

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 95-2318

                  PATRICIA JOHNSON, ET AL.,
                    Plaintiffs, Appellees,

                              v.

                 TEAMSTERS LOCAL 559, ET AL.,
                   Defendants, Appellants.
                                         

No. 95-2319

                  PATRICIA JOHNSON, ET AL.,
                   Plaintiffs, Appellants,

                              v.

                 TEAMSTERS LOCAL 559, ET AL.,
                    Defendants, Appellees.

                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

     [Hon. Frank H. Freedman, U.S. Senior District Judge]                                                                    

                                         

                            Before

                     Selya, Circuit Judge,                                                     
               Campbell, Senior Circuit Judge,                                                          
                  and Boudin, Circuit Judge.                                                       

                                         

Daniel B. Edelman, with whom Yablonski, Both &amp; Edelman and Burton                                                                             
S. Rosenberg were on brief, for Teamsters Local 559, et al.                    
Terrence A. Low, with whom Rosen, Greenhut, Catuogno &amp; Low and                                                                      
Patricia Bobba Donovan were on brief, for Patricia Johnson, et al.                              

                                         
                      December 13, 1996
                                         

          CAMPBELL, Senior Circuit  Judge.  In the  principal                                                     

appeal now before  us, Teamsters Local 559 and  Robert Dubian

appeal from state law tort judgments against them arising out

of  a workplace conflict.  They argue, inter alia, that there

is insufficient  evidence to support the  judgments under the

Norris-LaGuardia Act's "clear proof" requirement.

                             I.                                           I.  

          Frank  Johnson  worked at  Sweet  Life  Foods ("the

Company" or  "Sweet Life") in Suffield, Connecticut and was a

member of Teamsters  Local 559  ("the Union").   He sued  the

Union  and  two  of  its  officers,  Robert  Dubian  and  Tom

Gilmartin, Jr., alleging violations of Title VII of the Civil

Rights Act  of 1964, 42 U.S.C.   2000e et seq., and asserting                                                          

pendent  state  law  claims  for  intentional  infliction  of

emotional  distress  and assault.    Patricia  Johnson, Frank

Johnson's wife, sued for loss of consortium.  

          The district court, in a bench trial, found for all

three defendants  on Johnson's Title VII claims.  Johnson did

not appeal from this determination.

          The pendent state  law claims were tried to  a jury

which  returned  verdicts  against   the  Union,  Dubian  and

Gilmartin  for intentional  infliction of  emotional distress

and loss of  consortium.   The jury also  returned a  verdict

against  the Union, but not against  Dubian or Gilmartin, for

assault.   The  jury assessed  damages against  the  Union of

                             -2-                                          2

$120,000  for intentional  infliction of  emotional distress,

$35,000  for loss  of consortium,  and $105,000  for assault.

The jury found  Dubian liable for $35,000  on the intentional

infliction claim and $35,000 on the loss of consortium claim.

Gilmartin  was found  liable for  $40,000 on  the intentional

infliction claim and for an additional $40,000 on the loss of

consortium claim.

          Responding  to the  defendants' Rule  50(b) motion,

the  district court entered judgment  as a matter  of law for

Gilmartin, ruling  that no  reasonable jury could  have found

him liable for  intentional infliction of  emotional distress

and loss of  consortium.   However, the court  let stand  the

jury's verdicts against the Union and Dubian.  The latter now

appeal  from the  judgments  against them,  and the  Johnsons

cross-appeal  from the court's entry of  judgment as a matter

of law in Gilmartin's favor.  

