

district court

properly invoked the D'Oench, Duhme doctrine in granting summary


_______________
judgment

to

the

FDIC

despite

the

plaintiffs'

misrepresentation and fraudulent inducement.

claims

of

See McCullough, 987


___ __________

F.2d at 873-74; 604 Columbus, 968 F.2d at 1346-47.


____________
Second:
Second:
______

Conventional

wisdom

affirmative defenses premised on duress


and barred

holds that

or

are within the orbit of,

by, the D'Oench, Duhme rule.


_______________

Uniwest Fin. Corp., 967 F.2d


___________________

claims

340, 347 (9th

See, e.g.,
___ ____

Newton v.
______

Cir. 1992) (holding

that duress renders an agreement voidable, not void, and that the
D'Oench, Duhme rule
_______________

applies to

Bell & Murphy & Assocs.


________________________
F.2d 750, 754 (5th

agreements that

are voidable);

v. Interfirst Bank Gateway, N.A.,


______________________________

Cir.) (holding that the presence

894

of economic

____________________
4We hasten to add that, given Rostoff's wiliness,
assumption seems something of a stretch.
10

this

duress

is

irrelevant to

rule), cert.
_____

denied, 498
______

suggested that,

v.

FDIC,
____

Cir.

(1990).

D'Oench, Duhme
______________

A few courts

circumstances, claims of

Supp.

829,

duress in

"external" duress, and applying


to the

the

the D'Oench, Duhme doctrine.


______________

798 F.

(distinguishing between

operation of

U.S. 895

in certain

escape the clutches of


Desmond
_______

the

the

836-39

have

duress can

See, e.g.,
___ ____

(D. Mass.

1992)

negotiating process

and

the D'Oench, Duhme doctrine only


______________

former); see also RTC v. Ruggiero, 977 F.2d 309, 314 (7th
___ ____ ___
________
1992) (declining

covered

by D'Oench);
_______

(11th Cir.) (similar;

to reach
FDIC v.
____

question of
Morley, 867
______

whether duress
F.2d 1381,

citing district court cases

of the proposition), cert.


_____

is

1385 n.5

on both sides

denied, 493 U.S. 819 (1989);


______

cf. RTC
___ ___

v. North Bridge Assocs., Inc., 22 F.3d 1198, 1208 (1st Cir. 1994)
__________________________

(permitting further discovery anent duress despite RTC's argument


that D'Oench bars such a defense).
_______

The plaintiffs invite us to lurch into this wilderness,


asserting
duress"

that

their case

exemplifies

that can sidestep the

the invitation.

the

sort of

D'Oench, Duhme rule.


______________

The short, dispositive

"external

We decline

reason for refusing

to

embark on

this journey is that the facts of this case, even when

viewed most

sympathetically to the plaintiffs,

cannot support a

finding of duress.
Under Massachusetts
prevail

if he

shows

that (1)

law, a
"he

party claiming
has been

wrongful or unlawful act or threat" of a


the

victim of his unfettered

the

duress can
victim of

kind that (2) "deprives

will" with the

result that (3) he

11

was "compelled

to make

a disproportionate exchange

International Underwater Contractors, Inc.


__________________________________________
Tel. Co., 393 N.E.2d 968,
_________
omitted).

Alternatively,

970 (Mass. App.

of values."

v. New England Tel. &


__________________

Ct. 1979) (citations

a party claiming duress can prevail by

showing:

(1) That [he] involuntarily accepted the terms of


another; (2) that circumstances permitted no other
alternative; and (3) that said circumstances were the
result of coercive acts of the opposite party.
Ismert & Assocs., Inc.
_______________________

v. New England Mut. Life Ins. Co., 801


________________________________

F.2d 536, 544 (1st Cir. 1986) (citations omitted).


