UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 95-2318
PATRICIA JOHNSON, ET AL., Plaintiffs, Appellees,
v.
TEAMSTERS LOCAL 559, ET AL., Defendants, Appellants.
No. 95-2319
PATRICIA JOHNSON, ET AL., Plaintiffs, Appellants,
TEAMSTERS LOCAL 559, ET AL., Defendants, Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, U.S. Senior District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
Daniel B. Edelman, with whom Yablonski, Both & Edelman and Burton
S. Rosenberg were on brief, for Teamsters Local 559, et al.
Terrence A. Low, with whom Rosen, Greenhut, Catuogno & Low and
Patricia Bobba Donovan were on brief, for Patricia Johnson, et al.
December 13, 1996
CAMPBELL, Senior Circuit Judge. In the principal
appeal now before us, Teamsters Local 559 and Robert Dubian
appeal from state law tort judgments against them arising out
of a workplace conflict. They argue, inter alia, that there
is insufficient evidence to support the judgments under the
Norris-LaGuardia Act's "clear proof" requirement.
I. I.
Frank Johnson worked at Sweet Life Foods ("the
Company" or "Sweet Life") in Suffield, Connecticut and was a
member of Teamsters Local 559 ("the Union"). He sued the
Union and two of its officers, Robert Dubian and Tom
Gilmartin, Jr., alleging violations of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e et seq., and asserting
pendent state law claims for intentional infliction of
emotional distress and assault. Patricia Johnson, Frank
Johnson's wife, sued for loss of consortium.
The district court, in a bench trial, found for all
three defendants on Johnson's Title VII claims. Johnson did
not appeal from this determination.
The pendent state law claims were tried to a jury
which returned verdicts against the Union, Dubian and
Gilmartin for intentional infliction of emotional distress
and loss of consortium. The jury also returned a verdict
against the Union, but not against Dubian or Gilmartin, for
assault. The jury assessed damages against the Union of
-2- 2
$120,000 for intentional infliction of emotional distress,
$35,000 for loss of consortium, and $105,000 for assault.
The jury found Dubian liable for $35,000 on the intentional
infliction claim and $35,000 on the loss of consortium claim.
Gilmartin was found liable for $40,000 on the intentional
infliction claim and for an additional $40,000 on the loss of
consortium claim.
Responding to the defendants' Rule 50(b) motion,
the district court entered judgment as a matter of law for
Gilmartin, ruling that no reasonable jury could have found
him liable for intentional infliction of emotional distress
and loss of consortium. However, the court let stand the
jury's verdicts against the Union and Dubian. The latter now
appeal from the judgments against them, and the Johnsons
cross-appeal from the court's entry of judgment as a matter
of law in Gilmartin's favor.
II. II.
We recite the facts as they might reasonably have
been found by the jury. Sweet Life, a food distributor,
suspected that it was losing significant amounts of meat to
employee theft, and so it placed secret cameras in the work
area to discover who was responsible. From what was
uncovered, it appeared that over ten employees were involved
in the thefts, which had gone on for four or five years and
were common knowledge among the employees, all of whom were
-3- 3
also Union members. Several employees were caught stealing
on tape and were fired. One of the tapes showed Johnson
opening up a crate of meat, although it did not reveal him in
the act of actually stealing meat. The Company confronted
Johnson with the tape and threatened that he would be fired
if he did not reveal the names of other employees responsible
for the thefts. The Union had a written policy
against harming a Union brother. Both Union officials and
members interpreted this policy as prohibiting one member
from "ratting" on another. Dawn Mitchell, the acting Union
steward, told Johnson he should allow himself to be
terminated rather than reveal the names of the employees who
were stealing because of this Union policy against turning in
a Union brother. Gilmartin also told Johnson about this
policy. Dennis Kawa, a Sweet Life worker and Union witness,
stated that he did not report any of the many incidents of
stealing he saw by various Union members because "[i]t's a
rule" not to turn in a Union brother.
Johnson ignored Mitchell's advice and provided the
company with the names of three men he said he had seen
stealing. The Company fired these men entirely on the basis
of Johnson's information. The three fired men filed a
grievance with the Union, and an arbitration hearing was set
for April 29, 1986.
