Barry v. Town of Rollinsford, NH ( 2004 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2599
FREDERICK J. BARRY, ET AL.,
Plaintiffs, Appellants,
v.
TOWN OF ROLLINSFORD, NH, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Selya, Torruella and Lynch,
Circuit Judges.
Frederick J. and June M. Barry on brief pro se.
Donald E. Gardner and Devine, Millimet & Branch, P.A., on
brief for appellees.
August 6, 2004
Per Curiam. The sole issue in this case is whether the
district court properly denied the plaintiffs' motion for
reconsideration of the underlying judgment granting summary
judgment for the defendants. Because the plaintiffs' brief does
not address the propriety of the order denying reconsideration, the
issue is waived. Venegas-Hernandez v. Sonolux Records, 370 F.3d
183, 188 (1st Cir. 2004).
The denial of the motion for reconsideration was proper in any
event. The plaintiffs' motion sought to set aside the judgment as
legally erroneous. Such a motion is properly treated as a motion
brought under Fed. R. Civ. P. 59(e). Feinstein v. Moses, 951 F.2d
16, 19 n.3 (1st Cir. 1991). Rule 59(e) gives an aggrieved party
ten days (excluding intermediate weekends and legal holidays)
within which to file a motion for reconsideration. Garcia-
Velazquez v. Frito Lay Snacks Caribbean, 358 F.3d 6, 9 (1st Cir.
2004). The ten-day deadline is mandatory, Fed. R. Civ. P. 6(b),
and a district court has no power or discretion to modify it.
Vargas v. Gonzalez, 975 F.2d 916, 917 (1st Cir. 1992) (per curiam).
In this case, the district court entered judgment on October
7, 2003. The Rule 59(e) motion was thus due on October 22, 2003.
The plaintiffs did not file their motion until October 23, 2003.
Therefore, the motion was untimely. A district court is without
jurisdiction to grant an untimely Rule 59(e) motion. Browder v.
Director, Dep't of Corr., 434 U.S. 257, 263 & n.7 (1978); Garcia-
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Velazquez, 358 F.3d at 11. Accordingly, the order denying the
motion for reconsideration was proper.1
The plaintiffs' attempt to secure review of the underlying
judgment is to no avail. The plaintiffs ask that we excuse their
untimely filings and review the merits of the judgment because of
their pro se status and because they were "lulled" by the district
court into believing that their notice of appeal was timely as to
both the motion for reconsideration and the underlying judgment.
While the Supreme Court has recognized that an untimely appeal may
be heard under "unique circumstances," this exception "applies only
where a party has performed an act which, if properly done, would
postpone the deadline for filing his appeal and has received
specific assurance by a judicial officer that this act has been
properly done." Osterneck v. Ernst & Whinney, 489 U.S. 169, 178-79
(1989).
In this case, the district court did not take any action or
make any statement regarding the timeliness of the motion for
reconsideration, nor do the plaintiffs point to any such statement
or action. Rather, the plaintiffs' sole support for their
contention that they were "lulled into complacency" is the fact
1
Even if we consider the merits of the motion for
reconsideration, it was still properly denied. The motion
essentially reiterated the arguments the plaintiffs made in
opposing the defendants' motion for summary judgment. Relief under
Rule 59(e) is for manifest errors of law or newly discovered
evidence. Landrau-Romero v. Banco Popular de Puerto Rico, 212 F.3d
607, 612 (1st Cir. 2000). The plaintiffs pointed to neither.
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that the district court accepted their motion for reconsideration
for filing and denied it without any explanation. The district
court's acceptance and subsequent denial of the motion, without
more, is simply not the sort of "specific assurance" required to
justify the application of the "unique circumstances" exception.
See Feinstein, 951 F.2d at 20 (holding that order which erroneously
granted motion to enlarge time for filing nondescript motion for
reconsideration in no way excused late notice of appeal). Nor does
the plaintiffs' pro se status absolve them from compliance with the
Federal Rules of Civil Procedure. Id.Accordingly, insofar as the plaintiffs' appeal seeks to
challenge the October 7, 2003 judgment, it is dismissed for lack of
appellate jurisdiction. Insofar as it seeks to challenge the
November 4, 2003 order denying the plaintiffs' motion for
reconsideration, the order is affirmed.
It is so ordered.
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