
USCA1 Opinion

	




          August 23, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1244                                DONALD F. MCCULLOUGH,                                 Plaintiff, Appellee,                                          v.                               ROBERT DESMOND, ET AL.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                        FOR THE DISTRICT OF MASSACHUSETTS               [Hon. Henry A. Mentz, Jr.,* Senior U.S. District Judge]                                           __________________________                                 ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Robert M. Desmond on brief pro se.            _________________            John  Kenneth Felter, P.C.  and Goodwin,  Proctor &  Hoar on brief            __________________________      _________________________        for appellee.                                 ____________________                                 ____________________        ________________        * Of the Eastern District of Louisiana, sitting by designation.                 Per  Curiam.   Appellant,  Robert  M.  Desmond, filed  a                 ___________            notice  of appeal which bore the district court docket number            of  McCullough v. Desmond et al., 90-cv-11788.  Any appeal in                __________    ______________            that  case is  untimely.    Desmond  says, however,  that  he            intended to appeal  in the district court  case of McCullough                                                               __________            v.  Desmond, 94-cv-12216.   In  particular, Desmond  seeks to                _______            appeal the judgment,  which entered on December 30, 1994, and            the denial  of  his motion  to  vacate that  judgment,  which            entered  on February 1, 1995.  His notice of appeal specified            those rulings, as well as the party taking the appeal and the            court  to which the  appeal was taken.   See Fed.  R. App. P.                                                     ___            3(c).  As his notice of appeal did not bear the docket number            of  94-cv-12216, however, it was not entered in that case and            it is now too late to file a timely notice  of appeal in that            case.                 Assuming without  deciding  that the  notice  of  appeal            erroneously filed in docket number 90-cv-11788 may be treated            as having  been timely filed in docket number 94-cv-12216, we            would,  in any event, affirm.   Desmond was  on timely notice            that  McCullough  had filed  a  motion  for  judgment on  the            pleadings.  Yet, he  did not notify either McCullough  or the            district court that he allegedly had not received his copy of            that motion  and supporting memorandum until  his receipt one            month  later  of  the  order  granting  McCullough's  motion.            Further, he  has never  proffered any  grounds to oppose  the                                         -2-            entry  of  judgment  on  the  pleadings  that  would  warrant            vacating that judgment.                 There was no  abuse of discretion in  denying the motion            to vacate the judgment and the order of the district court is            affirmed.            _________                 Appellee's  motion for  just  damages  and double  costs            pursuant to Fed. R.  App. P. 38  is denied.  Ordinary  costs,                                                _______            pursuant to Fed. R. App. P. 39, are awarded.                                         -3-
