United States Court of Appeals
For the First Circuit
________________
No. 04-2654
JUDY E. MORRIS, M.D.,
Plaintiff, Appellant,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
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Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Schwarzer,* Senior District Judge.
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Jeffrey B. Rubin for appellant.
Patricia A. Peard, with whom Ronald W. Schneider,
Bernstein, Shur, Sawyer & Nelson, Katherine A. Robertson and
Bulkey, Richardson & Gelinas, LLP, were on brief for appellee.
December 6, 2005
*Of the Northern District of California, sitting by
designation.
Schwarzer, Senior District Judge. Plaintiff Judy Morris
appeals the district court’s denial of her motion for
reconsideration. The district court entered judgment for Morris
under the Employee Retirement and Insurance Security Act, 29 U.S.C.
§§ 1001-1461, granting her two years of payments on her claim for
mental disability. It denied her claim for benefits for long-term
disability based on chronic fatigue syndrome. Morris did not file
a timely notice of appeal from the judgment. Instead, she filed
two post-judgment motions attacking the court’s decision, which the
court denied.1 Because Morris has not shown that the district
court abused its discretion, we affirm the court’s judgment.
PROCEDURAL HISTORY
On March 23, 2004, the district court issued a Memorandum
and Order awarding Morris two years of benefits for mental
disability but denying her claim for benefits for physical
disability. On the same day, the court entered judgment pursuant
to the Order, awarding Morris $231,214.82. Morris did not appeal
the judgment but instead filed a motion for reconsideration on
April 5, within the ten-day period allowed by Federal Rule of Civil
Procedure 59(e).2 The district court denied that motion on
1
In addition to two motions for reconsideration, Morris filed
a motion titled “Plaintiff’s Motion for Extension and Enlargement
of Time for Filing of Postjudgment Motions; Request for Hearing
(Preferably By Telephone); and Other Matters” that did not directly
challenge the court’s March 23, 2004 decision.
2
Plaintiff styled her motion “Request for Judicial Notice of
Disability and Preliminary Request for Reconsideration of the
Court’s March 23, 2004 Verdict. Request for a Hearing as an
April 21, but also granted Morris until May 28, 2004, “for the
filing of any further post-judgment motions.” On May 28, Morris
informed the district court that she would be unable to file her
post-judgment motions before June 1. On that day she filed a
voluminous motion for reconsideration.3 The district court denied
that motion on October 21 and the next day entered a second
judgment “pursuant to the Memorandum and Order of the Court entered
October 21, 2004.”4 On November 5, Morris timely filed a notice of
appeal “from the October 21, 2004 decision.”
Morris has not appealed the merits judgment of March 23,
2004. The question is whether the denial of her motions for
reconsideration was an abuse of discretion.
DISCUSSION
Federal Rule of Civil Procedure 59(e) provides that
“[a]ny motion to alter or amend a judgment shall be filed no later
than 10 days after entry of the judgment.” That time limit is
mandatory. See Federal Rule of Civil Procedure 6(b) stating that
the court “may not extend the time for taking any action under
Accommodation for My Disability.”
3
The motion was styled: “Motion/Memorandum/Affidavit in
Support of Judgment as a Matter of Law, and/or New (Non-Jury)
Trial, and/or Reconsideration, and/or Alteration or Amendment to
Court’s March 23, 2004 Final Judgment with Addition or Amendment to
Court’s Findings of Fact and Case Precident [sic] as Required by
Law.”
4
The entry of a second judgment by the District Court clerk
was presumably a clerical error.
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Rule[] . . . 59(e).” It leaves the district court with “no power
or discretion to modify it.” Vargas v. Gonzalez, 975 F.2d 916, 917
(1st Cir. 1992). An untimely motion for reconsideration is
therefore a nullity, at least for purposes of Rule 59(e). Flint v.
Howard, 464 F.2d 1084, 1086 (1st Cir. 1972) (citing Jusino v.
Morales & Tio, 139 F.2d 946 (1st Cir. 1944)).
Morris’s April 5 motion for reconsideration was filed
within the Rule 59(e) ten-day deadline. See Fed. R. Civ. P. 6(a).
Morris did not appeal the April 21 denial of that motion, choosing
instead to file a renewed motion for post-judgment relief. Even if
the court’s April 21 order were construed as leave to file further
post-judgment motions, the court was without power to entertain a
further Rule 59 motion. See Feinstein v. Moses, 951 F.2d 16, 19
(1st Cir. 1991) (holding that district court lacks power to enlarge
time to file Rule 59(e) motion). The June 1 motion, therefore, was
a nullity for Rule 59(e) purposes and the district court was
without jurisdiction to grant it. Air Line Pilots Ass’n v.
Precision Valley Aviation, Inc., 26 F.3d 220, 224 (1st Cir. 1994);
Vargas, 975 F.2d at 918.
The Supreme Court has acknowledged a limited exception
allowing otherwise untimely appeals from post-judgment motions in
“unique circumstances.” Thompson v. INS, 375 U.S. 384, 387 (1964);
Air Line Pilots Ass’n, 26 F.3d at 225. The district court’s order
allowing further post-judgment motions to be filed until May 28,
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2004, however, did not excuse Morris’s late filing of her notice of
appeal. First, this Circuit has questioned the continued viability
of the Thompson doctrine. Davignon v. Clemmey, 322 F.3d 1, 10
(1st Cir. 2003). Second, even if the doctrine remains viable, the
district court’s order did not create a “unique circumstance.”
“[C]ourts generally have insisted on the requirement that the
doctrine applies only where a court has affirmatively assured a
party that its appeal will be timely.” United States v. Heller,
957 F.2d 26, 29 (1st Cir. 1992) (internal quotation marks omitted).
The district court gave no such assurance. The April 21 Order,
which merely gave leave to file “post-judgment motions,” did not
relieve Morris from the Rule 59(e) deadline.
Even if we were to view Morris’s motion as having been timely
made under Federal Rule of Civil Procedure 60(b), as we may, see
United States v. One Urban Lot, 882 F.2d 582, 584-85 (1st Cir.
1989), the outcome would be the same. The June 1 motion did not
assert any of the grounds for relief from judgment listed in
Rule 60(b).
Although we do not reach the merits, our review of the record
persuades us nonetheless that Morris’s brief is totally lacking in
any demonstration of error below and that “this is not a case where
technical rules have immunized a miscarriage of justice.” Flint,
464 F.2d at 1087.
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CONCLUSION
The judgment is affirmed.
Affirmed
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