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Starting before and intensifying after the
arbitration hearing, unidentified employees of Sweet Life,
who were also Union members, began harassing Johnson. They
wrote threatening messages on the bathroom walls such as,
"Frank, where will you be when the lights go out?"; "559
Rule"; "There's only one thing worse than a rat--a nigger
rat"; "The rat will never work again when we get through with
him, nowhere"; "Frank Johnson is as good as dead, 4/29/86";
"Bye bye Frank. Look for another job."; "Who didn't pass
spear chucking school?"; "559 rules Frank Johnson"; "Call me"
(with Johnson's phone number); and "Frank Johnson's a
squealing nigger rat." The walls were painted several times,
but the graffiti persisted.
These anonymous Union members also made rat and pig
noises when around Johnson; put pieces of wood in the keyhole
of Johnson's forklift; placed buckets of water on the top of
Johnson's forklift; sang "slave songs" such as "Swing Low
Sweet Chariot" at him during every hourly break, every day;
drew pictures of rats on Johnson's locker and on the walls;
threw peanut shells and a milk carton at him; hung a rubber
chicken on his forklift; and ostracized him socially. This
harassment involved a large number of employees all of
whom, as said, were Union members and only intensified as
time went on.
-5- 5
At the arbitration hearing, Gilmartin, the Union
Business Agent and the officer primarily responsible for
enforcing the Union's collective bargaining agreement with
the Company, defended the three accused employees and
convinced the arbitration panel to reinstate them and award
them back pay. He accomplished this primarily by casting
doubt on Johnson's testimony and accusing him of stealing
meat. Gilmartin charged that the tape shown at the hearing
portraying Johnson opening a crate of meat had been edited;
the original tape, he said, had also shown Johnson actually
putting meat into his pocket.
Gilmartin and the Union were at all relevant times
aware of the harassment of Johnson. Gilmartin held two
meetings with the Union members. At the first meeting,
before the arbitration hearing, Gilmartin stated that he
would personally "take care of" anyone who harmed a Union
brother. Either at that meeting or at the other, Gilmartin
stated that he disagreed with people's writing on the walls
and that anyone actually caught doing so would be fired. He
indicated that he opposed the racial epithets and that they
were offensive to the other African-American members.
Sweet Life provided Johnson with guards to escort
him to and from work and to watch over his home. For
security reasons, Johnson left work a few minutes early each
day. The Company wanted to pay him as if he were not missing
-6- 6
this time, but Gilmartin opposed paying Johnson without an
agreement from Sweet Life to pay all people who left early
under extraordinary circumstances. When the Company went
ahead and paid Johnson anyway, Gilmartin filed a grievance.
As a result of the harassment, Johnson suffered
from Post-Traumatic Stress Disorder for which he sought
psychiatric treatment. He became paranoid and was unable to
sleep or interact normally with his wife and family. He
became increasingly depressed and began drinking regularly.
His psychiatrist placed him on antidepressant and antianxiety
medication. On August 12, 1986, Johnson left Sweet Life
because of his psychiatric condition.
After Johnson's departure, Dubian, the Union's
Secretary-Treasurer, drove by Johnson's home in a Union-owned
car several times a day for a period of some three weeks.
Dubian testified that the purpose of these visits was to
determine if Johnson had found new employment. The three
fired employees had filed charges against Johnson for
breaking the Union's rule against harming a Union brother.
If Johnson were working elsewhere, he would no longer be
subject to the Union's authority, and Dubian could dismiss
the charges.
On appeal, Dubian argues that there was
insufficient evidence in the record to support the jury's
-7- 7
judgment against him for intentional infliction of emotional
distress.
The Union contends that because the underlying
arbitration hearing involved a labor dispute, the Johnsons'
claims are governed by the Norris-LaGuardia Act's "clear
proof" requirement.1 The Union believes that under this,
more rigorous, standard, there is insufficient evidence to
support the judgments against it for intentional infliction
of emotional distress and for assault. Even if there is
sufficient evidence, the Union contends that the fact that
the special verdict form did not mention the "clear proof"
requirement necessitates a new trial. In their cross-appeal,
the Johnsons argue that the court erred in entering judgment
as a matter of law for Gilmartin on the intentional
infliction of emotional distress and loss of consortium
claims because there was sufficient evidence to validate the
jury's finding.
