USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1544
NORMA I. ACEVEDO-VILLALOBOS, ET AL.,
Plaintiffs, Appellants,
v.
HON. RAFAEL HERNANDEZ, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., Senior U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Jesus Hernandez-Sanchez, with whom Hernandez-Sanchez Law Firm was
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on brief for appellants.
Fidel A. Sevillano Del Rio, Assistant United States Attorney,
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with whom Guillermo Gil, United States Attorney, Donnie R. Murray,
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Deputy Regional Counsel, United States Department of Housing and Urban
Development, and Teresa Pombo, Chief Counsel, United States Department
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of Housing and Urban Development, were on brief for appellees, United
States, et al.
Vannessa Ramirez-Kausz, Assistant Solicitor General for the
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Commonwealth of Puerto Rico, with whom Carlos Lugo-Fiol, Deputy
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Solicitor General, was on brief for appellee, Commonwealth.
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April 28, 1994
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BOWNES, Senior Circuit Judge. This appeal raises a
BOWNES, Senior Circuit Judge.
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procedural question of first impression in our circuit:
whether the dismissal of a complaint, which does not
explicitly dismiss the action, constitutes a "final
decision[]," and is therefore appealable under 28 U.S.C.
1291.1 We rule in the affirmative, holding that the
plaintiffs had both the right to appeal from the judgment
dismissing their complaint and the duty to do so in a timely
manner. Because plaintiffs' appeal was not timely, we lack
jurisdiction to review the dismissal of the complaint.
Furthermore, we conclude that appellate jurisdiction is
lacking over the district court's denial of plaintiffs' first
motion for postjudgment relief, and that their second such
motion was untimely, and therefore properly denied by the
district court. Accordingly, we affirm.
I.
I.
BACKGROUND
BACKGROUND
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Plaintiffs-appellants are, for the most part,
former employees of the Puerto Rico Public Housing
Administration (PRPHA). On May 2, 1992, PRPHA and the
Commonwealth of Puerto Rico, acting through former governor
Rafael Hernandez Colon, signed an agreement with
representatives of the United States Department of Housing
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1. Section 1291 provides: "The courts of appeals . . .
shall have jurisdiction of appeals from all final decisions
of the district courts of the United States. . . ."
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and Urban Development (HUD). Under the agreement, the
Commonwealth and HUD agreed to take certain actions in order
to expedite the privatization of the management of federally
funded public housing projects in Puerto Rico, as well as the
decentralization of PRPHA. The privatization provisions of
the agreement are at the center of plaintiffs' claims.
The agreement committed the Commonwealth to pursue,
and HUD to support, a plan to privatize federally assisted
housing projects by transferring the administration and
maintenance of such projects to private contractors. As a
result of this privatization, a sizeable percentage of
PRPHA's employees would be laid off. The agreement between
HUD and PRPHA briefly addresses the plight of PRPHA's
employees in a cursory manner:
The private management process may
require the elimination of positions
within the present structure of the
PRPHA. Employees holding said positions
will receive benefits as provided by law.
HUD will provide federal funding for
payment of their benefits resulting from
the federally funded public housing
program. The Commonwealth will fund
costs ineligible for federal funding.
Privatization Agreement, Art. I, 4. In addition, PRPHA
agreed to encourage private contractors to employ displaced
employees. Id. at 6b. Shortly thereafter, PRPHA
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formulated a layoff plan to comply with the relevant
provisions of Puerto Rico's Public Service Personnel Act, see
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3 L.P.R.A. 1336(6). A layoff plan was finalized in April
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1992, and the privatization agreement was set to go into
effect on August 1.
On June 26, 1992 letters were sent to PRPHA
employees notifying them that,
[s]ince you are one of the persons
affected by layoffs, we notify you that
owing to lack of work, we have no other
alternative than to decree your layoff
from public service effective July 31,
1992. We advise you of your right to
present arguments or documentary
evidence, if any[,] which you consider
will benefit you, before the designated
official.
On July 15, 1992, plaintiffs filed an action in United States
District Court for the District of Puerto Rico against
various Commonwealth and federal agencies and officers,2
seeking injunctive, declaratory and monetary relief.
Plaintiffs' constitutional claims against the state
defendants are predicated upon 42 U.S.C. 1983, while their
constitutional claims against the federal defendants are
based on the doctrine set forth in Bivens v. Six Unknown
______ ___________
Named Agents, 403 U.S. 388 (1971). The major themes of
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plaintiffs' complaint are as follows. First, plaintiffs
allege that the privatization agreement is invalid (and
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2. The defendants in this action fall into two groups: the
United States of America, HUD, and various HUD officials
(hereinafter, the "federal defendants"), and the former
governor of Puerto Rico, PRPHA, and various PRPHA officials.
