Scola v. Beaulieu Wielsbeke
This text of Scola v. Beaulieu Wielsbeke (Scola v. Beaulieu Wielsbeke) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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Scola v. Beaulieu Wielsbeke, (1st Cir. 1998).
Opinion
USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 97-1229
JERE SCOLA, JR.,
Plaintiff, Appellant,
v.
BEAULIEU WIELSBEKE, N.V. and DOMINEK DE CLERCK,
Defendants, Appellees.
____________________
No. 97-1230
JERE SCOLA, JR.,
Plaintiff, Appellee,
v.
BEAULIEU WIELSBEKE, N.V. and DOMINIEK DE CLERCK,
Defendants, Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge] ___________________
____________________
Before
Boudin, Circuit Judge, and _____________
Campbell and Bownes, Senior Circuit Judges. _____________________
____________________
Caroline C. Kresky, with whom Holland & Knight LLP and Robert E. __________________ ____________________ _________
Mongue were on brief for Beaulieu Wielsbeke, N.V. and Dominiek De ______
Clerck.
Eric Cote, with whom Joseph M. Wrobleski, Jr. were on brief for _________ _________________________
Jere Scola, Jr.
____________________
December 19, 1997
____________________
-2-
BOWNES, Senior Circuit Judge. Two issues have been BOWNES, Senior Circuit Judge. ____________________
raised by the parties in this case. The first, in which the
plaintiff Jere Scola, Jr. is the appellant, is an appeal by
Scola on the merits from a summary judgment in favor of
defendants-appellees Beaulieu Wielsbeke, N.V. and Dominiek De
Clerck. The second issue, in which the defendants are
appellants, focuses on only one question: whether Scola's
appeal from the summary judgment against him was timely
filed.
Because we find that Scola's appeal was not timely
filed, we dismiss the case for lack of jurisdiction and do
not reach Scola's appeal from the summary judgment against
him.
Under Fed. Rule App. Proc. 4(a) and 28
U.S.C. 2107, a notice of appeal in a
civil case must be filed within 30 days
of entry of the judgment or order from
which the appeal is taken. This 30-day
time limit is "mandatory and
jurisdictional."
Browder v. Director, Ill. Dep't of Corrections, 434 U.S. 257, _______ ___________________________________
264 (1978)(citations omitted); see also Smith v. Barry, 502 ___ ____ _____ _____
U.S. 244, 248 (1992); Aybar v. Crispin-Reyes, 118 F.3d 10, 14 _____ _____________
(1st Cir. 1997), petition for cert. filed, (U.S. Sept. 24, ________ ___ _____ _____
1997) (Nos. 97-6253, 6255); Acevedo-Villalobos v. Hernandez, __________________ _________
22 F.3d 384, 387 (1st Cir. 1994).
I. I.
-3- -3-
According to the court docket, final judgment was
entered on November 22, 1996. Scola claims, however, that
there was no final judgment (or Rule 54(b) certification) and
that as a result, his notice of appeal was not late but
premature. This rather astounding argument is based on the
procedural history of a counterclaim filed by defendants in
their answer to Scola's complaint. The counterclaim sought
the return of certain documents given to Scola during the
proceedings. On June 17, 1996, defendants filed a
stipulation of dismissal of the counterclaim without
prejudice and withdrawal of a jury trial demand. By letter
of July 30, 1996, the clerk advised all counsel of record
that the court had ruled that dismissal of the counterclaim
and withdrawal of the jury demand were ineffective and
therefore denied. The court cited Federal Rules of Civil
Procedure 41(a) and 38(d). The court's reading of these
rules was correct. There is nothing further about the
counterclaim in the district court record. The counterclaim
argument was made by Scola for the first time in a motion to
dismiss the appeal filed in this court. We note that Scola's
notice of appeal states that he is appealing "from the final
judgment entered in this action on the 22 day of November,
1996."
Scola's attempt to resuscitate the moribund
counterclaim is precluded by the final sentence of the
-4- -4-
district court's order granting summary judgment for
defendants. "This conclusion makes moot all other pending
matters in this case." The counterclaim obviously was a
pending matter.
-5- -5-
II. II.
The second argument made by Scola in his effort to
avoid the consequences of filing an untimely appeal invokes
the doctrine of "unique circumstances." He claims that,
"[t]he parties and the district court made a mutual mistake
about the power of the court to extend time for a Rule 59(e)
motion." Scola's Brief at 2. Our analysis starts with the
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