III. III.
A. Dubian's Liability
Dubian argues that his conduct in driving by the
Johnsons' home and following Johnson when he left his house
for a period of three weeks was not the sort of "extreme and
outrageous" behavior that can justify a judgment for
1. 29 U.S.C. 106.
-8- 8
intentional infliction of emotional distress under
Connecticut law. See Petyan v. Ellis, 510 A.2d 1337, 1342
(Conn. 1986). He also argues that the jury could not
reasonably have concluded that he intended to cause Johnson
distress or that he succeeded in doing so. We disagree.
Dubian plainly knew that Johnson had just resigned
from Sweet Life after working in a viciously hostile work
environment in which he was subjected to daily threats and
insults. As a Union officer closely associated with these
events, Dubian could be inferred to have known of the extent
of the abuse imposed upon Johnson and of its emotional and
psychological impact, resulting in his departure from the
Company. Given Johnson's recent history, the jury could have
found that Dubian's conduct in driving by Johnson's house in
a Union car several times a day for three weeks, and
following Johnson, was intentional harassment that met the
"extreme and outrageous" standard.
This case is different from Thorpe v. Mutual of
Omaha Ins. Co., 984 F.2d 541, 545-46 (1st Cir. 1993), in
which we held that an insurance company's surveillance aimed
at determining the activities of an insured who claimed to
have become totally disabled did not constitute extreme and
outrageous conduct. The insurance company's proffered
reasons for the surveillance were plausible and legitimate in
the circumstances. Dubian's stated reason for driving by
-9- 9
Johnson's house over thirty times in three weeks was that he
wished to determine whether Johnson was working so that he
could drop Union charges made against Johnson by the three
fired employees. A reasonable jury could have found that
this explanation was at best flimsy and at worst absurd.
Conduct which might be acceptable when done for a legitimate
reason can be extreme and outrageous if unjustifiably
performed simply to inflict harm.
The jury could easily have rejected Dubian's
tendered justification as lacking in plausibility, and could
reasonably have found that his true intent in driving by the
Johnson home was to harass and cause distress to Johnson.
There was also evidence from which the jury could
have concluded that Dubian's surveillance contributed to
causing Johnson's psychological injury. Johnson's
psychiatrist, George Milowe, stated that Johnson was
terrified in part because strange cars were following him,
and Johnson himself testified that he was frightened by being
followed. Even if Dubian's conduct was not the sole,
initial, or primary cause of Johnson's symptoms, the jury
could reasonably have concluded that the surveillance
activity was a substantial factor in causing Johnson's
distress, warranting a liability finding and a damages award.
See Edgecomb v. Great Atlantic & Pacific Tea Co., 18 A.2d
364, 365 (Conn. 1941) (holding that causation exists when the
-10- 10
defendant's action was a substantial factor in producing the
plaintiff's damages); Antz v. Coppolo, 75 A.2d 36, 39 (Conn.
1950) (same); Kilduff v. Kalinowski, 71 A.2d 593, 594-95
(Conn. 1950) (same).
B. The Union's Liability
1. Standard of Proof
The Union argues that the Johnsons' suit stems from
a labor dispute and that therefore its liability should be
governed by the "clear proof" requirement of the Norris-
LaGuardia Act, 29 U.S.C. 106, infra.
Johnson sued his labor union for the harassment he
suffered after testifying against other Union members at an
arbitration hearing. Whether the events underlying the suit
can be characterized as a labor dispute for the purposes of
106 of the Norris-LaGuardia Act is a close question. See
Columbia River Packers Ass'n v. Hinton, 315 U.S. 143, 145-47
(1942) (holding that the critical element in determining
whether the provisions of the Norris-LaGuardia Act apply is
whether the employer-employee relationship is the matrix of
the controversy); Jacksonville Bulk Terminals, Inc. v.
