Gaudet v. Boyajian

Court of Appeals for the First Circuit·Decided March 21, 1995·No. 94-1803·Published

Opinion

USCA1 Opinion

March 21, 1995 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

___________________

No. 94-1803

ENOS JULIAN GAUDET,

Plaintiff, Appellant,

v.

JOHN BOYAJIAN,

Defendant, Appellee.

__________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge] __________________________

___________________

Before

Cyr, Boudin and Stahl,
Circuit Judges. ______________

___________________

Enos Gaudet on brief pro se. ___________
John Boyajian and Boyajian, Harrington & Richardson on ______________ ____________________________________
Motion to Dismiss and Memorandum in Support, for appellee.

__________________

__________________

Per Curiam. This is an appeal by pro se debtor- __________

appellant Gaudet from a district court intermediate appeal,

Gaudet v. Boyajian, No. 92-0616B (D.R.I. May 16, 1994), ______ ________

affirming a bankruptcy court order requiring Gaudet to pay

trustee-appellee Boyajian $28,000 in fees and costs as a

sanction "for the legal services attributable to [Gaudet's]

frivolous litigation during the course of this bankruptcy

case." In re Gaudet, 144 B.R. 223, 224 (Bankr.D.R.I. 1992). ____________

The district court, concluding that the bankruptcy court was

authorized to assess the fee sanction, affirmed the order and

Gaudet appeals.

Trustee-appellee Boyajian moves to dismiss the appeal

contending that this court is without appellate jurisdiction

to review the judgment affirming the bankruptcy court's

order. We agree, but find the notice of appeal timely as to

the denial of Gaudet's post-judgment motion, which remains

open to review.

A brief recitation of the pertinent facts is in order:

1. On May 16, 1994, after hearing on April 28, 1994, the

district court entered an order and judgment affirming the

bankruptcy court's order.

2. On June 2, 1994, Gaudet filed a motion entitled "Notice

and Motion to Extend Time." The motion requested an

extension of time in which to file a motion for rehearing of

the May 16, 1994, order. Specifically, Gaudet sought to

delay the filing of the intended rehearing motion until 15

days after the receipt of the April 28, 1994, hearing

transcript which, he asserted, was needed to complete the

proposed motion.

3. On June 20, 1994, the district court entered a margin

order summarily denying the Notice and Motion to Extend Time.

4. On July 19, 1994--sixty-four days after entry of

judgment and thirty days after the denial of the motion--

Gaudet filed a notice of appeal "from the [June 20, 1994]

order denying his motion . . . of June 2, 1994."

5. On August 2, 1994, Gaudet filed a statement of issues on

appeal challenging the bankruptcy court's authority to impose

an attorney fee sanction for Gaudet's overall litigation

conduct, including actions in the appellate courts.

As a threshold matter, although the notice of appeal on

its face shows an appeal from the denial of the Notice and

Motion to Extend, it is obvious--from the statement of issues

and other filings in this court--that Gaudet seeks to revisit

the district court judgment affirming the bankruptcy court's

order. It is undisputed that the notice of appeal was filed

more than thirty days after entry of that judgment. Fed. R.

App. P. 4(a)(1). That a notice of appeal be timely filed is

"mandatory and jurisdictional." Browder v. Director, Dep't _______ ________________

of Corrections, 434 U.S. 257, 264 (1978). However, a motion _______________

to alter or amend judgment under Fed. R. Civ. P. 59(e), if

served within ten days of judgment, postpones the period for

appealing the judgment until the district court's disposes of

the motion. Rule 4(a)(4)(C).

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The question arises whether the Notice and Motion to

Extend could be construed as a Rule 59(e) motion. We think

not. Although the motion was served on May 31, 1994, within

the ten-day period, and was ostensibly timely for Rule 59(e)

purposes, Fed. R. Civ. P. 6(a); Rivera v. M/T Fossarina, 840 ______ _____________

F.2d 152, 154 (1st Cir. 1988) (the date of service, not

filing, controls), there are otherwise none of the earmarks

of a cognizable motion for Rule 59(e) relief. It was

designed as motion to extend time to file a motion for

rehearing, but the time to file a Rule 59(e) motion cannot be

extended. Id. n.3. It was unaccompanied by any kind of ___

statement indicating why the ruling below was legally

incorrect, and, thus, failed utterly to comply with the basic

requirements of Fed. R. Civ. P. 7(b)(1) that grounds for

motion relief be stated with particularity. See Sierra On- ___ __________

Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1420 __________ _______________________

(9th Cir. 1984). In short, under the most charitable view,

Gaudet's Notice and Motion to Extend cannot, in substance, be

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USCA1 Opinion




March 21, 1995        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

___________________

No. 94-1803

ENOS JULIAN GAUDET,

                                Plaintiff, Appellant,

                                          v.

