USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1185
RAFAELA ROJAS-MORALES, ET AL.,
Plaintiffs, Appellees,
v.
CAGUAS LUMBER YARD, ET AL.,
Defendants, Appellees,
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AMERICAN INTERNATIONAL INSURANCE COMPANY,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Rene Pinto Lugo, Dario Rivera Carrasquillo, Jaime Morales Morales
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and Cordero, Miranda & Pinto on brief for appellant.
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Pedro Toledo Gonzalez Law Offices on brief for Caguas Lumber
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Yard, Inc. et al., appellees.
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August 4, 1995
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Per Curiam. This appeal arises out of a personal injury
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lawsuit brought by Rafaela Rojas-Morales and her son, Brian,
following a chemical explosion which occurred when two
products, Crosco Clean Up and Lewis Red Devil Lye, were used
to unclog a drain pipe. After approving a settlement
stipulation, the district court dismissed the entire case.
Defendant-appellant American International Insurance Company
("AIICO") appeals. For the following reasons, we affirm.
BACKGROUND
We recite only the background of this case necessary to
an understanding of our disposition. The amended complaint
names as defendants: Caguas Lumber Yard, Inc.; Gildo Masso-
Gonzalez, his wife Carmen Aponte, and the conjugal
partnership between them; Hector L. Rivera-Fontanez, his wife
Cecilia Rivera-Munoz, and the conjugal partnership between
them; Max Chemicals, Inc.; AIICO; Association of Warranty of
all Types of Insurance ("Association"); and Eagle Star
Insurance Company of Puerto Rico ("Eagle Star"). On March
23, 1994, AIICO, an excess insurer, filed an amended cross-
claim for contribution against co-defendants Association and
Eagle Star, both primary insurers. Approximately one month
later, AIICO filed a motion for summary judgment on its
amended cross-claim.
On September 29, 1994, following several months of
negotiation, a stipulation of settlement and request for
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judgment was filed. Later that same day, AIICO filed a
request for a ruling on its pending motion for summary
judgment. On October 4, 1994, the district court approved
the settlement stipulation. Approximately two weeks later,
the court denied AIICO's request for a ruling on its summary
judgment motion on the ground that the settlement stipulation
put an end to all matters pending at the time of the
settlement, including AIICO's cross-claim. On November 1,
1994, final judgment dismissing the entire case was entered.
On November 21, 1994, AIICO served and filed a motion for
reconsideration. This motion was denied on December 1, 1994.
AIICO filed a notice of appeal on December 12, 1994.
DISCUSSION
Appellees argue, and we agree, that appellant does not
have a timely appeal from the judgment. Under Fed. R. App.
P. 4(a)(1), appellant was required to file its notice of
appeal within thirty days after the date of entry of the
judgment. It is well established that "timely filing of a
notice of appeal is `mandatory and jurisdictional.'"
Acevedo-Villalobos v. Hernandez, 22 F.3d 384, 387 (1st Cir.)
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(quoting Perez-Perez v. Popular Leasing Rental, Inc., 993
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F.2d 281, 283 (1st Cir. 1993) (quoting Browder v. Director,
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Dep't of Corrections, 434 U.S. 257, 264 (1978))), cert.
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denied, 115 S. Ct. 574 (1994). In the instant case,
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appellant did not file its notice of appeal until forty-one
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days after entry of the judgment, well outside the thirty-day
period.
To be sure, a timely motion to alter or amend judgment
pursuant to Fed. R. Civ. P. 59(e) tolls the time period for
filing a notice of appeal. See Fed. R. App. P. 4(a)(4).
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Although appellant's motion for reconsideration did not
specifically invoke Rule 59(e), it is properly treated as a
Rule 59(e) motion since it sought to set aside the judgment
as legally erroneous. See Lopez v. Corporacion Azucarera de
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Puerto Rico, 938 F.2d 1510, 1513 (1st Cir. 1991). However,
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Rule 59(e) requires a motion to alter or amend to be "served
not later than 10 days after the entry of the judgment."
Since appellant's motion for reconsideration was served
outside the ten-day period, it did not affect the time for
appealing from the judgment. See Acevedo-Villalobos, 22 F.3d
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at 389. Under the circumstances, we lack jurisdiction to
review the judgment.
Although appellant's notice of appeal is untimely with
respect to the judgment, it is timely with respect to the
denial of the motion for reconsideration. Unfortunately for
appellant, since the motion for reconsideration is properly
construed as one brought under Rule 59(e), the district court
was without jurisdiction to grant it because, as we have
explained, it was untimely. Feinstein v. Moses, 951 F.2d 16,
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21 (1st Cir. 1991). Accordingly, the district court did not
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err in denying the motion for reconsideration, although it
need not have reached the merits.1 Id.
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Affirmed.2 See Loc. R. 27.1.
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1. Even if we construe appellant's motion for
reconsideration as a Rule 60(b) motion, and thus treat it as
timely, our conclusion is the same. "Rule 60(b) is a vehicle
for `extraordinary relief,'" and "motions invoking the rule
should be granted `only under exceptional circumstances.'"
de la Torre v. Continental Ins. Co., 15 F.3d 12, 14-15 (1st
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Cir. 1994) (quoting Lepore v. Vidockler, 792 F.2d 272, 274
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(1st Cir. 1986)). Appellant's motion for reconsideration
essentially reiterated, with citation to legal authority,
arguments made in appellant's reply to opposition to its
request for a ruling on its motion for summary judgment on
the cross-claims. Under the circumstances, we do not find
any "exceptional circumstances" here, or any abuse of
discretion by the district court. See Feinstein, 951 F.2d at
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21.
2. Appellees request attorneys' fee. A request for
sanctions pursuant to Fed. R. App. P. 38 must be made in "a
separately filed motion." In the instant case, appellees'
motion was not separately filed. The request for attorneys'
fees is denied.
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