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

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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,

(1978)(citations omitted); see also Smith v. Barry,

(1992); Aybar v. Crispin-Reyes,

(1st Cir. 1997), petition for cert. filed, (U.S. Sept. 24,

1997) (Nos. 97-6253, 6255); Acevedo-Villalobos v. Hernandez,

(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.,

(1964). It was found not

to apply in Osterneck v. Ernst & Whinney,

(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.

. Our latest decision on the doctrine is stated in

Air Line Pilots Ass'n v. Precision Valley Aviation, Inc.,

(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 & Whinney,

,

,

(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,

(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,

.

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.,

(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,

, 650 n.5 (1st Cir. 1990); Damiani v. Rhode Island

Hosp.,

(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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