                                    JOHN BOYAJIAN,

                                 Defendant, Appellee.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF RHODE ISLAND

                 [Hon. Francis J. Boyle, Senior U.S. District Judge]
                                         __________________________

                                 ___________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges. 
                                   ______________

                                 ___________________

               Enos Gaudet on brief pro se.
               ___________
               John  Boyajian  and  Boyajian,  Harrington  &  Richardson on
               ______________       ____________________________________
          Motion to Dismiss and Memorandum in Support, for appellee.

__________________

                                  __________________



Per Curiam.    This is an appeal  by pro se debtor-
                      __________

            appellant Gaudet  from a district court  intermediate appeal,

            Gaudet  v.  Boyajian, No.  92-0616B  (D.R.I.  May 16,  1994),
            ______      ________

            affirming a bankruptcy  court order requiring  Gaudet to  pay

            trustee-appellee Boyajian  $28,000 in  fees  and costs  as  a

            sanction "for the  legal services attributable  to [Gaudet's]

            frivolous  litigation during  the course  of  this bankruptcy

            case."   In re Gaudet, 144 B.R. 223, 224 (Bankr.D.R.I. 1992).
                     ____________

            The district court, concluding that the bankruptcy court  was

            authorized to assess the fee sanction, affirmed the order and

            Gaudet appeals.

                 Trustee-appellee  Boyajian moves  to dismiss  the appeal

            contending  that this court is without appellate jurisdiction

            to  review the  judgment  affirming  the  bankruptcy  court's

            order.   We agree, but find the notice of appeal timely as to

            the denial  of Gaudet's  post-judgment motion,  which remains

            open to review.

                 A brief recitation of the pertinent facts is in order:

            1.   On  May 16, 1994, after  hearing on April  28, 1994, the

            district court entered  an order and  judgment affirming  the

            bankruptcy court's order.

            2.   On June 2, 1994, Gaudet  filed a motion entitled "Notice

            and  Motion  to  Extend  Time."    The  motion  requested  an

            extension of time in which to file a  motion for rehearing of

            the  May 16,  1994,  order.   Specifically, Gaudet  sought to

            delay the filing  of the intended  rehearing motion until  15

            days  after  the  receipt  of  the  April 28,  1994,  hearing

            transcript  which, he  asserted, was  needed to  complete the

            proposed motion.



3.   On June 20,  1994, the district  court entered a  margin

            order summarily denying the Notice and Motion to Extend Time.

            4.   On  July  19,  1994--sixty-four  days  after  entry   of

            judgment  and thirty  days after the  denial of  the motion--

            Gaudet filed a  notice of  appeal "from the  [June 20,  1994]

            order denying his motion . . . of June 2, 1994."

            5.   On August 2, 1994, Gaudet filed a statement of issues on

            appeal challenging the bankruptcy court's authority to impose

            an attorney  fee  sanction for  Gaudet's  overall  litigation

            conduct, including actions in the appellate courts.

                 As  a threshold matter, although the notice of appeal on

            its face  shows an appeal  from the denial of  the Notice and

            Motion to Extend, it is obvious--from the statement of issues

            and other filings in this court--that Gaudet seeks to revisit

            the district court judgment affirming  the bankruptcy court's

            order.  It  is undisputed that the notice of appeal was filed

            more than thirty days after entry of  that judgment.  Fed. R.

            App. P. 4(a)(1).  That a  notice of appeal be timely filed is

            "mandatory and jurisdictional."   Browder v. Director,  Dep't
                                              _______    ________________

            of  Corrections, 434 U.S. 257, 264 (1978).  However, a motion
            _______________

            to  alter or amend judgment  under Fed. R.  Civ. P. 59(e), if

            served within ten days of judgment, postpones the period  for

            appealing the judgment until the district court's disposes of

            the motion.  Rule 4(a)(4)(C).

