Rojas-Morales v. Yard

Court of Appeals for the First Circuit·Decided August 4, 1995·No. 95-1185·Published

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

____________________

No. 95-1185

RAFAELA ROJAS-MORALES, ET AL.,
Plaintiffs, Appellees,

v.

CAGUAS LUMBER YARD, ET AL.,
Defendants, Appellees,
_______________,

AMERICAN INTERNATIONAL INSURANCE COMPANY,
Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge] ___________________

____________________

Before

Selya, Cyr and Boudin,
Circuit Judges. ______________

____________________

Rene Pinto Lugo, Dario Rivera Carrasquillo, Jaime Morales Morales ________________ _________________________ _____________________
and Cordero, Miranda & Pinto on brief for appellant. ________________________
Pedro Toledo Gonzalez Law Offices on brief for Caguas Lumber ___________________________________
Yard, Inc. et al., appellees.

____________________
August 4, 1995
____________________

Per Curiam. This appeal arises out of a personal injury __________

lawsuit brought by Rafaela Rojas-Morales and her son, Brian,

following a chemical explosion which occurred when two

products, Crosco Clean Up and Lewis Red Devil Lye, were used

to unclog a drain pipe. After approving a settlement

stipulation, the district court dismissed the entire case.

Defendant-appellant American International Insurance Company

("AIICO") appeals. For the following reasons, we affirm.

BACKGROUND

We recite only the background of this case necessary to

an understanding of our disposition. The amended complaint

names as defendants: Caguas Lumber Yard, Inc.; Gildo Masso-

Gonzalez, his wife Carmen Aponte, and the conjugal

partnership between them; Hector L. Rivera-Fontanez, his wife

Cecilia Rivera-Munoz, and the conjugal partnership between

them; Max Chemicals, Inc.; AIICO; Association of Warranty of

all Types of Insurance ("Association"); and Eagle Star

Insurance Company of Puerto Rico ("Eagle Star"). On March

23, 1994, AIICO, an excess insurer, filed an amended cross-

claim for contribution against co-defendants Association and

Eagle Star, both primary insurers. Approximately one month

later, AIICO filed a motion for summary judgment on its

amended cross-claim.

On September 29, 1994, following several months of

negotiation, a stipulation of settlement and request for

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judgment was filed. Later that same day, AIICO filed a

request for a ruling on its pending motion for summary

judgment. On October 4, 1994, the district court approved

the settlement stipulation. Approximately two weeks later,

the court denied AIICO's request for a ruling on its summary

judgment motion on the ground that the settlement stipulation

put an end to all matters pending at the time of the

settlement, including AIICO's cross-claim. On November 1,

1994, final judgment dismissing the entire case was entered.

On November 21, 1994, AIICO served and filed a motion for

reconsideration. This motion was denied on December 1, 1994.

AIICO filed a notice of appeal on December 12, 1994.

DISCUSSION

Appellees argue, and we agree, that appellant does not

have a timely appeal from the judgment. Under Fed. R. App.

P. 4(a)(1), appellant was required to file its notice of

appeal within thirty days after the date of entry of the

judgment. It is well established that "timely filing of a

notice of appeal is `mandatory and jurisdictional.'"

Acevedo-Villalobos v. Hernandez, 22 F.3d 384, 387 (1st Cir.) __________________ _________

(quoting Perez-Perez v. Popular Leasing Rental, Inc., 993 ___________ _____________________________

F.2d 281, 283 (1st Cir. 1993) (quoting Browder v. Director, _______ _________

Dep't of Corrections, 434 U.S. 257, 264 (1978))), cert. ______________________ _____

denied, 115 S. Ct. 574 (1994). In the instant case, ______

appellant did not file its notice of appeal until forty-one

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days after entry of the judgment, well outside the thirty-day

period.

