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USCA1 Opinion

September 27, 1994


[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No.

94-1341
LEANDERS H. SMITH,
Plaintiff, Appellant,
v.
WGBH-TV,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin,
Circuit Judges.
______________
____________________
Leanders H. Smith on brief pro se.
_________________
Alan D. Rose, Paul G. Lannon and

Nutter, McClennen

& Fish

_____________ _______________
_________________________
Memorandum In Support Of Motion for Summary Disposition for appelle
____________________
____________________

Per Curiam.
__________
court's

Leanders H. Smith appeals the district

order denying his motion under Fed. R. Civ. P. 60(b)

to reopen Smith's previously dismissed case against


WGBH Educational Foundation, Inc.
Smith's motion
that the

or other

We affirm.1

alleged that Smith had new evidence

court's dismissal of

WGBH had been

appellee

his Title VII

action against

based on WGBH's "fraud, misrepresentation, . .


misconduct."

According

to Smith's

affidavit,

which was attached to the

motion, the tape given by WGBH

the

1989

district

court

conversation with
not a

in

recorded

his supervisor at WGBH,

1981

to

telephone

John Plausse, and

face-to-face conversation with Plausse

in 1984-85, as

WGBH

had apparently

notation

made

connection
relevant

by a

with
part,

Salisbury's

union
1982

the

stated

letter

also submitted

Eugene Salisbury,

labor grievance

respect to

certain tapes

Smith

attorney,

notation

December 1993

"[t]he notation with


destroying

represented.

settlement.

simply

to Smith
tapes has to

which you

alleged

"tapes,"

a
in
In
but

explained

that

do with

your

contained John

Plausse's voice in some threatening episodes and to furnish a


copy to the company."

____________________
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.
___
34(a).

Smith's

motion clearly

himself acknowledges
the same
the

had

in his brief, he

argument about WGBH's

no merit.

As

Smith

had already presented

alleged misrepresentation to

district court in his Motion for Relief From All Pending

Orders

of the

Court

and for

the

Court to

Enter

Judgment Against WGBH, dated February 27, 1990.


also indicated that
the 1981 tape to

Smith had actually

the court.

In

Smith had also

testified that

WGBH dated from

before 1982.

the

Default

That motion

submitted a copy

hearings before the


the tape given

of

court,

the court

The court's order

by

dismissing

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
evidence of
that the
tapes
that

misrepresentation by

tape WGBH

gave the district

involved in the
did

asserted.

not
It is

WGBH.

letter constitute
Neither

court was one

1982 grievance settlement,

date from

1984-85,

as

one states

WGBH

Smith's affidavit that does

of the

or a tape

had apparently
so.

But

that

affidavit was based on knowledge Smith obviously possessed in


1990, when he submitted
and

so was

not newly discovered

court did not abuse its


to

reopen

his Motion for Relief to

his

case on

evidence.

the court,

Therefore, the

discretion in denying Smith's motion


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

waived

its right to litigate

grievance.
had

grievance settlement,

in which

any claims arising

WGBH had
out of the

For that reason, argues Smith, the district court

no jurisdiction to base

its dismissal of

his Title VII

action against WGBH on that tape.


Smith's
variety

argument

of reasons.

in

this

respect

fails

the

court

First, no one questioned that the court

had jurisdiction over Smith's Title VII action.


given

for

the

tape

in

an

attempt

WGBH had not


to

relitigate

substantive issues resolved in the 1982 grievance settlement,


but to

show the

possessing,
Second,

relevant

question

tape dating from 1981,

at least portions of

portion of the 1982-86


notation
tapes

Smith had tapes


in the

and letter

discussed

in

settlement included
court in 1989
the district

connection
the one

by WGBH.

with

had found

from the relevant


Third, Salisbury's

alone show,
the

1982

actually given to

Finally, Smith failed

court when he had

case.

tape given to the

the tape dated

say, let

denied

VII

but the court

discovery period.
do not

he had

Title

Smith's argument assumes that the

court was a
that

court that

that the
grievance

the district
to explain to

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


Thus,

the

district court

Smith's motion
See
___

to him anonymously in

met the

had

no

reason

December 1993.)
to believe

requirements for Rule

that

60(b) relief.

Fed. R. Civ. P. 60(b)(2) (permitting relief from a final

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

(permitting a motion for

59(b)"); Fed. R. Civ.

P. 59 (b)

a new trial to be brought within 10

days of entry of final judgment).


As
lacked any

the

above

merit,

discussion

and Smith

had

believing that the court would


This is
not

show

shows,

no legitimate

misrepresentation
culpability for

WGBH

had

intentionally

as alleged,

motion

basis

for

reopen his case against WGBH.

especially so, since the allegedly


that

Smith's

nor did

the other instances of

new evidence did


engaged

it relieve

in

any

Smith of

misconduct which had

motivated the court to dismiss his action in the first place.


Accordingly, we

think that this appeal

the meaning of Fed. R. App. P. 38, and we

was frivolous within


award double costs

to WGBH.
Affirmed. Double costs awarded to appellee WGBH.
_________________________________________________

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