
USCA1 Opinion

	




                            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 & Edelman and Burton            _________________            _________________________     ______        S. Rosenberg were on brief, for Teamsters Local 559, et al.        ____________            Terrence A. Low, with whom Rosen, Greenhut, Catuogno & 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  & 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 &            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 & 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 & Installation Co., 233 A.2d 151            _________    __________________________________            (Conn. Cir.  Ct. 1967); Restatement (Second) of  Agency    7,            8, & 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
