
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1544                         NORMA I. ACEVEDO-VILLALOBOS, ET AL.,                               Plaintiffs, Appellants,                                          v.                            HON. RAFAEL HERNANDEZ, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                 [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Jesus Hernandez-Sanchez, with  whom Hernandez-Sanchez Law Firm was            _______________________             __________________________        on brief for appellants.            Fidel  A. Sevillano  Del Rio,  Assistant United  States  Attorney,            ____________________________        with whom Guillermo  Gil, United  States Attorney,  Donnie R.  Murray,                  ______________                            _________________        Deputy Regional Counsel, United States Department of Housing and Urban        Development, and Teresa Pombo, Chief Counsel, United States Department                         ____________        of  Housing and Urban Development, were on brief for appellees, United        States, et al.            Vannessa  Ramirez-Kausz,   Assistant  Solicitor  General  for  the            _______________________        Commonwealth  of  Puerto  Rico,  with whom  Carlos  Lugo-Fiol,  Deputy                                                    _________________        Solicitor General, was on brief for appellee, Commonwealth.                                 ____________________                                    April 28, 1994                                 ____________________                      BOWNES, Senior Circuit Judge.  This appeal raises a                      BOWNES, Senior Circuit Judge.                              ____________________            procedural  question  of  first  impression  in our  circuit:            whether  the  dismissal  of   a  complaint,  which  does  not            explicitly   dismiss   the  action,   constitutes   a  "final            decision[]," and  is therefore  appealable under 28  U.S.C.              1291.1    We  rule  in  the  affirmative,  holding  that  the            plaintiffs had  both the  right to  appeal from the  judgment            dismissing their complaint and  the duty to do so in a timely            manner.  Because plaintiffs'  appeal was not timely, we  lack            jurisdiction  to  review  the  dismissal  of  the  complaint.            Furthermore,  we  conclude  that  appellate  jurisdiction  is            lacking over the district court's denial of plaintiffs' first            motion for  postjudgment relief,  and that their  second such            motion  was untimely,  and therefore  properly denied  by the            district court.  Accordingly, we affirm.                                          I.                                          I.                                      BACKGROUND                                      BACKGROUND                                      __________                      Plaintiffs-appellants  are,  for  the   most  part,            former   employees  of   the  Puerto   Rico   Public  Housing            Administration  (PRPHA).   On  May  2,  1992,  PRPHA and  the            Commonwealth of  Puerto Rico, acting through  former governor            Rafael    Hernandez   Colon,   signed   an   agreement   with            representatives  of the United  States Department  of Housing                                            ____________________            1.  Section  1291 provides:   "The  courts of  appeals .  . .            shall have  jurisdiction of appeals from  all final decisions            of the district courts of the United States. . . ."                                         -2-                                          2            and  Urban  Development  (HUD).   Under  the  agreement,  the            Commonwealth  and HUD agreed to take certain actions in order            to expedite the privatization  of the management of federally            funded public housing projects in Puerto Rico, as well as the            decentralization of PRPHA.   The privatization provisions  of            the agreement are at the center of plaintiffs' claims.                      The agreement committed the Commonwealth to pursue,            and  HUD to support,  a plan to  privatize federally assisted            housing  projects  by  transferring  the  administration  and            maintenance of such  projects to private  contractors.  As  a            result  of  this  privatization,  a  sizeable  percentage  of            PRPHA's employees would  be laid off.   The agreement between            HUD  and  PRPHA  briefly  addresses  the  plight  of  PRPHA's            employees in a cursory manner:                      The   private   management  process   may                      require  the   elimination  of  positions                      within  the  present  structure   of  the                      PRPHA.  Employees holding  said positions                      will receive benefits as provided by law.                      HUD  will  provide  federal  funding  for                      payment of their benefits  resulting from                      the   federally  funded   public  housing                      program.    