USCA1 Opinion
August 23, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1077
MARK S. HIDER,
Plaintiff, Appellant,
v.
CITY OF PORTLAND, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. David M. Cohen, U.S. Magistrate Judge] _____________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Lynch, Circuit Judges. ______________
____________________
Mark S. Hider on brief pro se. _____________
Natalie L. Burns on brief for appellee City of Portland. ________________
BethAnne L. Poliquin on brief for appellee Michael Chitwood. ____________________
____________________
____________________
Per Curiam. Plaintiff-appellant Mark S. Hider appeals __________
from the grant of summary judgment in favor of defendants-
appellees and from the denial of a request for relief from
judgment. For the following reasons, we dismiss the appeal
from the grant of summary judgment as untimely, and we affirm
the denial of post-judgment relief.
I.
This appeal has its origins in a decision by appellee
Michael Chitwood, chief of police for appellee City of
Portland, to deny Hider's second application for a permit to
carry a concealed weapon. Hider sought judicial review of
this administrative determination in Maine state court, which
upheld the police chief's decision. See Hider v. Chief of ___ _____ ________
Police, Portland, 628 A.2d 158 (Me. 1993). Thereafter, Hider ________________
filed a complaint in federal district court alleging,
pursuant to 42 U.S.C. 1983, that appellees violated his
rights under the Second, Eighth, and Fourteenth Amendments.
Hider also appended various state law claims. Pursuant to 28
U.S.C. 636(c), the parties consented to allow a magistrate
judge to conduct any and all proceedings in the case, and to
enter final judgment and orders.
On October 18, 1994, the magistrate judge granted
summary judgment for appellees on the federal claim, ruling
that the claim is barred by the doctrine of res judicata. ___ ________
The pendent state law claims were dismissed as a matter of
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judicial discretion. See 28 U.S.C. 1367(c)(3). Judgment ___
entered on October 19, 1994. On November 5, 1994, Hider
served on appellees a motion for new trial pursuant to Fed.
R. Civ. P. 59(a), a motion to alter or amend judgment
pursuant to Fed. R. Civ. P. 59(e), and a motion for relief
from judgment pursuant to Fed. R. Civ. P. 60(b). The
magistrate judge denied these motions on November 28, 1994.
One week later, on December 5, 1994, Hider filed a motion for
reconsideration. This motion was denied on December 19,
1994. Hider filed a notice of appeal on January 18, 1995.
II.
Although not raised by the parties, the initial question
we must address in this appeal is one of jurisdiction. See ___
Feinstein v. Moses, 951 F.2d 16, 17 (1st Cir. 1991). As we _________ _____
see it, Hider does not have a timely appeal from the summary
judgment. Pursuant to Fed. R. App. P. 4(a)(1), Hider was
required to file his notice of appeal within thirty days
after entry of final judgment. Timely filing of a notice of
appeal is both mandatory and jurisdictional. Acevedo- ________
Villalobos v. Hernandez, 22 F.3d 384, 387 (1st Cir.), cert. __________ _________ _____
denied, 115 S. Ct. 574 (1994). Since final judgment entered ______
on October 19, 1994, Hider's notice of appeal was due on
November 18, 1994 and was filed two months late.
To be sure, a timely Rule 59(a) or 59(e) motion tolls
the time period for filing a notice of appeal. See Fed. R. ___
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App. P. 4(a)(4). However, to be timely, such motions must be
served within ten days of the entry of judgment, see Fed. R. ___
Civ. P. 59(b), (e), excluding intermediate holidays and week-
ends, see Fed. R. Civ. P. 6(a). Hider's Rule 59(a) and 59(e) ___
motions were due to be served by November 2, 1994. Since
these motions were not served until November 5, 1994, they
were untimely and did not extend the time period for appeal
from the underlying judgment.1 See Cavaliere v. Allstate ___ _________ ________
Ins. Co., 996 F.2d 1111, 1114 (11th Cir. 1993) (untimely Rule ________
59(a) motion); Feinstein, 951 F.2d at 18 (untimely Rule 59(e) _________
motion). Under the circumstances, we lack jurisdiction to
review the summary judgment.
