
USCA1 Opinion

	




        August 17, 1992         [NOT FOR PUBLICATION]                                 ____________________        No. 92-1301                                    PEDRO C. VARGAS,                                Plaintiff, Appellant,                                          v.                              LEONARDO GONZALEZ, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Hector  Gonzalez Lopez  and  Feijoo's  Law  Offices on  brief  for            ______________________       ______________________        appellant.            Jose  A. Cestero  and Cesar  R. Miranda  Law Offices  on brief for            ________________      ______________________________        appellees.                                 ____________________                                 ____________________                 Per  Curiam.   In June  1991, attorneys  for all  of the                 ___________            parties to  this case  failed to  appear for a  hearing on  a            motion  to amend the complaint.  The district court fined the            lawyers involved.  In his motion to reconsider the  sanction,            the  plaintiff's  attorney,  Hector  Gonzalez  Lopez, offered            apologies and  an  explanation  for  his truancy.    He  also            informed the court that  he would be absent from  Puerto Rico            during  the month of July,  1991.  Accordingly,  he asked the            court to reschedule a forthcoming status conference from July            16  "until  August."     The  court  complied  with  Attorney            Gonzalez'  request.   In an  order dated  July 12,  1991, the            district court (a) removed  the sanctions and (b) rescheduled            the status conference for August 9, 1992.                 Gonzalez did not  appear at the conference  on August 9.            The district court,  taking into  account Gonzalez'  previous            dereliction,  decided  to dismiss  the  case  for failure  to            prosecute.  The judgment of dismissal was dated August 30 but            was not entered  on the  docket until September  3, at  which            time (the docket indicates) copies of  the judgment were sent            to all parties.                 The court next heard from Attorney Gonzalez on September            9,  when  he  filed  an "informative"  motion  requesting  an            extension of time to respond to certain papers the defendants            had filed over the summer.  The motion was mooted by, yet did            not mention, the dismissal  entered six days earlier.   In an                                         -2-            order entered October 7, the district court denied the motion            for   an  extension  and,   referring  to  the  now-month-old            dismissal, expressed  its exasperation at  Attorney Gonzalez'            inability to "read the handwriting on the wall."                 The  October 7  order brought  a response  from Attorney            Gonzalez, filed on October 18 and captioned "Motion  to Amend            Judgment of August  30th, 1991  and to Other  Extremes."   In            this motion, Gonzalez offered excuses both for his failure to            appear at the  August 9  conference, and for  his failure  to            respond more quickly to the judgment of dismissal.  As to the            latter  delinquency,  Gonzalez  claimed  that  he  had  never            received  a copy of the judgment,  and had not learned of the            dismissal  until he  received  the court's  October 7  order.            With  respect  to his  absence  from  the status  conference,            Gonzalez said  that he was away from  Puerto Rico from July 3            to August 2,  caring for his ailing  parents in Florida.   He            spent the week August 2  to August 9 in Puerto Rico,  but his            secretary,  though she  informed him  of the court's  July 12            order lifting the sanctions,  neglected to tell him  that the            same  order had  also rescheduled  the status  conference for            August  9.  Thus, Gonzalez left Puerto Rico for Florida again            on August 9 without attending the conference or arranging for            a  further continuance.  When  he returned to  Puerto Rico at            the end of the month, he "did not check, inadvertantly [sic],            the case file itself . .  . or he would have seen the  notice                                         -3-            vacating the sanctions  and setting  the status  conference."            Arguing that the mortal sanction of dismissal was too harsh a            punishment  for such venial sins,  and that in  any event the            client  should not  be  made  to  suffer for  his  attorney's            neglect, Gonzalez asked the court  to "set aside its Judgment            dismissing this case and to impose instead whatever sanctions            it deems necessary on the undersigned."                 On January 17, 1992 the district court denied the motion            to amend judgment.  Citing  Fed. R. Civ. P. 59(e), the  court            said  that motions to amend judgment must be filed within ten            days  of the entry  of the judgment  challenged, and observed            that the motion at hand had been filed more  than thirty days            late.  This appeal followed.  We affirm.                                          I                                          _                 The motion filed on  October 18 did not invoke  any Rule            of  Civil  Procedure, but  if  the  district court  correctly            characterized  it as a Rule 59(e) motion, then the denial was            indisputably  correct.   Because Rule  59(e) motions  must be            filed  within  ten   days  of  the  entry   of  the  judgment                                                _____            challenged,   exclusive   of  weekends   and   holidays,  the            allegation that Attorney  Gonzalez did not receive  a copy of            the judgment is of no consequence.  "The 10 day period begins            to  run upon  entry  of  judgment even  if  a  party has  not                                         -4-            received notice of the judgment . . . ."   6A Moore's Federal            Practice    59.09[1] (1991).  Cf. Fed. R. Civ. P. 77(d) (lack                                          ___            of  notice of  entry  of judgment  does  not affect  time  to            appeal).   The ten-day deadline is mandatory, Fed. R. Civ. P.            6(b),  and it is well established that the district court has            no power or discretion to modify it.  See Feinstein v. Moses,                                                  ___ _________    _____            951 F.2d 16, 19 (1st Cir. 1991) and cases cited therein;  see                                                                      ___            also Shults v. Henderson, 110 F.R.D. 102 (W.D.N.Y. 1986).              ____ ______    _________                 The  district court properly  identified the  October 18            motion as  one brought under  Rule 59(e).   