The  Commonwealth  will  fund                      costs ineligible for federal funding.            Privatization Agreement,  Art. I,    4.   In addition,  PRPHA            agreed to encourage  private contractors to  employ displaced            employees.     Id.  at     6b.    Shortly  thereafter,  PRPHA                           ___            formulated  a  layoff  plan   to  comply  with  the  relevant            provisions of Puerto Rico's Public Service Personnel Act, see                                                                      ___            3 L.P.R.A.   1336(6).   A layoff plan was finalized in  April                                         -3-                                          3            1992,  and  the privatization  agreement was  set to  go into            effect on August 1.                      On  June  26,  1992  letters  were  sent  to  PRPHA            employees notifying them that,                      [s]ince  you  are  one  of   the  persons                      affected by layoffs,  we notify you  that                      owing to  lack of work, we  have no other                      alternative  than  to decree  your layoff                      from  public  service effective  July 31,                      1992.   We  advise you  of your  right to                      present    arguments    or    documentary                      evidence,  if  any[,] which  you consider                      will benefit you,  before the  designated                      official.            On July 15, 1992, plaintiffs filed an action in United States            District  Court  for  the  District of  Puerto  Rico  against            various  Commonwealth  and  federal  agencies  and officers,2            seeking injunctive, declaratory and monetary relief.                      Plaintiffs' constitutional claims against the state            defendants  are predicated upon 42 U.S.C.   1983, while their            constitutional  claims  against  the federal  defendants  are            based  on the  doctrine set  forth in  Bivens v.  Six Unknown                                                   ______     ___________            Named  Agents,  403 U.S.  388 (1971).    The major  themes of            _____________            plaintiffs' complaint  are  as follows.    First,  plaintiffs            allege  that  the  privatization  agreement  is  invalid (and                                            ____________________            2.  The  defendants in this action fall into two groups:  the            United  States of  America,  HUD, and  various HUD  officials            (hereinafter,  the  "federal  defendants"),  and  the  former            governor of Puerto Rico,  PRPHA, and various PRPHA officials.            (hereinafter,   the  "state   defendants").     All  of   the            individuals  were   sued  in  their   official  and  personal            capacities.                                         -4-                                          4            consequently that  the layoffs  were illegal) because  it was            entered into  in violation  of both Puerto  Rico and  federal            law, and that the various  local and federal defendants acted            ultra   vires  by   signing  the  agreement.     Accordingly,            _____   _____            plaintiffs  allege  that the  layoffs  were  illegal.   Next,            plaintiffs allege that they had a property interest  in their            jobs,  and that they were  deprived of this property interest            without  due process.   Finally,  plaintiffs maintain  that a            Puerto Rico  official made derogatory comments  about them in            public,  thereby  depriving  them  of  "liberty"  without due            process.                      On October 27, 1992,  the state defendants moved to            dismiss   the  complaint,   or  alternatively,   for  summary            judgment, on a plethora of grounds including, but not limited            to,  the complaint's  failure  to state  a  claim upon  which            relief could be granted.  See Fed. R. Civ. P.  12(b)(6).  Two                                      ___            days  later  the state  defendants  moved  to stay  discovery            pending the court's  resolution of their  dispositive motion.            The court granted the requested stay.                      On January 15, 1993, the district court granted the            state defendants' motion  to dismiss.  The  court stated that            "[p]laintiffs' complaint  fails to  provide the Court  with a            clear idea of the contours of their claims and  also fails to            provide appropriate support for their allegations."  Gonzalez                                                                 ________            v. Hernandez, No.  92-1972, slip  op. at 4  (D.P.R. Jan.  15,               _________                                         -5-                                          5            1993).   According  to the  court, plaintiffs'  complaint was            "infected   with   conclusory   allegations   and   unfounded            accusations," id.  at 5-6, and  "insufficiently illustrate[d]                          ___            the  essential nature  of their claim[s]."   