
USCA1 Opinion

	




          March 21, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1803                                             ENOS JULIAN GAUDET,                                Plaintiff, Appellant,                                          v.                                    JOHN BOYAJIAN,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ___________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                    ______________                                 ___________________               Enos Gaudet on brief pro se.               ___________               John  Boyajian  and  Boyajian,  Harrington  &  Richardson on               ______________       ____________________________________          Motion to Dismiss and Memorandum in Support, for appellee.                                  __________________                                  __________________                      Per Curiam.    This is an appeal  by pro se debtor-                      __________            appellant Gaudet  from a district court  intermediate appeal,            Gaudet  v.  Boyajian, No.  92-0616B  (D.R.I.  May 16,  1994),            ______      ________            affirming a bankruptcy  court order requiring  Gaudet to  pay            trustee-appellee Boyajian  $28,000 in  fees  and costs  as  a            sanction "for the  legal services attributable  to [Gaudet's]            frivolous  litigation during  the course  of  this bankruptcy            case."   In re Gaudet, 144 B.R. 223, 224 (Bankr.D.R.I. 1992).                     ____________            The district court, concluding that the bankruptcy court  was            authorized to assess the fee sanction, affirmed the order and            Gaudet appeals.                 Trustee-appellee  Boyajian moves  to dismiss  the appeal            contending  that this court is without appellate jurisdiction            to  review the  judgment  affirming  the  bankruptcy  court's            order.   We agree, but find the notice of appeal timely as to            the denial  of Gaudet's  post-judgment motion,  which remains            open to review.                 A brief recitation of the pertinent facts is in order:            1.   On  May 16, 1994, after  hearing on April  28, 1994, the            district court entered  an order and  judgment affirming  the            bankruptcy court's order.            2.   On June 2, 1994, Gaudet  filed a motion entitled "Notice            and  Motion  to  Extend  Time."    The  motion  requested  an            extension of time in which to file a  motion for rehearing of            the  May 16,  1994,  order.   Specifically, Gaudet  sought to            delay the filing  of the intended  rehearing motion until  15            days  after  the  receipt  of  the  April 28,  1994,  hearing            transcript  which, he  asserted, was  needed to  complete the            proposed motion.            3.   On June 20,  1994, the district  court entered a  margin            order summarily denying the Notice and Motion to Extend Time.            4.   On  July  19,  1994--sixty-four  days  after  entry   of            judgment  and thirty  days after the  denial of  the motion--            Gaudet filed a  notice of  appeal "from the  [June 20,  1994]            order denying his motion . . . of June 2, 1994."            5.   On August 2, 1994, Gaudet filed a statement of issues on            appeal challenging the bankruptcy court's authority to impose            an attorney  fee  sanction for  Gaudet's  overall  litigation            conduct, including actions in the appellate courts.                 As  a threshold matter, although the notice of appeal on            its face  shows an appeal  from the denial of  the Notice and            Motion to Extend, it is obvious--from the statement of issues            and other filings in this court--that Gaudet seeks to revisit            the district court judgment affirming  the bankruptcy court's            order.  It  is undisputed that the notice of appeal was filed            more than thirty days after entry of  that judgment.  Fed. R.            App. P. 4(a)(1).  That a  notice of appeal be timely filed is            "mandatory and jurisdictional."   Browder v. Director,  Dep't                                              _______    ________________            of  Corrections, 434 U.S. 257, 264 (1978).  However, a motion            _______________            to  alter or amend judgment  under Fed. R.  Civ. P. 59(e), if            served within ten days of judgment, postpones the period  for            appealing the judgment until the district court's disposes of            the motion.  Rule 4(a)(4)(C).                                         -3-                 The  question arises  whether the  Notice and  Motion to            Extend could be construed as  a Rule 59(e) motion.   We think            not.  Although the motion was  served on May 31, 1994, within            the ten-day period, and was ostensibly timely for Rule  59(e)            purposes,  Fed. R. Civ. P. 6(a); Rivera v. M/T Fossarina, 840                                             ______    _____________            F.2d  152,  154 (1st  Cir. 1988)  (the  date of  service, not            filing, controls),  there are otherwise none  of the earmarks            of  a  cognizable  motion for  Rule  59(e)  relief.   It  was            designed  as motion  to  extend time  to  file a  motion  for            rehearing, but the time to file a Rule 59(e) motion cannot be            extended.   