Acevedo Villalobos v. Hon. Hernandez

USCA1 Opinion












UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 93-1544

NORMA I. ACEVEDO-VILLALOBOS, ET AL.,

Plaintiffs, Appellants,

v.

HON. RAFAEL HERNANDEZ, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
__________________________

____________________

Before
Cyr, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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____________________

Jesus Hernandez-Sanchez, with whom Hernandez-Sanchez Law Firm was
_______________________ __________________________
on brief for appellants.
Fidel A. Sevillano Del Rio, Assistant United States Attorney,
____________________________
with whom Guillermo Gil, United States Attorney, Donnie R. Murray,
______________ _________________
Deputy Regional Counsel, United States Department of Housing and Urban
Development, and Teresa Pombo, Chief Counsel, United States Department
____________
of Housing and Urban Development, were on brief for appellees, United
States, et al.
Vannessa Ramirez-Kausz, Assistant Solicitor General for the
_______________________
Commonwealth of Puerto Rico, with whom Carlos Lugo-Fiol, Deputy
_________________
Solicitor General, was on brief for appellee, Commonwealth.

____________________

April 28, 1994
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BOWNES, Senior Circuit Judge. This appeal raises a
BOWNES, Senior Circuit Judge.
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procedural question of first impression in our circuit:

whether the dismissal of a complaint, which does not

explicitly dismiss the action, constitutes a "final

decision[]," and is therefore appealable under 28 U.S.C.

1291.1 We rule in the affirmative, holding that the

plaintiffs had both the right to appeal from the judgment

dismissing their complaint and the duty to do so in a timely

manner. Because plaintiffs' appeal was not timely, we lack

jurisdiction to review the dismissal of the complaint.

Furthermore, we conclude that appellate jurisdiction is

lacking over the district court's denial of plaintiffs' first

motion for postjudgment relief, and that their second such

motion was untimely, and therefore properly denied by the

district court. Accordingly, we affirm.

I.
I.

BACKGROUND
BACKGROUND
__________

Plaintiffs-appellants are, for the most part,

former employees of the Puerto Rico Public Housing

Administration (PRPHA). On May 2, 1992, PRPHA and the

Commonwealth of Puerto Rico, acting through former governor

Rafael Hernandez Colon, signed an agreement with

representatives of the United States Department of Housing


____________________

1. Section 1291 provides: "The courts of appeals . . .
shall have jurisdiction of appeals from all final decisions
of the district courts of the United States. . . ."

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and Urban Development (HUD). Under the agreement, the

Commonwealth and HUD agreed to take certain actions in order

to expedite the privatization of the management of federally

funded public housing projects in Puerto Rico, as well as the

decentralization of PRPHA. The privatization provisions of

the agreement are at the center of plaintiffs' claims.

The agreement committed the Commonwealth to pursue,

and HUD to support, a plan to privatize federally assisted

housing projects by transferring the administration and

maintenance of such projects to private contractors. As a

result of this privatization, a sizeable percentage of

PRPHA's employees would be laid off. The agreement between

HUD and PRPHA briefly addresses the plight of PRPHA's

employees in a cursory manner:

The private management process may
require the elimination of positions
within the present structure of the
PRPHA. Employees holding said positions
will receive benefits as provided by law.
HUD will provide federal funding for
payment of their benefits resulting from
the federally funded public housing
program. The Commonwealth will fund
costs ineligible for federal funding.

Privatization Agreement, Art. I, 4. In addition, PRPHA

agreed to encourage private contractors to employ displaced

employees. Id. at 6b. Shortly thereafter, PRPHA
___

formulated a layoff plan to comply with the relevant

provisions of Puerto Rico's Public Service Personnel Act, see
___

3 L.P.R.A. 1336(6). A layoff plan was finalized in April


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1992, and the privatization agreement was set to go into

effect on August 1.

