IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-10763
_____________________
STEWART HOFFMAN; PETER GULLO,
Plaintiffs-Appellants,
v.
JOHN MECKLING; HELGA MECKLING; HYDRODYNAMICS
CORPORATION, a Louisiana Corporation; HYDRO
INTERNATIONAL INCORPORATED, a Louisiana Corporation;
TIMOTHY MCCARTNEY,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(4:97-CV-19-Y)
_________________________________________________________________
March 11, 1998
Before KING, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants Stewart Hoffman and Peter Gullo appeal
the district court’s dismissal of their complaint for improper
venue and the district court’s denial of their Motion to
Reconsider. We dismiss the appeal of the dismissal for lack of
appellate jurisdiction because of the Appellants’ failure to file
a timely notice of appeal under Federal Rule of Appellate
Procedure 4(a).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
“The failure to file a timely notice of appeal is
jurisdictional and cannot be waived.” United States v.
Montgomery, 778 F.2d 222, 224 (5th Cir. 1985). A party in a
civil case who has a right of appeal by law has thirty days from
the entry of judgment to file notice. FED. R. APP. P. 4(a).
However, if a party files a timely motion to alter or amend the
judgment under Rule 59, “the time for appeal runs . . . from the
entry of the order disposing of the last such motion
outstanding.” FED. R. APP. P. 4(a)(4). Federal Rule of Civil
Procedure 59(e) requires that “[a]ny motion to alter or amend a
judgment shall be filed no later than 10 days after entry of
judgment.” FED. R. CIV. P. 59(e). An untimely Rule 59(e) motion,
even if acted upon by the district court, cannot toll the time
period for filing a notice of appeal. Washington v. Patlis, 868
F.2d 172, 174 (5th Cir. 1989). Moreover, a district court cannot
extend the ten-day time period for filing a Rule 59(e) motion.
Id.
The district court entered final judgment on April 29, 1997.
The thirty-day deadline for filing the notice of appeal expired
on May 29, 1997. Under Federal Rule of Civil Procedure 6(a),
Appellants had until May 13, 1997 to file a Rule 59(e) motion,
which would toll the thirty-day deadline. On May 9, 1997,
Appellants filed a Motion to Reconsider, recognized by this court
as a Rule 59(e) motion. See Teal v. Eagle Fleet, Inc., 933 F.2d
2
341, 347 (5th Cir. 1991).1 However, because the motion lacked
the certificate of conference required under Local Rule 5.1(a),
the district court unfiled the motion and struck it from the
record. LOCAL R. N.D. TEX. 5.1(a) & app. I. In a case directly on
point, the First Circuit held that a motion struck for failure to
comply with the local rules did not toll the time period for
filing a notice of appeal, declaring that local rules are
essential tools in aiding the courts to manage judicial
resources. See Air Line Pilots Ass’n v. Precision Valley
Aviation, Inc., 26 F.3d 220, 223-24 (1st Cir. 1994) (applying
similar reasoning). Therefore, Appellants’ untimely Rule 59(e)
motion did not toll the time period for filing their notice of
appeal; thus, the notice of appeal was untimely filed.
Appellants argue that the district court mistakenly struck
their Rule 59(e) motion because their motion to reconsider was,
in effect, a motion for new trial and thus, did not require the
certificate of conference. Nothing in the proceedings even
suggests that the Appellants themselves considered their Motion
to Reconsider a motion for new trial at the time that they filed
it. If they had thought that it was essentially a motion for new
1
In Teal, this court distinguished a Rule 59(e) motion from
a Rule 60(b) motion by the time at which the motion was filed.
933 F.2d at 347. Appellants did not argue that their Motion to
Reconsider constituted a Rule 60(b) motion, nor did they
establish any of the bases for which a Rule 60(b) motion may be
filed. See FED. R. CIV. P. 60(b).
