[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 00-1651

UNITED STATES,

Plaintiff, Appellee,

v.

RICHARD LABOMBARD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Torruella, Chief Judge, Selya and Boudin, Circuit Judges.

Richard LaBombard on brief pro se. Paula M. Junghans, Acting Assistant Attorney General, Ann B. Durney and Regina S. Moriarty, Attorneys, Tax Division, Department of Justice, on brief for appellee.

December 7, 2000 Per Curiam. Appellant, Richard LaBombard, appeals

a decision of the district court denying his motion to

dismiss and granting summary judgment in favor of the United

States and the court's subsequent entry of a judgment in

favor of the United States in the amount of $138,857.75 plus

statutory interest and penalties accrued since October 19,

1998. LaBombard complains that the district court unfairly

considered what LaBombard alleges was an untimely filing

submitted by the government and failed to consider what

LaBombard alleges was his own timely response.

Although it appears that the government's

supplemental memorandum was tardy, see district court's

order of February 15, 2000, setting a deadline of 21 days,

it was within the court's discretion to excuse the

tardiness, if any. As for LaBombard's own response,

contrary to his assertion, it appears that that response was

also tardy. The mailing rule to which LaBombard refers

(adding 3 days to the prescribed period) applies when a

party is required to respond after service of a paper by the

opposing party. See Fed. R. Civ. P. 6(e). The district

court's February 15 order recited that LaBombard had 14 days

to respond after the government's filing of its supplemental

memorandum. See also Dist. Ct. Loc. R. 7.1(B) (reciting that a party opposing a motion shall file an opposition

within 14 days and "[t]he fourteen day period is intended to

include the period specified by the civil rules for mailing

time"). Because LaBombard's response was entered on the

docket on the same day as the date of the court's memorandum

and order, however, it appears that LaBombard's response

simply was not brought to the district court's attention.

Having excused the lateness of the government's filing, we

assume that the court would have similarly excused any

tardiness on LaBombard's part, if that filing had been

brought to its attention.

In any event, we review both the denial of a motion

to dismiss and the grant of summary judgment de novo. See

Souza v. Pina,

(1st Cir. 1995) (motion to

dismiss); Nichols v. Land Transport Corp.,

(1st Cir. 2000) (summary judgment). We have reviewed the

parties' briefs and the record on appeal. The allegations

in the government's complaint sufficed to state a claim for

which relief can be granted and there existed no genuine

issue of material fact precluding entry of summary judgment

in its favor. We affirm essentially for the reasons stated

in the district court's memorandum and order, dated March

31, 2000.

-3- Affirmed.

-4-