Hider v. City of Portland

Opinion

USCA1 Opinion

        August 23, 1995         [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________


No. 95-1077 



                                    MARK S. HIDER,



                                Plaintiff, Appellant,



                                          v.



                              CITY OF PORTLAND, ET AL.,



                                Defendants, Appellees.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. David M. Cohen, U.S. Magistrate Judge]
                                           _____________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                           Selya and Lynch, Circuit Judges.
                                            ______________



                                 ____________________



            Mark S. Hider on brief pro se.
            _____________

            Natalie L. Burns on brief for appellee City of Portland.
            ________________

            BethAnne L. Poliquin on brief for appellee Michael Chitwood.
            ____________________


____________________


____________________



Per Curiam.   Plaintiff-appellant Mark S. Hider  appeals
                 __________



            from  the grant of  summary judgment in  favor of defendants-



            appellees  and from the denial  of a request  for relief from



            judgment.   For the following reasons, we  dismiss the appeal



            from the grant of summary judgment as untimely, and we affirm



            the denial of post-judgment relief.



                                          I.



                 This  appeal has its  origins in a  decision by appellee



            Michael  Chitwood,  chief  of  police for  appellee  City  of



            Portland, to deny Hider's second application  for a permit to



            carry  a concealed weapon.   Hider sought  judicial review of



            this administrative determination in Maine state court, which



            upheld  the police chief's decision.   See Hider  v. Chief of
                                                   ___ _____     ________



            Police, Portland, 628 A.2d 158 (Me. 1993).  Thereafter, Hider
            ________________



            filed  a  complaint  in  federal   district  court  alleging,



            pursuant to  42 U.S.C.    1983,  that appellees violated  his



            rights under  the Second, Eighth,  and Fourteenth Amendments.



            Hider also appended various state law claims.  Pursuant to 28



            U.S.C.   636(c), the parties consented  to allow a magistrate



            judge to conduct any and all proceedings in  the case, and to



            enter final judgment and orders.



                 On  October  18,  1994,  the  magistrate  judge  granted



            summary judgment  for appellees on the  federal claim, ruling



            that the claim  is barred  by the doctrine  of res  judicata.
                                                           ___  ________



            The  pendent state law claims  were dismissed as  a matter of


-2-



judicial discretion.  See  28 U.S.C.   1367(c)(3).   Judgment
                                  ___



            entered  on October  19, 1994.   On  November 5,  1994, Hider



            served on appellees a  motion for new trial pursuant  to Fed.



            R.  Civ.  P.  59(a), a  motion  to  alter  or amend  judgment



            pursuant to Fed.  R. Civ. P. 59(e),  and a motion  for relief



            from  judgment  pursuant  to Fed.  R.  Civ.  P.  60(b).   The



            magistrate judge  denied these motions on  November 28, 1994.



            One week later, on December 5, 1994, Hider filed a motion for



            reconsideration.   This  motion  was denied  on December  19,



            1994.  Hider filed a notice of appeal on January 18, 1995. 



                                         II.



                 Although not raised by the parties, the initial question



            we must address in this  appeal is one of jurisdiction.   See
                                                                      ___



            Feinstein v. Moses, 951 F.2d  16, 17 (1st Cir. 1991).   As we
            _________    _____



            see it, Hider does not have a timely appeal from  the summary



            judgment.  Pursuant  to Fed.  R. App. P.  4(a)(1), Hider  was



            required to  file  his notice  of appeal  within thirty  days



            after entry of final judgment.  Timely filing of a notice  of



            appeal  is  both  mandatory  and  jurisdictional.    Acevedo-
                                                                 ________



            Villalobos v. Hernandez,  22 F.3d 384, 387 (1st  Cir.), cert.
            __________    _________                                 _____



            denied,  115 S. Ct. 574 (1994).  Since final judgment entered
            ______



            on  October 19,  1994, Hider's  notice of  appeal was  due on



            November 18, 1994 and was filed two months late.  



                 To  be sure, a timely  Rule 59(a) or  59(e) motion tolls



            the  time period for filing a notice  of appeal.  See Fed. R.
                                                              ___


-3-



App. P. 4(a)(4).  However, to be timely, such motions must be



            served within  ten days of the entry of judgment, see Fed. R.
                                                              ___



            Civ. P. 59(b), (e), excluding intermediate holidays and week-



            ends, see Fed. R. Civ. P. 6(a).  Hider's Rule 59(a) and 59(e)
                  ___



            motions were  due to  be served by  November 2, 1994.   Since



            these motions  were not served  until November 5,  1994, they



            were untimely and did  not extend the time period  for appeal



            from  the underlying  judgment.1   See Cavaliere  v. Allstate
                                               ___ _________     ________



            Ins. Co., 996 F.2d 1111, 1114 (11th Cir. 1993) (untimely Rule
            ________



            59(a) motion); Feinstein, 951 F.2d at 18 (untimely Rule 59(e)
                           _________



            motion).   Under the  circumstances, we lack  jurisdiction to



            review the summary judgment.