Id. n.3.   It  was unaccompanied  by any  kind of                        ___            statement  indicating   why  the  ruling  below  was  legally            incorrect, and, thus, failed utterly to comply with the basic            requirements  of Fed.  R. Civ.  P. 7(b)(1)  that grounds  for            motion  relief be stated with particularity.   See Sierra On-                                                           ___ __________            Line, Inc.  v. Phoenix  Software, Inc.,  739 F.2d 1415,  1420            __________     _______________________            (9th Cir. 1984).   In short, under the most  charitable view,            Gaudet's Notice and Motion to Extend cannot, in substance, be            treated as a Rule 59(e) motion and is ineffective to preserve            any  Rule 59(e) rights.   See Perez-Perez  v. Popular Leasing                                      ___ ___________     _______________            Rental, Inc., 993  F.2d 281, 283 (1st  Cir. 1993) (substance,            ____________            not  nomenclature, determines character of motion); Feinstein                                                                _________            v. Moses, 951  F.2d 16,  20 (1st Cir.  1991) (order  allowing               _____            motion  to  enlarge  did  not implicate  Rule  59(e)  tolling            because motion failed to apprise court of grounds for seeking                                         -4-            reconsideration).  As a consequence, the 30-day appeal period            was not extended and the  notice of appeal is late as  to the            judgment,  precluding its  review in  this court.1   See  Air                                                                 ___  ___            Line Pilots Ass'n v. Precision Valley Aviation, 26 F.3d  220,            _________________    _________________________            224 (1st Cir. 1994) (non-conforming Rule 59(e) motions do not            resurrect an expired right to appeal the merits of underlying            judgment); Rivera, 840 F.2d at 156.                        ______                 While our  jurisdiction over an appeal  from judgment is            foreclosed, the notice of  appeal is timely as to  the denial            of  the  Notice  and Motion  to  Extend  Time.   Nonetheless,            presuming  that   Gaudet  sought  more  time   to  press  for            reconsideration of  the underlying judgment under Rule 59(e),            "it is well  established that district  courts lack power  to            enlarge the time  for filing post-judgment motions  for a new            trial or motions to alter or amend judgment."  Feinstein, 951                                                           _________            F.2d at 19  & n.3.  Since the district court lacked authority            to extend the  time for  Gaudet to  file such  a motion,  its            summary denial was entirely proper.  Id. at 21.                                                   ___                                            ____________________            1.  Nor could the Notice and Motion to Extend Time, which did            not designate the rule relied upon, conceivably be treated as            a  motion under Fed. R. App.  P. 4(a)(5) to extend the 30-day            appeal  period because  of excusable  neglect or  good cause.            Gaudet's  casual filing  offered no legitimate  or compelling            reason whatsoever, much less developed  argument, for failing            to file  a timely  notice of  appeal from  judgment.   In any            event,  as Gaudet's  notice  of appeal  was ultimately  filed            sixty-four days after judgment,  Rule 4(a)(5), which enlarges            the appeal period to  no more than sixty days,  would provide            no relief.                                             -5-                 Even  if  the  Notice  and  Motion to  Extend  Time  was            generously construed  as a  request for relief  from judgment            under Fed.  R. Civ. P. 60(b),  given the history of  the case            and the  failure to  identify any facially  sufficient ground            for such a  motion, there was no  abuse of discretion  in its            denial.   The extraordinary relief afforded  by Rule 60(b) is            available  only in  exceptional  circumstances,  clearly  not            present here.   See id. at 21 n.5; United States v. One Urban                            ___ ___            _____________    _________            Lot, 882 F.2d 582, 585 (1st Cir. 1989).            ___                 Appellee also  seeks sanctions  from this court  for the            filing  of this untimely appeal.  However, the appeal was not            untimely  in all respects.   We trust that  appellant is well            aware  that   frivolous  filings   will  not   be  tolerated.            Appellee's motion for sanctions is denied.                   In  sum, insofar  as  Gaudet is  contesting the  May 16,            1994, judgment affirming the  September 2, 1993, decision and            order  of the bankruptcy  court, the appeal  is dismissed for            lack of  appellate jurisdiction.   To the extent  that Gaudet            contests  the  June 20,  1994, order  denying his  Notice and            Motion to Extend Time, that order is affirmed.                 It is so ordered.                 ________________                                         -6-