Id.  at 4.   The                                                         ___            court  dismissed  plaintiffs'  complaint  in   its  entirety,            stating:  "The Court therefore ORDERS that defendants' Motion            to Dismiss pursuant  to Rule 12(b)(6)  is hereby GRANTED  and            that plaintiffs' complaint is hereby  DISMISSED."  Id. at  6.                                                               ___            On  the same  day the  court entered  judgment on  a separate            document, pursuant to  Fed. R.  Civ. P. 58  and 79(a),  which            stated as  follows:  "By virtue of the Opinion & Order of the            Court, entered on  this date, it is  hereby ORDERED, ADJUDGED            and  DECREED  that   plaintiffs'  complaint  is   DISMISSED."            Plaintiffs filed two postjudgment motions for relief, both of            which were denied.  This appeal ensued.                                         II.                                         II.                                      DISCUSSION                                      DISCUSSION                                      __________                      In  their  notice of  appeal  filed  May 14,  1993,            plaintiffs  list four  decisions of  the district  court from            which  they appeal:   (1)  the judgment  of January  15, 1993            dismissing the  complaint, and the court's  opinion and order            of the same date; (2) the order of November 30, 1992 granting            a  stay of discovery; (3) the  order of March 2, 1993 denying            plaintiffs' first  Rule 59(e) motion  for reconsideration and                                         -6-                                          6            to  amend the complaint; and (4)  the order of April 19, 1993            denying plaintiffs'secondRule 59(e)motionforreconsideration.3            A.  Dismissal of the Complaint            A.  Dismissal of the Complaint                __________________________                      Under Fed. R. App.  P. 4(a)(1), any party appealing            from  a judgment or order  of the district  court, where "the            United  States or an officer  or agency thereof  is a party,"            must file a notice of appeal within sixty days of the date of            entry of the judgment or order.  Timely filing of a notice of            appeal is  "mandatory  and jurisdictional."   Perez-Perez  v.                                                          ___________            Popular Leasing Rental,  Inc., 993  F.2d 281,  283 (1st  Cir.            _____________________________                                            ____________________            3.  The plaintiffs asserted, at oral argument before us, that            the district  court had dismissed only  the state defendants'            claims,  leaving the  federal defendants'  claims unresolved.            Thus, appellants argued, this court should remand the case to            permit  the district  court to  comply with  Fed. R.  Civ. P.            54(b) (where  multiple claims  or parties are  involved court            may direct  entry of  final judgment  as to  one or  more but            fewer  than  all the  claims or  parties).   At no  point did            plaintiffs ever assert or  suggest this contention before the            district court, either in  their motions for  reconsideration            or in any of  their numerous other postjudgment filings.   In            all events, however, their belated contention, if not waived,            is without merit.                The district court  unmistakably intended to  dismiss the            complaint  in toto, pursuant to Fed. R. Civ. P. 12(b)(6), for                       __ ____            failure to state a  cognizable cause of action.   Its opinion            and order  is most  reasonably read as  having dismissed  the            entire complaint even though it adverts only to the motion to            ______ _________            dismiss  filed by  the  state defendants.   Furthermore,  the            final  judgment itself  expressly dismissed  "the plaintiffs'            complaint" after  the federal defendants had  filed their own                       _____            motion to  dismiss shortly before the  district court entered            its opinion and final judgment.  We are satisfied, therefore,            that plaintiffs'  belated Rule  54(b) contention in  no sense            warrants  an inference  that  plaintiffs were  misled or  the            judgment was  not final.   Consequently, the  requirements of            Rule 54(b) are not implicated.                                         -7-                                          7            1993) (quoting Browder v. Director, Dep't of Corrections, 434                           _______    ______________________________            U.S.  257, 264  (1978)).   In  the present  case, plaintiffs'            notice of appeal was filed more  than 100 days after entry of            the judgment dismissing  the complaint.   But, under Fed.  R.            