
USCA1 Opinion

	




        August 23, 1995         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1077                                     MARK S. HIDER,                                Plaintiff, Appellant,                                          v.                              CITY OF PORTLAND, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. David M. Cohen, U.S. Magistrate Judge]                                           _____________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Lynch, Circuit Judges.                                            ______________                                 ____________________            Mark S. Hider on brief pro se.            _____________            Natalie L. Burns on brief for appellee City of Portland.            ________________            BethAnne L. Poliquin on brief for appellee Michael Chitwood.            ____________________                                 ____________________                                 ____________________                 Per Curiam.   Plaintiff-appellant Mark S. Hider  appeals                 __________            from  the grant of  summary judgment in  favor of defendants-            appellees  and from the denial  of a request  for relief from            judgment.   For the following reasons, we  dismiss the appeal            from the grant of summary judgment as untimely, and we affirm            the denial of post-judgment relief.                                          I.                 This  appeal has its  origins in a  decision by appellee            Michael  Chitwood,  chief  of  police for  appellee  City  of            Portland, to deny Hider's second application  for a permit to            carry  a concealed weapon.   Hider sought  judicial review of            this administrative determination in Maine state court, which            upheld  the police chief's decision.   See Hider  v. Chief of                                                   ___ _____     ________            Police, Portland, 628 A.2d 158 (Me. 1993).  Thereafter, Hider            ________________            filed  a  complaint  in  federal   district  court  alleging,            pursuant to  42 U.S.C.    1983,  that appellees violated  his            rights under  the Second, Eighth,  and Fourteenth Amendments.            Hider also appended various state law claims.  Pursuant to 28            U.S.C.   636(c), the parties consented  to allow a magistrate            judge to conduct any and all proceedings in  the case, and to            enter final judgment and orders.                 On  October  18,  1994,  the  magistrate  judge  granted            summary judgment  for appellees on the  federal claim, ruling            that the claim  is barred  by the doctrine  of res  judicata.                                                           ___  ________            The  pendent state law claims  were dismissed as  a matter of                                         -2-            judicial discretion.  See  28 U.S.C.   1367(c)(3).   Judgment                                  ___            entered  on October  19, 1994.   On  November 5,  1994, Hider            served on appellees a  motion for new trial pursuant  to Fed.            R.  Civ.  P.  59(a), a  motion  to  alter  or amend  judgment            pursuant to Fed.  R. Civ. P. 59(e),  and a motion  for relief            from  judgment  pursuant  to Fed.  R.  Civ.  P.  60(b).   The            magistrate judge  denied these motions on  November 28, 1994.            One week later, on December 5, 1994, Hider filed a motion for            reconsideration.   This  motion  was denied  on December  19,            1994.  Hider filed a notice of appeal on January 18, 1995.                                          II.                 Although not raised by the parties, the initial question            we must address in this  appeal is one of jurisdiction.   See                                                                      ___            Feinstein v. Moses, 951 F.2d  16, 17 (1st Cir. 1991).   As we            _________    _____            see it, Hider does not have a timely appeal from  the summary            judgment.  Pursuant  to Fed.  R. App. P.  4(a)(1), Hider  was            required to  file  his notice  of appeal  within thirty  days            after entry of final judgment.  Timely filing of a notice  of            appeal  is  both  mandatory  and  jurisdictional.    Acevedo-                                                                 ________            Villalobos v. Hernandez,  22 F.3d 384, 387 (1st  Cir.), cert.            __________    _________                                 _____            denied,  115 S. Ct. 574 (1994).  Since final judgment entered            ______            on  October 19,  1994, Hider's  notice of  appeal was  due on            November 18, 1994 and was filed two months late.                   To  be sure, a timely  Rule 59(a) or  59(e) motion tolls            the  time period for filing a notice  of appeal.  See Fed. R.                                                              ___                                         -3-            App. P. 4(a)(4).  However, to be timely, such motions must be            served within  ten days of the entry of judgment, see Fed. R.                                                              ___            Civ. P. 59(b), (e), excluding intermediate holidays and week-            ends, see Fed. R. Civ. P. 6(a).  Hider's Rule 59(a) and 59(e)                  ___            motions were  due to  be served by  November 2, 1994.   Since            these motions  were not served  until November 5,  1994, they            were untimely and did  not extend the time period  for appeal            from  the underlying  judgment.1   See Cavaliere  v. Allstate                                               ___ _________     ________            Ins. Co., 996 F.2d 1111, 1114 (11th Cir. 1993) (untimely Rule            ________            59(a) motion); Feinstein, 951 F.2d at 18 (untimely Rule 59(e)                           _________            motion).   Under the  circumstances, we lack  jurisdiction to            review the summary judgment.                 We recognize that an  alternative argument might be made            in  an  attempt  to   resuscitate  the  appeal  from  summary            judgment.  