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USCA1 Opinion
August 17, 1992 [NOT FOR PUBLICATION]
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No. 92-1301
PEDRO C. VARGAS,
Plaintiff, Appellant,
v.
LEONARDO GONZALEZ, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Hector Gonzalez Lopez and Feijoo's Law Offices on brief for
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appellant.
Jose A. Cestero and Cesar R. Miranda Law Offices on brief for
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appellees.
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Per Curiam. In June 1991, attorneys for all of the
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parties to this case failed to appear for a hearing on a
motion to amend the complaint. The district court fined the
lawyers involved. In his motion to reconsider the sanction,
the plaintiff's attorney, Hector Gonzalez Lopez, offered
apologies and an explanation for his truancy. He also
informed the court that he would be absent from Puerto Rico
during the month of July, 1991. Accordingly, he asked the
court to reschedule a forthcoming status conference from July
16 "until August." The court complied with Attorney
Gonzalez' request. In an order dated July 12, 1991, the
district court (a) removed the sanctions and (b) rescheduled
the status conference for August 9, 1992.
Gonzalez did not appear at the conference on August 9.
The district court, taking into account Gonzalez' previous
dereliction, decided to dismiss the case for failure to
prosecute. The judgment of dismissal was dated August 30 but
was not entered on the docket until September 3, at which
time (the docket indicates) copies of the judgment were sent
to all parties.
The court next heard from Attorney Gonzalez on September
9, when he filed an "informative" motion requesting an
extension of time to respond to certain papers the defendants
had filed over the summer. The motion was mooted by, yet did
not mention, the dismissal entered six days earlier. In an
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order entered October 7, the district court denied the motion
for an extension and, referring to the now-month-old
dismissal, expressed its exasperation at Attorney Gonzalez'
inability to "read the handwriting on the wall."
The October 7 order brought a response from Attorney
Gonzalez, filed on October 18 and captioned "Motion to Amend
Judgment of August 30th, 1991 and to Other Extremes." In
this motion, Gonzalez offered excuses both for his failure to
appear at the August 9 conference, and for his failure to
respond more quickly to the judgment of dismissal. As to the
latter delinquency, Gonzalez claimed that he had never
received a copy of the judgment, and had not learned of the
dismissal until he received the court's October 7 order.
With respect to his absence from the status conference,
Gonzalez said that he was away from Puerto Rico from July 3
to August 2, caring for his ailing parents in Florida. He
spent the week August 2 to August 9 in Puerto Rico, but his
secretary, though she informed him of the court's July 12
order lifting the sanctions, neglected to tell him that the
same order had also rescheduled the status conference for
August 9. Thus, Gonzalez left Puerto Rico for Florida again
on August 9 without attending the conference or arranging for
a further continuance. When he returned to Puerto Rico at
the end of the month, he "did not check, inadvertantly [sic],
the case file itself . . . or he would have seen the notice
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vacating the sanctions and setting the status conference."
Arguing that the mortal sanction of dismissal was too harsh a
punishment for such venial sins, and that in any event the
client should not be made to suffer for his attorney's
neglect, Gonzalez asked the court to "set aside its Judgment
dismissing this case and to impose instead whatever sanctions
it deems necessary on the undersigned."
On January 17, 1992 the district court denied the motion
to amend judgment. Citing Fed. R. Civ. P. 59(e), the court
said that motions to amend judgment must be filed within ten
days of the entry of the judgment challenged, and observed
that the motion at hand had been filed more than thirty days
late. This appeal followed. We affirm.
I
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The motion filed on October 18 did not invoke any Rule
of Civil Procedure, but if the district court correctly
characterized it as a Rule 59(e) motion, then the denial was
indisputably correct. Because Rule 59(e) motions must be
filed within ten days of the entry of the judgment
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challenged, exclusive of weekends and holidays, the
allegation that Attorney Gonzalez did not receive a copy of
the judgment is of no consequence. "The 10 day period begins
to run upon entry of judgment even if a party has not
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received notice of the judgment . . . ." 6A Moore's Federal
Practice 59.09[1] (1991). Cf. Fed. R. Civ. P. 77(d) (lack
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of notice of entry of judgment does not affect time to
appeal). The ten-day deadline is mandatory, Fed. R. Civ. P.
6(b), and it is well established that the district court has
no power or discretion to modify it. See Feinstein v. Moses,
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951 F.2d 16, 19 (1st Cir. 1991) and cases cited therein; see
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also Shults v. Henderson, 110 F.R.D. 102 (W.D.N.Y. 1986).