(hereinafter, the "state defendants"). All of the
individuals were sued in their official and personal
capacities.
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consequently that the layoffs were illegal) because it was
entered into in violation of both Puerto Rico and federal
law, and that the various local and federal defendants acted
ultra vires by signing the agreement. Accordingly,
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plaintiffs allege that the layoffs were illegal. Next,
plaintiffs allege that they had a property interest in their
jobs, and that they were deprived of this property interest
without due process. Finally, plaintiffs maintain that a
Puerto Rico official made derogatory comments about them in
public, thereby depriving them of "liberty" without due
process.
On October 27, 1992, the state defendants moved to
dismiss the complaint, or alternatively, for summary
judgment, on a plethora of grounds including, but not limited
to, the complaint's failure to state a claim upon which
relief could be granted. See Fed. R. Civ. P. 12(b)(6). Two
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days later the state defendants moved to stay discovery
pending the court's resolution of their dispositive motion.
The court granted the requested stay.
On January 15, 1993, the district court granted the
state defendants' motion to dismiss. The court stated that
"[p]laintiffs' complaint fails to provide the Court with a
clear idea of the contours of their claims and also fails to
provide appropriate support for their allegations." Gonzalez
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v. Hernandez, No. 92-1972, slip op. at 4 (D.P.R. Jan. 15,
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1993). According to the court, plaintiffs' complaint was
"infected with conclusory allegations and unfounded
accusations," id. at 5-6, and "insufficiently illustrate[d]
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the essential nature of their claim[s]." Id. at 4. The
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court dismissed plaintiffs' complaint in its entirety,
stating: "The Court therefore ORDERS that defendants' Motion
to Dismiss pursuant to Rule 12(b)(6) is hereby GRANTED and
that plaintiffs' complaint is hereby DISMISSED." Id. at 6.
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On the same day the court entered judgment on a separate
document, pursuant to Fed. R. Civ. P. 58 and 79(a), which
stated as follows: "By virtue of the Opinion & Order of the
Court, entered on this date, it is hereby ORDERED, ADJUDGED
and DECREED that plaintiffs' complaint is DISMISSED."
Plaintiffs filed two postjudgment motions for relief, both of
which were denied. This appeal ensued.
II.
II.
DISCUSSION
DISCUSSION
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In their notice of appeal filed May 14, 1993,
plaintiffs list four decisions of the district court from
which they appeal: (1) the judgment of January 15, 1993
dismissing the complaint, and the court's opinion and order
of the same date; (2) the order of November 30, 1992 granting
a stay of discovery; (3) the order of March 2, 1993 denying
plaintiffs' first Rule 59(e) motion for reconsideration and
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to amend the complaint; and (4) the order of April 19, 1993
denying plaintiffs'secondRule 59(e)motionforreconsideration.3
A. Dismissal of the Complaint
A. Dismissal of the Complaint
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Under Fed. R. App. P. 4(a)(1), any party appealing
from a judgment or order of the district court, where "the
United States or an officer or agency thereof is a party,"
must file a notice of appeal within sixty days of the date of
entry of the judgment or order. Timely filing of a notice of
appeal is "mandatory and jurisdictional." Perez-Perez v.
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Popular Leasing Rental, Inc., 993 F.2d 281, 283 (1st Cir.
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3. The plaintiffs asserted, at oral argument before us, that
the district court had dismissed only the state defendants'
claims, leaving the federal defendants' claims unresolved.
Thus, appellants argued, this court should remand the case to
permit the district court to comply with Fed. R. Civ. P.
54(b) (where multiple claims or parties are involved court
may direct entry of final judgment as to one or more but
fewer than all the claims or parties). At no point did
plaintiffs ever assert or suggest this contention before the
district court, either in their motions for reconsideration
or in any of their numerous other postjudgment filings. In
all events, however, their belated contention, if not waived,
is without merit.
The district court unmistakably intended to dismiss the
complaint in toto, pursuant to Fed. R. Civ. P. 12(b)(6), for
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failure to state a cognizable cause of action. Its opinion
and order is most reasonably read as having dismissed the
entire complaint even though it adverts only to the motion to
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dismiss filed by the state defendants. Furthermore, the
final judgment itself expressly dismissed "the plaintiffs'
complaint" after the federal defendants had filed their own
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motion to dismiss shortly before the district court entered
its opinion and final judgment. We are satisfied, therefore,
that plaintiffs' belated Rule 54(b) contention in no sense
warrants an inference that plaintiffs were misled or the
judgment was not final. Consequently, the requirements of
Rule 54(b) are not implicated.