To be sure, a timely motion to alter or amend judgment

pursuant to Fed. R. Civ. P. 59(e) tolls the time period for

filing a notice of appeal. See Fed. R. App. P. 4(a)(4). ___

Although appellant's motion for reconsideration did not

specifically invoke Rule 59(e), it is properly treated as a

Rule 59(e) motion since it sought to set aside the judgment

as legally erroneous. See Lopez v. Corporacion Azucarera de ___ _____ ________________________

Puerto Rico, 938 F.2d 1510, 1513 (1st Cir. 1991). However, ___________

Rule 59(e) requires a motion to alter or amend to be "served

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USCA1 Opinion

                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT



                                 ____________________


No. 95-1185



                            RAFAELA ROJAS-MORALES, ET AL.,

                                Plaintiffs, Appellees,



                                          v.



                             CAGUAS LUMBER YARD, ET AL.,

                                Defendants, Appellees,

                                   _______________,



                      AMERICAN INTERNATIONAL INSURANCE COMPANY,

                                Defendant, Appellant.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO


[Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                Selya, Cyr and Boudin,

                                   Circuit Judges.
                                   ______________



                                 ____________________



            Rene  Pinto Lugo, Dario Rivera Carrasquillo, Jaime Morales Morales
            ________________  _________________________  _____________________

        and Cordero, Miranda & Pinto on brief for appellant.
            ________________________

            Pedro  Toledo Gonzalez  Law Offices  on  brief for  Caguas  Lumber
            ___________________________________

        Yard, Inc. et al., appellees.


____________________

                                    August 4, 1995

                                 ____________________


Per Curiam.  This appeal arises out of a personal injury
                 __________



            lawsuit  brought by Rafaela Rojas-Morales and her son, Brian,



            following  a  chemical  explosion  which  occurred  when  two



            products, Crosco Clean Up and  Lewis Red Devil Lye, were used



            to  unclog  a  drain  pipe.    After  approving a  settlement



            stipulation, the  district court  dismissed the entire  case.



            Defendant-appellant American International  Insurance Company



            ("AIICO") appeals.  For the following reasons, we affirm.



                                      BACKGROUND



                 We  recite only the background of this case necessary to



            an understanding of  our disposition.  The  amended complaint



            names as defendants:  Caguas Lumber Yard, Inc.; Gildo  Masso-



            Gonzalez,   his  wife   Carmen  Aponte,   and   the  conjugal



            partnership between them; Hector L. Rivera-Fontanez, his wife



            Cecilia Rivera-Munoz,  and the  conjugal partnership  between



            them;  Max Chemicals, Inc.; AIICO; Association of Warranty of



            all  Types  of  Insurance  ("Association");  and  Eagle  Star



            Insurance Company of  Puerto Rico ("Eagle  Star").  On  March



            23, 1994, AIICO,  an excess insurer, filed an  amended cross-



            claim for contribution against co-defendants Association  and



            Eagle Star, both  primary insurers.  Approximately  one month



            later,  AIICO filed  a  motion for  summary  judgment on  its



            amended cross-claim.  



                 On  September  29,  1994,  following  several months  of



            negotiation,  a stipulation  of  settlement and  request  for


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judgment  was filed.   Later  that  same day,  AIICO filed  a



            request  for  a ruling  on  its  pending motion  for  summary



            judgment.  On  October 4, 1994,  the district court  approved



            the settlement  stipulation.  Approximately  two weeks later,



            the court denied AIICO's request  for a ruling on its summary



            judgment motion on the ground that the settlement stipulation



            put  an  end  to  all matters  pending  at  the  time of  the



            settlement, including  AIICO's cross-claim.   On  November 1,



            1994,  final judgment dismissing the entire case was entered.



            On November  21, 1994,  AIICO served and  filed a  motion for



            reconsideration.  This motion was denied on December 1, 1994.



            AIICO filed a notice of appeal on December 12, 1994.



                                      DISCUSSION



                 Appellees argue, and  we agree, that appellant  does not



            have a timely appeal  from the judgment.  Under  Fed. R. App.



