
USCA1 Opinion

	




          September 18, 1995                                 NOT FOR PUBLICATION                                 NOT FOR PUBLICATION                                 ___________________                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1347                                GENERAL TRADING, INC.,                                 Plaintiff, Appellee,                                          v.                            YALE MATERIALS HANDLING CORP.,                                 Defendant, Appellee.                                     ___________                     GONZALEZ TRADING, INC. & JOSE M. BAEZA, JR.,                                Defendants-Appellants                                 ___________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                          Aldrich, Senior Circuit Judge, and                                   ____________________                            Coffin, Senior Circuit Judge.                                    ____________________                                 ____________________            Edelmiro Salas Garcia for appellants.            _____________________            Leslie W.  Jacobs  with whom  Robert  F.  Ware, Thompson,  Hine  &            _________________             ________________  __________________        Flory, Jorge  I.  Peirats, Maria  C.  Jimenez Perez,  and  Pietrantoni        _____  ____________________________________________        ___________        Mendez & Alvarez are on brief for appellees.        ________________                                 ____________________                                 ____________________                 Per  Curiam.   On April  28, 1993,  a final  judgment in                 ___________            favor  of Yale Materials  Handling Corporation  ("Yale"), was            entered  in  the  federal  district court  for  the  Southern            District of  Florida against  General Trading, Inc.  and Jose            Baeza.  On Yale's motion, this judgment was registered in the            District of Puerto  Rico on  December 8, 1993.   The  Florida            district  court subsequently  appointed James  S. Feltman  as            permanent receiver  and authorized him to  take possession of            and conserve the property  of General Trading, Inc. and  Jose            Baeza in order to satisfy the judgment.                 On December  13, 1994,  Feltman filed an  "Urgent Motion            Authorizing  Receiver to  Take  Possession of  Asset" in  the            Puerto Rico federal district  court, seeking authorization to            seize a yacht in  the possession of Baeza's son,  Jose Baeza,            Jr.   The district court granted Feltman's motion on the same            day.  After  discovering that  the yacht had  been moved  and            apparently renamed,  Feltman filed a  second "Urgent  Motion"            requesting  authorization to  seize the  re-described vessel.            The district court granted  the motion on December  16, 1994,            and Feltman took possession of the yacht the following day.                 On December 29, 1994, Jose  Baeza, Jr. filed a "Petition            to  Enjoin Illegal  Acts and to  Vacate `Order,'"  seeking in            substance the  vacation of  the district court's  December 16            order.  On January  24, 1995, the district court  denied this            motion.   Baeza,  Jr. filed  a second  motion on  February 7,                                         -2-                                         -2-            1995, captioned  "Motion to Reconsider and  to Enjoin Further            Acts,"  in which  he  sought reconsideration  of the  court's            January 24  denial of  his first  motion and  again requested            vacation of the  December 16  order.  The  court denied  this            second  motion on February 22,  1995, and Baeza,  Jr. filed a            notice of appeal on February 27, 1995, challenging the denial            of both of his motions.                 Despite their labels, neither of  Baeza's motions sought            injunctive  relief.  Substance  controls the determination of            whether an order  is injunctive  for the  purposes of  appeal            under 28 U.S.C.   1292(a)(1).  Sierra Club v. Marsh, 907 F.2d                                           ___________    _____            210, 213 (1st Cir. 1990).  Baeza's first motion simply sought            the vacation of the court's December 16 order and amounted to            a motion under Fed. R. Civ. P. Rule 59(e) or  Fed. R. Civ. P.            Rule 60(b).   If an appeal  had been taken within  30 days of            its  denial, we  would face  the question  whether  the order            denying the  first  motion was  a "final"  decision under  28            U.S.C.   1291, which it quite arguably was.                 But  no appeal was taken.   Instead, Baeza,  Jr. filed a            new  motion in February 1995  that could extend  the time for            appeal only  if it were a Rule 59(e) motion.  Fed. R. App. P.            4(a).   It may be  debatable whether  a Rule 59(e)  motion to            alter or amend "a judgment" can be used to challenge an order            authorizing  a  receiver  to  take  possession  of  property.            Assuming it  can be, it is  settled that a Rule  59(e) motion                                         -3-                                         -3-            that merely repeats arguments made in  a motion attacking the            original  judgment  does  not  extend the  time  for  appeal.            Charles L.M. v. Northeast  Independent School Dist., 884 F.2d            ____________    ___________________________________            869, 870 (5th  Cir. 1989);  Charles v. Daley,  799 F.2d  343,                                        _______    _____            347-48 (7th Cir.  1986).  Nor does a Rule 60(b) motion extend            the time to appeal from the order sought to be reopened.                 Here,  the bulk  of  the second  motion merely  restates            arguments  made in  the  first motion;  the balance  contains            nothing  of importance that could not have been argued in the            first motion.  In these circumstances,  the February 7 motion            did not  toll the time for  appeal.  That in  turn means that            the time  for appeal is to  be computed from the  date of the            denial  of the first motion on January 24, 1995.  Appellants'            notice of appeal was filed on February 27, 1995, more than 30            days later.  The appeal was therefore untimely.                 The appeal is dismissed.                               _________                                         -4-                                         -4-