                             II.                                         II.

          We recite  the facts as they  might reasonably have

been  found by  the jury.   Sweet  Life, a  food distributor,

suspected that it  was losing significant amounts of  meat to

employee theft, and so  it placed secret cameras in  the work

area  to  discover  who  was  responsible.    From  what  was

uncovered, it appeared that  over ten employees were involved

in the thefts,  which had gone on for four  or five years and

were  common knowledge among the  employees, all of whom were

                             -3-                                          3

also Union  members.  Several employees  were caught stealing

on tape  and were  fired.   One of the  tapes showed  Johnson

opening up a crate of meat, although it did not reveal him in

the act of  actually stealing meat.   The Company  confronted

Johnson with the tape  and threatened that he would  be fired

if he did not reveal the names of other employees responsible

for the thefts.          The  Union  had  a   written  policy

against  harming a Union  brother.  Both  Union officials and

members interpreted  this  policy as  prohibiting one  member

from "ratting" on another.   Dawn Mitchell, the  acting Union

steward,  told   Johnson  he  should  allow   himself  to  be

terminated rather than reveal the  names of the employees who

were stealing because of this Union policy against turning in

a  Union brother.   Gilmartin  also told  Johnson about  this

policy.   Dennis Kawa, a Sweet Life worker and Union witness,

stated that he  did not report any  of the many  incidents of

stealing  he saw by  various Union members  because "[i]t's a

rule" not to turn in a Union brother.

          Johnson  ignored Mitchell's advice and provided the

company with  the  names of  three men  he said  he had  seen

stealing.   The Company fired these men entirely on the basis

of  Johnson's information.    The  three  fired men  filed  a

grievance with the Union, and  an arbitration hearing was set

for April 29, 1986.

                             -4-                                          4

          Starting   before   and   intensifying  after   the

arbitration  hearing, unidentified  employees of  Sweet Life,

who were also  Union members, began harassing  Johnson.  They

wrote  threatening messages  on the  bathroom walls  such as,

"Frank,  where will  you be  when the  lights go  out?"; "559

Rule";  "There's only one thing  worse than a   rat--a nigger

rat"; "The rat will never work again when we get through with

him, nowhere"; "Frank Johnson is  as good as dead,  4/29/86";

"Bye bye Frank.   Look  for another job.";  "Who didn't  pass

spear chucking school?"; "559 rules Frank Johnson"; "Call me"

(with   Johnson's  phone  number);  and  "Frank  Johnson's  a

squealing nigger rat."  The walls were painted several times,

but the graffiti persisted.

          These anonymous Union members also made rat and pig

noises when around Johnson; put pieces of wood in the keyhole

of  Johnson's forklift; placed buckets of water on the top of

Johnson's  forklift; sang  "slave songs"  such as  "Swing Low

Sweet Chariot" at him  during every hourly break, every  day;

drew pictures of rats  on Johnson's locker and on  the walls;

threw peanut shells and a  milk carton at him; hung a  rubber

chicken on his  forklift; and ostracized him  socially.  This

harassment  involved a  large number of  employees     all of

whom,  as said, were Union members    and only intensified as

time went on. 

                             -5-                                          5

          At  the arbitration  hearing, Gilmartin,  the Union

Business Agent  and  the officer  primarily  responsible  for

enforcing  the Union's  collective bargaining  agreement with

the   Company,  defended  the  three  accused  employees  and

convinced the  arbitration panel to reinstate  them and award

them back  pay.  He  accomplished this  primarily by  casting

doubt  on Johnson's  testimony and  accusing him  of stealing

meat.  Gilmartin charged  that the tape shown at  the hearing

portraying Johnson opening a  crate of meat had been  edited;

the original tape, he  said, had also shown  Johnson actually

putting meat into his pocket.

          Gilmartin and the Union  were at all relevant times

aware  of  the harassment  of  Johnson.   Gilmartin  held two

meetings  with the  Union  members.   At  the first  meeting,

before  the  arbitration hearing,  Gilmartin  stated  that he

would personally  "take care  of" anyone  who harmed a  Union

brother.  Either at  that meeting or at the  other, Gilmartin

stated that he disagreed  with people's writing on the  walls

and that anyone actually  caught doing so would be fired.  He

indicated that he  opposed the racial epithets and  that they

were offensive to the other African-American members.

          Sweet Life provided  Johnson with guards to  escort

him to  and  from work  and  to watch  over  his home.    For

security reasons, Johnson left work a few minutes  early each

day.  The Company wanted to pay him as if he were not missing

                             -6-                                          6

this time,  but Gilmartin  opposed paying Johnson  without an

agreement  from Sweet Life to  pay all people  who left early

under  extraordinary circumstances.    When the  Company went

ahead and paid Johnson anyway, Gilmartin filed a grievance.

          As  a result  of the  harassment,  Johnson suffered

from  Post-Traumatic  Stress  Disorder for  which  he  sought

psychiatric treatment.   He became paranoid and was unable to

sleep  or interact  normally with  his wife  and family.   He

became increasingly  depressed and began  drinking regularly.