On June 26, 1992 letters were sent to PRPHA

employees notifying them that,

[s]ince you are one of the persons
affected by layoffs, we notify you that
owing to lack of work, we have no other
alternative than to decree your layoff
from public service effective July 31,
1992. We advise you of your right to
present arguments or documentary
evidence, if any[,] which you consider
will benefit you, before the designated
official.

On July 15, 1992, plaintiffs filed an action in United States

District Court for the District of Puerto Rico against

various Commonwealth and federal agencies and officers,2

seeking injunctive, declaratory and monetary relief.

Plaintiffs' constitutional claims against the state

defendants are predicated upon 42 U.S.C. 1983, while their

constitutional claims against the federal defendants are

based on the doctrine set forth in Bivens v. Six Unknown
______ ___________

Named Agents, 403 U.S. 388 (1971). The major themes of
_____________

plaintiffs' complaint are as follows. First, plaintiffs

allege that the privatization agreement is invalid (and



____________________

2. The defendants in this action fall into two groups: the
United States of America, HUD, and various HUD officials
(hereinafter, the "federal defendants"), and the former
governor of Puerto Rico, PRPHA, and various PRPHA officials.
(hereinafter, the "state defendants"). All of the
individuals were sued in their official and personal
capacities.

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consequently that the layoffs were illegal) because it was

entered into in violation of both Puerto Rico and federal

law, and that the various local and federal defendants acted

ultra vires by signing the agreement. Accordingly,
_____ _____

plaintiffs allege that the layoffs were illegal. Next,

plaintiffs allege that they had a property interest in their

jobs, and that they were deprived of this property interest

without due process. Finally, plaintiffs maintain that a

Puerto Rico official made derogatory comments about them in

public, thereby depriving them of "liberty" without due

process.

On October 27, 1992, the state defendants moved to

dismiss the complaint, or alternatively, for summary

judgment, on a plethora of grounds including, but not limited

to, the complaint's failure to state a claim upon which

relief could be granted. See Fed. R. Civ. P. 12(b)(6). Two
___

days later the state defendants moved to stay discovery

pending the court's resolution of their dispositive motion.

The court granted the requested stay.

On January 15, 1993, the district court granted the

state defendants' motion to dismiss. The court stated that

"[p]laintiffs' complaint fails to provide the Court with a

clear idea of the contours of their claims and also fails to

provide appropriate support for their allegations." Gonzalez
________

v. Hernandez, No. 92-1972, slip op. at 4 (D.P.R. Jan. 15,
_________



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1993). According to the court, plaintiffs' complaint was

"infected with conclusory allegations and unfounded

accusations," id. at 5-6, and "insufficiently illustrate[d]
___

the essential nature of their claim[s]." Id. at 4. The
___

court dismissed plaintiffs' complaint in its entirety,

stating: "The Court therefore ORDERS that defendants' Motion

to Dismiss pursuant to Rule 12(b)(6) is hereby GRANTED and

that plaintiffs' complaint is hereby DISMISSED." Id. at 6.
___

On the same day the court entered judgment on a separate

document, pursuant to Fed. R. Civ. P. 58 and 79(a), which

stated as follows: "By virtue of the Opinion & Order of the

Court, entered on this date, it is hereby ORDERED, ADJUDGED

and DECREED that plaintiffs' complaint is DISMISSED."

Plaintiffs filed two postjudgment motions for relief, both of

which were denied. This appeal ensued.