Not only did  the            caption  -- "Motion  to Amend  Judgment .  . .  And to  Other            Extremes" -- echo Rule 59(e), but the gist of  the motion was            that the  district court  had  erred by  dismissing the  case            without  proof  that  the  client  was  responsible  for  his            attorney's lapses, and in  a situation where effective lesser            penalties were available.   It  is the settled  rule in  this            circuit that a motion asking the court "to modify its earlier            disposition of a case because of an allegedly erroneous legal            result is brought under  Fed. R. Civ. P.  59(e)."  Appeal  of                                                               __________            Sun  Pipe Line Co.,  831 F.2d 22, 24  (1st Cir. 1987) (citing            __________________            Silk v. Sandoval, 435 F.2d 1266, 1267-68 (1st Cir. 1971)).            ____    ________                                          II                                          __                                         -5-                 The appellant's brief intimates that  the district court            should have construed the October 18 motion to ask for relief            from  judgment under  Fed. R.  Civ. P.  60(b)(1) or  (b)(4).1            Motions for relief from judgment are not subject to a ten-day            deadline.   However,  we do  not see  how the  district court            could  have read the motion  to state a  viable request under            Rule  60(b).  First, even  if the judgment  was erroneous, it            was not void within the meaning of Rule 60(b)(4).  See Lubben                                                               ___ ______            v.  Selective Service  System, Local  Board No. 27,  453 F.2d                ______________________________________________            645, 649  (1st Cir. 1972).   "Only in the rare  instance of a            clear  usurpation of  power," id.,  such  as where  the court                                          ___            lacks subject-matter  jurisdiction, will a judgment be deemed            void.                  Second, the record establishes  that the "neglect" which            triggered the  dismissal was  not of the  "excusable" variety            recognized by  Rule 60(b)(1).  Attorney  Gonzalez' failure to            attend the status conference on August 9  was not pardonable.            In  June, Gonzalez  had  asked the  court  to reschedule  the            conference,  then  set for  July 16,  to sometime  in August.            When he left Puerto Rico for Florida on July 3, the court had            not ruled on this request for a continuance.  Gonzalez should            have understood,  therefore, that  unless and until  he heard                                            ____________________            1.  The  brief also  cites  Rule 60(b)(6)  but identifies  no            "extraordinary circumstances" that  might bring this residual            provision into  play.   Gonzalez v. Walgreens  Co., 918  F.2d                                    ________    ______________            303, 305 (1st Cir. 1990).                                         -6-            otherwise he was due in court on  July 16.  He claims not  to            have  heard about the continuance, yet he remained in Florida            through July.   Under  these circumstances, one  would expect            that  when Gonzalez  briefly returned to  Puerto Rico  at the            beginning  of August,  he would  have been  anxious to  learn            whether the  status conference had  gone off  without him  on            July 16.  According to his own account, however, Gonzalez did            not trouble himself to  find out whether or how the court had            ruled on his  request for  a continuance.   Instead, he  left            Puerto Rico again for the remainder of August.  Surely, since            he  had asked  the court  to  continue the  conference "until            August,"  Gonzalez must  have suspected  when he  returned to            Puerto Rico for good at the end the month that  he had failed            to  appear for a scheduled status conference -- either on the            original date of July 16 or on a rescheduled date sometime in            August.  Again,  however, Gonzalez made no effort to discover            or remedy his delinquency, and the district court entered its            judgment soon after.   As a matter  of law, such a  "palpable            mistake" by experienced counsel  does not amount to excusable            neglect.  See Picucci v. Town of Kittery, 101 F.R.D. 767, 768                      ___ _______    _______________            (D.Me.  1984) and  cases  cited therein.    Nor can  such  an            insistent disregard for one's responsibilities as an attorney            fairly  be termed "inadvertence" as that word is used in Rule            60(b)(1).  Indeed, the district court might well  have abused            its discretion  had it  accepted Gonzalez' carelessness  as a                                         -7-            basis for relief  from judgment.   See  Lavespere v.  Niagara                                               ___  _________     _______            Machine & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990)            __________________________            (if failure  of party to  submit evidence is  attributable to            negligence or carelessness  of his attorney,  it would be  an            abuse  of discretion  for district  court to  reopen case  to            consider the evidence).                                         III                                         ___                 Because  it  asked  for  relief under  Rule  59(e),  and            because it was  filed late,  the October 18  motion to  amend            judgment did not toll the time for filing a  notice of appeal            from the  underlying dismissal.  See Feinstein  v. Moses, 951                                             ___ _________     _____            F.2d at  18 and cases cited therein.  A notice of appeal from            the  judgment, which had been entered on September 3, was due            on October 3;  the appellant  did not file  his notice  until            February 11.  We therefore  have no jurisdiction to  consider            the appellant's attack on the dismissal.                 The  notice  of appeal,  it  is true,  was  filed within            thirty  days  of  the  order  denying  the  motion  to  amend            judgment.   "Nevertheless, as the [motion]  prayed for relief            which  could only  be properly sought  under Rule  59(e), the            district court was without  jurisdiction to grant it because,            as we have explained, it was untimely."  Id. at 21.                                                     ___                                         -8-                 The judgment below is summarily affirmed.   See 1st Cir.                 _________________________________________   ____________            Rule 27.1.            _________                                         -9-
