USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

____________________

No. 96-1590
No. 96-2005

JOHN E. PARIGIAN, INDIVIDUALLY AND AS TRUSTEE OF

CLIFTON HEIGHTS REALTY TRUST,

Plaintiff, Appellant,

v.

RICHARD G. LEBLANC AND NANCY E. LEBLANC, INDIVIDUALLY AND AS

TRUSTEES OF R & N REALTY TRUST,

Defendants, Appellees.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. W. Arthur Garrity, Senior U.S. District Judge]

__________________________

____________________

Before

Selya, Circuit Judge,

_____________
Cyr, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________

____________________

John E. Parigian on brief pro se.

________________

J. Allen Holland, John R. Cavanaugh and Lynch, Brewer, Hoffman

________________ __________________
______________________
Sands, LLP on brief for appellees.
__________

____________________

January 6, 1998
____________________

Per Curiam.
___________

Plaintiff-appellant

John

E.

Parigian,

individually and as

("the

Trust"),

trustee of Clifton Heights

appeals

pro se

from

Amended Order and Judgment, dated

96-1590) and from

Under

Fed.

(Appeal

the

Realty Trust

district court's

April 19, 1996 (Appeal No.

the district court's Memorandum

R. Civ.

P.

No. 96-2005). We

11(c)(1)(B), dated

August

affirm the district

and Order

8, 1996

court in both

cases and deny the parties' requests for oral argument.

I. Amended Order and Judgment (Appeal No. 96-1590)

_______________________________________________

A. Jurisdiction
____________

The

district court

correctly

ruled that

the judgment

entered by the Court "fits within the description in Kokkanen

________

v. Guardian Life Ins. Co.,

_________________________

511 U.S. 375 (1994), of judgments

in which the Court has retained jurisdiction for

enforcement."

Judgment.

Memorandum

In this case,

and Order

on

purposes of

Motion to

Enforce

"the parties' obligation to

comply

with the terms of the settlement agreement had been made part

of the

order."

Kokkanen, 511
________

court's Agreement

parties'

payments

and

agreement

Richard

LeBlancs").

ordering

Trust, to make

G.

Therefore,

the agreement [is]

The

LeBlanc

it is

and

the

Parigian,

specific

Nancy

E.

clear that

"a

a violation of the

-2-

district

Order incorporated

by

trustee of the

to appellees,

LeBlanc ("the

breach of

for Judgment

settlement

individually and as

U.S. at 381.

order, and

ancillary

exist[s]."

jurisdiction

to

enforce

the

agreement

Id.
___

B. Whether the Trust is Bound by the Amended Judgment

__________________________________________________

The

counterclaim

itself is

ambiguous

with regard

to

whether Parigian, in his capacity as trustee of the Trust, is

a counterclaim defendant.

strongly

suggests

counterclaim

trustee.

executed

to

be

The

that

the

against

The counterclaim

by Parigian,

answering the

rest of the record,

parties

understood

Parigian individually

was based on

individually

and

counterclaim, Parigian

"Defendant-in-counterclaim,

however,

John

E.

and

a promissory

as

trustee.

the

as

note

In

identified himself

as

Parigian and

E.

John

Parigian as trustee of Clifton Heights Realty Trust."

While

the

counterclaim

was

ambiguous

Parigian was included

in both capacities, the

Judgment

was

and

"[j]udgment

LeBlanc

and

Counterclaim

Order

for

not.

The

about

Agreement for

Agreement

the Plaintiffs-in-Counterclaim

Nancy

against

E.

LeBlanc

('the

whether

announced

Richard

LeBlancs')

Defendant-in-Counterclaim

G.

on

the

John

E.

Parigian,

Realty

individually and as Trustee of the Clifton Heights

Trust (collectively

$213,125.00."