His psychiatrist placed him on antidepressant and antianxiety

medication.   On  August 12,  1986,  Johnson left  Sweet Life

because of his psychiatric condition.

          After  Johnson's  departure,  Dubian,  the  Union's

Secretary-Treasurer, drove by Johnson's home in a Union-owned

car several times  a day for  a period of  some three  weeks.

Dubian  testified that  the purpose  of these  visits  was to

determine  if Johnson had  found new  employment.   The three

fired   employees  had  filed  charges  against  Johnson  for

breaking the  Union's rule  against harming a  Union brother.

If  Johnson were  working elsewhere,  he  would no  longer be

subject to  the Union's  authority, and Dubian  could dismiss

the charges.

          On   appeal,   Dubian   argues   that   there   was

insufficient  evidence in  the record  to support  the jury's

                             -7-                                          7

judgment against him for intentional  infliction of emotional

distress.  

          The  Union  contends  that because  the  underlying

arbitration hearing involved  a labor dispute,  the Johnsons'

claims  are  governed  by the  Norris-LaGuardia  Act's "clear

proof"  requirement.1   The Union  believes that  under this,

more rigorous,  standard, there  is insufficient  evidence to

support the judgments  against it for intentional  infliction

of  emotional distress  and for  assault.   Even if  there is

sufficient evidence,  the Union  contends that the  fact that

the  special verdict form  did not mention  the "clear proof"

requirement necessitates a new trial.  In their cross-appeal,

the Johnsons argue that the court erred in entering  judgment

as  a  matter  of  law   for  Gilmartin  on  the  intentional

infliction  of  emotional  distress  and loss  of  consortium

claims because there was  sufficient evidence to validate the

jury's finding.

                             III.                                         III.

A.  Dubian's Liability                                  

          Dubian argues  that his  conduct in driving  by the

Johnsons' home  and following Johnson when he  left his house

for a  period of three weeks was not the sort of "extreme and

outrageous"  behavior   that  can  justify   a  judgment  for

                                                    

1.  29 U.S.C.   106.

                             -8-                                          8

intentional   infliction   of   emotional    distress   under

Connecticut  law.  See Petyan  v. Ellis, 510  A.2d 1337, 1342                                                   

(Conn.  1986).    He also  argues  that  the  jury could  not

reasonably have  concluded that he intended  to cause Johnson

distress or that he succeeded in doing so.  We disagree.

          Dubian plainly knew that  Johnson had just resigned

from Sweet  Life after  working in  a viciously hostile  work

environment  in which he  was subjected to  daily threats and

insults.   As a Union  officer closely associated  with these

events,  Dubian could be inferred to have known of the extent

of  the abuse imposed upon  Johnson and of  its emotional and

psychological  impact, resulting  in his  departure  from the

Company.  Given Johnson's recent history, the jury could have

found that Dubian's conduct in  driving by Johnson's house in

a  Union car  several  times  a  day  for  three  weeks,  and

following  Johnson, was intentional  harassment that  met the

"extreme and outrageous" standard.

          This  case is  different from  Thorpe v.  Mutual of                                                                         

Omaha  Ins. Co.,  984 F.2d  541, 545-46  (1st Cir.  1993), in                           

which we held that  an insurance company's surveillance aimed

at determining  the activities of  an insured who  claimed to

have become  totally disabled did not  constitute extreme and

outrageous  conduct.    The  insurance   company's  proffered

reasons for the surveillance were plausible and legitimate in

the  circumstances.   Dubian's stated  reason for  driving by

                             -9-                                          9

Johnson's  house over thirty times in three weeks was that he

wished  to determine whether  Johnson was working  so that he

could drop  Union charges made  against Johnson by  the three

fired  employees.   A reasonable jury  could have  found that

this  explanation was  at best  flimsy and  at worst  absurd.

Conduct which might be acceptable when done for  a legitimate

reason  can  be  extreme   and  outrageous  if  unjustifiably

performed simply to inflict harm.  

          The  jury  could   easily  have  rejected  Dubian's

tendered justification as lacking in plausibility, and  could

reasonably  have found that his true intent in driving by the

Johnson home was to harass and cause distress to Johnson.

