USCA1 Opinion
August 6, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1443
TOOLING RESEARCH, INC., ET AL.,
Plaintiffs, Appellees,
v.
TRI-ONICS, INC.,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Thomas E. Nannicelli and Nannicelli & Woods on brief for
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appellant.
Richard T. Rook on brief for appellee, Tooling Research, Inc.
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Per Curiam. Appellant claims it did not receive
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timely notice of the denial of its timely served motion to
amend judgment and for that reason failed to appeal. Shortly
after learning that the motion to amend had been denied,
appellant asked the district court to reopen the time to
appeal under Fed. R. App. P. 4(a)(6). The district court
denied the motion without stating any reasons or finding
whether appellant had been sent notice of the order denying
the motion to amend judgment. Appellant now appeals from the
order denying its motion to reopen.
We decline to determine whether the district court
abused its discretion in denying appellant's motion to reopen
the time for appeal, Fed. R. App. P. 4(a)(6), because we
conclude that the time for appealing has not yet commenced to
run and that therefore a timely appeal may be filed.1
The docket indicates that the district court
endorsed defendant's timely served motion to amend judgment
as denied and entered the denial on April 13, 1992. There is
no indication that a separate document embodying the order of
denial and complying with Fed. R. Civ. P. 58 was ever
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1. We note, however, that the district court docket does not
record notice having been sent to counsel of the April 13,
1992 order denying defendant's motion to amend judgment. See
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Fed. R. Civ. P. 77(d) (directing clerk to serve notice of
entry by mail and to "make a note in the docket of the
mailing"). This circumstance lends support to counsel's
uncontradicted statement that he did not receive timely
notice of the April 13, 1992 order. In such circumstances,
we would benefit from the district court's statement of
reasons for denying the motion to reopen the time for appeal.
See, e.g., Foster v. Mydas Associates, Inc., 943 F.2d 139,
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141-42 (1st Cir. 1991) (need for findings or reasons in order
to afford informed appellate review).
prepared. Consequently, the time for appeal has not expired
because it has not yet commenced to run. Fiore v. Washington
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County Community Mental Health Center, 960 F.2d 229 (1st Cir.
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1992). To be sure, in Fiore we indicated that "absent
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exceptional circumstances," a party wishing to appeal and
waiting a separate document should ordinarily request one
within three months of the court's last order lest he be
found to have waived his right to appeal. Fiore, 960 F.2d at
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236 and n.11. Here, however, where counsel's uncontradicted
affidavit states that he did not receive notice of the April
13, 1992 entry, the district court docket supports counsel's
position (see note one), and the district court did not find
that notice was timely sent, we cannot say that the failure
to appeal was "a matter of choice, not confusion," Fiore, 960
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F.2d at 236 n.11, and we think exceptional circumstances are
present. Therefore, waiver will not be inferred.
Consequently, as the separate document requirement has not
been satisfied, the time for appealing from the July 29, 1991
judgment and April 13, 1992 order has not expired. We
therefore affirm the district court's denial of appellant's
motion to reopen, but on the ground that no such motion was
required since the time for appeal had not run. See, e.g.,
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In re Parque Forestal, Inc., 949 F.2d 504, 510 (1st Cir.
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1991) (a reviewing court may affirm on grounds different from
those used by the lower court).
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Appellant's August 25, 1992 motion to reopen
manifests an intention to appeal from the July 29, 1991
judgment and April 13, 1992 order. As no purpose would be
served by requiring appellant to file yet another piece of
paper labelled notice of appeal, we will treat the August 25,
1992 motion as a notice of appeal. McMillan v. Barksdale,
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823 F.2d 981, 983 (6th Cir. 1987) (document meeting Rule 3(c)
requirements and manifesting an intention to appeal may be
treated as a notice of appeal); Stallworth v. Shuler, 758
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F.2d 1409 (11th Cir. 1985). We transmit the motion to the
clerk of the district court with instructions to docket it as
a notice of appeal and to certify the record to this court.
Pursuant to First Circuit Rule 27.1, the March 15,
1993 order is summarily affirmed. Appellees' request for
damages and costs under Fed. R. App. 38 is denied.
Affirmed.
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