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The  question arises  whether the  Notice and  Motion to

            Extend could be construed as  a Rule 59(e) motion.   We think

            not.  Although the motion was  served on May 31, 1994, within

            the ten-day period, and was ostensibly timely for Rule  59(e)

            purposes,  Fed. R. Civ. P. 6(a); Rivera v. M/T Fossarina, 840
                                             ______    _____________

            F.2d  152,  154 (1st  Cir. 1988)  (the  date of  service, not

            filing, controls),  there are otherwise none  of the earmarks

            of  a  cognizable  motion for  Rule  59(e)  relief.   It  was

            designed  as motion  to  extend time  to  file a  motion  for

            rehearing, but the time to file a Rule 59(e) motion cannot be

            extended.   Id. n.3.   It  was unaccompanied  by any  kind of
                        ___

            statement  indicating   why  the  ruling  below  was  legally

            incorrect, and, thus, failed utterly to comply with the basic

            requirements  of Fed.  R. Civ.  P. 7(b)(1)  that grounds  for

            motion  relief be stated with particularity.   See Sierra On-
                                                           ___ __________

            Line, Inc.  v. Phoenix  Software, Inc.,  739 F.2d 1415,  1420
            __________     _______________________

            (9th Cir. 1984).   In short, under the most  charitable view,

            Gaudet's Notice and Motion to Extend cannot, in substance, be

            treated as a Rule 59(e) motion and is ineffective to preserve

            any  Rule 59(e) rights.   See Perez-Perez  v. Popular Leasing
                                      ___ ___________     _______________

            Rental, Inc., 993  F.2d 281, 283 (1st  Cir. 1993) (substance,
            ____________

            not  nomenclature, determines character of motion); Feinstein
                                                                _________

            v. Moses, 951  F.2d 16,  20 (1st Cir.  1991) (order  allowing
               _____

            motion  to  enlarge  did  not implicate  Rule  59(e)  tolling

            because motion failed to apprise court of grounds for seeking

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reconsideration).  As a consequence, the 30-day appeal period

            was not extended and the  notice of appeal is late as  to the

            judgment,  precluding its  review in  this court.1   See  Air
                                                                 ___  ___

            Line Pilots Ass'n v. Precision Valley Aviation, 26 F.3d  220,
            _________________    _________________________

            224 (1st Cir. 1994) (non-conforming Rule 59(e) motions do not

            resurrect an expired right to appeal the merits of underlying

            judgment); Rivera, 840 F.2d at 156. 
                       ______

                 While our  jurisdiction over an appeal  from judgment is

            foreclosed, the notice of  appeal is timely as to  the denial

            of  the  Notice  and Motion  to  Extend  Time.   Nonetheless,

            presuming  that   Gaudet  sought  more  time   to  press  for

            reconsideration of  the underlying judgment under Rule 59(e),

            "it is well  established that district  courts lack power  to

            enlarge the time  for filing post-judgment motions  for a new

            trial or motions to alter or amend judgment."  Feinstein, 951
                                                           _________

            F.2d at 19  & n.3.  Since the district court lacked authority

            to extend the  time for  Gaudet to  file such  a motion,  its

            summary denial was entirely proper.  Id. at 21.  
                                                 ___

____________________

            1.  Nor could the Notice and Motion to Extend Time, which did
            not designate the rule relied upon, conceivably be treated as
            a  motion under Fed. R. App.  P. 4(a)(5) to extend the 30-day
            appeal  period because  of excusable  neglect or  good cause.
            Gaudet's  casual filing  offered no legitimate  or compelling
            reason whatsoever, much less developed  argument, for failing
            to file  a timely  notice of  appeal from  judgment.   In any
            event,  as Gaudet's  notice  of appeal  was ultimately  filed
            sixty-four days after judgment,  Rule 4(a)(5), which enlarges
            the appeal period to  no more than sixty days,  would provide
            no relief.    

                                         -5-



Even  if  the  Notice  and  Motion to  Extend  Time  was

            generously construed  as a  request for relief  from judgment

            under Fed.  R. Civ. P. 60(b),  given the history of  the case

            and the  failure to  identify any facially  sufficient ground

            for such a  motion, there was no  abuse of discretion  in its

            denial.   The extraordinary relief afforded  by Rule 60(b) is

            available  only in  exceptional  circumstances,  clearly  not

            present here.   See id. at 21 n.5; United States v. One Urban
                            ___ ___            _____________    _________

            Lot, 882 F.2d 582, 585 (1st Cir. 1989).
            ___

                 Appellee also  seeks sanctions  from this court  for the

            filing  of this untimely appeal.  However, the appeal was not

            untimely  in all respects.   We trust that  appellant is well

            aware  that   frivolous  filings   will  not   be  tolerated.

            Appellee's motion for sanctions is denied.  

                 In  sum, insofar  as  Gaudet is  contesting the  May 16,

            1994, judgment affirming the  September 2, 1993, decision and

            order  of the bankruptcy  court, the appeal  is dismissed for

            lack of  appellate jurisdiction.   To the extent  that Gaudet

            contests  the  June 20,  1994, order  denying his  Notice and

            Motion to Extend Time, that order is affirmed.

                 It is so ordered.
                 ________________

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