            P. 4(a)(1),  appellant  was required  to file  its notice  of



            appeal  within thirty  days after  the date  of entry  of the



            judgment.   It is well  established that "timely filing  of a



            notice   of  appeal   is  `mandatory   and  jurisdictional.'"



            Acevedo-Villalobos  v. Hernandez, 22 F.3d 384, 387 (1st Cir.)
            __________________     _________



            (quoting  Perez-Perez v.  Popular Leasing  Rental, Inc.,  993
                      ___________     _____________________________



            F.2d 281, 283  (1st Cir. 1993) (quoting  Browder v. Director,
                                                     _______    _________



            Dep't  of  Corrections,  434 U.S.  257,  264  (1978))), cert.
            ______________________                                  _____



            denied,  115  S.  Ct.  574  (1994).   In  the  instant  case,
            ______



            appellant did not file its  notice of appeal until  forty-one


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                                          3



days after entry of the judgment, well outside the thirty-day



            period.  



                 To be sure,  a timely motion to alter  or amend judgment



            pursuant to Fed. R.  Civ. P. 59(e) tolls the  time period for



            filing a  notice of  appeal.   See Fed.  R. App.  P. 4(a)(4).
                                           ___



            Although  appellant's  motion  for  reconsideration  did  not



            specifically invoke Rule 59(e), it  is properly treated as  a



            Rule 59(e) motion  since it sought to set  aside the judgment



            as legally erroneous.  See Lopez  v. Corporacion Azucarera de
                                   ___ _____     ________________________



            Puerto Rico, 938  F.2d 1510, 1513 (1st Cir.  1991).  However,
            ___________



            Rule 59(e) requires a motion to alter  or amend to be "served



            not  later than  10 days  after the  entry of  the judgment."



            Since  appellant's  motion  for  reconsideration  was  served



            outside the  ten-day period, it  did not affect the  time for



            appealing from the judgment.  See Acevedo-Villalobos, 22 F.3d
                                          ___ __________________



            at  389.  Under  the circumstances,  we lack  jurisdiction to



            review the judgment.



                 Although appellant's  notice of appeal  is untimely with



            respect to  the judgment,  it is timely  with respect  to the



            denial  of the motion for reconsideration.  Unfortunately for



            appellant, since  the motion for reconsideration  is properly



            construed as one brought under Rule 59(e), the district court



            was  without jurisdiction  to  grant it  because, as  we have



            explained, it was untimely.  Feinstein v. Moses, 951 F.2d 16,
                                         _________    _____



            21 (1st Cir. 1991).   Accordingly, the district court did not


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err  in denying the  motion for reconsideration,  although it



            need not have reached the merits.1  Id. 
                                                __



                 Affirmed.2  See Loc. R. 27.1.  
                 ________    ___


____________________



            1.  Even   if    we   construe    appellant's   motion    for

            reconsideration as a Rule 60(b)  motion, and thus treat it as

            timely, our conclusion is the same.  "Rule 60(b) is a vehicle

            for `extraordinary relief,'"  and "motions invoking the  rule

            should be  granted `only  under exceptional  circumstances.'"

            de la Torre v. Continental  Ins. Co., 15 F.3d 12, 14-15  (1st
            ___________    _____________________

            Cir. 1994) (quoting  Lepore v. Vidockler,  792 F.2d 272,  274
                                 ______    _________

            (1st  Cir. 1986)).    Appellant's motion  for reconsideration

            essentially  reiterated, with  citation  to legal  authority,

            arguments  made in  appellant's reply  to  opposition to  its

            request for  a ruling on  its motion for summary  judgment on

            the  cross-claims.  Under  the circumstances, we  do not find

            any  "exceptional  circumstances"  here,  or  any   abuse  of

            discretion by the district court.  See Feinstein, 951 F.2d at
                                               ___ _________

            21.



            2.  Appellees  request  attorneys'   fee.    A   request  for

            sanctions pursuant  to Fed. R. App. P. 38  must be made in "a

            separately  filed motion."   In the instant  case, appellees'

            motion was not separately filed.   The request for attorneys'

            fees is denied. 



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