          There was  also evidence from which  the jury could

have  concluded  that  Dubian's  surveillance  contributed to

causing   Johnson's   psychological   injury.       Johnson's

psychiatrist,   George  Milowe,   stated  that   Johnson  was

terrified in  part because  strange cars were  following him,

and Johnson himself testified that he was frightened by being

followed.    Even  if  Dubian's  conduct was  not  the  sole,

initial,  or primary  cause of  Johnson's symptoms,  the jury

could  reasonably   have  concluded  that   the  surveillance

activity  was  a  substantial  factor  in  causing  Johnson's

distress, warranting a liability finding and a damages award.

See Edgecomb v.  Great Atlantic  &amp; Pacific Tea  Co., 18  A.2d                                                               

364, 365 (Conn. 1941) (holding that causation exists when the

                             -10-                                          10

defendant's action was a  substantial factor in producing the

plaintiff's  damages); Antz v. Coppolo, 75 A.2d 36, 39 (Conn.                                                  

1950)  (same); Kilduff  v.  Kalinowski, 71  A.2d 593,  594-95                                                  

(Conn. 1950) (same).

B.  The Union's Liability                                     

     1.  Standard of Proof                                      

          The Union argues that the Johnsons' suit stems from

a  labor dispute and  that therefore its  liability should be

governed  by the  "clear  proof" requirement  of the  Norris-

LaGuardia Act, 29 U.S.C.   106, infra.                                                   

          Johnson sued his labor  union for the harassment he

suffered after  testifying against other Union  members at an

arbitration hearing.  Whether  the events underlying the suit

can be characterized as a labor dispute for the purposes of  

106 of the  Norris-LaGuardia Act  is a close  question.   See                                                                         

Columbia River Packers  Ass'n v. Hinton, 315 U.S. 143, 145-47                                                   

(1942)  (holding that  the  critical element  in  determining

whether the  provisions of the Norris-LaGuardia  Act apply is

whether the employer-employee relationship  is the matrix  of

the  controversy);  Jacksonville  Bulk  Terminals,   Inc.  v.                                                                     

International Longshoremen's Association,  457 U.S. 702, 712-                                                    

13 (1982)  (same) (citing  Columbia  River).   But since  the                                                      

"clear proof"  standard is  not determinative  of any  of the

issues  before us,  this is  a question  we need  not decide.

                             -11-                                          11

Even  applying  the  "clear  proof"  standard,  the  judgment

against the Union stands.

     2.  Intentional Infliction of Emotional Distress                                                                 

          There was  "clear  proof"  to  support  the  jury's

finding  of  Union  liability for  intentional  infliction of

emotional distress.

          It is  undisputed that there were  numerous acts of

harassment  by employees,  all  of whom  were Union  members,

which caused  Johnson great emotional distress.  The issue is

whether the Union itself may properly be held responsible for

its members' conduct here.  Under the Norris-LaGuardia Act, a

union may be  held liable for the acts of  its members in the

course  of a labor dispute  only "upon clear  proof of actual

participation in,  or actual authorization of,  such acts, or

of ratification of such acts after actual knowledge thereof."

29 U.S.C.   106.

          The Supreme Court has interpreted  this requirement

to mean  that a plaintiff  must present clear  and convincing

proof  "either that  the  union approved  the violence  which

occurred,  or that  it  participated actively  or by  knowing

tolerance in further acts which were in themselves actionable

under  state  law or  intentionally  drew  upon the  previous

violence for their force."  United Mine Workers of America v.                                                                      

Gibbs, 383 U.S. 715, 739 (1966).                 

                             -12-                                          12

          There is  sufficient evidence  in the record  for a

jury to infer that the Union knowingly at least tolerated its

members'  conduct and  perhaps actively  encouraged it.   The

evidence showed that many  persons associated with the Union,

including both rank and file Union members and Union leaders,

unquestioningly  interpreted  the   Union's  written   policy

against  harming  a  member  as  very  broadly  including  an

unwritten rule against turning in fellow members for stealing

meat.  The jury could have inferred that the Union would have

wanted  its   members  to  enforce  that   rule  against  all

violators, including  Johnson.  The policy  against harming a

Union member was mentioned at  a Union meeting about Johnson,

and Dawn Mitchell, the  acting Union steward, separately told

Johnson he should  not turn in stealing  employees because of

the policy.   Moreover, Dennis  Kawa, a long-time  Sweet Life

employee,  testified that although  more than ten individuals

were involved in  stealing meat  over a period  of years  and

although this  thievery was common knowledge  among the Union

members, he himself did  not tell the Company about any of it

because, "It's a rule."   A reasonable jury could  have found

that in accepting and  promoting this broad interpretation of

the rule in Johnson's case, the Union knowingly tolerated and

even  encouraged  its  members'  harassment  of   Johnson  as

punishment  for his, as it were,  improper "ratting" on Union

members.