International Longshoremen's Association, 457 U.S. 702, 712-
13 (1982) (same) (citing Columbia River). But since the
"clear proof" standard is not determinative of any of the
issues before us, this is a question we need not decide.
-11- 11
Even applying the "clear proof" standard, the judgment
against the Union stands.
2. Intentional Infliction of Emotional Distress
There was "clear proof" to support the jury's
finding of Union liability for intentional infliction of
emotional distress.
It is undisputed that there were numerous acts of
harassment by employees, all of whom were Union members,
which caused Johnson great emotional distress. The issue is
whether the Union itself may properly be held responsible for
its members' conduct here. Under the Norris-LaGuardia Act, a
union may be held liable for the acts of its members in the
course of a labor dispute only "upon clear proof of actual
participation in, or actual authorization of, such acts, or
of ratification of such acts after actual knowledge thereof."
29 U.S.C. 106.
The Supreme Court has interpreted this requirement
to mean that a plaintiff must present clear and convincing
proof "either that the union approved the violence which
occurred, or that it participated actively or by knowing
tolerance in further acts which were in themselves actionable
under state law or intentionally drew upon the previous
violence for their force." United Mine Workers of America v.
Gibbs, 383 U.S. 715, 739 (1966).
-12- 12
There is sufficient evidence in the record for a
jury to infer that the Union knowingly at least tolerated its
members' conduct and perhaps actively encouraged it. The
evidence showed that many persons associated with the Union,
including both rank and file Union members and Union leaders,
unquestioningly interpreted the Union's written policy
against harming a member as very broadly including an
unwritten rule against turning in fellow members for stealing
meat. The jury could have inferred that the Union would have
wanted its members to enforce that rule against all
violators, including Johnson. The policy against harming a
Union member was mentioned at a Union meeting about Johnson,
and Dawn Mitchell, the acting Union steward, separately told
Johnson he should not turn in stealing employees because of
the policy. Moreover, Dennis Kawa, a long-time Sweet Life
employee, testified that although more than ten individuals
were involved in stealing meat over a period of years and
although this thievery was common knowledge among the Union
members, he himself did not tell the Company about any of it
because, "It's a rule." A reasonable jury could have found
that in accepting and promoting this broad interpretation of
the rule in Johnson's case, the Union knowingly tolerated and
even encouraged its members' harassment of Johnson as
punishment for his, as it were, improper "ratting" on Union
members.
-13- 13
A finding of Union toleration of its members'
harassing actions against Johnson is also supported by
evidence pertaining to the Union's officers, Gilmartin and
Dubian.2
Dubian, as already discussed, personally harassed
Johnson by surveillance from a car following Johnson's
leaving the employ of Sweet Life. Although Gilmartin wrote a
letter to Donald Oswald, Sweet Life's general manager,
promising to do everything in his power to stop the
harassment, the actions he actually took were quite limited.
The bulk of Gilmartin's efforts consisted of two meetings he
held with the Union members at which he spoke against the
graffiti generally and the racial slurs in particular. At
one of these meetings, Gilmartin also said if anyone did
anything to harm a Union brother, he would do everything in
his power to "take care of it."
The jury could conclude that by his comments
against the racial slurs and graffiti, Gilmartin was mainly
attempting to protect the other African-American Union
members, not Johnson. This interpretation would be
2. The district court set aside the verdict against Gilmartin for intentional infliction of emotional distress, indicating that it believed the evidence was insufficient. Whether or not the court was correct to do so is an issue we do not reach since the Johnsons' cross-appeal was untimely, infra. We are nonetheless free to take account of the
evidence against Gilmartin in deciding whether the evidence as a whole suffices for us to affirm the district court's approval of the jury verdict against the Union.
-14- 14
consistent with Gilmartin's letter to Oswald, in which he
wrote that the Union had urged its members to refrain from
"unnecessary racial remarks" to Johnson because, "That
insults all black members." A reasonable jury could also
have understood Gilmartin's promise to "take care of" anyone
who harmed a Union brother as more likely a threat against
Johnson than a warning to Johnson's harassers.
