USCA1 Opinion

          [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]



                    UNITED STATES COURT OF APPEALS

                         FOR THE FIRST CIRCUIT

                         ____________________





No. 97-2287





                          DAVID JAMES WYATT,



                         Plaintiff, Appellant,



                                  v.



                        CITY OF BOSTON, ET AL.,



                        Defendants, Appellees.



                         ____________________





             APPEAL FROM THE UNITED STATES DISTRICT COURT



                   FOR THE DISTRICT OF MASSACHUSETTS



               [Hon. Mark L. Wolf, U.S. District Judge]



                         ____________________



                                Before



                         Boudin, Circuit Judge,

                     Coffin, Senior Circuit Judge,

                       and Lynch, Circuit Judge.



                         ____________________



    David James Wyatt on brief pro se.

    Malcolm S. Medley, Special Assistant Corporation Counsel, Boston

Public Schools, on brief for appellees.





                         ____________________



                             May 1, 1998

                                              







           Per Curiam.  Appellant David James Wyatt appeals the

    dismissal of his complaint for failure to state a claim under

    Fed. R. Civ. P. 12(b)(6) and for failure to plead fraud with

    the particularity required by Fed. R. Civ. P. 9(b).  After

    reviewing the record and the parties' briefs, we affirm the

    judgment of the district court for essentially the reasons

    stated in its Memorandum and Order, dated August 22, 1997, and

    other dispositive reasons on the merits.  We add only the

    following comments.

             1.  Even assuming appellant alleged fraud with the

    requisite specificity, a careful reading of the complaint and

    appellant's brief demonstrates a complete failure, on the

    merits, to state a common law claim of fraud.  Central to such

    a claim is the making of a false statement by a defendant.  SeeTurner v. Johnson & Johnson, 809 F.2d 90, 95 (1st Cir. 1986);

    Macoviak v. Chase Home Mortgage Corp., 40 Mass. App. Ct. 755,

    760, 667 N.E.2d 900, 904 (1996).  We find no relevant false

    statements here.

             First, because the definitions of "good cause" and

    "just cause" in the two versions of M.G.L.c. 71,  42 are

    virtually identical in all pertinent aspects -- both versions

    include incompetency as cause for dismissal -- the

    representation that there was "just cause" to dismiss appellant

    was not false.  Second, since the Education Reform Act of 1993

    was an emergency law, it became effective on the date it was

    approved -- June 18, 1993.  See Connolly v. Division of Pub.

    Employee Retirement Admin., 415 Mass. 800, 803 n.3, 616 N.E.2d

    59, 61 n.3 (1993).  This means that defendants' statements to

    Wyatt that review of the termination decision had to proceed

    under the terms of the new Act were, in fact, true.  In this

    context, we reject appellant's argument that Superintendent's

    Circular No. 2 was part of the collective bargaining agreement

    and thus, under  77 of the Reform Act, trumped the application

    of new  42.  As a result, there was no breach of state law,

    and, consequently, no fraud.  Based on the foregoing, appellant

    has no claim of fraud, and thus no further lawsuits, against

    any of the defendants, including Lois Harrison-Jones and Paul

    Parks.

             2.  As for appellant's motion for a default judgment

    against defendants, we conclude that the district court did not

    abuse its discretion in denying the motion.  See Coyante v.

    Puerto Rico Ports Auth., 105 F.3d 17, 23 (1st Cir. 1997). 

    Since appellant does not dispute the district court's

    observation that he has filed many cases and appeals involving

    the same defendants, the court's conclusion that the May 10,

    1996 order may have been misfiled due to the confusion created

    by these cases and appeals can hardly be called an abuse of

    discretion.  It therefore is plain that the case at hand did

    not represent an "extreme situation" requiring the "drastic

    sanction" of a default judgment.  See id.

             The judgment of the district court is affirmed; all

    pending motions are denied as moot.