United States v. Labombard ( 2000 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1651
UNITED STATES,
Plaintiff, Appellee,
v.
RICHARD LABOMBARD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Richard LaBombard on brief pro se.
Paula M. Junghans, Acting Assistant Attorney General, Ann
B. Durney and Regina S. Moriarty, Attorneys, Tax Division,
Department of Justice, on brief for appellee.
December 7, 2000
Per Curiam. Appellant, Richard LaBombard, appeals
a decision of the district court denying his motion to
dismiss and granting summary judgment in favor of the United
States and the court's subsequent entry of a judgment in
favor of the United States in the amount of $138,857.75 plus
statutory interest and penalties accrued since October 19,
1998. LaBombard complains that the district court unfairly
considered what LaBombard alleges was an untimely filing
submitted by the government and failed to consider what
LaBombard alleges was his own timely response.
Although it appears that the government's
supplemental memorandum was tardy, see district court's
order of February 15, 2000, setting a deadline of 21 days,
it was within the court's discretion to excuse the
tardiness, if any. As for LaBombard's own response,
contrary to his assertion, it appears that that response was
also tardy. The mailing rule to which LaBombard refers
(adding 3 days to the prescribed period) applies when a
party is required to respond after service of a paper by the
opposing party. See Fed. R. Civ. P. 6(e). The district
court's February 15 order recited that LaBombard had 14 days
to respond after the government's filing of its supplemental
memorandum. See also Dist. Ct. Loc. R. 7.1(B) (reciting
that a party opposing a motion shall file an opposition
within 14 days and "[t]he fourteen day period is intended to
include the period specified by the civil rules for mailing
time"). Because LaBombard's response was entered on the
docket on the same day as the date of the court's memorandum
and order, however, it appears that LaBombard's response
simply was not brought to the district court's attention.
Having excused the lateness of the government's filing, we
assume that the court would have similarly excused any
tardiness on LaBombard's part, if that filing had been
brought to its attention.
In any event, we review both the denial of a motion
to dismiss and the grant of summary judgment de novo. See
Souza v. Pina, 53 F.3d 423, 424 (1st Cir. 1995) (motion to
dismiss); Nichols v. Land Transport Corp., 223 F.3d 21, 22
(1st Cir. 2000) (summary judgment). We have reviewed the
parties' briefs and the record on appeal. The allegations
in the government's complaint sufficed to state a claim for
which relief can be granted and there existed no genuine
issue of material fact precluding entry of summary judgment
in its favor. We affirm essentially for the reasons stated
in the district court's memorandum and order, dated March
31, 2000.
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Affirmed.
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