In summary, the jury could infer from the Union's
unabashed policy against "ratting" on members who stole meat,
from Dubian's harassing surveillance, from Gilmartin's veiled
threat to "take care of" anyone who harmed a Union brother,
and from the failure of Gilmartin and other Union officials
to take more vigorous measures to check members' harassment
of Johnson, that the Union tolerated and even encouraged its
members' harassment in retribution for Johnson's having
testified against the accused members. We believe this proof
of Union participation in the infliction of emotional
distress upon Johnson was sufficiently clear to meet the
standard of 29 U.S.C. 106.
3. Assault
The Union contends that there was insufficient
evidence for the jury to find it liable for its members'
assaults upon Johnson. We do not agree. The same factors
listed above as sufficient to show Union participation in the
infliction of emotional distress upon Johnson suffice to show
-15- 15
participation in any assaults that the Union's members
committed as a part of the harassment visited upon Johnson.
The question of whether or not the members' harassing
behavior included assaults was put to the jury with
instructions that were not objected to. The Union did not at
trial question that the evidence created a jury issue as to
the occurrence of assaults upon Johnson, nor does it do so on
appeal.3 The jury was entitled to find that the members'
behavior, continuing over a period of several months, was
well known to Union officials and that the Union participated
by "knowing tolerance." United Mine Workers v. Gibbs, 383
U.S. at 739. The jury's conclusion that the Union shared in
the responsibility for the harassing conduct, including in
any assaults, was supported, in our view, by "clear
evidence," hence meeting the higher standard of the Norris-
LaGuardia Act as well as the common law agency standard of
3. The legal issue as to whether some of the harassing conduct amounted to assaults turned on whether the conduct embodied a sufficiently imminent threat of bodily harm. See
Comrie v. Hinds, No. CV 930521854S, 1996 WL 240419 at *2
(Conn. Super. April 18, 1996) (holding that an assault cannot be accomplished by words alone; there must be an overt act evidencing some corporeal threat); 6A C.J.S. Assault & Battery 4 (1975) ("While an offer to do physical violence is an essential element of an actionable assault, a mere threat or offer of violence is ordinarily not alone sufficient; it is also usually essential that defendant have the present means or ability to carry his threat into execution."); 6 Am. Jr. 2d Assault & Battery 3 (1963) ("Generally speaking, an assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present."). There was no evidence here of actual batteries upon Johnson.
-16- 16
implied authorization. See generally Beckenstein v. Potter
and Carrier, Inc., 464 A.2d 6 (Conn. 1983); Trinity Rent-A-
Car, Inc. v. Heating Service & Installation Co., 233 A.2d 151
(Conn. Cir. Ct. 1967); Restatement (Second) of Agency 7,
8, & 8A (1958).
4. The Special Verdict Form
In its final point of error, the Union argues that
it is entitled to a new trial because the special verdict
form did not mention the "clear proof" requirement. Instead,
the form asked the jury whether it had found the Union liable
for assault and intentional infliction of emotional distress
by a preponderance of the evidence.
We shall assume arguendo, for the purpose of
discussing this point of error, that the "clear proof"
standard did, in fact, apply. If the "clear proof" standard
did not apply, the Union could not, of course, complain about
the district court's failure to mention the elevated standard
in the special verdict form.
The questions in a special verdict form must be
"reasonably capable of an interpretation that would allow the
jury to address all factual issues essential to judgment."
United States v. Real Property Located at 20832 Big Rock Dr.,
51 F.3d 1402, 1408 (9th Cir. 1995). However, the court's
instructions to the jury as well as the wording of the
special verdict form are examined as a whole to determine if
-17- 17
they fairly presented the issues to the jury. See Carvalho
v. Raybestos-Manhattan, Inc., 794 F.2d 454-55 (9th Cir.
1986); Mangold v. California Public Utilities Commission, 67
F.3d 1470, 1475 (9th Cir. 1995) (same) (quoting Carvalho).
"When, therefore, the general charge adequately directs the
jury to its duties in answering the questions submitted to it
there is no need to accompany the submission with repetitive
instruction." Lawrence v. Gulf Oil Corp., 375 F.2d 427, 429
(3d Cir. 1967).
