
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 97-1229                                   JERE SCOLA, JR.,                                Plaintiff, Appellant,                                          v.                   BEAULIEU WIELSBEKE, N.V. and DOMINEK DE CLERCK,                                Defendants, Appellees.                                 ____________________        No. 97-1230                                   JERE SCOLA, JR.,                                 Plaintiff, Appellee,                                          v.                   BEAULIEU WIELSBEKE, N.V. and DOMINIEK DE CLERCK,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                              Boudin, Circuit Judge, and                                      _____________                     Campbell and Bownes, Senior Circuit Judges.                                          _____________________                                 ____________________            Caroline C. Kresky, with whom  Holland & Knight LLP  and Robert E.            __________________             ____________________      _________        Mongue  were on  brief for  Beaulieu Wielsbeke,  N.V. and  Dominiek De        ______        Clerck.            Eric Cote,  with whom Joseph  M. Wrobleski, Jr. were  on brief for            _________             _________________________        Jere Scola, Jr.                                 ____________________                                  December 19, 1997                                 ____________________                                         -2-                      BOWNES, Senior Circuit Judge.  Two issues have been                      BOWNES, Senior Circuit Judge.                              ____________________            raised by the  parties in this case.  The first, in which the            plaintiff Jere Scola,  Jr. is the appellant, is  an appeal by            Scola  on the  merits from  a  summary judgment  in favor  of            defendants-appellees Beaulieu Wielsbeke, N.V. and Dominiek De            Clerck.   The  second  issue, in  which  the  defendants  are            appellants,  focuses on only  one question:   whether Scola's            appeal  from  the  summary judgment  against  him  was timely            filed.                      Because  we find that Scola's appeal was not timely            filed, we  dismiss the case  for lack of jurisdiction  and do            not  reach Scola's appeal  from the summary  judgment against            him.                         Under Fed. Rule App. Proc. 4(a) and 28                      U.S.C.    2107, a  notice of appeal  in a                      civil case  must be filed within  30 days                      of  entry of  the judgment or  order from                      which the appeal  is taken.  This  30-day                      time    limit    is     "mandatory    and                      jurisdictional."            Browder v. Director, Ill. Dep't of Corrections, 434 U.S. 257,            _______    ___________________________________            264 (1978)(citations omitted);  see also Smith v.  Barry, 502                                            ___ ____ _____     _____            U.S. 244, 248 (1992); Aybar v. Crispin-Reyes, 118 F.3d 10, 14                                  _____    _____________            (1st Cir. 1997),  petition for cert.  filed, (U.S. Sept.  24,                              ________ ___ _____  _____            1997) (Nos. 97-6253,  6255); Acevedo-Villalobos v. Hernandez,                                         __________________    _________            22 F.3d 384, 387 (1st Cir. 1994).                                          I.                                          I.                                         -3-                                         -3-                      According to  the court docket, final  judgment was            entered on  November 22, 1996.   Scola claims,  however, that            there was no final judgment (or Rule 54(b) certification) and            that as  a result,  his notice  of  appeal was  not late  but            premature.   This rather astounding argument  is based on the            procedural history of  a counterclaim filed by  defendants in            their answer to  Scola's complaint.  The  counterclaim sought            the  return of  certain documents  given to Scola  during the            proceedings.     On  June   17,  1996,  defendants   filed  a            stipulation   of  dismissal   of  the   counterclaim  without            prejudice and withdrawal  of a jury trial demand.   By letter            of July  30, 1996,  the clerk advised  all counsel  of record            that the court  had ruled that dismissal  of the counterclaim            and  withdrawal of  the  jury  demand  were  ineffective  and            therefore denied.   The  court cited  Federal Rules of  Civil            Procedure 41(a)  and  38(d).   The court's  reading of  these            rules  was  correct.   There  is  nothing  further  about the            counterclaim  in the district court record.  The counterclaim            argument was made by Scola for the first time in a  motion to            dismiss the appeal filed in this court.  We note that Scola's            notice of appeal states that  he is appealing "from the final            judgment entered  in this action  on the 22 day  of November,            1996."                      Scola's   attempt  to   resuscitate  the   moribund            counterclaim  is precluded  by  the  final  sentence  of  the                                         -4-                                         -4-            district   court's  order   granting  summary   judgment  for            defendants.   "This conclusion  makes moot all  other pending            matters in  this case."    The counterclaim  obviously was  a            pending matter.                                         -5-                                         -5-                                         II.                                         II.                      The second argument made by  Scola in his effort to            avoid the consequences  of filing an untimely  appeal invokes            the  doctrine of  "unique circumstances."    He claims  that,            "[t]he  parties and the district court  made a mutual mistake            about the power of the court to  extend time for a Rule 59(e)            motion."  Scola's Brief at  2.  Our analysis starts  with the            date  of  final  judgment,  November  22,  1996;  this  makes            December 23, 1996 the last day for filing a notice of appeal.            It also makes December 9, 1996 the last day for filing a Rule            59(e) motion for a new trial.                      Scola met neither  deadline.  The docket  shows the            following filings and response orders.                      1.   On  November  27,  1996,  Scola                           filed  a motion  to extend  the                           time  to  file   a  Rule  59(e)                           motion until December 18, 1996.                      2.   On December 2, 1996, the motion                           was granted by endorsement.                      3.   On December 18, 1996, plaintiff                           delivered the Rule 59(e) motion                           to  the clerk's  office and  it                           was date-stamped as received by                           the  clerk on  the  18th.   The                           motion  was   entered  on   the                           docket on December 19, 1996.                      4.   On   January   7,   1997,   the                           district      court      denied                           appellant's  Rule 59(e)  motion                           by endorsement.                      5.   