Dopp v. HTP Corporation

• Court: Court of Appeals for the First Circuit
• Decided: August 17, 1992
• Docket: 91-1301
• Status: Published

Opinion

USCA1 Opinion

        August 17, 1992         [NOT FOR PUBLICATION]

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No. 92-1301 

                                   PEDRO C. VARGAS,

                                Plaintiff, Appellant,

                                          v.

                              LEONARDO GONZALEZ, ET AL.,

                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Gilberto Gierbolini, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                Selya, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Hector  Gonzalez Lopez  and  Feijoo's  Law  Offices on  brief  for
            ______________________       ______________________
        appellant.
            Jose  A. Cestero  and Cesar  R. Miranda  Law Offices  on brief for
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        appellees.

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Per  Curiam.   In June  1991, attorneys  for all  of the
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            parties to  this case  failed to  appear for a  hearing on  a

            motion  to amend the complaint.  The district court fined the

            lawyers involved.  In his motion to reconsider the  sanction,

            the  plaintiff's  attorney,  Hector  Gonzalez  Lopez, offered

            apologies and  an  explanation  for  his truancy.    He  also

            informed the court that  he would be absent from  Puerto Rico

            during  the month of July,  1991.  Accordingly,  he asked the

            court to reschedule a forthcoming status conference from July

            16  "until  August."     The  court  complied  with  Attorney

            Gonzalez'  request.   In an  order dated  July 12,  1991, the

            district court (a) removed  the sanctions and (b) rescheduled

            the status conference for August 9, 1992.

                 Gonzalez did not  appear at the conference  on August 9.

            The district court,  taking into  account Gonzalez'  previous

            dereliction,  decided  to dismiss  the  case  for failure  to

            prosecute.  The judgment of dismissal was dated August 30 but

            was not entered  on the  docket until September  3, at  which

            time (the docket indicates) copies of  the judgment were sent

            to all parties.

                 The court next heard from Attorney Gonzalez on September

            9,  when  he  filed  an "informative"  motion  requesting  an

            extension of time to respond to certain papers the defendants

            had filed over the summer.  The motion was mooted by, yet did

            not mention, the dismissal  entered six days earlier.   In an

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order entered October 7, the district court denied the motion

            for   an  extension  and,   referring  to  the  now-month-old

            dismissal, expressed  its exasperation at  Attorney Gonzalez'

            inability to "read the handwriting on the wall."

                 The  October 7  order brought  a response  from Attorney

            Gonzalez, filed on October 18 and captioned "Motion  to Amend

            Judgment of August  30th, 1991  and to Other  Extremes."   In

            this motion, Gonzalez offered excuses both for his failure to

            appear at the  August 9  conference, and for  his failure  to

            respond more quickly to the judgment of dismissal.  As to the

            latter  delinquency,  Gonzalez  claimed  that  he  had  never

            received  a copy of the judgment,  and had not learned of the

            dismissal  until he  received  the court's  October 7  order.

            With  respect  to his  absence  from  the status  conference,

            Gonzalez said  that he was away from  Puerto Rico from July 3

            to August 2,  caring for his ailing  parents in Florida.   He

            spent the week August 2  to August 9 in Puerto Rico,  but his

            secretary,  though she  informed him  of the court's  July 12

            order lifting the sanctions,  neglected to tell him  that the

            same  order had  also rescheduled  the status  conference for

            August  9.  Thus, Gonzalez left Puerto Rico for Florida again

            on August 9 without attending the conference or arranging for

            a  further continuance.  When  he returned to  Puerto Rico at

            the end of the month, he "did not check, inadvertantly [sic],

            the case file itself . .  . or he would have seen the  notice

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vacating the sanctions  and setting  the status  conference."

            Arguing that the mortal sanction of dismissal was too harsh a

            punishment  for such venial sins,  and that in  any event the

            client  should not  be  made  to  suffer for  his  attorney's

            neglect, Gonzalez asked the court  to "set aside its Judgment

            dismissing this case and to impose instead whatever sanctions

            it deems necessary on the undersigned."

                 On January 17, 1992 the district court denied the motion

            to amend judgment.  Citing  Fed. R. Civ. P. 59(e), the  court

            said  that motions to amend judgment must be filed within ten

            days  of the entry  of the judgment  challenged, and observed

            that the motion at hand had been filed more  than thirty days

            late.  This appeal followed.  We affirm.

I
                                          _

The motion filed on  October 18 did not invoke  any Rule

            of  Civil  Procedure, but  if  the  district court  correctly

            characterized  it as a Rule 59(e) motion, then the denial was

            indisputably  correct.   Because Rule  59(e) motions  must be

            filed  within  ten   days  of  the  entry   of  the  judgment
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            challenged,   exclusive   of  weekends   and   holidays,  the

            allegation that Attorney  Gonzalez did not receive  a copy of

            the judgment is of no consequence.  "The 10 day period begins

            to  run upon  entry  of  judgment even  if  a  party has  not

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received notice of the judgment . . . ."   6A Moore's Federal

            Practice    59.09[1] (1991).  Cf. Fed. R. Civ. P. 77(d) (lack
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            of  notice of  entry  of judgment  does  not affect  time  to

            appeal).   The ten-day deadline is mandatory, Fed. R. Civ. P.