                             -13-                                          13

          A  finding  of  Union  toleration of  its  members'

harassing  actions  against  Johnson  is  also  supported  by

evidence pertaining  to the Union's  officers, Gilmartin  and

Dubian.2  

          Dubian, as already  discussed, personally  harassed

Johnson  by  surveillance  from  a  car  following  Johnson's

leaving the employ of Sweet Life.  Although Gilmartin wrote a

letter  to  Donald  Oswald,  Sweet  Life's  general  manager,

promising  to   do  everything  in  his  power  to  stop  the

harassment, the actions he  actually took were quite limited.

The  bulk of Gilmartin's efforts consisted of two meetings he

held with the  Union members  at which he  spoke against  the

graffiti generally and  the racial slurs  in particular.   At

one  of these  meetings, Gilmartin  also said  if anyone  did

anything to harm a  Union brother, he would do  everything in

his power to "take care of it."  

          The  jury  could  conclude  that  by  his  comments

against the  racial slurs and graffiti,  Gilmartin was mainly

attempting   to  protect  the  other  African-American  Union

members,  not   Johnson.     This  interpretation   would  be

                                                    

2.  The district court set aside the verdict against
Gilmartin for intentional infliction of emotional distress,
indicating that it believed the evidence was insufficient. 
Whether or not the court was correct to do so is an issue we
do not reach since the Johnsons' cross-appeal was untimely,
infra.  We are nonetheless free to take account of the                 
evidence against Gilmartin in deciding whether the evidence
as a whole suffices for us to affirm the district court's
approval of the jury verdict against the Union. 

                             -14-                                          14

consistent  with Gilmartin's  letter to  Oswald, in  which he

wrote  that the Union had  urged its members  to refrain from

"unnecessary  racial  remarks"   to  Johnson  because,  "That

insults  all black  members."  A  reasonable jury  could also

have understood Gilmartin's promise  to "take care of" anyone

who  harmed a Union brother  as more likely  a threat against

Johnson than a warning to Johnson's harassers.

          In summary,  the jury could infer  from the Union's

unabashed policy against "ratting" on members who stole meat,

from Dubian's harassing surveillance, from Gilmartin's veiled

threat to "take care  of" anyone who harmed a  Union brother,

and from the  failure of Gilmartin and  other Union officials

to take  more vigorous measures to  check members' harassment

of Johnson, that the Union  tolerated and even encouraged its

members'  harassment  in  retribution  for  Johnson's  having

testified against the accused members.  We believe this proof

of  Union  participation  in  the  infliction  of   emotional

distress  upon Johnson  was  sufficiently clear  to meet  the

standard of 29 U.S.C.   106.

     3.  Assault                            

          The  Union  contends  that there  was  insufficient

evidence  for the  jury to  find it  liable for  its members'

assaults upon  Johnson.  We  do not agree.   The same factors

listed above as sufficient to show Union participation in the

infliction of emotional distress upon Johnson suffice to show

                             -15-                                          15

participation  in  any  assaults  that  the  Union's  members

committed as a  part of the harassment visited  upon Johnson.

The  question  of  whether  or  not  the  members'  harassing

behavior  included   assaults  was  put  to   the  jury  with

instructions that were not objected to.  The Union did not at

trial question that the  evidence created a jury issue  as to

the occurrence of assaults upon Johnson, nor does it do so on

appeal.3  The  jury was  entitled to find  that the  members'

behavior,  continuing over  a period  of several  months, was

well known to Union officials and that the Union participated

by  "knowing tolerance."   United Mine Workers  v. Gibbs, 383                                                                    

U.S. at 739.  The jury's conclusion that the  Union shared in

the responsibility  for the  harassing conduct,  including in

any  assaults,   was  supported,  in  our   view,  by  "clear

evidence," hence  meeting the higher standard  of the Norris-

LaGuardia  Act as well as  the common law  agency standard of

                                                    