Following  the denial  of the first  set of  post-            judgment motions, the clerk of the court prepared and entered            on the docket a separate  document which is labeled  "Amended            Judgment"  and  purports  to  re-enter  the  final  judgment.            Similarly, following the  denial of the  second set of  post-                                            ____________________            1.  The magistrate  judge  incorrectly stated  in his  margin            ruling that the  Rule 59(e)  motion was timely.   It  appears            that, in calculating the ten-day period, the magistrate judge            followed the suggestion of the appellees and added three days            for  service by mail pursuant to Fed.  R. Civ. P. 6(e).  This            was  error since  the time  for serving  a motion  under Rule            59(e) is not extended by Rule 6(e).  See Flint v. Howard, 464                                                 ___ _____    ______            F.2d  1084, 1087 (1st  Cir. 1972).  We  add that, because the            magistrate judge's misstatement was  made well after the time            for  appeal had expired, Hider could not have relied on it in            delaying his appeal.  See Feinstein, 951 F.2d at 20.                                    ___ _________                                         -4-            judgment  motions,  the clerk  prepared  and  entered on  the            docket a  separate document which is  labeled "Second Amended            Judgment" and purports to re-enter the final judgment.  Under            the circumstances, it could be argued that the appeal  period            began  anew with the entry  of the "Amended  Judgment" on the            docket  and then restarted once  again with the  entry of the            "Second Amended Judgment" on the docket.                 Such  an  argument, however,  would  fail.   An  amended            judgment which  alters matters of substance  or resolves some            genuine ambiguity does wind  the appeal clock anew.   See FTC                                                                  ___ ___            v.  Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 211-12                ___________________________________            (1952).    However,  neither   the  re-entry  of  a  judgment            previously entered nor an immaterial revision to the judgment            tolls the  time period  within which  review must  be sought.            See id.; Air Line Pilots Ass'n v. Precision  Valley Aviation,            ___ ___  _____________________    __________________________            26 F.3d  220, 223 n.2 (1st  Cir. 1994).  Where,  as here, the            court made no revision whatsoever to the  final judgment, the            appeal period from this judgment is unaffected.                                         II.                 Our  task  is not  over.   Hider's  notice of  appeal is            timely with respect to the order denying his December 5, 1994            motion for reconsideration.2   We construe  this motion as  a                                            ____________________            2.  The  filing of this December 5 motion did not, of course,            affect the time  period within  which Hider  was required  to            file his appeal from the October 19 entry of judgment.   See,                                                                     ___            e.g., Rodriguez-Antuna v. Chase Manhattan Bank, 871 F.2d 1, 2            ____  ________________    ____________________            (1st Cir.  1989) (timely appeal from  district court's denial                                         -5-            Rule  60(b)(3) motion  since  it seeks  relief from  judgment            based on allegations of fraud or misrepresentation.  See Fed.                                                                 ___            R. Civ. P. 60(b)(3) (permitting relief from judgment based on            fraud   misrepresentation, or other misconduct  of an adverse            party).  In this circuit, the  denial of a Rule 60(b)  motion            is an appealable order.  See Fiore v. Washington County Comm.                                     ___ _____    _______________________            Mental Health Ctr.,  960 F.2d  229, 232 (1st  Cir. 1992)  (en            __________________            banc).   Our standard of review is  abuse of discretion.  See                                                                      ___            De la Torre v. Continental Ins. Co., 15 F.3d 12, 14 (1st Cir.            ___________    ____________________            1994).                   In his brief on appeal, Hider reiterates his allegations            of  fraud on  the court.   In  particular, Hider  claims that            appellees misrepresented  that they agree with  the ruling of            the Maine  Law Court, when  in fact,  they do not.   However,            even if  the evidence in  the record  supported an  inference            that  appellees secretly  disagreed with  some aspect  of the            Maine court's reasoning or its interpretation of the relevant            law,  Hider  has  failed  to  demonstrate  how  that  alleged            misconduct interfered  with his ability to  prepare a defense            to appellee's  summary judgment  motion.  See  Perez-Perez v.                                                      ___  ___________            Popular Leasing  Rental, Inc.,  993 F.2d  281, 285  (1st Cir.            _____________________________            1993) (holding that  moving party on  a Rule 60(b)(3)  motion            must demonstrate  fraud by clear and  convincing evidence and                                            ____________________            of post-judgment relief does not "resurrect" expired right of            appeal from underlying judgment).                                         -6-            must show that the fraud foreclosed full and fair preparation            or presentation of  his case).  Under the  circumstances, the            magistrate judge did not abuse  his discretion in denying the            December 5, 1994 motion for reconsideration.                 The  appeal  from  the  entry  of  summary  judgment  is            dismissed; the  denial of  the motion for  reconsideration is            _________            affirmed.            ________                                         -7-