Order, Parigian

By agreeing to

waived the

party who has agreed to

'Parigian'),

in

the amount

of

the entry of that Judgment and

right to appeal

from it.

the entry of a judgment without

-3-

"[A]

any

reservation

save

may not thereafter

for lack

of actual

matter jurisdiction."

seek to upset

consent

or a

the judgment,

failure of

subject

Cotto v. United States, 993 F.2d

_____
_____________

274,

279 n.5 (1st Cir. 1993).

Finally, even

if Parigian had

not waived the

right to

appeal, we would affirm the district court's ruling that "the

terms of the Agreement identifying Parigian as trustee of the

Clifton Heights Realty Trust supersede any failure to plead a

compulsory counterclaim. . . .

[T]he pleadings may be deemed

to

to

have

action."

Under

been amended

so

as

allow for

the

aforesaid

Memorandum and Order on Motion to Enforce Judgment.

Fed. R.

pleading may

Civ. P.

15(b),

be found where

implied consent

a claim is

to amend

"introduced outside

the complaint [or counterclaim] . . . and then treated by the

opposing party

effective

as having

engagement

acquiescence."

of

been pleaded,

either through

the claim

through

Rodriguez v.
_________

or

his

his silent

Doral Mortgage Corp.,

____________________

57 F.3d

1168, 1172 (1st Cir. 1995).

In

trustee

of

this case,

of

Parigian's obligation

as

was introduced by the attachment to the counterclaim

a promissory

note

enforce) executed by

capacities.

though

the issue

it

(which

counterclaim

Parigian in his individual

Parigian clearly

had named

the

him

in

answering it in both capacities

treated the

his

sought

to

and trustee

counterclaim as

capacity as

trustee

by

and by agreeing to the terms

-4-

of

the

included

Agreement

Parigian

circumstances,

for Judgment

in

amendment of the

prejudiced Parigian and

the district

counterclaim.

both

Order

which expressly

capacities.

Under

these

counterclaim could not have

there was no abuse

court in finding

See
___

and

an implied

of discretion by

amendment of

Lynch v. Dukakis, 719 F.2d

_____
_______

the

504, 509 (1st

Cir. 1983).

II. Sanction (Appeal No. 96-2005)

_____________________________

"It is

apodictic that

impose Rule

11 sanctions

discretion

rubric.

litigant's

(or

sanctions

is

lawyer's) actions

heavily

review is deferential.

under an

decision

merit

dependent upon

the case and its

Thus,

abuse-of-

about whether

the imposition

the

to

of

district court's

nuances, appellate

a party protesting an order in

to sanctions bears a formidable burden in attempting

to convince

erred

court's decision

is reviewable

Because the

first-hand knowledge of

respect

a district

the court

in finding

of appeals

that Rule

Navarro-Ayala v. Nunez,
_____________
_____

11

that

was or

the district

judge

was not

violated."

968 F.2d 1421, 1425 (1st

Cir. 1992)

(citations omitted).

Parigian has not overcome that formidable burden in this

case.

The record fully supports the district court's finding

that Parigian violated Fed. R.

he represented to

secured

in

their

Civ. P. 11(b)(2) and (3) when

the court that

position

as

-5-

"[the LeBlancs] are

mortgage

holder

upon

fully

the

property which is

valued at in excess of

time that he made that

and Order

that the

judgment

entered.

discretion in

At the

statement, the Agreement for Judgment

had entered.

position

$800,000."

It has

mortgage

The

consistently been Parigian's

became

nullity

district court

determining that

did

after

not abuse

Parigian's conduct

that

its

violated

Rule 11. 1
1

The district

court's Amended Order and

Judgment, dated

April 19, 1996, and the district court's Memorandum and Order

Under Fed. R. Civ. P.

affirmed.
________

denied.
______

11(c)(1)(B), dated August 8, 1996, are

Appellees' Motion

to Schedule

Oral Argument

is

____________________

1
1

Although Parigian

amount of
findings

the sanction,
fully justify

has not specifically

we note that
the

sanction

challenged the

the district
amount

which

court's
"falls

within the

minimum range

abusive behavior."

reasonably required

to deter

Navarro-Ayala, 968 F.2d at 1426.

_____________

-6-

the