Tooling Research v. Tri-Onics, Inc.

• Court: Court of Appeals for the First Circuit
• Decided: August 6, 1993
• Docket: 93-1443
• Status: Published

Opinion

USCA1 Opinion

August 6, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 93-1443

TOOLING RESEARCH, INC., ET AL.,

                                Plaintiffs, Appellees,

                                          v.

                                   TRI-ONICS, INC.,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
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                                 ____________________

            Thomas  E.  Nannicelli   and  Nannicelli  &  Woods  on  brief  for
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        appellant.
            Richard T. Rook on brief for appellee, Tooling Research, Inc.
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Per Curiam.   Appellant claims it  did not  receive
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            timely  notice of the denial  of its timely  served motion to

            amend judgment and for that reason failed to appeal.  Shortly

            after  learning that  the motion  to amend  had been  denied,

            appellant asked  the district  court  to reopen  the time  to

            appeal under Fed.  R. App.  P. 4(a)(6).   The district  court

            denied the  motion without  stating  any reasons  or  finding

            whether  appellant had been sent  notice of the order denying

            the motion to amend judgment.  Appellant now appeals from the

            order denying its motion to reopen.

                      We decline to determine whether the  district court

            abused its discretion in denying appellant's motion to reopen

            the  time for  appeal, Fed.  R. App.  P. 4(a)(6),  because we

            conclude that the time for appealing has not yet commenced to

            run and that therefore a timely appeal may be filed.1

                      The  docket  indicates   that  the  district  court

            endorsed defendant's timely  served motion to amend  judgment

            as denied and entered the denial on April 13, 1992.  There is

            no indication that a separate document embodying the order of

            denial  and  complying  with Fed.  R.  Civ.  P.  58 was  ever

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            1.  We note, however, that the district court docket does not
            record  notice having been sent  to counsel of  the April 13,
            1992 order denying defendant's motion to amend judgment.  See
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            Fed. R.  Civ.  P. 77(d) (directing  clerk to serve notice  of
            entry by  mail and  to  "make a  note in  the  docket of  the
            mailing").    This circumstance  lends  support  to counsel's
            uncontradicted  statement that  he  did  not  receive  timely
            notice of the April  13, 1992 order.  In  such circumstances,
            we  would  benefit from  the  district  court's statement  of
            reasons for denying the motion to reopen the time for appeal.
            See, e.g., Foster  v. Mydas Associates,  Inc., 943 F.2d  139,
            ___  ____  ______     _______________________
            141-42 (1st Cir. 1991) (need for findings or reasons in order
            to afford informed appellate review).

prepared.  Consequently, the time for  appeal has not expired

            because it has not yet commenced to run.  Fiore v. Washington
                                                      _____    __________

            County Community Mental Health Center, 960 F.2d 229 (1st Cir.
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            1992).   To  be  sure, in  Fiore  we indicated  that  "absent
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            exceptional  circumstances," a  party wishing  to  appeal and

            waiting  a separate  document should  ordinarily request  one

            within  three months  of the  court's last  order lest  he be

            found to have waived his right to appeal.  Fiore, 960 F.2d at
                                                       _____

            236 and n.11.   Here, however, where counsel's uncontradicted

            affidavit  states that he did not receive notice of the April

            13, 1992 entry, the  district court docket supports counsel's

            position  (see note one), and the district court did not find

            that notice was timely  sent, we cannot say that  the failure

            to appeal was "a matter of choice, not confusion," Fiore, 960
                                                               _____

            F.2d at 236 n.11, and we think exceptional  circumstances are

            present.     Therefore,   waiver  will   not   be   inferred.

            Consequently, as  the separate document  requirement has  not

            been satisfied, the time for appealing from the July 29, 1991

            judgment  and April  13,  1992 order  has  not expired.    We

            therefore affirm  the district court's denial  of appellant's

            motion to reopen, but  on the ground that no  such motion was

            required since the  time for appeal had not run.   See, e.g.,
                                                               ___  ____

            In  re Parque  Forestal, Inc.,  949 F.2d  504, 510  (1st Cir.
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            1991) (a reviewing court may affirm on grounds different from

            those used by the lower court).

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Appellant's   August  25,  1992  motion  to  reopen

            manifests an  intention  to appeal  from  the July  29,  1991

            judgment and  April 13, 1992 order.   As no purpose  would be

            served by requiring  appellant to file  yet another piece  of

            paper labelled notice of appeal, we will treat the August 25,

            1992  motion as a notice  of appeal.   McMillan v. Barksdale,
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            823 F.2d 981, 983 (6th Cir. 1987) (document meeting Rule 3(c)

            requirements and  manifesting an  intention to appeal  may be

            treated  as a  notice of  appeal); Stallworth v.  Shuler, 758
                                               __________     ______

            F.2d  1409 (11th Cir. 1985).   We transmit  the motion to the

            clerk of the district court with instructions to docket it as

            a notice of appeal and to certify the record to this court.

                      Pursuant to First Circuit  Rule 27.1, the March 15,

            1993  order is  summarily affirmed.   Appellees'  request for

            damages and costs under Fed. R. App. 38 is denied.

                      Affirmed.
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