II.
II.

DISCUSSION
DISCUSSION
__________

In their notice of appeal filed May 14, 1993,

plaintiffs list four decisions of the district court from

which they appeal: (1) the judgment of January 15, 1993

dismissing the complaint, and the court's opinion and order

of the same date; (2) the order of November 30, 1992 granting

a stay of discovery; (3) the order of March 2, 1993 denying

plaintiffs' first Rule 59(e) motion for reconsideration and





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to amend the complaint; and (4) the order of April 19, 1993

denying plaintiffs'secondRule 59(e)motionforreconsideration.3

A. Dismissal of the Complaint
A. Dismissal of the Complaint
__________________________

Under Fed. R. App. P. 4(a)(1), any party appealing

from a judgment or order of the district court, where "the

United States or an officer or agency thereof is a party,"

must file a notice of appeal within sixty days of the date of

entry of the judgment or order. Timely filing of a notice of

appeal is "mandatory and jurisdictional." Perez-Perez v.
___________

Popular Leasing Rental, Inc., 993 F.2d 281, 283 (1st Cir.
_____________________________



____________________

3. The plaintiffs asserted, at oral argument before us, that
the district court had dismissed only the state defendants'
claims, leaving the federal defendants' claims unresolved.
Thus, appellants argued, this court should remand the case to
permit the district court to comply with Fed. R. Civ. P.
54(b) (where multiple claims or parties are involved court
may direct entry of final judgment as to one or more but
fewer than all the claims or parties). At no point did
plaintiffs ever assert or suggest this contention before the
district court, either in their motions for reconsideration
or in any of their numerous other postjudgment filings. In
all events, however, their belated contention, if not waived,
is without merit.

The district court unmistakably intended to dismiss the
complaint in toto, pursuant to Fed. R. Civ. P. 12(b)(6), for
__ ____
failure to state a cognizable cause of action. Its opinion
and order is most reasonably read as having dismissed the
entire complaint even though it adverts only to the motion to
______ _________
dismiss filed by the state defendants. Furthermore, the
final judgment itself expressly dismissed "the plaintiffs'
complaint" after the federal defendants had filed their own
_____
motion to dismiss shortly before the district court entered
its opinion and final judgment. We are satisfied, therefore,
that plaintiffs' belated Rule 54(b) contention in no sense
warrants an inference that plaintiffs were misled or the
judgment was not final. Consequently, the requirements of
Rule 54(b) are not implicated.

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1993) (quoting Browder v. Director, Dep't of Corrections, 434
_______ ______________________________

U.S. 257, 264 (1978)). In the present case, plaintiffs'

notice of appeal was filed more than 100 days after entry of

the judgment dismissing the complaint. But, under Fed. R.

App. P. 4(a)(4), a timely motion to alter or amend judgment

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

notice of appeal, and the time for filing the notice starts

to run from the entry of the order denying said motion. See
___

United States v. 789 Cases of Latex Surgeon Gloves, 13 F.3d
_____________ __________________________________

12, 14 (1st Cir. 1993); Fed. R. App. P. 4(a)(4). Under Rule

59(e), "[a] motion to alter or amend the judgment shall be

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

Fed. R. Civ. P. 59(e).

Although plaintiffs' original Rule 59(e) motion was

timely filed (it was served within ten days from the entry of

the judgment dismissing the complaint), their notice of

appeal was not filed until sixty-four days after the entry of

the order denying of the motion. Thus, even with the benefit

of Rule 4(a)(4)'s tolling provision, plaintiffs' notice of

appeal was seemingly late. We lack jurisdiction over late

appeals.

This brings us to the principal issue on appeal:

Plaintiffs now argue that the judgment dismissing their

complaint was not a "final decision" within the meaning of 28

U.S.C. 1291, and that their time to file a notice of appeal



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did not start to run until the denial of their second motion

for reconsideration. Because the notice of appeal was filed

within sixty days from the entry of the order denying the

second motion, plaintiffs maintain that their notice of

appeal was timely with respect to the underlying judgment.