The district court was extremely clear in
instructing the jury that it was only to find the Union
liable if there was clear and convincing evidence of the
Union's participation in the harassment of Johnson and the
assaults against him. The phrase "clear and convincing
evidence" appears no fewer than nine times in the court's
discussion of the Union's potential liability. The court
defined "clear and convincing evidence" and compared it to
the preponderance standard.
Once the Union's responsibility was established,
each of the state law claims still had to be proven by a
preponderance of the evidence. Thus the special verdict form
stated that the jury should find for the plaintiff if it
believed Johnson had proved his claims by a preponderance of
the evidence. The court carefully explained the distinction
-18- 18
between finding the Union responsible and finding that the
elements of the torts had occurred.
While it would have been plainer had the district
court broken down the liability questions into the two
separate issues of Union responsibility and occurrence of the
tort elements, the instructions and the special verdict form,
viewed together, were sufficiently clear. We find no error,
therefore, in the court's omission of a reference to the
"clear proof" standard in the special verdict form.
C. Gilmartin's Liability
In their cross-appeal, the Johnsons contend that
the district court erred when it overturned the jury's
judgment in their favor on their claims against Gilmartin for
intentional infliction of emotional distress and loss of
consortium. This cross-appeal was, however, filed too late
to give this court jurisdiction over the Johnsons' appeal.
As "[t]imely filing of a notice of appeal is 'mandatory and
jurisdictional'", Acevedo-Villalobos v. Hernandez, 22 F.3d
384, 387 (1st Cir. 1994), cert. denied, 115 S. Ct. 574 (1994)
(citations omitted), we dismiss the Johnsons' cross-appeal
for lack of appellate jurisdiction.
There has been a split in authority among the
circuits as to whether the late filing of a notice of a
cross-appeal has the same dire jurisdictional consequences as
does the late filing of an appeal. Some of the circuits have
-19- 19
held that courts should use a "rule of practice" approach
allowing more flexibility in administering the 14-day
requirement applicable to cross-appeals. See Young Radiator
Co. v. Celotex Corp., 881 F.2d 1408, 1415-17 (7th Cir. 1989)
(citing cases on both sides); United States v. Lumbermens
Mutual Casualty Co., Inc., 917 F.2d 654, 662 (1st Cir. 1990)
(recognizing the split but not adopting a rule) (citing Young
Radiator).
In Young Radiator, while noting the earlier circuit
split, the Seventh Circuit inferred from the Supreme Court's
recent decision in Torres v. Oakland Scavenger Co., 487 U.S.
312 (1988), that the timely filing of a cross-appeal should
henceforth be treated as mandatory and jurisdictional.
Although Torres dealt only with whether the failure to name a
party presented a jurisdictional bar to appeal, the Young
Radiator court believed that the Supreme Court's broad
language in that case, about the mandatory nature of the
timing rules in Federal Rules of Appellate Procedure 3 and 4,
indicated that the time limit for cross-appeals in Rule
4(a)(3) was also jurisdictional.
The two circuits employing the "rule of practice"
approach to have reconsidered this issue after Torres have
either expressly held that Torres rendered the cross-appeal
time limit jurisdictional or have stated as much in dicta.
See EF Operating Corp. v. American Bldgs., 993 F.2d 1046,
-20- 20
1049 n.1 (3d Cir. 1993) (holding that the cross-appeal time
limit is jurisdictional); Stockstill v. Petty Ray
Geophysical, 888 F.2d 1493, 1496-97 (5th Cir. 1989) (stating
in dicta that it is "doubtful" whether cases adopting the
rule of practice approach remain good law after Torres). We
agree, post-Torres, that the cross-appeal time limit in
Federal Rule of Appellate Procedure 4(a)(3) is mandatory and
jurisdictional.4 See also Fed. R. App. P. 26(b) ("[T]he
court may not enlarge the time for filing a notice of appeal,
a petition for allowance, or a petition for permission to
appeal.")
A notice of appeal must be filed with the clerk of
the district court within 30 days after the date of entry of
the judgment or order appealed from. Fed. R. App. P.