Here, the plaintiffs seek

to ground their duress claim

on the high-pressure atmosphere

of the closings and the

sufficient time to examine the closing documents.


not the type and
Coercion
Thus,

This is simply

kind of duress that Massachusetts

and fear, rather than

the authorities

greed, are the

are consentient

lack of

law credits.

stuff of duress.

that the

presence of

profit motive negates the coercion or fear that is a sine qua non
____ ___ ___
for a finding of duress.
the Law of Contracts
_____________________

See 13 Samuel Williston,


___
1604

(3d ed. 1970); see


___

President & Trustees of Coll. of Holy Cross,


___________________________________________
(Mass. 1983).
took a

Since any

pressure that

toll only because the

potentially

profitable

A Treatise on
_____________

also Coveney v.
____ _______

445 N.E.2d 136, 140

permeated the

closings

plaintiffs feared losing out

business

opportunity,

their

claim

on a

of

duress is a mirage.

In the alternative, plaintiffs assert that the prospect


of losing their deposits created coercion.
this

fear, the

threat, at

worst, was

But even if they felt

that they would

have to

deposits, not

that the

concur with

the lower

12

bring

a legal

deposits

action to

would be

recover their

lost altogether.

We

court,

___

F.

Supp.

at ___

[slip

op.

at

12-15],

that the

circumstances of the

closings, taken in the light most favorable

to

could

the

duress.

plaintiffs,
See,
___

not

e.g., Ismert,
____ ______

constitute

801 F.2d at

legally

cognizable

549-50; International
_____________

Halliwell Mines, Ltd. v. Continental Copper & Steel Indus., Inc.,


_____________________
_______________________________________
544 F.2d 105,

108-09 (2d Cir. 1976).

Hence,

the district court

appropriately granted summary judgment on this issue.5


Third:
Third:
_____

Relying on New Connecticut Bank & Trust Co. v.


________________________________

Stadium Mgmt. Corp.,


___________________
which
for

132 B.R. 205, 210

(D. Mass. 1991), a

case

held that the D'Oench, Duhme rule does not prohibit claims
______________
negligent impairment of the

plaintiffs assign
plaintiffs'

error to the district

claims for

Though we eschew

collateral securing a loan, the

court's conclusion that

negligent misrepresentation

comment on the

are barred.

correctness of New Connecticut


________________

Bank, we nonetheless reject plaintiffs' asseveration.


____
New Connecticut Bank
_____________________

involved guarantors

who alleged

negligence on the part of a financial institution in its exercise


of control over
been guaranteed.

the operations
Id. at
___

of the company

207 n.1.

The

whose loans

case at hand is

had

readily

____________________

5The plaintiffs' claim of duress is flawed in another


respect as well. A contract signed under duress is voidable, but
not automatically void. See Newton, 967 F.2d at 347; DiRose v.

___ ______
F.2d 628, 633-34

______
(2d Cir. 1982), cert.
_____
By accepting the funds and failing

PK Mgmt. Corp., 691


_______________
denied, 461 U.S. 915 (1983).
______
to seek a remedy based on duress within a reasonable time after
executing the notes, the plaintiffs forfeited any entitlement to
relief on this basis. See In re Boston Shipyard Corp., 886 F.2d
___ ___________________________
451, 455 (1st Cir. 1989).
13

distinguishable,

for the

plaintiffs' claims

based on alleged misrepresentations


an agreement with
claims

the bank.

are fundamentally

of negligence

are

relating to the formation of

In this

sense, then,

different from

plaintiffs'

those asserted

in New
___

Connecticut Bank.
________________
Moreover, negligent

misrepresentations and intentional

misrepresentations are sisters under the skin.


the flavor of the
rule is

aimed.

secret agreements at which the


And

simple expedient of

plaintiffs cannot

987

D'Oench, Duhme
______________

evade the

creatively relabelling what are

misrepresentation claims as claims


McCullough,
__________

Each partakes of

F.2d

at

873

of negligence.

(extending

rule by

the

essentially

See generally
___ _________

1823(e) to

cover

misrepresentation by

omission so

that parties cannot

avoid the

statute's effect by "artful pleading"); cf. Dopp v. Pritzker, ___


___ ____
________
F.3d ___,

___ (1st

("[M]erely

calling

Cir. 1994)
a

[No.

dandelion

suitable for a corsage.").

an

93-2373, slip
orchid does

To hold otherwise would

op. at
not

12]

make

it

defy common

sense and eviscerate the D'Oench, Duhme doctrine.