3.  The legal issue as to whether some of the harassing
conduct amounted to assaults turned on whether the conduct
embodied a sufficiently imminent threat of bodily harm.  See                                                                        
Comrie v. Hinds, No. CV 930521854S, 1996 WL 240419 at *2                           
(Conn. Super. April 18, 1996) (holding that an assault cannot
be accomplished by words alone; there must be an overt act
evidencing some corporeal threat); 6A C.J.S. Assault &amp;
Battery   4 (1975) ("While an offer to do physical violence
is an essential element of an actionable assault, a mere
threat or offer of violence is ordinarily not alone
sufficient; it is also usually essential that defendant have
the present means or ability to carry his threat into
execution."); 6 Am. Jr. 2d Assault &amp; Battery   3 (1963)
("Generally speaking, an assault is a demonstration of an
unlawful intent by one person to inflict immediate injury on
the person of another then present.").  There was no evidence
here of actual batteries upon Johnson.

                             -16-                                          16

implied authorization.   See generally Beckenstein v.  Potter                                                                         

and Carrier, Inc.,  464 A.2d 6 (Conn. 1983);  Trinity Rent-A-                                                                         

Car, Inc. v. Heating Service &amp; Installation Co., 233 A.2d 151                                                           

(Conn. Cir.  Ct. 1967); Restatement (Second) of  Agency    7,

8, &amp; 8A (1958).  

     4.  The Special Verdict Form                                             

          In its final  point of error, the Union argues that

it is entitled  to a  new trial because  the special  verdict

form did not mention the "clear proof" requirement.  Instead,

the form asked the jury whether it had found the Union liable

for  assault and intentional infliction of emotional distress

by a preponderance of the evidence.

          We  shall  assume  arguendo,  for  the  purpose  of

discussing  this  point  of  error, that  the  "clear  proof"

standard  did, in fact, apply.  If the "clear proof" standard

did not apply, the Union could not, of course, complain about

the district court's failure to mention the elevated standard

in the special verdict form.

          The  questions in  a special  verdict form  must be

"reasonably capable of an interpretation that would allow the

jury to  address all  factual issues essential  to judgment."

United States v. Real Property Located at 20832 Big Rock Dr.,                                                                        

51 F.3d 1402,  1408 (9th  Cir. 1995).   However, the  court's

instructions  to the  jury  as well  as  the wording  of  the

special  verdict form are examined as a whole to determine if

                             -17-                                          17

they fairly presented the  issues to the jury.   See Carvalho                                                                         

v.  Raybestos-Manhattan,  Inc.,  794  F.2d  454-55 (9th  Cir.                                          

1986); Mangold v. California Public Utilities Commission,  67                                                                    

F.3d 1470,  1475 (9th  Cir. 1995) (same)  (quoting Carvalho).                                                                       

"When, therefore, the general  charge adequately directs  the

jury to its duties in answering the questions submitted to it

there is no  need to accompany the submission with repetitive

instruction."   Lawrence v. Gulf Oil Corp., 375 F.2d 427, 429                                                      

(3d Cir. 1967).

          The   district   court  was   extremely   clear  in

instructing  the  jury that  it was  only  to find  the Union

liable  if there  was clear  and convincing  evidence of  the

Union's participation  in the  harassment of Johnson  and the

assaults  against  him.   The  phrase  "clear and  convincing

evidence" appears  no fewer than  nine times  in the  court's

discussion  of the  Union's potential  liability.   The court

defined "clear  and convincing  evidence" and compared  it to

the preponderance standard.

          Once  the  Union's responsibility  was established,

each of  the state law  claims still  had to be  proven by  a

preponderance of the evidence.  Thus the special verdict form

stated  that the  jury should  find for  the plaintiff  if it

believed Johnson had proved his  claims by a preponderance of

the evidence.  The  court carefully explained the distinction

                             -18-                                          18

between finding  the Union  responsible and finding  that the

elements of the torts had occurred.  

          While it  would have been plainer  had the district

court  broken  down  the  liability questions  into  the  two

separate issues of Union responsibility and occurrence of the

tort elements, the instructions and the special verdict form,

viewed together, were  sufficiently clear.  We find no error,

therefore, in  the  court's omission  of a  reference to  the

"clear proof" standard in the special verdict form.