App. P. 4(a)(4), a  timely motion to alter or  amend judgment            pursuant to Fed. R. Civ. P. 59(e) tolls the time for filing a            notice of appeal, and  the time for filing the  notice starts            to run  from the entry of the order denying said motion.  See                                                                      ___            United States v. 789  Cases of Latex Surgeon Gloves,  13 F.3d            _____________    __________________________________            12, 14 (1st Cir. 1993); Fed. R. App. P. 4(a)(4).   Under Rule            59(e),  "[a] motion to alter  or amend the  judgment shall be            served not later than  10 days after entry of  the judgment."            Fed. R. Civ. P. 59(e).                      Although plaintiffs' original Rule 59(e) motion was            timely filed (it was served within ten days from the entry of            the  judgment  dismissing  the  complaint),  their notice  of            appeal was not filed until sixty-four days after the entry of            the order denying of the motion.  Thus, even with the benefit            of Rule  4(a)(4)'s tolling  provision, plaintiffs' notice  of            appeal  was seemingly late.   We lack  jurisdiction over late            appeals.                      This brings  us to  the principal issue  on appeal:            Plaintiffs  now  argue  that  the  judgment dismissing  their            complaint was not a "final decision" within the meaning of 28            U.S.C.   1291, and that their time to file a notice of appeal                                         -8-                                          8            did not start to run until the denial of  their second motion            for  reconsideration.  Because the notice of appeal was filed            within sixty days  from the  entry of the  order denying  the            second motion,  plaintiffs  maintain  that  their  notice  of            appeal was timely with respect to the underlying judgment.                      We have never ruled on this procedural dilemma.  It            has,  however, given  rise to  some disagreement  among those            circuits  that have.  Three distinct views have emerged.  The            Seventh  and Ninth Circuits have held that the dismissal of a            complaint, as opposed to the dismissal of an action, is not a            final,  appealable order,  unless  the trial  court has  made            clear in dismissing  the complaint that the  action could not            be  saved by amendment.   See Benjamin v.  United States, 833                                      ___ ________     _____________            F.2d  669, 672 (7th Cir.  1987); Ruby v.  Secretary of United                                             ____     ___________________            States Navy, 365 F.2d 385, 387 (9th Cir. 1966), cert. denied,            ___________                                     _____ ______            386  U.S. 1011  (1967).   On the  other hand, the  Second and            Eighth  Circuits have held  that, absent an  express grant of            leave to  amend, an order  dismissing the complaint  is final            and  appealable.  See Weisman v. LeLandais, 532 F.2d 308, 309                              ___ _______    _________            (2d  Cir. 1976); Quartana  v. Utterback, 789  F.2d 1297, 1300                             ________     _________            (8th Cir.  1986).  Finally,  the Eleventh Circuit  has carved            out  a middle  ground.   It has  held that  such an  order of            dismissal  is not final if "the plaintiff could not have been            reasonably expected to realize that the court was  entering a                                         -9-                                          9            final order."   Czeremcha v. International  Ass'n of Mach.  &                            _________    ________________________________            Aero. Workers, 724 F.2d 1552, 1555 (11th Cir. 1984).            _____________                      Before  deciding  which,  if  any,  of  these three            approaches   to  adopt,  we  briefly  explain  the  rationale            underlying each.   The Seventh  and Ninth Circuits  have held            that the dismissal of a complaint is not final and appealable            because a motion  to dismiss is  not a "responsive  pleading"            within the  meaning of  Fed. R.  Civ. P.  15(a),4 and thus  a            plaintiff still retains his or  her right to amend once as  a            matter  of course  under Rule  15(a) even  after a  motion to            dismiss has been  granted.   See Car Carriers,  Inc. v.  Ford                                         ___ ___________________     ____            Motor Co., 745 F.2d 1101, 1111 (7th Cir. 1984), cert. denied,            _________                                       _____ ______            470  U.S.  1054  (1985);  222  East  Chestnut  St.  Corp.  v.                                      _______________________________            Lakefront  Realty  Corp.,  256  F.2d 513  (9th  Cir.),  cert.            ________________________                                _____            denied, 358 U.S. 907 (1958).            ______                      In Elfenbein  v. Gulf  & Western Indus.,  Inc., 590                         _________     _____________________________            F.2d  445,  448  n.1  (2d  Cir.  1978),  the  Second  Circuit            explained  that  the split  on this  issue  was based  on the            circuits' differing views on  the right to amend  a complaint                                            ____________________            4.  Rule 15(a) provides, in relevant part:                      A  party may  amend the  party's pleading                      once as  a matter  of course at  any time                      before a responsive pleading is served. .                      .  .   Otherwise  a party  may amend  the                      party's  pleading  only by  leave  of the                      court  or  by   written  consent  of  the                      adverse party; and leave shall  be freely                      given when justice so requires.                                         -10-                                          10            under Rule 15(a) once  a motion to dismiss has  been granted.            The court stated:                      [W]hile the law in this circuit is that a                      motion to  dismiss  is not  a  responsive                      pleading, and therefore the complaint may                      be  amended without  leave  of the  court                      [after  such  a  motion is  made],  it is                      equally well established that  this right                      terminates  upon  the  granting   of  the                      motion to dismiss.            Id. (citations  omitted).   The Eighth Circuit,  which shares            ___            the  Second Circuit's view that the right to amend under Rule            15(a) terminates upon dismissal,  found that this distinction            provided support for following the Second Circuit's rule that            the  dismissal of a complaint was a "final decision," but did            not  view  the  distinction  dispositive.5   Ultimately,  the            Eighth Circuit joined the Second, reasoning as follows:                      Where matters of finality  (and therefore                      of appellate jurisdiction) are concerned,                      we  believe it preferable  to adopt rules                      that  promote clarity and certainty.  The                      Second  and Ninth  Circuit rules  have an                      advantage  over  that  of   the  Eleventh                      Circuit in this regard because they focus                      solely on  the language of  the dismissal                      order,  requiring  an  explicit  contrary                      statement  to  avoid  a   presumption  of                      finality (Second Circuit) or non-finality                      (Ninth Circuit). Comparing the Second and                                            ____________________            5.  The  court  cited  the  Eleventh  Circuit's  opinion   in            Czeremcha,  724 F.2d  at 1554-56,  to illustrate  this point.            _________            According  to  the Eleventh  Circuit,  after  a complaint  is            dismissed the right to amend under Rule 15(a) terminates. But            the  dismissal  does not  act as  a  final judgment,  and the            plaintiff  may still move the court for leave to amend unless            the "court has clearly indicated either that no  amendment is            possible or that dismissal  of the complaint also constitutes            dismissal of the action."  Id. at 1556 n.6.                                       ___                                         -11-                                          11                      Ninth Circuit rules,  that of the  Second                      Circuit commends itself because it avoids                      confusion over when  a plaintiff's  right                      to    amend    a   dismissed    complaint                      terminates, the order becomes  final, and                      the time for appeal begins to run.            Quartana, 789 F.2d at 1300.             ________                      The "intermediate approach"  taken by the  Eleventh            Circuit  was grounded in  that court's desire  to formulate a            rule consistent with "Rule 15's liberal mandate that leave to            amend  be `freely  given when  justice so  requires,' without            granting the plaintiff  carte blanche power to  reopen a case            at  will by  filing an  amendment."   Czeremcha, 724  F.2d at                                                  _________            1554-55.  Under this approach, "[a]lthough the plaintiff does            not  have  a  right to  amend  as a  matter  of  course after            dismissal of  the complaint [see supra note 5], the dismissal                                         ___ _____            itself does not automatically terminate the action unless the            court  holds either that no amendment is possible or that the            dismissal of the complaint  also constitutes dismissal of the            action."  Id. at 1554 (footnotes omitted).                      ___                      We  find  the  reasoning  employed  by  the  Eighth            Circuit  to  be  compelling,  and  thus  adopt  the  approach            embraced  by  that   court  and  the  Second  Circuit.    