
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1185                            RAFAELA ROJAS-MORALES, ET AL.,                                Plaintiffs, Appellees,                                          v.                             CAGUAS LUMBER YARD, ET AL.,                                Defendants, Appellees,                                   _______________,                      AMERICAN INTERNATIONAL INSURANCE COMPANY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Rene  Pinto Lugo, Dario Rivera Carrasquillo, Jaime Morales Morales            ________________  _________________________  _____________________        and Cordero, Miranda & Pinto on brief for appellant.            ________________________            Pedro  Toledo Gonzalez  Law Offices  on  brief for  Caguas  Lumber            ___________________________________        Yard, Inc. et al., appellees.                                 ____________________                                    August 4, 1995                                 ____________________                                  Per Curiam.  This appeal arises out of a personal injury                 __________            lawsuit  brought by Rafaela Rojas-Morales and her son, Brian,            following  a  chemical  explosion  which  occurred  when  two            products, Crosco Clean Up and  Lewis Red Devil Lye, were used            to  unclog  a  drain  pipe.    After  approving a  settlement            stipulation, the  district court  dismissed the entire  case.            Defendant-appellant American International  Insurance Company            ("AIICO") appeals.  For the following reasons, we affirm.                                      BACKGROUND                 We  recite only the background of this case necessary to            an understanding of  our disposition.  The  amended complaint            names as defendants:  Caguas Lumber Yard, Inc.; Gildo  Masso-            Gonzalez,   his  wife   Carmen  Aponte,   and   the  conjugal            partnership between them; Hector L. Rivera-Fontanez, his wife            Cecilia Rivera-Munoz,  and the  conjugal partnership  between            them;  Max Chemicals, Inc.; AIICO; Association of Warranty of            all  Types  of  Insurance  ("Association");  and  Eagle  Star            Insurance Company of  Puerto Rico ("Eagle  Star").  On  March            23, 1994, AIICO,  an excess insurer, filed an  amended cross-            claim for contribution against co-defendants Association  and            Eagle Star, both  primary insurers.  Approximately  one month            later,  AIICO filed  a  motion for  summary  judgment on  its            amended cross-claim.                   On  September  29,  1994,  following  several months  of            negotiation,  a stipulation  of  settlement and  request  for                                         -2-                                          2            judgment  was filed.   Later  that  same day,  AIICO filed  a            request  for  a ruling  on  its  pending motion  for  summary            judgment.  On  October 4, 1994,  the district court  approved            the settlement  stipulation.  Approximately  two weeks later,            the court denied AIICO's request  for a ruling on its summary            judgment motion on the ground that the settlement stipulation            put  an  end  to  all matters  pending  at  the  time of  the            settlement, including  AIICO's cross-claim.   On  November 1,            1994,  final judgment dismissing the entire case was entered.            On November  21, 1994,  AIICO served and  filed a  motion for            reconsideration.  This motion was denied on December 1, 1994.            AIICO filed a notice of appeal on December 12, 1994.                                      DISCUSSION                 Appellees argue, and  we agree, that appellant  does not            have a timely appeal  from the judgment.  Under  Fed. R. App.            P. 4(a)(1),  appellant  was required  to file  its notice  of            appeal  within thirty  days after  the date  of entry  of the            judgment.   It is well  established that "timely filing  of a            notice   of  appeal   is  `mandatory   and  jurisdictional.'"            Acevedo-Villalobos  v. Hernandez, 22 F.3d 384, 387 (1st Cir.)            __________________     _________            (quoting  Perez-Perez v.  Popular Leasing  Rental, Inc.,  993                      ___________     _____________________________            F.2d 281, 283  (1st Cir. 1993) (quoting  Browder v. Director,                                                     _______    _________            Dep't  of  Corrections,  434 U.S.  257,  264  (1978))), cert.            ______________________                                  _____            denied,  115  S.  Ct.  574  (1994).   In  the  instant  case,            ______            appellant did not file its  notice of appeal until  forty-one                                         -3-                                          3            days after entry of the judgment, well outside the thirty-day            period.                   To be sure,  a timely motion to alter  or amend judgment            pursuant to Fed. R.  Civ. P. 59(e) tolls the  time period for            filing a  notice of  appeal.   See Fed.  R. App.  P. 4(a)(4).                                           ___            Although  appellant's  motion  for  reconsideration  did  not            specifically invoke Rule 59(e), it  is properly treated as  a            Rule 59(e) motion  since it sought to set  aside the judgment            as legally erroneous.  See Lopez  v. Corporacion Azucarera de                                   ___ _____     ________________________            Puerto Rico, 938  F.2d 1510, 1513 (1st Cir.  1991).  However,            ___________            Rule 59(e) requires a motion to alter  or amend to be "served            not  later than  10 days  after the  entry of  the judgment."            Since  appellant's  motion  for  reconsideration  was  served            outside the  ten-day period, it  did not affect the  time for            appealing from the judgment.  See Acevedo-Villalobos, 22 F.3d                                          ___ __________________            at  389.  Under  the circumstances,  we lack  jurisdiction to            review the judgment.                 Although appellant's  notice of appeal  is untimely with            respect to  the judgment,  it is timely  with respect  to the            denial  of the motion for reconsideration.  Unfortunately for            appellant, since  the motion for reconsideration  is properly            construed as one brought under Rule 59(e), the district court            was  without jurisdiction  to  grant it  because, as  we have            explained, it was untimely.  Feinstein v. Moses, 951 F.2d 16,                                         _________    _____            21 (1st Cir. 1991).   Accordingly, the district court did not                                         -4-                                          4            err  in denying the  motion for reconsideration,  although it            need not have reached the merits.1  Id.                                                 __                 Affirmed.2  See Loc. R. 27.1.                   ________    ___                                            ____________________            1.  Even   if    we   construe    appellant's   motion    for            reconsideration as a Rule 60(b)  motion, and thus treat it as            timely, our conclusion is the same.  "Rule 60(b) is a vehicle            for `extraordinary relief,'"  and "motions invoking the  rule            should be  granted `only  under exceptional  circumstances.'"            de la Torre v. Continental  Ins. Co., 15 F.3d 12, 14-15  (1st            ___________    _____________________            Cir. 1994) (quoting  Lepore v. Vidockler,  792 F.2d 272,  274                                 ______    _________            (1st  Cir. 1986)).    Appellant's motion  for reconsideration            essentially  reiterated, with  citation  to legal  authority,            arguments  made in  appellant's reply  to  opposition to  its            request for  a ruling on  its motion for summary  judgment on            the  cross-claims.  Under  the circumstances, we  do not find            any  "exceptional  circumstances"  here,  or  any   abuse  of            discretion by the district court.  See Feinstein, 951 F.2d at                                               ___ _________            21.            2.  Appellees  request  attorneys'   fee.    A   request  for            sanctions pursuant  to Fed. R. App. P. 38  must be made in "a            separately  filed motion."   In the instant  case, appellees'            motion was not separately filed.   The request for attorneys'            fees is denied.                                          -5-                                          5