On January 16,  1997, plaintiff                           delivered  a  notice  of appeal                           from  the  November   22,  1996                                         -6-                                         -6-                           final  judgment;   it was  date                           stamped  as  received   on  the                           16th, and entered on the docket                           on January 17th.                      6.   On  January  17,   1997,  Scola                           filed a Fed. R. App. P. 4(a)(5)                           motion to  extend the  time for                           filing  a notice  of appeal  to                           January  15,  1997 --  one  day                           __________________     ________                           after  he had  filed the  above                           _______________________________                           notice  of  appeal.   (Emphasis                           __________________                           ours.)                      7.   On   February   7,   1997,  the                           district  court  judge  granted                           Scola's FRAP 4(a)(5)  motion by                           endorsement.                      The "unique circumstances" doctrine had its genesis            in Thompson v. I.N.S., 375 U.S. 384 (1964).  It was found not               ________    ______            to  apply in  Osterneck  v.  Ernst &  Whinney,  489 U.S.  169                          _________      ________________            (1989).  The Court restated the doctrine:                      By its terms, Thompson applies only where                                    ________                      a party  has performed  an act  which, if                      properly   done,   would   postpone   the                      deadline  for filing  his appeal  and has                      received specific assurance by a judicial                      officer that  this act has  been properly                      done.            Id. at 179.  Our latest decision on the doctrine is stated in            ___            Air Line Pilots  Ass'n v. Precision Valley Aviation, Inc., 26            ______________________    _______________________________            F.3d 220, 225 (1st Cir. 1994).                           There  are  two preconditions  to  the                      availability      of     the      "unique                      circumstances"  exception.    First,  the                      exception "applies only where a party has                      performed an act which, if properly done,                      would  postpone the  deadline for  filing                      his  appeal  and  has  received  specific                      assurance by a judicial officer that this                      act has been  properly done."   Osterneck                                                      _________                                         -7-                                         -7-                      v. Ernst  & Whinney,  489 U.S.  169, 179,                         ________________                      109 S. Ct.  987, 993, 103  L. Ed. 2d  146                      (1989).   Second, the  court's action  or                      statement must  have occurred at  a point                      when, had the party not been  led astray,                      it would have been able to file a timeous                      notice  of appeal.    See Feinstein,  951                                            ___ _________                      F.2d at 20.   Here, neither  precondition                      is satisfied, for the district court  did                      nothing    to    lull    appellant   into                      inactivity.            The last sentence of the  quote is specifically pertinent  to            the case at bar.                      The first question is  the effect of the  filing of            the  Rule 59(e)  motion.   A  timely-filed Rule  59(e) motion            tolls the time to take an  appeal.  Fed. R. App. P.  4(a)(4).            But an untimely  Rule 59(e) motion is a  nullity and does not            have any tolling effect.  Feinstein v. Moses, 951 F.2d 16, 18                                      _________    _____            (1st  Cir. 1991).    Moreover, the  district  court "may  not            extend the  time for  taking any  action  under .  . .  [Rule            59(b), (d) and (e)] . . . except  to the extent and under the            conditions stated in [the rule]."  Fed. R. Civ. P. 6(b).                      We find  that the  "unique circumstances"  doctrine            does not  apply.  For the  doctrine to apply Scola  must meet            the requirements  set forth  in Osterneck,  489 U.S.  at 179.                                            _________            Scola  did  not  receive "specific  assurance  by  a judicial            officer"  that any  of his  late filings  had "been  properly            done."   The court  did, on February  7, 1997,  grant Scola's            motion  under Fed. R. App. P. 4(a)(5)  to extend the time for            filing  a notice of  appeal to  January 15,  1997.   But even                                         -8-                                         -8-            making the  very dubious  assumption that the  court had  the            authority to extend the time for filing the appeal to January            15, Scola failed to meet  the deadline he imposed on himself.            The notice of appeal  was filed on January 16,  one day after                                                                    _____            Scola's self-imposed deadline of January 15.  This is a truly            unique  situation,  it  beggars   the  imagination,  but   it            certainly  does not  fall within  the "unique  circumstances"            doctrine.                      Scola's brief also urges that the client should not            be penalized for his attorney's mistakes.  The Court rejected            such a  plea in Link  v. Wabash R.R.  Co., 370 U.S.  626, 633                            ____     _______________            (1962):                        There  is  certainly  no merit  to  the                      contention   that   dismissal    of   the                      petitioner's   claim   because   of   his                      counsel's  unexcused  conduct  imposes an                      unjust penalty on the client.  Petitioner                      voluntarily  chose this  attorney as  his                      representative  in  the  action,  and  he                      cannot now avoid the  consequences of the                      acts or omissions of this freely selected                      agent.  Any other  notion would be wholly                      inconsistent   with    our   system    of                      representative litigation, in  which each                      party  is deemed bound by the acts of his                      lawyer-agent  and is  considered to  have                      "notice of all facts, notice of which can                      be charged upon the attorney."              (citation  omitted); see also  Figueroa Ruiz v.  Alegria, 896                                 ___ ____  _____________     _______            F.2d 645,  650 n.5 (1st  Cir. 1990); Damiani v.  Rhode Island                                                 _______     ____________            Hosp., 704 F.2d 12, 16 (1st Cir. 1983).            _____                      For the reasons stated, Scola's appeal is dismissed                                              Scola's appeal is dismissed                                              ___________________________            for lack of jurisdiction.  Costs awarded to defendants.            for lack of jurisdiction   Costs awarded to defendants.            ________________________   ____________________________                                         -9-                                         -9-                                                      -10-                                         -10-
