          United States Court of Appeals
                     For the First Circuit

No. 14-1106
                      DOUGLAS J. LUCKERMAN,

                      Plaintiff, Appellee,

                               v.

                   NARRAGANSETT INDIAN TRIBE,

                      Defendant, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

          [Hon. William E. Smith, U.S. District Judge]



                             Before

                       Lynch, Chief Judge,
               Kayatta and Barron, Circuit Judges.



     John F. Killoy, Jr., with whom Law Office of John F. Killoy,
Jr., LLC, was on brief, for appellant.
     Anthony F. Muri, with whom Muri Associates LLC, Albert L.
Farrah, Jr., and Farrah & Farrah were on brief, for appellee.



                          May 29, 2015
            KAYATTA, Circuit Judge.          The Narragansett Indian Tribe

("the Tribe") moved in the district court to dismiss this breach

of   contract    lawsuit   against    it   on   the   grounds   of   sovereign

immunity.       After denying that motion, the district court also

denied a subsequent and belated motion under Federal Rule of Civil

Procedure 59(e) to reconsider that denial.             The Tribe now seeks

interlocutory review of the order denying its motion to reconsider.

For the following reasons, we find that we have no jurisdiction to

entertain such an appeal.

                              I.     Background

            Attorney Douglas J. Luckerman seeks an award of $1.1

million in legal fees that he claims the Tribe owes him for his

services.       His complaint alleges that the Tribe contractually

waived the sovereign immunity that would otherwise have prevented

him from bringing this suit outside the tribal courts.               The Tribe

moved to dismiss the case on sovereign immunity grounds, making

various arguments for why its apparent waiver was invalid.                  We

will call that motion the "Motion to Dismiss" to distinguish it

from the later motion for reconsideration, which we will call the

"Rule 59(e) Motion."        On August 30, 2013, the district court

entered on the docket an order denying the Motion to Dismiss.




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              The order denying the Motion to Dismiss was plainly not

a final decision, as it did not end the litigation in the district

court.      Catlin     v.    United    States,       324   U.S.   229,     233    (1945).

Accordingly, traditional appellate review under 28 U.S.C. § 1291

was unavailable.        See Cohen v. Beneficial Indus. Loan Corp., 337

U.S.   541,    545    (1949).         Under    the    collateral     order       doctrine

announced      in    Cohen,    id.     at     546,   however,      the     Tribe    might

nevertheless have been able to appeal the denial of this particular

Motion to Dismiss, which rejected a defense based on tribal

immunity      from   suit.      See     Breakthrough        Mgmt.    Grp.,       Inc.   v.

Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1177 & n.1 (10th

Cir.   2010)    (holding      that    the     denial   of   a     motion    to    dismiss

involving a claim of tribal sovereign immunity is an appealable

collateral order).

              The Tribe, though, did not appeal the denial of the

Motion to Dismiss, at least not effectively.                        Federal Rule of

Appellate Procedure 4(a)(1)(A) establishes the general rule that

a party must appeal a judgment or order "within 30 days after entry

of the judgment or order appealed from." The Tribe filed no appeal

within those thirty days.             Nor did it extend the thirty-day limit

by filing, within twenty-eight days of the district court's order,

a motion to alter or amend the judgment under Federal Rule of Civil


                                            - 3 -
Procedure 59(e).     See Fed. R. App. P. 4(a)(4)(A)(iv) (providing

that a timely Rule 59(e) motion tolls the time for appeal).

Instead, thirty-one days after entry of the order denying the

Motion to Dismiss, the Tribe filed its plainly untimely Rule 59(e)

Motion,    which,   despite   its   untimeliness,   the   district   court

considered and denied on January 7, 2014.           Ten days later, the

Tribe then filed a notice purporting to appeal from both the

August 30 denial of the Motion to Dismiss and the January 7 denial

of the untimely Rule 59(e) Motion.

            Surveying the foregoing, a prior duty panel of this court

cleared the underbrush by dismissing as untimely any appeal from

the denial of the Motion to Dismiss.         Luckerman v. Narragansett

Indian Tribe, No. 14-1106, Order at 1 (1st Cir. Aug. 29, 2014).

That decision obviates the need to decide whether we would have

had jurisdiction over an interlocutory appeal from the Motion to

Dismiss.    We do need to decide, though, whether we have appellate

jurisdiction under the collateral order doctrine to review the

only order before us:         the denial of the untimely Rule 59(e)

Motion.    For the reasons described below, we conclude that the

denial of the Tribe's untimely Rule 59(e) Motion does not qualify

as a collateral order that we may review prior to the end of the

litigation in the district court.