______________
Because
more

than

claims,

plaintiffs' claims

rehash

the district

motion for

brevis
______

of

their

court

of negligence

pretermitted

appropriately

disposition

of those

are nothing

misrepresentation

granted
claims.

the

FDIC's

See,
___

e.g.,
____

McCullough, 987 F.2d at 873; 604 Columbus, 968 F.2d at 1346-47.


__________
____________
Fourth:
Fourth:
______

A claim premised on fraud in the factum is not

foreclosed by the D'Oench, Duhme rule.


______________
93-94.

The plaintiffs

See
___

Langley, 484 U.S. at


_______

attempt to squeeze

within this isthmian

14

exception.

Despite their

strenuous efforts, they have presented

no adequate showing

that the skulduggery of

amounted to fraud in the factum.

which they complain

We explain briefly.

Fraud in the factum occurs when a party is tricked into


signing

an instrument without

contents.

See
___

id. at
___

93.

knowledge of
Thus, to

factum a misrepresentation must go to


the document signed, not merely to
968

F.2d at

in the

the essential character of

cases).

contract, having been led

only a receipt, the stage

nature or

constitute fraud

its terms.

1346-47 (citing other

person signs a

its true

See 604 Columbus,


___ ____________
For example,

to believe that

may be set for the emergence

if a

it is

of fraud

in the factum.
Here, the plaintiffs allege
of fraud in

the factum

that they were the victims

because they thought

long-term notes when they

they were

signing

actually signed short-term notes.

We

agree with the district court, see Vasapolli, ___ F. Supp. at ___
___ _________
[slip

op.

at

20], that

transactional terms,
Since

it

signing

is not

this

alleged

not to the

very nature of

disputed that

promissory

notes,

disparity

the

the

plaintiffs knew
Bank's

the

the agreements.

conduct,

unscrupulous, cannot be deemed fraud in the factum.


the district court lawfully

goes to

they were
even

if

Accordingly,

granted summary judgment against the

plaintiffs on this issue.


Fifth:
Fifth:
_____
moved

under Fed.

judgment.

Following the entry of judgment, the plaintiffs

R.

The district

Civ.

P.

60(b)(6)

for

relief

court treated the motion as

from

the

a motion to

15

alter

or amend

agree

both

the judgment under

with the

district

recharacterization.
court is

If circumstances
taxonomy

court's

In addressing

not bound by the

Civ. P.

approach and
post-judgment

label that the movant

warrant, the

and reclassify

Fed. R.

as its

We

with

its

motion, a

fastens to it.

court may disregard

the motion

59(e).

the movant's

substance suggests.

See Vargas v. Gonzales, 975 F.2d 916, 917 (1st Cir.


___ ______
________

1992).

That

is the case here.


In
unhappiness

their
with

amounts due on
Maine.6

The

motion,
the

use

the

plaintiffs

of Massachusetts

mortgage notes relating to


plaintiffs

also made

hinted
law

to

at

some

calculate

certain properties in

more specific

claim

in

regard to two borrowers, asserting that the amounts calculated in


a prior Maine proceeding
in the instant case.7
We

need

not

must be accorded full faith

See 28 U.S.C.
___
reach

1738 (1988).

questions

Massachusetts law governs the calculation


or of whether the two

and credit

of

whether

Maine

or

of deficiency amounts,

plaintiffs are entitled to the

benefit of

the errors
review

committed in the

course of

a trial court's decision

the earlier action.

denying a Rule

We

59(e) motion to

____________________

6When a mortgagee purchases foreclosed property at public


sale, Maine law limits deficiency amounts to the difference
between the fair market value of the mortgaged property at the
time of public sale and the amount that the court determines is
due on the mortgage. See Me. Rev. Stat. Ann. tit. 14,
6324
___
(West 1980 & Supp. 1993).