We have never ruled on this procedural dilemma. It

has, however, given rise to some disagreement among those

circuits that have. Three distinct views have emerged. The

Seventh and Ninth Circuits have held that the dismissal of a

complaint, as opposed to the dismissal of an action, is not a

final, appealable order, unless the trial court has made

clear in dismissing the complaint that the action could not

be saved by amendment. See Benjamin v. United States, 833
___ ________ _____________

F.2d 669, 672 (7th Cir. 1987); Ruby v. Secretary of United
____ ___________________

States Navy, 365 F.2d 385, 387 (9th Cir. 1966), cert. denied,
___________ _____ ______

386 U.S. 1011 (1967). On the other hand, the Second and

Eighth Circuits have held that, absent an express grant of

leave to amend, an order dismissing the complaint is final

and appealable. See Weisman v. LeLandais, 532 F.2d 308, 309
___ _______ _________

(2d Cir. 1976); Quartana v. Utterback, 789 F.2d 1297, 1300
________ _________

(8th Cir. 1986). Finally, the Eleventh Circuit has carved

out a middle ground. It has held that such an order of

dismissal is not final if "the plaintiff could not have been

reasonably expected to realize that the court was entering a





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final order." Czeremcha v. International Ass'n of Mach. &
_________ ________________________________

Aero. Workers, 724 F.2d 1552, 1555 (11th Cir. 1984).
_____________

Before deciding which, if any, of these three

approaches to adopt, we briefly explain the rationale

underlying each. The Seventh and Ninth Circuits have held

that the dismissal of a complaint is not final and appealable

because a motion to dismiss is not a "responsive pleading"

within the meaning of Fed. R. Civ. P. 15(a),4 and thus a

plaintiff still retains his or her right to amend once as a

matter of course under Rule 15(a) even after a motion to

dismiss has been granted. See Car Carriers, Inc. v. Ford
___ ___________________ ____

Motor Co., 745 F.2d 1101, 1111 (7th Cir. 1984), cert. denied,
_________ _____ ______

470 U.S. 1054 (1985); 222 East Chestnut St. Corp. v.
_______________________________

Lakefront Realty Corp., 256 F.2d 513 (9th Cir.), cert.
________________________ _____

denied, 358 U.S. 907 (1958).
______

In Elfenbein v. Gulf & Western Indus., Inc., 590
_________ _____________________________

F.2d 445, 448 n.1 (2d Cir. 1978), the Second Circuit

explained that the split on this issue was based on the

circuits' differing views on the right to amend a complaint



____________________

4. Rule 15(a) provides, in relevant part:

A party may amend the party's pleading
once as a matter of course at any time
before a responsive pleading is served. .
. . Otherwise a party may amend the
party's pleading only by leave of the
court or by written consent of the
adverse party; and leave shall be freely
given when justice so requires.

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under Rule 15(a) once a motion to dismiss has been granted.

The court stated:

[W]hile the law in this circuit is that a
motion to dismiss is not a responsive
pleading, and therefore the complaint may
be amended without leave of the court
[after such a motion is made], it is
equally well established that this right
terminates upon the granting of the
motion to dismiss.

Id. (citations omitted). The Eighth Circuit, which shares
___

the Second Circuit's view that the right to amend under Rule

15(a) terminates upon dismissal, found that this distinction

provided support for following the Second Circuit's rule that

the dismissal of a complaint was a "final decision," but did

not view the distinction dispositive.5 Ultimately, the

Eighth Circuit joined the Second, reasoning as follows:

Where matters of finality (and therefore
of appellate jurisdiction) are concerned,
we believe it preferable to adopt rules
that promote clarity and certainty. The
Second and Ninth Circuit rules have an
advantage over that of the Eleventh
Circuit in this regard because they focus
solely on the language of the dismissal
order, requiring an explicit contrary
statement to avoid a presumption of
finality (Second Circuit) or non-finality
(Ninth Circuit). Comparing the Second and


____________________

5. The court cited the Eleventh Circuit's opinion in
Czeremcha, 724 F.2d at 1554-56, to illustrate this point.
_________
According to the Eleventh Circuit, after a complaint is
dismissed the right to amend under Rule 15(a) terminates. But
the dismissal does not act as a final judgment, and the
plaintiff may still move the court for leave to amend unless
the "court has clearly indicated either that no amendment is
possible or that dismissal of the complaint also constitutes
dismissal of the action." Id. at 1556 n.6.
___

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Ninth Circuit rules, that of the Second
Circuit commends itself because it avoids
confusion over when a plaintiff's right
to amend a dismissed complaint
terminates, the order becomes final, and
the time for appeal begins to run.