Our            conclusion  that  the  order  in   this  case  is  final   is            strengthened by several factors.   First, consistent with the            Second and Eighth Circuits,  a plaintiff's time to  amend his            or  her complaint  as  a matter  of  right within  the  First            Circuit terminates  upon a district court's  dismissal of the                                         -12-                                          12            complaint.   See Jackson v. Salon,  614 F.2d 15, 17 (1st Cir.                         ___ _______    _____            1980).  Second, the dismissal of the complaint in the present            case  was set forth in  a separate document,  as required for            final judgments under Fed. R. Civ. P. 58.  See  Quartana, 789                                                       ___  ________            F.2d at 1300 n.2.   Third, plaintiffs, as evidenced  by their            Rule 59(e) motions, apparently  understood the judgment to be            final.    See  id.6    And  finally,  the  dismissal  of  the                      ___  ___            complaint   fits  comfortably   under  the   Supreme  Court's            definition  of a "final decision."   The Court  has defined a            "final decision" as  one that  "`ends the  litigation on  the            merits and leaves nothing for the court to do but execute the            judgment.'"  Firestone Tire & Rubber Co. v. Risjord, 449 U.S.                         ___________________________    _______            368, 373-74 (1981) (quoting Catlin v. United States, 324 U.S.                                        ______    _____________            229, 233 (1945)).   A dismissal for failure to  state a claim            under Fed.  R. Civ. P. 12(b)(6) is  a decision on the merits.            See Local No. 714 v. Greater Portland Transit Dist., 589 F.2d            ___ _____________    ______________________________            1,  6 (1st  Cir. 1978);  see also  5 James  W. Moore  et al.,                                     ___ ____            Moore's  Federal Practice    41.14  at 41-170 (2d  ed. 1993).            _________________________            Here the complaint  was dismissed by  the district court  for            failure  to state a claim,  and judgment was  then entered on            the docket and set forth on a separate document in accordance            with  Fed. R.  Civ.  P.  58  and  79(a).    Accordingly,  the                                            ____________________            6.  Thus, it  appears that plaintiffs have  constructed their            present argument  after the  fact in an  attempt to  preserve            appellate review of the dismissal of their complaint.                                         -13-                                          13            dismissal  of  plaintiffs'  complaint  possesses all  of  the            markings of a "final decision."                      In short, we  hold that when a  district court uses            the  words, "The  complaint is dismissed,"  without expressly            granting  the plaintiff  leave  to amend,  this  is a  "final            decision" from which a  timely appeal may be taken.   Because            there was not  a timely  appeal taken by  plaintiffs we  lack            appellate jurisdiction over their  attack on the dismissal of            the complaint.                      Plaintiffs  also argue  that  the second  motion to            reconsider,  which was served within 10 days of the denial of            the  first motion,  extended  the time  period  for filing  a            notice of appeal from the dismissal of the complaint, thereby            rendering the notice timely.  This argument has no merit.  It            is well settled that a motion for reconsideration served more            than ten days after the entry of judgment does not effect the            time for  appealing  from that  judgment.   See Feinstein  v.                                                        ___ _________            Moses,  951 F.2d  16, 18  (1st  Cir. 1991);  Fed. R.  App. P.            _____            4(a)(4);  see also 6A Moore,  supra   59.13[3]  at 59-282 ("A                      ___ ____            _____            [second] motion for reconsideration  that is served more than            ten  days  after the  entry of  judgment  has no  effect upon            appeal  time, which runs from the entry of the original order            denying  . . . an alteration or amendment of the judgment.").            Because  plaintiffs' second  motion  for reconsideration  was            served two months  after entry of the judgment dismissing the                                         -14-                                          14            complaint, it was untimely under Rule 59(e), and did not toll            the  appeal period for that  judgment.  See  Jusino v. Zayas,                                                    ___  ______    _____            875 F.2d 986, 989 (1st Cir. 1989).7            B.  Postjudgment Motions for Reconsideration            B.  Postjudgment Motions for Reconsideration                ________________________________________                      Where, as  here, a  complaint is dismissed  without            leave to  amend, the plaintiff  can appeal  the judgment,  or            alternatively,  seek leave  to amend  under Rule  15(a) after            having the  judgment  reopened under  either Rule  59 or  60.            