C.  Gilmartin's Liability                                     

          In  their cross-appeal,  the Johnsons  contend that

the  district  court  erred  when it  overturned  the  jury's

judgment in their favor on their claims against Gilmartin for

intentional  infliction of  emotional  distress  and loss  of

consortium.   This cross-appeal was, however,  filed too late

to give  this court  jurisdiction over the  Johnsons' appeal.

As "[t]imely filing of  a notice of appeal is  'mandatory and

jurisdictional'",  Acevedo-Villalobos  v. Hernandez,  22 F.3d                                                               

384, 387 (1st Cir. 1994), cert. denied, 115 S. Ct. 574 (1994)                                                  

(citations  omitted), we  dismiss the  Johnsons' cross-appeal

for lack of appellate jurisdiction.

          There  has  been a  split  in  authority among  the

circuits  as to  whether  the late  filing of  a notice  of a

cross-appeal has the same dire jurisdictional consequences as                 

does the late filing of an appeal.  Some of the circuits have

                             -19-                                          19

held that courts  should use  a "rule  of practice"  approach

allowing   more  flexibility  in   administering  the  14-day

requirement applicable to cross-appeals.  See Young  Radiator                                                                         

Co.  v. Celotex Corp., 881 F.2d 1408, 1415-17 (7th Cir. 1989)                                 

(citing  cases on  both sides);  United States  v. Lumbermens                                                                         

Mutual  Casualty Co., Inc., 917 F.2d 654, 662 (1st Cir. 1990)                                      

(recognizing the split but not adopting a rule) (citing Young                                                                         

Radiator).                      

          In Young Radiator, while noting the earlier circuit                                       

split, the Seventh Circuit  inferred from the Supreme Court's

recent  decision in Torres v. Oakland Scavenger Co., 487 U.S.                                                               

312 (1988), that  the timely filing of  a cross-appeal should

henceforth   be  treated  as  mandatory  and  jurisdictional.

Although Torres dealt only with whether the failure to name a                           

party  presented a  jurisdictional bar  to appeal,  the Young                                                                         

Radiator  court  believed  that  the  Supreme  Court's  broad                    

language in  that  case, about  the mandatory  nature of  the

timing rules in Federal Rules of Appellate Procedure 3 and 4,

indicated  that  the time  limit  for  cross-appeals in  Rule

4(a)(3) was also jurisdictional.  

          The two  circuits employing the "rule  of practice"

approach to  have reconsidered  this issue after  Torres have                                                                    

either  expressly held that  Torres rendered the cross-appeal                                               

time limit  jurisdictional or have  stated as much  in dicta.

See EF  Operating Corp.  v. American  Bldgs., 993 F.2d  1046,                                                        

                             -20-                                          20

1049 n.1 (3d Cir.  1993) (holding that the  cross-appeal time

limit   is   jurisdictional);   Stockstill   v.   Petty   Ray                                                                         

Geophysical, 888 F.2d 1493,  1496-97 (5th Cir. 1989) (stating                       

in  dicta that  it is "doubtful"  whether cases  adopting the

rule  of practice approach remain good law after Torres).  We                                                                   

agree,  post-Torres,  that  the cross-appeal  time  limit  in                               

Federal Rule of Appellate  Procedure 4(a)(3) is mandatory and

jurisdictional.4   See  also Fed.  R. App.  P. 26(b)  ("[T]he                                        

court may not enlarge the time for filing a notice of appeal,

a petition for  allowance, or  a petition  for permission  to

appeal.")

          A  notice of appeal must be filed with the clerk of

the district  court within 30 days after the date of entry of

the  judgment  or  order appealed  from.    Fed.  R. App.  P.