Quartana, 789 F.2d at 1300.
________

The "intermediate approach" taken by the Eleventh

Circuit was grounded in that court's desire to formulate a

rule consistent with "Rule 15's liberal mandate that leave to

amend be `freely given when justice so requires,' without

granting the plaintiff carte blanche power to reopen a case

at will by filing an amendment." Czeremcha, 724 F.2d at
_________

1554-55. Under this approach, "[a]lthough the plaintiff does

not have a right to amend as a matter of course after

dismissal of the complaint [see supra note 5], the dismissal
___ _____

itself does not automatically terminate the action unless the

court holds either that no amendment is possible or that the

dismissal of the complaint also constitutes dismissal of the

action." Id. at 1554 (footnotes omitted).
___

We find the reasoning employed by the Eighth

Circuit to be compelling, and thus adopt the approach

embraced by that court and the Second Circuit. Our

conclusion that the order in this case is final is

strengthened by several factors. First, consistent with the

Second and Eighth Circuits, a plaintiff's time to amend his

or her complaint as a matter of right within the First

Circuit terminates upon a district court's dismissal of the


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complaint. See Jackson v. Salon, 614 F.2d 15, 17 (1st Cir.
___ _______ _____

1980). Second, the dismissal of the complaint in the present

case was set forth in a separate document, as required for

final judgments under Fed. R. Civ. P. 58. See Quartana, 789
___ ________

F.2d at 1300 n.2. Third, plaintiffs, as evidenced by their

Rule 59(e) motions, apparently understood the judgment to be

final. See id.6 And finally, the dismissal of the
___ ___

complaint fits comfortably under the Supreme Court's

definition of a "final decision." The Court has defined a

"final decision" as one that "`ends the litigation on the

merits and leaves nothing for the court to do but execute the

judgment.'" Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
___________________________ _______

368, 373-74 (1981) (quoting Catlin v. United States, 324 U.S.
______ _____________

229, 233 (1945)). A dismissal for failure to state a claim

under Fed. R. Civ. P. 12(b)(6) is a decision on the merits.

See Local No. 714 v. Greater Portland Transit Dist., 589 F.2d
___ _____________ ______________________________

1, 6 (1st Cir. 1978); see also 5 James W. Moore et al.,
___ ____

Moore's Federal Practice 41.14 at 41-170 (2d ed. 1993).
_________________________

Here the complaint was dismissed by the district court for

failure to state a claim, and judgment was then entered on

the docket and set forth on a separate document in accordance

with Fed. R. Civ. P. 58 and 79(a). Accordingly, the




____________________

6. Thus, it appears that plaintiffs have constructed their
present argument after the fact in an attempt to preserve
appellate review of the dismissal of their complaint.

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dismissal of plaintiffs' complaint possesses all of the

markings of a "final decision."

In short, we hold that when a district court uses

the words, "The complaint is dismissed," without expressly

granting the plaintiff leave to amend, this is a "final

decision" from which a timely appeal may be taken. Because

there was not a timely appeal taken by plaintiffs we lack

appellate jurisdiction over their attack on the dismissal of

the complaint.

Plaintiffs also argue that the second motion to

reconsider, which was served within 10 days of the denial of

the first motion, extended the time period for filing a

notice of appeal from the dismissal of the complaint, thereby

rendering the notice timely. This argument has no merit. It

is well settled that a motion for reconsideration served more

than ten days after the entry of judgment does not effect the

time for appealing from that judgment. See Feinstein v.
___ _________

Moses, 951 F.2d 16, 18 (1st Cir. 1991); Fed. R. App. P.
_____

4(a)(4); see also 6A Moore, supra 59.13[3] at 59-282 ("A
___ ____ _____

[second] motion for reconsideration that is served more than

ten days after the entry of judgment has no effect upon

appeal time, which runs from the entry of the original order

denying . . . an alteration or amendment of the judgment.").