            6(b),  and it is well established that the district court has

            no power or discretion to modify it.  See Feinstein v. Moses,
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            951 F.2d 16, 19 (1st Cir. 1991) and cases cited therein;  see
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            also Shults v. Henderson, 110 F.R.D. 102 (W.D.N.Y. 1986).  
            ____ ______    _________

                 The  district court properly  identified the  October 18

            motion as  one brought under  Rule 59(e).   Not only did  the

            caption  -- "Motion  to Amend  Judgment .  . .  And to  Other

            Extremes" -- echo Rule 59(e), but the gist of  the motion was

            that the  district court  had  erred by  dismissing the  case

            without  proof  that  the  client  was  responsible  for  his

            attorney's lapses, and in  a situation where effective lesser

            penalties were available.   It  is the settled  rule in  this

            circuit that a motion asking the court "to modify its earlier

            disposition of a case because of an allegedly erroneous legal

            result is brought under  Fed. R. Civ. P.  59(e)."  Appeal  of
                                                               __________

            Sun  Pipe Line Co.,  831 F.2d 22, 24  (1st Cir. 1987) (citing
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            Silk v. Sandoval, 435 F.2d 1266, 1267-68 (1st Cir. 1971)).
            ____    ________

II
                                          __

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The appellant's brief intimates that  the district court

            should have construed the October 18 motion to ask for relief

            from  judgment under  Fed. R.  Civ. P.  60(b)(1) or  (b)(4).1

            Motions for relief from judgment are not subject to a ten-day

            deadline.   However,  we do  not see  how the  district court

            could  have read the motion  to state a  viable request under

            Rule  60(b).  First, even  if the judgment  was erroneous, it

            was not void within the meaning of Rule 60(b)(4).  See Lubben
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            v.  Selective Service  System, Local  Board No. 27,  453 F.2d
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            645, 649  (1st Cir. 1972).   "Only in the rare  instance of a

            clear  usurpation of  power," id.,  such  as where  the court
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            lacks subject-matter  jurisdiction, will a judgment be deemed

            void. 

                 Second, the record establishes  that the "neglect" which

            triggered the  dismissal was  not of the  "excusable" variety

            recognized by  Rule 60(b)(1).  Attorney  Gonzalez' failure to

            attend the status conference on August 9  was not pardonable.

            In  June, Gonzalez  had  asked the  court  to reschedule  the

            conference,  then  set for  July 16,  to sometime  in August.

            When he left Puerto Rico for Florida on July 3, the court had

            not ruled on this request for a continuance.  Gonzalez should

            have understood,  therefore, that  unless and until  he heard

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            1.  The  brief also  cites  Rule 60(b)(6)  but identifies  no
            "extraordinary circumstances" that  might bring this residual
            provision into  play.   Gonzalez v. Walgreens  Co., 918  F.2d
                                    ________    ______________
            303, 305 (1st Cir. 1990).

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otherwise he was due in court on  July 16.  He claims not  to

            have  heard about the continuance, yet he remained in Florida

            through July.   Under  these circumstances, one  would expect

            that  when Gonzalez  briefly returned to  Puerto Rico  at the

            beginning  of August,  he would  have been  anxious to  learn

            whether the  status conference had  gone off  without him  on

            July 16.  According to his own account, however, Gonzalez did

            not trouble himself to  find out whether or how the court had

            ruled on his  request for  a continuance.   Instead, he  left

            Puerto Rico again for the remainder of August.  Surely, since

            he  had asked  the court  to  continue the  conference "until

            August,"  Gonzalez must  have suspected  when he  returned to

            Puerto Rico for good at the end the month that  he had failed

            to  appear for a scheduled status conference -- either on the

            original date of July 16 or on a rescheduled date sometime in

            August.  Again,  however, Gonzalez made no effort to discover

            or remedy his delinquency, and the district court entered its

            judgment soon after.   As a matter  of law, such a  "palpable

            mistake" by experienced counsel  does not amount to excusable

            neglect.  See Picucci v. Town of Kittery, 101 F.R.D. 767, 768
                      ___ _______    _______________

            (D.Me.  1984) and  cases  cited therein.    Nor can  such  an

            insistent disregard for one's responsibilities as an attorney

            fairly  be termed "inadvertence" as that word is used in Rule

            60(b)(1).  Indeed, the district court might well  have abused

            its discretion  had it  accepted Gonzalez' carelessness  as a

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basis for relief  from judgment.   See  Lavespere v.  Niagara
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            Machine & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990)
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            (if failure  of party to  submit evidence is  attributable to

            negligence or carelessness  of his attorney,  it would be  an

            abuse  of discretion  for district  court to  reopen case  to

            consider the evidence).

III
                                         ___

Because  it  asked  for  relief under  Rule  59(e),  and

            because it was  filed late,  the October 18  motion to  amend

            judgment did not toll the time for filing a  notice of appeal

            from the  underlying dismissal.  See Feinstein  v. Moses, 951
                                             ___ _________     _____

            F.2d at  18 and cases cited therein.  A notice of appeal from

            the  judgment, which had been entered on September 3, was due

            on October 3;  the appellant  did not file  his notice  until

            February 11.  We therefore  have no jurisdiction to  consider

            the appellant's attack on the dismissal.

                 The  notice  of appeal,  it  is true,  was  filed within

            thirty  days  of  the  order  denying  the  motion  to  amend

            judgment.   "Nevertheless, as the [motion]  prayed for relief

            which  could only  be properly sought  under Rule  59(e), the

            district court was without  jurisdiction to grant it because,

            as we have explained, it was untimely."  Id. at 21.
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The judgment below is summarily affirmed.   See 1st Cir.
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            Rule 27.1.
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