                 We recognize that an  alternative argument might be made



            in  an  attempt  to   resuscitate  the  appeal  from  summary



            judgment.  Following  the denial  of the first  set of  post-



            judgment motions, the clerk of the court prepared and entered



            on the docket a separate  document which is labeled  "Amended



            Judgment"  and  purports  to  re-enter  the  final  judgment.



            Similarly, following the  denial of the  second set of  post-



                                
            ____________________



            1.  The magistrate  judge  incorrectly stated  in his  margin

            ruling that the  Rule 59(e)  motion was timely.   It  appears

            that, in calculating the ten-day period, the magistrate judge

            followed the suggestion of the appellees and added three days

            for  service by mail pursuant to Fed.  R. Civ. P. 6(e).  This

            was  error since  the time  for serving  a motion  under Rule

            59(e) is not extended by Rule 6(e).  See Flint v. Howard, 464
                                                 ___ _____    ______

            F.2d  1084, 1087 (1st  Cir. 1972).  We  add that, because the

            magistrate judge's misstatement was  made well after the time

            for  appeal had expired, Hider could not have relied on it in

            delaying his appeal.  See Feinstein, 951 F.2d at 20.  
                                  ___ _________



                                         -4-



judgment  motions,  the clerk  prepared  and  entered on  the



            docket a  separate document which is  labeled "Second Amended



            Judgment" and purports to re-enter the final judgment.  Under



            the circumstances, it could be argued that the appeal  period



            began  anew with the entry  of the "Amended  Judgment" on the



            docket  and then restarted once  again with the  entry of the



            "Second Amended Judgment" on the docket.



                 Such  an  argument, however,  would  fail.   An  amended



            judgment which  alters matters of substance  or resolves some



            genuine ambiguity does wind  the appeal clock anew.   See FTC
                                                                  ___ ___



            v.  Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12
                ___________________________________



            (1952).    However,  neither   the  re-entry  of  a  judgment



            previously entered nor an immaterial revision to the judgment



            tolls the  time period  within which  review must  be sought.



            See id.; Air Line Pilots Ass'n v. Precision  Valley Aviation,
            ___ ___  _____________________    __________________________



            26 F.3d  220, 223 n.2 (1st  Cir. 1994).  Where,  as here, the



            court made no revision whatsoever to the  final judgment, the



            appeal period from this judgment is unaffected.



                                         II.



                 Our  task  is not  over.   Hider's  notice of  appeal is



            timely with respect to the order denying his December 5, 1994



            motion for reconsideration.2   We construe  this motion as  a



                                
            ____________________



            2.  The  filing of this December 5 motion did not, of course,

            affect the time  period within  which Hider  was required  to

            file his appeal from the October 19 entry of judgment.   See,
                                                                     ___

            e.g., Rodriguez-Antuna v. Chase Manhattan Bank, 871 F.2d 1, 2
            ____  ________________    ____________________

            (1st Cir.  1989) (timely appeal from  district court's denial



                                         -5-



Rule  60(b)(3) motion  since  it seeks  relief from  judgment



            based on allegations of fraud or misrepresentation.  See Fed.
                                                                 ___



            R. Civ. P. 60(b)(3) (permitting relief from judgment based on



            fraud   misrepresentation, or other misconduct  of an adverse



            party).  In this circuit, the  denial of a Rule 60(b)  motion



            is an appealable order.  See Fiore v. Washington County Comm.
                                     ___ _____    _______________________



            Mental Health Ctr.,  960 F.2d  229, 232 (1st  Cir. 1992)  (en
            __________________



            banc).   Our standard of review is  abuse of discretion.  See
                                                                      ___



            De la Torre v. Continental Ins. Co., 15 F.3d 12, 14 (1st Cir.
            ___________    ____________________



            1994).  



                 In his brief on appeal, Hider reiterates his allegations



            of  fraud on  the court.   In  particular, Hider  claims that



            appellees misrepresented  that they agree with  the ruling of



            the Maine  Law Court, when  in fact,  they do not.   However,



            even if  the evidence in  the record  supported an  inference



            that  appellees secretly  disagreed with  some aspect  of the



            Maine court's reasoning or its interpretation of the relevant



            law,  Hider  has  failed  to  demonstrate  how  that  alleged



            misconduct interfered  with his ability to  prepare a defense



            to appellee's  summary judgment  motion.  See  Perez-Perez v.
                                                      ___  ___________



            Popular Leasing  Rental, Inc.,  993 F.2d  281, 285  (1st Cir.
            _____________________________



            1993) (holding that  moving party on  a Rule 60(b)(3)  motion



            must demonstrate  fraud by clear and  convincing evidence and


____________________



            of post-judgment relief does not "resurrect" expired right of

            appeal from underlying judgment).



                                         -6-



must show that the fraud foreclosed full and fair preparation



            or presentation of  his case).  Under the  circumstances, the



            magistrate judge did not abuse  his discretion in denying the



            December 5, 1994 motion for reconsideration.



                 The  appeal  from  the  entry  of  summary  judgment  is



            dismissed; the  denial of  the motion for  reconsideration is
            _________



            affirmed.
            ________


-7-