Because plaintiffs' second motion for reconsideration was

served two months after entry of the judgment dismissing the



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complaint, it was untimely under Rule 59(e), and did not toll

the appeal period for that judgment. See Jusino v. Zayas,
___ ______ _____

875 F.2d 986, 989 (1st Cir. 1989).7

B. Postjudgment Motions for Reconsideration
B. Postjudgment Motions for Reconsideration
________________________________________

Where, as here, a complaint is dismissed without

leave to amend, the plaintiff can appeal the judgment, or

alternatively, seek leave to amend under Rule 15(a) after

having the judgment reopened under either Rule 59 or 60.

Unless postjudgment relief is granted, the district court

lacks power to grant a motion to amend the complaint under

Rule 15(a). See Public Citizen v. Liggett Group, Inc., 858
___ ______________ ____________________

F.2d 775, 781 (1st Cir. 1988), cert. denied, 488 U.S. 1030
_____ ______

(1989); see also 3 Moore supra 15.10 at 15-107 ("[A]fter a
___ ____ _____

judgment of dismissal plaintiff must move under Rules 59(e)

or 60(b) to reopen the judgment."); 6 Charles A. Wright &

Arthur R. Miller, Federal Practice and Procedure 1489 at
_______________________________

692-93 (1990) ("[O]nce judgment is entered the filing of an

amendment cannot be allowed until the judgment is set aside

or vacated under Rule 59 or Rule 60.").

On February 1, 1993, within ten days of the entry

of judgment, plaintiffs served a motion for reconsideration

and/or to alter or amend the judgment pursuant to Rule 59(e),


____________________

7. In addition, plaintiffs appeal from the district court's
decision to stay discovery pending the resolution of the
state defendants' motion to dismiss or for summary judgment.
As a result of the foregoing discussion, we lack jurisdiction
over this appeal.

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together with a motion to amend the complaint accompanied by

a proposed amended complaint.8 On February 12, plaintiffs

filed a document entitled "Supplemental Arguments to our

Motion for Reconsideration." These supplemental arguments

were an expansion of several arguments made by plaintiffs in

the Rule 59(e) motion. On February 26, federal defendants

filed a response to plaintiffs' supplemental arguments.

Finally, on March 3, the district court denied plaintiffs'

motion for reconsideration, effectively denying their motion

for leave to amend the complaint. The court declined to

address plaintiffs' supplemental arguments, indicating that

they were "moot."9

On March 15, 1993, plaintiffs filed a second motion

for reconsideration under Rule 59(e). We note that

plaintiffs' second motion for reconsideration did not

specifically invoke Rule 59(e), or for that matter, any

federal rule. Nonetheless, we have consistently held that

"`a motion which ask[s] the court to modify its earlier

disposition of the case because of an allegedly erroneous

legal result is brought under Fed. R. Civ. P. 59(e).'"

Feinstein, 951 F.2d at 19 n.3 (quoting Lopez v. Corporacion
_________ _____ ___________


____________________

8. The motion also cites Rule 60(b)(6) but identifies no
"extraordinary circumstances" that might bring this provision
into play. Vargas v. Gonzalez, 975 F.2d 916, 917-18 n.1 (1st
______ ________
Cir. 1992).

9. Plaintiffs do not appeal from the court's order declining
to address the supplemental arguments.

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Azucarera de Puerto Rico, 938 F.2d 1510, 1513 (1st Cir.
__________________________

1991)); 789 Cases of Latex Surgeon Gloves, 13 F.3d at 14
___________________________________

("[A] post judgment motion asking the court to change its

disposition solely because of legal error must be brought
______

under Rule 59(e)." (emphasis in original)). Where, as here,

the motion sought to set aside the court's prior rulings

solely on the basis of alleged legal errors, it is properly

treated as a motion brought under Rule 59(e).

