USCA1 Opinion
March 21, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1803
ENOS JULIAN GAUDET,
Plaintiff, Appellant,
v.
JOHN BOYAJIAN,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge] __________________________
___________________
Before
Cyr, Boudin and Stahl,
Circuit Judges. ______________
___________________
Enos Gaudet on brief pro se. ___________
John Boyajian and Boyajian, Harrington & Richardson on ______________ ____________________________________
Motion to Dismiss and Memorandum in Support, for appellee.
__________________
__________________
Per Curiam. This is an appeal by pro se debtor- __________
appellant Gaudet from a district court intermediate appeal,
Gaudet v. Boyajian, No. 92-0616B (D.R.I. May 16, 1994), ______ ________
affirming a bankruptcy court order requiring Gaudet to pay
trustee-appellee Boyajian $28,000 in fees and costs as a
sanction "for the legal services attributable to [Gaudet's]
frivolous litigation during the course of this bankruptcy
case." In re Gaudet, 144 B.R. 223, 224 (Bankr.D.R.I. 1992). ____________
The district court, concluding that the bankruptcy court was
authorized to assess the fee sanction, affirmed the order and
Gaudet appeals.
Trustee-appellee Boyajian moves to dismiss the appeal
contending that this court is without appellate jurisdiction
to review the judgment affirming the bankruptcy court's
order. We agree, but find the notice of appeal timely as to
the denial of Gaudet's post-judgment motion, which remains
open to review.
A brief recitation of the pertinent facts is in order:
1. On May 16, 1994, after hearing on April 28, 1994, the
district court entered an order and judgment affirming the
bankruptcy court's order.
2. On June 2, 1994, Gaudet filed a motion entitled "Notice
and Motion to Extend Time." The motion requested an
extension of time in which to file a motion for rehearing of
the May 16, 1994, order. Specifically, Gaudet sought to
delay the filing of the intended rehearing motion until 15
days after the receipt of the April 28, 1994, hearing
transcript which, he asserted, was needed to complete the
proposed motion.
3. On June 20, 1994, the district court entered a margin
order summarily denying the Notice and Motion to Extend Time.
4. On July 19, 1994--sixty-four days after entry of
judgment and thirty days after the denial of the motion--
Gaudet filed a notice of appeal "from the [June 20, 1994]
order denying his motion . . . of June 2, 1994."
5. On August 2, 1994, Gaudet filed a statement of issues on
appeal challenging the bankruptcy court's authority to impose
an attorney fee sanction for Gaudet's overall litigation
conduct, including actions in the appellate courts.
As a threshold matter, although the notice of appeal on
its face shows an appeal from the denial of the Notice and
Motion to Extend, it is obvious--from the statement of issues
and other filings in this court--that Gaudet seeks to revisit
the district court judgment affirming the bankruptcy court's
order. It is undisputed that the notice of appeal was filed
more than thirty days after entry of that judgment. Fed. R.
App. P. 4(a)(1). That a notice of appeal be timely filed is
"mandatory and jurisdictional." Browder v. Director, Dep't _______ ________________
of Corrections, 434 U.S. 257, 264 (1978). However, a motion _______________
to alter or amend judgment under Fed. R. Civ. P. 59(e), if
served within ten days of judgment, postpones the period for
appealing the judgment until the district court's disposes of
the motion. Rule 4(a)(4)(C).
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The question arises whether the Notice and Motion to
Extend could be construed as a Rule 59(e) motion. We think
not. Although the motion was served on May 31, 1994, within
the ten-day period, and was ostensibly timely for Rule 59(e)
purposes, Fed. R. Civ. P. 6(a); Rivera v. M/T Fossarina, 840 ______ _____________
F.2d 152, 154 (1st Cir. 1988) (the date of service, not
filing, controls), there are otherwise none of the earmarks
of a cognizable motion for Rule 59(e) relief. It was
designed as motion to extend time to file a motion for
rehearing, but the time to file a Rule 59(e) motion cannot be
extended. Id. n.3. It was unaccompanied by any kind of ___
statement indicating why the ruling below was legally
incorrect, and, thus, failed utterly to comply with the basic
requirements of Fed. R. Civ. P. 7(b)(1) that grounds for
motion relief be stated with particularity. See Sierra On- ___ __________
Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1420 __________ _______________________
(9th Cir. 1984). In short, under the most charitable view,
Gaudet's Notice and Motion to Extend cannot, in substance, be
treated as a Rule 59(e) motion and is ineffective to preserve
any Rule 59(e) rights. See Perez-Perez v. Popular Leasing ___ ___________ _______________
Rental, Inc., 993 F.2d 281, 283 (1st Cir. 1993) (substance, ____________
not nomenclature, determines character of motion); Feinstein _________
v. Moses, 951 F.2d 16, 20 (1st Cir. 1991) (order allowing _____
motion to enlarge did not implicate Rule 59(e) tolling
because motion failed to apprise court of grounds for seeking
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reconsideration). As a consequence, the 30-day appeal period
was not extended and the notice of appeal is late as to the
judgment, precluding its review in this court.1 See Air ___ ___
Line Pilots Ass'n v. Precision Valley Aviation, 26 F.3d 220, _________________ _________________________
224 (1st Cir. 1994) (non-conforming Rule 59(e) motions do not
resurrect an expired right to appeal the merits of underlying
judgment); Rivera, 840 F.2d at 156. ______
While our jurisdiction over an appeal from judgment is
foreclosed, the notice of appeal is timely as to the denial
of the Notice and Motion to Extend Time. Nonetheless,
presuming that Gaudet sought more time to press for
reconsideration of the underlying judgment under Rule 59(e),
"it is well established that district courts lack power to
enlarge the time for filing post-judgment motions for a new
trial or motions to alter or amend judgment." Feinstein, 951 _________
F.2d at 19 & n.3. Since the district court lacked authority
to extend the time for Gaudet to file such a motion, its
summary denial was entirely proper. Id. at 21. ___
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1. Nor could the Notice and Motion to Extend Time, which did
not designate the rule relied upon, conceivably be treated as
a motion under Fed. R. App. P. 4(a)(5) to extend the 30-day
appeal period because of excusable neglect or good cause.
Gaudet's casual filing offered no legitimate or compelling
reason whatsoever, much less developed argument, for failing
to file a timely notice of appeal from judgment. In any
event, as Gaudet's notice of appeal was ultimately filed
sixty-four days after judgment, Rule 4(a)(5), which enlarges
the appeal period to no more than sixty days, would provide
no relief.
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Even if the Notice and Motion to Extend Time was
generously construed as a request for relief from judgment
under Fed. R. Civ. P. 60(b), given the history of the case
and the failure to identify any facially sufficient ground
for such a motion, there was no abuse of discretion in its
denial. The extraordinary relief afforded by Rule 60(b) is
available only in exceptional circumstances, clearly not
present here. See id. at 21 n.5; United States v. One Urban ___ ___ _____________ _________
Lot, 882 F.2d 582, 585 (1st Cir. 1989). ___
Appellee also seeks sanctions from this court for the
filing of this untimely appeal. However, the appeal was not
untimely in all respects. We trust that appellant is well
aware that frivolous filings will not be tolerated.
Appellee's motion for sanctions is denied.
In sum, insofar as Gaudet is contesting the May 16,
1994, judgment affirming the September 2, 1993, decision and
order of the bankruptcy court, the appeal is dismissed for
lack of appellate jurisdiction. To the extent that Gaudet
contests the June 20, 1994, order denying his Notice and
Motion to Extend Time, that order is affirmed.
It is so ordered. ________________
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