4(a)(1).  A cross-appeal  must be filed within 14  days after

the date when  the first notice of appeal was filed or within

                                                    

4.  Although the core holding in Torres has been superseded                                                   
by the 1993 amendments to the Federal Rules of Appellate
Procedure, see Fed. R. App. P. 3(c) ("An appeal will not be                          
dismissed . . . for failure to name a party whose intent to
appeal is otherwise clear from the notice."); Garcia v. Wash,                                                                        
20 F.3d 608-09 (5th Cir. 1994) (per curiam), the advisory
committee notes to that amendment state that the amendment
was intended to put an end to the satellite litigation over
whether an ambiguous reference to a party was sufficient to
identify an appellant under Torres.  Fed. R. App. P. 3(c)                                              
advisory committee's note.  The amendment does not indicate
any intent to change the mandatory nature of the time limits
in Rules 3 and 4.  Nor has there been any corresponding
amendment to Rule 26(b), which prohibits courts from
enlarging the time for filing a notice of appeal and upon
which the Torres court in part relied.                            

                             -21-                                          21

the time otherwise prescribed  by Appellate Rule 4(a).   Fed.

R. App. P. 4(a)(3).   Under the provisions of  Appellate Rule

4(a)(4), the timely filing of  certain types of motions, such

as motions under  Federal Rules of  Civil Procedure 50(b)  or

59,  will extend the time for appeal for all parties, causing

the time  limits to  run from  the date of  the entry  of the

order disposing of the last such motion outstanding.

          The district court entered  its judgment on May 24,

1995.   But on  June 8, 1995, the  defendants timely served a

motion under Rules 50(b)  and 59, thereby extending  the time

available for filing  an appeal.  The district  court entered

its orders deciding this  motion on September 28, 1995.   The

defendants  timely filed  their  notice of  appeal within  30

days, on  October 25, 1995.   But  the Johnsons did  not file

their cross-appeal until November 13, 1995, 19 days after the

defendants filed their  notice of appeal.   Their filing  was

five days too late.

          The plaintiffs'  only argument would be  to rely on

Dubian's October 11, 1995 Additional Motion for Judgment as a

Matter  of Law or  in the  Alternative for  New Trial  or for

Amendment of Judgment to make their cross-appeal timely.  The

district court did not dispose of this motion until  November

                             -22-                                          22

16,  1995,  potentially making  the  plaintiffs' cross-appeal

merely premature.5  

          However, Dubian's  October 11th motion  did no more

than raise for a second time the same issue Dubian had raised

in  his June  8th  motion, an  issue  the court  had  decided

against  him  on September  28      namely, whether  Dubian's

conduct in driving  by the Johnson home repeatedly could form

the  basis  of Dubian's  personal  liability  for intentional

infliction of emotional distress.   As the Sixth Circuit  has

written:

          "[A]  motion  to   reconsider  an   order
          disposing of a [time  tolling post-trial]
          motion  of the  kind  enumerated in  Rule
          4(a)[(4)]  does  not again  terminate the
          running  of  the  time for  appeal,". . .
          unless a grant  of the earlier post-trial
          motion  effectively  results  in   a  new
          judgment  and the motion to reconsider is
          filed  by  the  adversely affected  party
          requesting reinstatement  of the original
          judgment.

Moody v. Pepsi-Cola Metropolitan Bottling Co., Inc., 915 F.2d                                                               

201,  206 (6th Cir. 1990)  (quoting Dixie Sand  and Gravel v.                                                                      

TVA,  631  F.2d  73-4  (5th  Cir.  Unit  B 1980))  (citations               

omitted).   See also Wright  v. Preferred Research, Inc., 891                                                                    

F.2d  886,  889-90  (11th  Cir. 1990)  (per  curiam)  (same);

Acevedo-Villalobos,  22 F.3d  at 389  (holding that  a second                              

                                                    

5.  Under Federal Rule of Appellate Procedure 4(a)(4), a
premature filing becomes timely upon the disposition of the
motion which made the filing premature.

                             -23-                                          23

motion  to reconsider served within ten days of the denial of

the first motion does not extend the time period for filing a

notice of appeal from the underlying judgment).  

          Since Dubian's second motion was, in effect, merely

a request for  reconsideration of his earlier  motion, it did

not  toll the time for appeal  and the Johnsons' cross-appeal

was not timely.

                       III.  Conclusion                                   III.  Conclusion

          We affirm the judgment  of the district court.   We

dismiss  the Johnsons'  cross-appeal  for lack  of  appellate

jurisdiction.

          In  appeal   No.  95-2318,  costs  are  awarded  to

Patricia and Frank Johnson.  In appeal No. 95-2319, costs are

awarded to Tom Gilmartin, Jr.

          So Ordered.                                

                             -24-                                          24