4(a)(1). A cross-appeal must be filed within 14 days after
the date when the first notice of appeal was filed or within
4. Although the core holding in Torres has been superseded
by the 1993 amendments to the Federal Rules of Appellate Procedure, see Fed. R. App. P. 3(c) ("An appeal will not be
dismissed . . . for failure to name a party whose intent to appeal is otherwise clear from the notice."); Garcia v. Wash,
20 F.3d 608-09 (5th Cir. 1994) (per curiam), the advisory committee notes to that amendment state that the amendment was intended to put an end to the satellite litigation over whether an ambiguous reference to a party was sufficient to identify an appellant under Torres. Fed. R. App. P. 3(c)
advisory committee's note. The amendment does not indicate any intent to change the mandatory nature of the time limits in Rules 3 and 4. Nor has there been any corresponding amendment to Rule 26(b), which prohibits courts from enlarging the time for filing a notice of appeal and upon which the Torres court in part relied.
-21- 21
the time otherwise prescribed by Appellate Rule 4(a). Fed.
R. App. P. 4(a)(3). Under the provisions of Appellate Rule
4(a)(4), the timely filing of certain types of motions, such
as motions under Federal Rules of Civil Procedure 50(b) or
59, will extend the time for appeal for all parties, causing
the time limits to run from the date of the entry of the
order disposing of the last such motion outstanding.
The district court entered its judgment on May 24,
1995. But on June 8, 1995, the defendants timely served a
motion under Rules 50(b) and 59, thereby extending the time
available for filing an appeal. The district court entered
its orders deciding this motion on September 28, 1995. The
defendants timely filed their notice of appeal within 30
days, on October 25, 1995. But the Johnsons did not file
their cross-appeal until November 13, 1995, 19 days after the
defendants filed their notice of appeal. Their filing was
five days too late.
The plaintiffs' only argument would be to rely on
Dubian's October 11, 1995 Additional Motion for Judgment as a
Matter of Law or in the Alternative for New Trial or for
Amendment of Judgment to make their cross-appeal timely. The
district court did not dispose of this motion until November
-22- 22
16, 1995, potentially making the plaintiffs' cross-appeal
merely premature.5
However, Dubian's October 11th motion did no more
than raise for a second time the same issue Dubian had raised
in his June 8th motion, an issue the court had decided
against him on September 28 namely, whether Dubian's
conduct in driving by the Johnson home repeatedly could form
the basis of Dubian's personal liability for intentional
infliction of emotional distress. As the Sixth Circuit has
written:
"[A] motion to reconsider an order disposing of a [time tolling post-trial] motion of the kind enumerated in Rule 4(a)[(4)] does not again terminate the running of the time for appeal,". . . unless a grant of the earlier post-trial motion effectively results in a new judgment and the motion to reconsider is filed by the adversely affected party requesting reinstatement of the original judgment.
Moody v. Pepsi-Cola Metropolitan Bottling Co., Inc., 915 F.2d
201, 206 (6th Cir. 1990) (quoting Dixie Sand and Gravel v.
TVA, 631 F.2d 73-4 (5th Cir. Unit B 1980)) (citations
omitted). See also Wright v. Preferred Research, Inc., 891
F.2d 886, 889-90 (11th Cir. 1990) (per curiam) (same);
Acevedo-Villalobos, 22 F.3d at 389 (holding that a second
5. Under Federal Rule of Appellate Procedure 4(a)(4), a premature filing becomes timely upon the disposition of the motion which made the filing premature.
-23- 23
motion to reconsider served within ten days of the denial of
the first motion does not extend the time period for filing a
notice of appeal from the underlying judgment).
Since Dubian's second motion was, in effect, merely
a request for reconsideration of his earlier motion, it did
not toll the time for appeal and the Johnsons' cross-appeal
was not timely.
III. Conclusion III. Conclusion
We affirm the judgment of the district court. We
dismiss the Johnsons' cross-appeal for lack of appellate
jurisdiction.
In appeal No. 95-2318, costs are awarded to
Patricia and Frank Johnson. In appeal No. 95-2319, costs are
awarded to Tom Gilmartin, Jr.
So Ordered.
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