     08-4091-cv
     Madden v. Town of New Haven



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN W HICH A LITIGANT CITES
A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A CITATION APPEARS, AT LEAST ONE CITATION M UST
EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).”
A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH
TH E PAPER IN W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS PUBLICLY
A C C E S S IB L E W IT H O U T P A Y M E N T O F F E E ( S U C H A S T H E D A T A B A S E A V A IL A B L E A T
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.

            At a stated term of the United States Court of Appeals for the Second Circuit, held
     at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
     New York, on the 31st day of December, two thousand nine.

     PRESENT:
                 GUIDO CALABRESI,
                 ROSEMARY S. POOLER,
                             Circuit Judges,
                 LAWRENCE E. KAHN,*
                             District Judge.
     __________________________________________

     John Madden,

                     Plaintiff-Appellant,

                     v.                                                    No. 08-4091-cv

     Town of New Haven,

                 Defendant-Appellee.
     __________________________________________


             *
              Lawrence E. Kahn, Senior Judge of the United States District Court for the Northern
     District of New York, sitting by designation.
FOR APPELLANT:                 John Madden, pro se, New Haven, Vermont.

FOR APPELLEE:                  James W. Runcie, Ouimette & Runcie, Vergennes, Vermont.

     Appeal from a judgment and orders of the United States District Court for the District of
Vermont (Murtha, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the appeal is DISMISSED.

         Appellant John Madden appeals from a judgment of the district court dismissing his 42
U.S.C. § 1983 complaint against the Town of New Haven, Vermont, and two subsequent orders
denying reconsideration of that judgment. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.

        In a civil case in which the United States is not a party, Federal Rule of Appellate
Procedure 4(a)(1)2 and 28 U.S.C. § 2107 require an appellant to file a notice of appeal within
thirty days of the entry of the judgment or order being appealed. The Supreme Court has made
“clear that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement.”
Bowles v. Russell, 551 U.S. 205, 214 (2007). Therefore, even though the Town of New Haven
does not challenge the timeliness of Madden’s appeal, this Court is “obliged to examine the
question sua sponte.” Travelers Ins. Co. v. Carpenter, 411 F.3d 323, 328 (2d Cir. 2005).

        The time to file a notice of appeal is tolled during, inter alia, the pendency of a timely
filed motion under Federal Rule of Civil Procedure 59(e). See Fed. R. App. P. 4(a)(4)(A)(iv);
Fed. R. Civ. P. 59(e). Here, Madden timely filed a Rule 59(e) motion to amend the district
court’s June 17, 2008, judgment, so the appeal period did not begin to run until the July 18, 2008
entry of the order denying that motion.3 Accordingly, his time to file a notice of appeal expired
on August 17, 2008; this was a Sunday, so his notice of appeal was due by Monday, August 18
2008. See Fed. R. App. P. 4(a)(1) and 26(a)(3). However, Madden did not file his notice of
appeal until August 20, 2008. While his notice of appeal is dated August 18, 2008, it was not
“filed” until two days later. See Fed. R. App. P. 25(a)(2)(A) (“Filing may be accomplished by
mail addressed to the clerk, but filing is not timely unless the clerk receives the papers within the
time fixed for filing.”). Accordingly, it was untimely filed and we must dismiss the appeal for
lack of jurisdiction. See 28 U.S.C. § 2107; Fed. R. App. 4(a)(1); Bowles, 551 U.S. at 214.



       2
          The Federal Rules of Appellate Procedure were recently amended; however, the
amendments were effective December 1, 2009. All of the relevant documents in this case were
filed prior to that date, so the 2009 Amendments do not apply.
       3
         While Madden filed a second Rule 59(e) motion challenging the July 2008 order,
successive motions for reconsideration do not repeatedly toll the notice of appeal filing period
under Rule (4)(a)(4). See Glinka v. Maytag Corp., 90 F.3d 72, 74 (2d Cir. 1996).

                                                  2
        Insofar as Madden seeks to appeal an August 22, 2008 order of the district court, his
notice of appeal was filed before that order was entered and he failed to file a new or amended
notice of appeal as required by Federal Rule of Appellate Procedure 4(a)(4)(B)(ii).

       For the foregoing reasons, the appeal is hereby DISMISSED.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk

                                             By:__________________________




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