Unless postjudgment  relief  is granted,  the district  court            lacks  power to grant a  motion to amend  the complaint under            Rule 15(a).  See  Public Citizen v. Liggett Group,  Inc., 858                         ___  ______________    ____________________            F.2d  775, 781 (1st Cir.  1988), cert. denied,  488 U.S. 1030                                             _____ ______            (1989);  see also 3 Moore supra   15.10 at 15-107 ("[A]fter a                     ___ ____         _____            judgment of  dismissal plaintiff must move  under Rules 59(e)            or 60(b) to  reopen the  judgment."); 6 Charles  A. Wright  &            Arthur R. Miller,  Federal Practice and  Procedure   1489  at                               _______________________________            692-93 (1990) ("[O]nce judgment is  entered the filing of  an            amendment cannot be allowed  until the judgment is set  aside            or vacated under Rule 59 or Rule 60.").                      On February 1,  1993, within ten days of  the entry            of judgment,  plaintiffs served a motion  for reconsideration            and/or to alter or amend the judgment pursuant to Rule 59(e),                                            ____________________            7.  In addition,  plaintiffs appeal from the district court's            decision  to stay  discovery  pending the  resolution of  the            state defendants' motion to  dismiss or for summary judgment.            As a result of the foregoing discussion, we lack jurisdiction            over this appeal.                                         -15-                                          15            together with a motion to amend  the complaint accompanied by            a proposed  amended complaint.8   On February  12, plaintiffs            filed  a document  entitled  "Supplemental Arguments  to  our            Motion  for Reconsideration."   These  supplemental arguments            were an expansion of several  arguments made by plaintiffs in            the Rule  59(e) motion.   On February 26,  federal defendants            filed  a  response  to  plaintiffs'  supplemental  arguments.            Finally, on  March 3,  the district court  denied plaintiffs'            motion for reconsideration,  effectively denying their motion            for  leave to  amend the  complaint.   The court  declined to            address plaintiffs' supplemental  arguments, indicating  that            they were "moot."9                      On March 15, 1993, plaintiffs filed a second motion            for  reconsideration   under  Rule  59(e).     We  note  that            plaintiffs'  second   motion  for  reconsideration   did  not            specifically  invoke  Rule 59(e),  or  for  that matter,  any            federal rule.   Nonetheless,  we have consistently  held that            "`a  motion which  ask[s]  the court  to  modify its  earlier            disposition  of the  case because  of an  allegedly erroneous            legal  result  is brought  under  Fed.  R.  Civ. P.  59(e).'"            Feinstein, 951 F.2d  at 19 n.3 (quoting  Lopez v. Corporacion            _________                                _____    ___________                                            ____________________            8.  The  motion also  cites Rule  60(b)(6) but  identifies no            "extraordinary circumstances" that might bring this provision            into play.  Vargas v. Gonzalez, 975 F.2d 916, 917-18 n.1 (1st                        ______    ________            Cir. 1992).            9.  Plaintiffs do not appeal from the court's order declining            to address the supplemental arguments.                                         -16-                                          16            Azucarera  de  Puerto Rico,  938  F.2d 1510,  1513  (1st Cir.            __________________________            1991));  789 Cases  of Latex  Surgeon Gloves,  13 F.3d  at 14                     ___________________________________            ("[A] post  judgment motion  asking the  court to  change its            disposition  solely because  of legal  error must  be brought                         ______            under Rule 59(e)." (emphasis in  original)).  Where, as here,            the  motion sought  to  set aside  the court's  prior rulings            solely on the basis  of alleged legal errors, it  is properly            treated as a motion brought under Rule 59(e).                      On April  21, the district court  denied the second            motion to reconsider and  warned plaintiffs that it  would no            longer entertain motions for postjudgment relief.  Plaintiffs            appeal  from  the  district   court's  orders  denying   both            postjudgment  motions.   We  have consistently  held that  an            order denying  a Rule  59(e) motion challenging  the judgment            constitutes  a   "judgment,"  and  is   therefore  appealable            separately  from  the  appeal  of  the  underlying  judgment.            