3
trial, the Appellants could have simply retitled it as “Motion
for New Trial” and filed it by May 13. The district court did
not err in striking the Appellants’ motion because (1) the
district court dismissed Appellants’ complaint for improper venue
and not after trial, making it impossible for Appellants to
establish appropriate grounds for a new trial under Rule 59(a);
(2) the Appellants entitled all of the relevant motions as
“Motion to Reconsider”; and (3) Appellants’ prayer for relief in
the motions asked the court to “reconsider its order dismissing
the claim and reinstate” the case. Appellants only suggested
that their motion was a motion for new trial after the time to
file their Motion to Reconsider had run. Appellants’ claim that
their motion was actually for a new trial has no basis in the
record and is, at best, a disingenuous attempt to avoid their own
mistake rather than a mistake of the district court or its clerk.
The Appellants argue that the district court “impliedly
acknowledged its error” in striking the Motion to Reconsider by
granting the Motion for Leave to Refile Motion to Reconsider.
The district court did nothing more than acknowledge that the
refiling included a certificate of conference, which does not
impliedly acknowledge any error. Nothing in the district court’s
orders suggests that the district court thought that it or its
clerk erred in requiring the Appellants to comply with the local
rules. We are troubled by the Appellants’ attempt to read into
the orders something that has no basis in the district court’s
4
rulings and to then misrepresent the content of those orders to
us.
Lastly, Appellants urge this court to apply the unique
circumstances doctrine. The Supreme Court has applied this
doctrine where a party has missed the deadline for filing a
motion as a result of “‘excusable neglect based on a failure of
[the] party to learn of the entry of judgment.’” Thompson v.
Immigration and Naturalization Serv., 375 U.S. 384, 386-87 (1964)
(quoting FED. R. CIV. P. 73(a)); see also Harris Truck Lines, Inc.
v. Cherry Meat Packers, Inc., 371 U.S. 215, 217 (1962). In both
Thompson and Harris, the parties relied upon express statements
of the district courts in filing their untimely motions. See
Thompson, 375 U.S. at 386-87; Harris, 371 U.S. at 216-17. When
the district court makes no affirmative statement to a party that
it has timely filed a post-trial motion, the unique circumstances
doctrine does not apply. Osterneck v. Ernst & Whinney, 489 U.S.
169, 178-79 (1989). In a case in which the district court
neither made findings of good cause or excusable neglect nor made
explicit statements that the notice of appeal was timely filed,
this court held that the unique circumstances doctrine did not
apply. See Mann v. Lynaugh, 840 F.2d 1194, 1200-01 (5th Cir.
1988).
The district court’s granting of Appellants’ Motion for
Leave to Refile Motion to Reconsider did not constitute an
5
affirmative statement that they had timely filed a Rule 59(e)
motion. Cf. id. at 1200 (granting of a certificate of probable
cause did not constitute a finding of excusable neglect or good
cause). Nothing indicates that the district court explicitly
stated that Appellants’ motion was timely filed, nor is there any
indication that Appellants relied upon any statement of the
district court in filing an untimely notice of appeal. See Air
Line Pilots Ass’n, 26 F.3d at 225 (refusing to apply the unique
circumstances doctrine in a similar situation). Additionally, as
noted above, there was no statement by the district court upon
which Appellants could have relied. The unique circumstances
doctrine does not apply, and this court is therefore without
jurisdiction.
The Appellants’ failure to address the central issue in the
district court’s order dismissing this case for improper venue
and their mischaracterization of the district court’s actions
cause this appeal to border on being frivolous. The court feels
that its resources have been misused in having to consider this
case and admonishes Appellants and their counsel for bringing
such an appeal.
For the foregoing reasons, we DISMISS Appellants’ appeal of
the district court’s order dismissing the Appellants’ complaint
for improper venue. Costs are to be borne by Appellants.
6
RHESA HAWKINS BARKSDALE, Circuit Judge, specially concurring:
Appellants’ lunge to rescue jurisdiction — by claiming that
their motion to reconsider was one for a new trial, and that the
district court “impliedly acknowledged its error” in striking
that motion — is much more egregious than as described in our
opinion: “disingenuous”, “attempt[s] to read [something] into
the orders”, and “mischaracterization”. Indeed, our opinion is
closer to the mark in calling them “misrepresentations”. Sadly,
that is the absolute best that can be said.
This conduct falls far below that expected, required, and
demanded of officers of the court. It cannot be tolerated.
Accordingly, I would have ordered Appellants’ counsel to show
cause why they should not be sanctioned.
7