7In regard to this aspect of plaintiffs' motion, it appears


that the FDIC's attorney made an error in the handling of the
Maine foreclosure actions.
As a result, the Maine judgments
understated the liability of these two borrowers.
16

alter or amend a

judgment for manifest abuse of

discretion, see
___

Appeal of Sun Pipe Line Co., 831 F.2d 22, 24-25 (1st Cir. 1987),
____________________________

cert. denied, 486 U.S. 1055 (1988), and we discern no hint of any
_____ ______
such abuse in this instance.
It is crystal clear that
the earlier

Maine actions at

first moved for


the FDIC's first

and after the

summary judgment.
motion for

the plaintiffs were aware


time when

Throughout the time

summary judgment and

of

the FDIC

between

the entry

of

final

judgment

period

plaintiffs failed either

that lasted

over

to request that

one

year

the

the court apply

Maine

law in lieu of Massachusetts law, or to raise the "full faith and


credit"

argument.

court ruled

These ideas surfaced

against the

only after the district

plaintiffs and entered

final judgment.

This was too late.


The

plaintiffs have

offered no

waiting until after the entry of


the prior proceedings
along by the FDIC.

By

pertinent

state-law

plaintiffs

have no

unwillingness
judgment.

(1st

for

judgment to inform the court of

object to the

amounts claimed

all

like token, having briefed and argued all


issues

basis

in

terms

of

for condemning

to take a second

See
___

1076, 1095

or to

plausible reason

the district

look after it

Fashion House, Inc. v.


____________________
Cir. 1989)

Massachusetts

law,

court's

had entered final

K Mart Corp., 892


_____________

(explaining that

courts will

F.2d

hold

parties to positions advanced before judgment regarding choice of


law).
Unlike

the Emperor

Nero,

litigants cannot

fiddle as

17

Rome burns.

party who sits in silence,

withholds potentially

relevant

information,

allows

his

opponent

to

configure

the

summary judgment record, and acquiesces in a particular choice of


law does so at his peril.
cannot

say

that

the

In

the circumstances of this case, we

district

court's

plaintiffs'

post-judgment

discretion.

See Hayes v. Douglas Dynamics, Inc., 8


___ _____
______________________

n.3

the information

unknown nor

on which

denied, 114
______

an

abuse

the

of

F.3d 88, 90

S. Ct.

relied was

neither

to summary judgment

2133 (1994);

Fragoso v.
_______

991 F.2d 878, 887-88 (1st Cir. 1993) (explaining that the

district court is justified


relies

the movant

unavailable when the opposition

filed), cert.
_____

Lopez,
_____

the

constituted

grant

(1st Cir. 1993) (affirming denial of relief under Rule 59(e)

where

was

motion

refusal to

in denying a Rule 59(e)

on previously undisclosed

facts when the

motion that

movant knew of

facts, yet, without a good excuse, failed to proffer them in

a timeous manner); FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st
____
________________
Cir. 1992)
deny a

(holding that

the district court

has discretion

to

Rule 59(e) motion that rests on grounds "which could, and

should, have

been [advanced] before

judgment issued") (citation

omitted).8
____________________

8Even if plaintiffs' post-judgment


motion were to be
considered under Rule 60(b)(6) rather than Rule 59(e), the
outcome would be the same.
See Perez-Perez v. Popular Leasing
___ ___________
_______________
Rental, Inc., 993 F.2d 281, 284 (1st Cir. 1993) (concluding that,
____________
absent exceptional circumstances, motions under Rule 60(b)(6)
must raise issues not available to the moving party prior to the

time final judgment entered);

see also Rodriguez-Antuna v. Chase


___ ____ ________________
_____
Manhattan Bank Corp., 871 F.2d 1, 3 (1st Cir. 1989) (holding that
____________________
abuse-of-discretion standard applies in reviewing trial court's
disposition of Rule 60(b) motions).
18

IV.
IV.

CONCLUSION
CONCLUSION
We need go

no further.

proposed causes of action


or both.

Hence, the

In the

end, the

plaintiffs'

are either barred, or unsubstantiated,

district court did

not err in

concluding

that the plaintiffs had failed to demonstrate a trialworthy issue


on

their direct claims.

no error

in holding

had exhibited no valid


demands for money due.

Affirmed.
Affirmed.
________

By

the same token, the court committed

that the plaintiffs,

as counterdefendants,

defense against the FDIC's particularized

19