Kersey v. Dennison  Mfg. Co., 3 F.3d  482, 485 n.6 (1st  Cir.            ______    __________________            1993); Fiore  v. Washington Cty. Com. Mental Health Ctr., 960                   _____     _______________________________________            F.2d 229, 233 (1st Cir. 1992).                      In  this  case,  plaintiffs'  original  Rule  59(e)            motion was timely, i.e., it was served within ten days of the                               ____            judgment,  excluding intermediate  weekends and  holidays, as            required by Fed. R. Civ. P. 6(a).  But  plaintiffs' notice of            appeal  was not filed until sixty-four  days after the denial            of this motion, and  therefore the notice was untimely.   See                                                                      ___                                         -17-                                          17            supra page 7.   Plaintiffs argue, however, that  their second            _____            Rule  59(e) motion (served within  ten days of  the denial of            the  original Rule  59(e)  motion) extended  the time  period            within  which to  file  a notice  of  appeal from  the  order            denying  the original motion.   Id.10  Because  the notice of                                            ___            appeal  was filed  within sixty  days from  the entry  of the            order denying the second motion, plaintiffs conclude that the            notice was timely with  respect to both postjudgment motions.            We disagree.                      Although    it    was    entitled    "Motion    for            Reconsideration of  the Last  Decision Issued and  Entered by            the Honorable  Court," plaintiffs'  second Rule 59(e)  motion            was an obvious attempt to have the district court revisit the            legal  basis  for its  January  15,  1993 opinion  and  order            dismissing  the  complaint.     In  their  second  motion  to            reconsider,  plaintiffs  merely elaborated  on  various legal            arguments  that were  addressed,  albeit in  less detail,  in            their original  Rule 59(e) motion.  Thus, plaintiffs not only            requested  the same relief in the second Rule 59(e) motion as            they did in the first, including, inter alia, that (1) "[t]he                                              _____ ____            judgment  dismissing the  complaint  be set  aside," and  (2)            "[d]iscovery proceedings be allowed to continue," they sought                                            ____________________            10.  We have already determined that plaintiffs'  second Rule            59(e) motion  did not extend the time  for filing a notice of            appeal from the dismissal of the complaint.  See supra p. 13-                                                         ___ _____            14.                                         -18-                                          18            that relief  on the  same grounds.   Accordingly, plaintiffs'            second  Rule 59(e)  motion  must be  viewed  as a  motion  to            reconsider  the  judgment  dismissing  the  complaint.    See                                                                      ___            Echevarria-Gonzalez  v. Gonzalez-Chapel, 849 F.2d 24, 26 (1st            ___________________     _______________            Cir.  1988)   ("`nomenclature  should  not  be  exalted  over            substance'" (quoting Lyell Theatre  Corp. v. Loews Corp., 682                                 ____________________    ___________            F.2d 37, 41 (2d Cir. 1982))).                      Because plaintiffs'  second  Rule 59(e)  motion  to            reconsider  was,  in  reality,  a motion  to  reconsider  the            judgment dismissing  the complaint, and it  was untimely (not            served within 10 days of entry of the judgment), the district            court was without jurisdiction to grant it.  Vargas, 975 F.2d                                                         ______            at 918;  Rodriguez-Antuna v. Chase Manhattan  Bank Corp., 871                     ________________    ___________________________            F.2d  1, 2-3  (1st  Cir. 1989).    Furthermore, the  untimely            second motion  to reconsider could  not enlarge the  time for            filing a notice of appeal from the order denying the original            motion to reconsider.  See Feinstein, 951 F.2d at 18; Fed. R.                                   ___ _________            App. P. 4(a)(4).                      Therefore,  to the extent that plaintiff challenges            the March  3,  1993 order  denying  the original  Rule  59(e)            motion,  the  appeal  is  dismissed  for  lack  of  appellate            jurisdiction.   To the extent that they seek to challenge the            April 19,  1993 order denying  the second Rule  59(e) motion,            the order is affirmed.                      The judgment of the district court is Affirmed.                                                            Affirmed                                                            ________                                         -19-                                          19
