Hathaway v. City of Claremont

• Court: Court of Appeals for the First Circuit
• Decided: April 3, 1997
• Docket: 96-2193
• Status: Unpublished

Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

No. 96-2193

SHAUN HATHAWAY,

Plaintiff, Appellant,

v.

CITY OF CLAREMONT,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, U.S. District Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Boudin, Circuit Judge.

Donald L. Lader, Jr. and Law Offices of Michael C. Shklar on

brief for appellant. Edward B. Mulligan, IV and Gallagher, Callahan & Gartrell, P.A.

on brief for appellee.

MARCH 27, 1997

Per Curiam. The judgment is affirmed substantially for

the reasons enumerated by Chief Judge DiClerico in his order

dated September 16, 1996. Appellant has advanced no reason

to question the careful analysis of claim-preclusion

principles there set forth. The contention that appellee

waived or forfeited such defense by failing to assert it in

timely fashion, see, e.g., Calderon Rosado v. General Elec.

Circuit Breakers, Inc., 805 F.2d 1085, 1087 (1st Cir. 1986)

(citing Restatement (Second) of Judgments 26(1)(a)), is

raised for the first time on appeal. We thus review that

claim for "plain error" indicative of a "clear miscarriage of

justice." Playboy Enterprises, Inc. v. Public Serv. Comm'n,

906 F.2d 25, 40 (1st Cir. 1990) (internal quotation omitted).

We see neither plain error nor a miscarriage of justice.

Affirmed. See Loc. R. 27.1.

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