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                                  II.   Analysis

              In an analogous context, this court has held that denial

of a Rule 59(e) motion for reconsideration was not an immediately

appealable collateral order, even though the denial of the original

motion--a cross-motion to dismiss on qualified immunity grounds--

might have qualified for immediate review.                Fisichelli v. City

Known as Town of Methuen, 884 F.2d 17, 18-19 (1st Cir. 1989); see

also Lora v. O'Heaney, 602 F.3d 106, 110 (2d Cir. 2010).                We reach

the same conclusion here, and explain our reasoning as follows.

              This    circuit   uses    a   four-part   test   for   determining

whether an order is sufficiently collateral to be directly appealed

prior    to   entry    of   a   final   order   ending   the   district   court

litigation.      Under this test, the order must involve:

              (1) an issue essentially unrelated to the
              merits of the main dispute, capable of review
              without disrupting the main trial; (2) a
              complete resolution of the issue, not one that
              is "unfinished" or "inconclusive"; (3) a right
              incapable of vindication on appeal from final
              judgment; and (4) an important and unsettled
              question of controlling law, not merely a
              question of the proper exercise of the trial
              court's discretion.

United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir. 1979); see

also Espinal-Dominguez v. Puerto Rico, 352 F.3d 490, 496 (1st Cir.

2003).




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            The last of these criteria poses a hurdle too high for

the Tribe because its appeal of the Rule 59(e) Motion does not

encompass review of the merits of the underlying Motion to Dismiss

on sovereign immunity grounds.     See Fisichelli, 884 F.2d at 19

("[A]ppealing from the denial of a motion to rehear . . . cannot

resurrect a party's expired right to contest the appropriateness

of the order underlying the motion to rehear.").   True, there are

some circumstances in which review of a ruling on a timely motion

for reconsideration may be considered to encompass the issues

raised in the original motion.    See McKenna v. Wells Fargo Bank,

N.A., 693 F.3d 207, 213-14 (1st Cir. 2012).        Extending that

latitude to encompass an untimely motion to reconsider, however,

would defeat the principle of finality in Federal Rule of Appellate

Procedure 4 by allowing a party to file at any time a motion for

reconsideration rehashing its original argument and then, when

that motion is denied, make whatever appeal it had previously

foregone.   See Fisichelli, 884 F.2d at 19 (noting that allowing a

motion to reconsider to revive an expired right to appeal would

mean "a dilatory defendant would receive not only his allotted

bite at the apple, but an invitation to gnaw at will").

            Thus, if we were to entertain this appeal, we would be

deciding only whether the district court abused its discretion in


                               - 6 -
denying the untimely Rule 59(e) Motion.   See Global NAPS, Inc. v.

Verizon New Eng., Inc., 489 F.3d 13, 25 (1st Cir. 2007) (explaining

that denials of motions for reconsideration are reviewed for abuse

of discretion).   An appeal that directly challenges only the trial

court's exercise of discretion in denying a Rule 59(e) motion,

rather than the original ruling of law, usually concerns "merely

a question of the proper exercise of the court's discretion,"

rather than "an important and unsettled question of controlling

law," and thus usually fails to pass the fourth part of Sorren's

collateral order test.1   Sorren, 605 F.2d at 1213; cf. Johnson v.

Jones, 515 U.S. 304, 313-20 (1995) (holding that the denial of a

defendant's motion for summary judgment based on a qualified

immunity defense is an immediately appealable collateral order

only if the denial was based on a ruling of law and not a

determination of contested fact).      That the Rule 59(e) Motion

itself was untimely, and thus a possible "nullity," see Morris v.

Unum Life Ins. Co. of America, 430 F.3d 500, 502 (1st Cir. 2005),


     1 That being said, we do not answer the question of whether
we would have interlocutory jurisdiction over the denial of a
request, under Federal Rule of Civil Procedure 56 or 60, to revisit
the immunity defense when a new fact that speaks to that defense
arises after an initial motion to dismiss has been denied and the
deadline for appeal or filing a reconsideration motion has passed.
One example that comes to mind is a motion based on a new revelation
that a waiver that initially appeared to be properly authorized
pursuant to express tribal procedures was actually forged.

                               - 7 -
further supports the conclusion that this appeal presents an issue

too far removed from controlling questions of law, and too focused

on questions of discretion, to qualify under the collateral order

doctrine.2

                          III.   Conclusion

             For the foregoing reasons, we dismiss this appeal for

lack of jurisdiction.




     2 Because our decision turns on an interpretation of our
collateral order jurisprudence, the result is the same whether or
not the time limit for filing a Rule 59(e) motion is a
jurisdictional rule or a claims-processing rule under Bowles v.
Russell, 551 U.S. 205, 213-14 (2007).

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