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The district court properly identified the October 18
motion as one brought under Rule 59(e). Not only did the
caption -- "Motion to Amend Judgment . . . And to Other
Extremes" -- echo Rule 59(e), but the gist of the motion was
that the district court had erred by dismissing the case
without proof that the client was responsible for his
attorney's lapses, and in a situation where effective lesser
penalties were available. It is the settled rule in this
circuit that a motion asking the court "to modify its earlier
disposition of a case because of an allegedly erroneous legal
result is brought under Fed. R. Civ. P. 59(e)." Appeal of
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Sun Pipe Line Co., 831 F.2d 22, 24 (1st Cir. 1987) (citing
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Silk v. Sandoval, 435 F.2d 1266, 1267-68 (1st Cir. 1971)).
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II
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The appellant's brief intimates that the district court
should have construed the October 18 motion to ask for relief
from judgment under Fed. R. Civ. P. 60(b)(1) or (b)(4).1
Motions for relief from judgment are not subject to a ten-day
deadline. However, we do not see how the district court
could have read the motion to state a viable request under
Rule 60(b). First, even if the judgment was erroneous, it
was not void within the meaning of Rule 60(b)(4). See Lubben
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v. Selective Service System, Local Board No. 27, 453 F.2d
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645, 649 (1st Cir. 1972). "Only in the rare instance of a
clear usurpation of power," id., such as where the court
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lacks subject-matter jurisdiction, will a judgment be deemed
void.
Second, the record establishes that the "neglect" which
triggered the dismissal was not of the "excusable" variety
recognized by Rule 60(b)(1). Attorney Gonzalez' failure to
attend the status conference on August 9 was not pardonable.
In June, Gonzalez had asked the court to reschedule the
conference, then set for July 16, to sometime in August.
When he left Puerto Rico for Florida on July 3, the court had
not ruled on this request for a continuance. Gonzalez should
have understood, therefore, that unless and until he heard
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1. The brief also cites Rule 60(b)(6) but identifies no
"extraordinary circumstances" that might bring this residual
provision into play. Gonzalez v. Walgreens Co., 918 F.2d
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303, 305 (1st Cir. 1990).
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otherwise he was due in court on July 16. He claims not to
have heard about the continuance, yet he remained in Florida
through July. Under these circumstances, one would expect
that when Gonzalez briefly returned to Puerto Rico at the
beginning of August, he would have been anxious to learn
whether the status conference had gone off without him on
July 16. According to his own account, however, Gonzalez did
not trouble himself to find out whether or how the court had
ruled on his request for a continuance. Instead, he left
Puerto Rico again for the remainder of August. Surely, since
he had asked the court to continue the conference "until
August," Gonzalez must have suspected when he returned to
Puerto Rico for good at the end the month that he had failed
to appear for a scheduled status conference -- either on the
original date of July 16 or on a rescheduled date sometime in
August. Again, however, Gonzalez made no effort to discover
or remedy his delinquency, and the district court entered its
judgment soon after. As a matter of law, such a "palpable
mistake" by experienced counsel does not amount to excusable
neglect. See Picucci v. Town of Kittery, 101 F.R.D. 767, 768
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(D.Me. 1984) and cases cited therein. Nor can such an
insistent disregard for one's responsibilities as an attorney
fairly be termed "inadvertence" as that word is used in Rule
60(b)(1). Indeed, the district court might well have abused
its discretion had it accepted Gonzalez' carelessness as a
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basis for relief from judgment. See Lavespere v. Niagara
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Machine & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990)
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(if failure of party to submit evidence is attributable to
negligence or carelessness of his attorney, it would be an
abuse of discretion for district court to reopen case to
consider the evidence).
III
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Because it asked for relief under Rule 59(e), and
because it was filed late, the October 18 motion to amend
judgment did not toll the time for filing a notice of appeal
from the underlying dismissal. See Feinstein v. Moses, 951
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F.2d at 18 and cases cited therein. A notice of appeal from
the judgment, which had been entered on September 3, was due
on October 3; the appellant did not file his notice until
February 11. We therefore have no jurisdiction to consider
the appellant's attack on the dismissal.
The notice of appeal, it is true, was filed within
thirty days of the order denying the motion to amend
judgment. "Nevertheless, as the [motion] prayed for relief
which could only be properly sought under Rule 59(e), the
district court was without jurisdiction to grant it because,
as we have explained, it was untimely." Id. at 21.
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The judgment below is summarily affirmed. See 1st Cir.
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Rule 27.1.
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Document Info
Docket Number： 91-1301
Filed Date： 8/17/1992
Precedential Status： Precedential
Modified Date： 9/21/2015