

                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 &amp; 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
                                         

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          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.

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          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

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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.

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                             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

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               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 &amp;  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                                                               

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          v. Ernst  &amp; 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

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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.                                                                   

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