
USCA1 Opinion

	




          August 6, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1443                           TOOLING RESEARCH, INC., ET AL.,                                Plaintiffs, Appellees,                                          v.                                   TRI-ONICS, INC.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Thomas  E.  Nannicelli   and  Nannicelli  &  Woods  on  brief  for            ______________________        ____________________        appellant.            Richard T. Rook on brief for appellee, Tooling Research, Inc.            _______________                                 ____________________                                 ____________________                      Per Curiam.   Appellant claims it  did not  receive                      __________            timely  notice of the denial  of its timely  served motion to            amend judgment and for that reason failed to appeal.  Shortly            after  learning that  the motion  to amend  had been  denied,            appellant asked  the district  court  to reopen  the time  to            appeal under Fed.  R. App.  P. 4(a)(6).   The district  court            denied the  motion without  stating  any reasons  or  finding            whether  appellant had been sent  notice of the order denying            the motion to amend judgment.  Appellant now appeals from the            order denying its motion to reopen.                      We decline to determine whether the  district court            abused its discretion in denying appellant's motion to reopen            the  time for  appeal, Fed.  R. App.  P. 4(a)(6),  because we            conclude that the time for appealing has not yet commenced to            run and that therefore a timely appeal may be filed.1                      The  docket  indicates   that  the  district  court            endorsed defendant's timely  served motion to amend  judgment            as denied and entered the denial on April 13, 1992.  There is            no indication that a separate document embodying the order of            denial  and  complying  with Fed.  R.  Civ.  P.  58 was  ever                                            ____________________            1.  We note, however, that the district court docket does not            record  notice having been sent  to counsel of  the April 13,            1992 order denying defendant's motion to amend judgment.  See                                                                      ___            Fed. R.  Civ.  P. 77(d) (directing  clerk to serve notice  of            entry by  mail and  to  "make a  note in  the  docket of  the            mailing").    This circumstance  lends  support  to counsel's            uncontradicted  statement that  he  did  not  receive  timely            notice of the April  13, 1992 order.  In  such circumstances,            we  would  benefit from  the  district  court's statement  of            reasons for denying the motion to reopen the time for appeal.            See, e.g., Foster  v. Mydas Associates,  Inc., 943 F.2d  139,            ___  ____  ______     _______________________            141-42 (1st Cir. 1991) (need for findings or reasons in order            to afford informed appellate review).            prepared.  Consequently, the time for  appeal has not expired            because it has not yet commenced to run.  Fiore v. Washington                                                      _____    __________            County Community Mental Health Center, 960 F.2d 229 (1st Cir.            _____________________________________            1992).   To  be  sure, in  Fiore  we indicated  that  "absent                                       _____            exceptional  circumstances," a  party wishing  to  appeal and            waiting  a separate  document should  ordinarily request  one            within  three months  of the  court's last  order lest  he be            found to have waived his right to appeal.  Fiore, 960 F.2d at                                                       _____            236 and n.11.   Here, however, where counsel's uncontradicted            affidavit  states that he did not receive notice of the April            13, 1992 entry, the  district court docket supports counsel's            position  (see note one), and the district court did not find            that notice was timely  sent, we cannot say that  the failure            to appeal was "a matter of choice, not confusion," Fiore, 960                                                               _____            F.2d at 236 n.11, and we think exceptional  circumstances are            present.     Therefore,   waiver  will   not   be   inferred.            Consequently, as  the separate document  requirement has  not            been satisfied, the time for appealing from the July 29, 1991            judgment  and April  13,  1992 order  has  not expired.    We            therefore affirm  the district court's denial  of appellant's            motion to reopen, but  on the ground that no  such motion was            required since the  time for appeal had not run.   See, e.g.,                                                               ___  ____            In  re Parque  Forestal, Inc.,  949 F.2d  504, 510  (1st Cir.            _____________________________            1991) (a reviewing court may affirm on grounds different from            those used by the lower court).                                         -3-                      Appellant's   August  25,  1992  motion  to  reopen            manifests an  intention  to appeal  from  the July  29,  1991            judgment and  April 13, 1992 order.   As no purpose  would be            served by requiring  appellant to file  yet another piece  of            paper labelled notice of appeal, we will treat the August 25,            1992  motion as a notice  of appeal.   McMillan v. Barksdale,                                                   ________    _________            823 F.2d 981, 983 (6th Cir. 1987) (document meeting Rule 3(c)            requirements and  manifesting an  intention to appeal  may be            treated  as a  notice of  appeal); Stallworth v.  Shuler, 758                                               __________     ______            F.2d  1409 (11th Cir. 1985).   We transmit  the motion to the            clerk of the district court with instructions to docket it as            a notice of appeal and to certify the record to this court.                      Pursuant to First Circuit  Rule 27.1, the March 15,            1993  order is  summarily affirmed.   Appellees'  request for            damages and costs under Fed. R. App. 38 is denied.                      Affirmed.                      ________                                         -4-