On April 21, the district court denied the second

motion to reconsider and warned plaintiffs that it would no

longer entertain motions for postjudgment relief. Plaintiffs

appeal from the district court's orders denying both

postjudgment motions. We have consistently held that an

order denying a Rule 59(e) motion challenging the judgment

constitutes a "judgment," and is therefore appealable

separately from the appeal of the underlying judgment.

Kersey v. Dennison Mfg. Co., 3 F.3d 482, 485 n.6 (1st Cir.
______ __________________

1993); Fiore v. Washington Cty. Com. Mental Health Ctr., 960
_____ _______________________________________

F.2d 229, 233 (1st Cir. 1992).

In this case, plaintiffs' original Rule 59(e)

motion was timely, i.e., it was served within ten days of the
____

judgment, excluding intermediate weekends and holidays, as

required by Fed. R. Civ. P. 6(a). But plaintiffs' notice of

appeal was not filed until sixty-four days after the denial

of this motion, and therefore the notice was untimely. See
___



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supra page 7. Plaintiffs argue, however, that their second
_____

Rule 59(e) motion (served within ten days of the denial of

the original Rule 59(e) motion) extended the time period

within which to file a notice of appeal from the order

denying the original motion. Id.10 Because the notice of
___

appeal was filed within sixty days from the entry of the

order denying the second motion, plaintiffs conclude that the

notice was timely with respect to both postjudgment motions.

We disagree.

Although it was entitled "Motion for

Reconsideration of the Last Decision Issued and Entered by

the Honorable Court," plaintiffs' second Rule 59(e) motion

was an obvious attempt to have the district court revisit the

legal basis for its January 15, 1993 opinion and order

dismissing the complaint. In their second motion to

reconsider, plaintiffs merely elaborated on various legal

arguments that were addressed, albeit in less detail, in

their original Rule 59(e) motion. Thus, plaintiffs not only

requested the same relief in the second Rule 59(e) motion as

they did in the first, including, inter alia, that (1) "[t]he
_____ ____

judgment dismissing the complaint be set aside," and (2)

"[d]iscovery proceedings be allowed to continue," they sought



____________________

10. We have already determined that plaintiffs' second Rule
59(e) motion did not extend the time for filing a notice of
appeal from the dismissal of the complaint. See supra p. 13-
___ _____
14.

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that relief on the same grounds. Accordingly, plaintiffs'

second Rule 59(e) motion must be viewed as a motion to

reconsider the judgment dismissing the complaint. See
___

Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 26 (1st
___________________ _______________

Cir. 1988) ("`nomenclature should not be exalted over

substance'" (quoting Lyell Theatre Corp. v. Loews Corp., 682
____________________ ___________

F.2d 37, 41 (2d Cir. 1982))).

Because plaintiffs' second Rule 59(e) motion to

reconsider was, in reality, a motion to reconsider the

judgment dismissing the complaint, and it was untimely (not

served within 10 days of entry of the judgment), the district

court was without jurisdiction to grant it. Vargas, 975 F.2d
______

at 918; Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871
________________ ___________________________

F.2d 1, 2-3 (1st Cir. 1989). Furthermore, the untimely

second motion to reconsider could not enlarge the time for

filing a notice of appeal from the order denying the original

motion to reconsider. See Feinstein, 951 F.2d at 18; Fed. R.
___ _________

App. P. 4(a)(4).

Therefore, to the extent that plaintiff challenges

the March 3, 1993 order denying the original Rule 59(e)

motion, the appeal is dismissed for lack of appellate

jurisdiction. To the extent that they seek to challenge the

April 19, 1993 order denying the second Rule 59(e) motion,

the order is affirmed.

The judgment of the district court is Affirmed.
Affirmed
________



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