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

__________________
Mongue
______

were on

brief for

Holland & Knight LLP

____________________

Beaulieu Wielsbeke,

N.V. and

and Robert
______

Dominiek

Clerck.

Eric Cote,
_________

with whom Joseph M. Wrobleski, Jr. were

_________________________

Jere Scola, Jr.

____________________

December 19, 1997

____________________

on brief

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BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.
____________________

raised by the

parties in this case.

plaintiff Jere Scola,

Scola

on the

Two issues have been

The first, in which the

Jr. is the appellant, is

merits from

summary judgment

an appeal by

in favor

of

defendants-appellees Beaulieu Wielsbeke, N.V. and Dominiek De

Clerck.

The

appellants,

appeal

from

second

issue, in

focuses on only

the

which

the

one question:

summary judgment

against

defendants

are

whether Scola's

him

was timely

filed.

Because

filed, we

not

we find that Scola's appeal was not timely

dismiss the case

reach Scola's appeal

for lack of jurisdiction

from the summary

and do

judgment against

him.

Under Fed. Rule App. Proc. 4(a) and 28

U.S.C.

2107, a

civil case
of

must be filed within

entry of

the judgment or

which the appeal

time

notice of appeal

limit

is taken.
is

in a

30 days

order from
This

"mandatory

30-day
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

entered on

the court docket, final

November 22, 1996.

Scola claims,

judgment was

however, that

there was no final judgment (or Rule 54(b) certification) and

that as

a result,

premature.

his notice

their answer to

return of

stipulation

a counterclaim filed by

Scola's complaint.

certain documents

proceedings.

On

of

June

30, 1996,

that the court

17,

dismissal

prejudice and withdrawal

of July

appeal was

This rather astounding argument

procedural history of

the

of

of

The

not late

is based on the

defendants in

counterclaim sought

given to Scola

1996,

counterclaim

of a jury trial demand.

the clerk advised

during the

defendants

the

all counsel

had ruled that dismissal

but

filed

without

By letter

of record

of the counterclaim

and

withdrawal of

therefore denied.

Procedure 41(a)

rules

was

counterclaim

the

jury

The

court cited

and

38(d).

correct.

There

demand

were

Federal Rules of

The court's

is

ineffective

nothing

in the district court record.

notice of appeal states that

judgment entered

these

about the

The counterclaim

argument was made by Scola for the first time in a

dismiss the appeal filed in this court.

Civil

reading of

further

and

motion to

We note that Scola's

he is appealing "from the final

in this action

on the 22 day

of November,

1996."

Scola's

counterclaim

attempt

is precluded

to

by

-4-

resuscitate

the

final

the

sentence

moribund

of

the

-4-

district

defendants.

matters in

court's

order

granting

"This conclusion

this case."

pending matter.

summary

judgment

makes moot all

The counterclaim

for

other pending

obviously was

-5-5-

II.
II.

The second argument made by

avoid the consequences

the

doctrine of

"[t]he

of filing an untimely

"unique circumstances."

parties and the district court

about the power of the court to

Scola's Brief at

2.

date

final

November

judgment,

appeal invokes

He claims

that,

made a mutual mistake

extend time for a Rule 59(e)

motion."

of

Scola in his effort to

Our analysis starts

22,

1996;

with the

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.

following filings and response orders.

The docket

shows the

1.

On

November

filed

27,

a motion

time

to

1996,

Scola

to extend

file

Rule

the
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

motion

the

was

18th.

entered

The

on

the

docket on December 19, 1996.

4.

On

January

7,

district

1997,

court

appellant's

the
denied

Rule 59(e)

motion

by endorsement.

5.

On January 16,

1997, plaintiff

delivered

from

November

the

notice

of appeal
22,

1996

-6-6-

final

judgment;

stamped

as

it was

received

date

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
filing

extend the

a notice

time for

of appeal

January 15, 1997 -__________________

to

one day
________

after he had filed the above

_______________________________

notice of appeal.
__________________

(Emphasis

ours.)

7.

On

February

district

7,

court

1997,

judge

Scola's FRAP 4(a)(5)

the

granted
motion by

endorsement.

The "unique circumstances" doctrine had its genesis

in Thompson v. I.N.S., 375 U.S. 384 (1964).

________
______

to

apply in

(1989).

Osterneck
_________

v.

It was found not

Ernst & Whinney,

________________

489 U.S.

169

The Court restated the doctrine:

By its terms, Thompson applies only where

________
a party
properly
deadline

has performed
done,

an act

would

for filing

which, if

postpone

his appeal

the

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

availability

of

circumstances"

to

the

exception.

the

"unique
First,

the

exception "applies only where a party has

performed an act which, if properly done,
would
his

postpone the
appeal

and

deadline for

has

received

filing
specific

assurance by a judicial officer that this

act has been

properly done."

-7-7-

Osterneck
_________

v. Ernst & Whinney,

________________
109 S. Ct.
(1989).

489 U.S.

987, 993, 103

Second, the

statement must

169, 179,

L. Ed. 2d

court's action

have occurred at

when, had the party not been

146
or

a point

led astray,

it would have been able to file a timeous

notice

of appeal.

F.2d at 20.

See Feinstein,
___ _________

Here, neither

precondition

is satisfied, for the district court

nothing

to

lull

951

appellant

did
into

inactivity.

The last sentence of the

quote is specifically pertinent

to

the case at bar.

The first question is

the

Rule 59(e)

motion.

the effect of the

timely-filed Rule

filing of

59(e) motion

tolls the time to take an

But an untimely

Cir. 1991).

extend the

Moreover, the

time for

taking any

conditions stated in [the rule]."

We find

that the

apply.

For the

the requirements

Scola

did

officer"

done."

not

set forth

The court

of his

nullity and does not

district

action

court "may

under .

. .

not

[Rule

to the extent and under the

Fed. R. Civ. P. 6(b).

"unique circumstances"

doctrine

doctrine to apply Scola

in Osterneck,
_________

receive "specific

that any

4(a)(4).

Feinstein v. Moses, 951 F.2d 16, 18

_________
_____

59(b), (d) and (e)] . . . except

does not

Fed. R. App. P.

Rule 59(e) motion is a

have any tolling effect.

(1st

appeal.

did, on February

489 U.S.

assurance

late filings

must meet

by

had "been

7, 1997,

at 179.

a judicial

properly

grant Scola's

motion

under Fed. R. App. P. 4(a)(5)

filing

a notice of

appeal to

to extend the time for

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,

Scola's self-imposed deadline of January 15.

unique

situation,

certainly

it

does not

beggars

the

fall within

one day after

_____

This is a truly

imagination,

the "unique

but

it

circumstances"

doctrine.

Scola's brief also urges that the client should not

be penalized for his attorney's mistakes.

such a

plea in Link
____

The Court rejected

v. Wabash R.R. Co., 370 U.S.

_______________

(1962):

There

is

certainly

contention

that

petitioner's
counsel's

no merit

dismissal

claim

the

of

the

of

his

conduct

imposes an

unjust penalty on the client.

Petitioner

voluntarily

unexcused

because

to

chose this

representative

in

the

attorney as
action,

and

his
he

626, 633

cannot now avoid the

consequences of the

acts or omissions of this freely selected

agent.

Any other

inconsistent

notion would be wholly

with

our

system

representative litigation, in
party

of

which each

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.

for lack of jurisdiction
________________________

Costs awarded to defendants.

Costs awarded to defendants.
____________________________

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