We recognize that an alternative argument might be made
in an attempt to resuscitate the appeal from summary
judgment. Following the denial of the first set of post-
judgment motions, the clerk of the court prepared and entered
on the docket a separate document which is labeled "Amended
Judgment" and purports to re-enter the final judgment.
Similarly, following the denial of the second set of post-
____________________
1. The magistrate judge incorrectly stated in his margin
ruling that the Rule 59(e) motion was timely. It appears
that, in calculating the ten-day period, the magistrate judge
followed the suggestion of the appellees and added three days
for service by mail pursuant to Fed. R. Civ. P. 6(e). This
was error since the time for serving a motion under Rule
59(e) is not extended by Rule 6(e). See Flint v. Howard, 464 ___ _____ ______
F.2d 1084, 1087 (1st Cir. 1972). We add that, because the
magistrate judge's misstatement was made well after the time
for appeal had expired, Hider could not have relied on it in
delaying his appeal. See Feinstein, 951 F.2d at 20. ___ _________
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judgment motions, the clerk prepared and entered on the
docket a separate document which is labeled "Second Amended
Judgment" and purports to re-enter the final judgment. Under
the circumstances, it could be argued that the appeal period
began anew with the entry of the "Amended Judgment" on the
docket and then restarted once again with the entry of the
"Second Amended Judgment" on the docket.
Such an argument, however, would fail. An amended
judgment which alters matters of substance or resolves some
genuine ambiguity does wind the appeal clock anew. See FTC ___ ___
v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12 ___________________________________
(1952). However, neither the re-entry of a judgment
previously entered nor an immaterial revision to the judgment
tolls the time period within which review must be sought.
See id.; Air Line Pilots Ass'n v. Precision Valley Aviation, ___ ___ _____________________ __________________________
26 F.3d 220, 223 n.2 (1st Cir. 1994). Where, as here, the
court made no revision whatsoever to the final judgment, the
appeal period from this judgment is unaffected.
II.
Our task is not over. Hider's notice of appeal is
timely with respect to the order denying his December 5, 1994
motion for reconsideration.2 We construe this motion as a
____________________
2. The filing of this December 5 motion did not, of course,
affect the time period within which Hider was required to
file his appeal from the October 19 entry of judgment. See, ___
e.g., Rodriguez-Antuna v. Chase Manhattan Bank, 871 F.2d 1, 2 ____ ________________ ____________________
(1st Cir. 1989) (timely appeal from district court's denial
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Rule 60(b)(3) motion since it seeks relief from judgment
based on allegations of fraud or misrepresentation. See Fed. ___
R. Civ. P. 60(b)(3) (permitting relief from judgment based on
fraud misrepresentation, or other misconduct of an adverse
party). In this circuit, the denial of a Rule 60(b) motion
is an appealable order. See Fiore v. Washington County Comm. ___ _____ _______________________
Mental Health Ctr., 960 F.2d 229, 232 (1st Cir. 1992) (en __________________
banc). Our standard of review is abuse of discretion. See ___
De la Torre v. Continental Ins. Co., 15 F.3d 12, 14 (1st Cir. ___________ ____________________
1994).
In his brief on appeal, Hider reiterates his allegations
of fraud on the court. In particular, Hider claims that
appellees misrepresented that they agree with the ruling of
the Maine Law Court, when in fact, they do not. However,
even if the evidence in the record supported an inference
that appellees secretly disagreed with some aspect of the
Maine court's reasoning or its interpretation of the relevant
law, Hider has failed to demonstrate how that alleged
misconduct interfered with his ability to prepare a defense
to appellee's summary judgment motion. See Perez-Perez v. ___ ___________
Popular Leasing Rental, Inc., 993 F.2d 281, 285 (1st Cir. _____________________________
1993) (holding that moving party on a Rule 60(b)(3) motion
must demonstrate fraud by clear and convincing evidence and
____________________
of post-judgment relief does not "resurrect" expired right of
appeal from underlying judgment).
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must show that the fraud foreclosed full and fair preparation
or presentation of his case). Under the circumstances, the
magistrate judge did not abuse his discretion in denying the
December 5, 1994 motion for reconsideration.
The appeal from the entry of summary judgment is
dismissed; the denial of the motion for reconsideration is _________
affirmed. ________
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