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1993) (quoting Browder v. Director, Dep't of Corrections, 434
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U.S. 257, 264 (1978)). In the present case, plaintiffs'
notice of appeal was filed more than 100 days after entry of
the judgment dismissing the complaint. But, under Fed. R.
App. P. 4(a)(4), a timely motion to alter or amend judgment
pursuant to Fed. R. Civ. P. 59(e) tolls the time for filing a
notice of appeal, and the time for filing the notice starts
to run from the entry of the order denying said motion. See
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United States v. 789 Cases of Latex Surgeon Gloves, 13 F.3d
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12, 14 (1st Cir. 1993); Fed. R. App. P. 4(a)(4). Under Rule
59(e), "[a] motion to alter or amend the judgment shall be
served not later than 10 days after entry of the judgment."
Fed. R. Civ. P. 59(e).
Although plaintiffs' original Rule 59(e) motion was
timely filed (it was served within ten days from the entry of
the judgment dismissing the complaint), their notice of
appeal was not filed until sixty-four days after the entry of
the order denying of the motion. Thus, even with the benefit
of Rule 4(a)(4)'s tolling provision, plaintiffs' notice of
appeal was seemingly late. We lack jurisdiction over late
appeals.
This brings us to the principal issue on appeal:
Plaintiffs now argue that the judgment dismissing their
complaint was not a "final decision" within the meaning of 28
U.S.C. 1291, and that their time to file a notice of appeal
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did not start to run until the denial of their second motion
for reconsideration. Because the notice of appeal was filed
within sixty days from the entry of the order denying the
second motion, plaintiffs maintain that their notice of
appeal was timely with respect to the underlying judgment.
We have never ruled on this procedural dilemma. It
has, however, given rise to some disagreement among those
circuits that have. Three distinct views have emerged. The
Seventh and Ninth Circuits have held that the dismissal of a
complaint, as opposed to the dismissal of an action, is not a
final, appealable order, unless the trial court has made
clear in dismissing the complaint that the action could not
be saved by amendment. See Benjamin v. United States, 833
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F.2d 669, 672 (7th Cir. 1987); Ruby v. Secretary of United
____ ___________________
States Navy, 365 F.2d 385, 387 (9th Cir. 1966), cert. denied,
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386 U.S. 1011 (1967). On the other hand, the Second and
Eighth Circuits have held that, absent an express grant of
leave to amend, an order dismissing the complaint is final
and appealable. See Weisman v. LeLandais, 532 F.2d 308, 309
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(2d Cir. 1976); Quartana v. Utterback, 789 F.2d 1297, 1300
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(8th Cir. 1986). Finally, the Eleventh Circuit has carved
out a middle ground. It has held that such an order of
dismissal is not final if "the plaintiff could not have been
reasonably expected to realize that the court was entering a
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final order." Czeremcha v. International Ass'n of Mach. &
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Aero. Workers, 724 F.2d 1552, 1555 (11th Cir. 1984).
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Before deciding which, if any, of these three
approaches to adopt, we briefly explain the rationale
underlying each. The Seventh and Ninth Circuits have held
that the dismissal of a complaint is not final and appealable
because a motion to dismiss is not a "responsive pleading"
within the meaning of Fed. R. Civ. P. 15(a),4 and thus a
plaintiff still retains his or her right to amend once as a
matter of course under Rule 15(a) even after a motion to
dismiss has been granted. See Car Carriers, Inc. v. Ford
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Motor Co., 745 F.2d 1101, 1111 (7th Cir. 1984), cert. denied,
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470 U.S. 1054 (1985); 222 East Chestnut St. Corp. v.
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Lakefront Realty Corp., 256 F.2d 513 (9th Cir.), cert.
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denied, 358 U.S. 907 (1958).
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In Elfenbein v. Gulf & Western Indus., Inc., 590
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F.2d 445, 448 n.1 (2d Cir. 1978), the Second Circuit
explained that the split on this issue was based on the
circuits' differing views on the right to amend a complaint
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4. Rule 15(a) provides, in relevant part:
A party may amend the party's pleading
once as a matter of course at any time
before a responsive pleading is served. .
. . Otherwise a party may amend the
party's pleading only by leave of the
court or by written consent of the
adverse party; and leave shall be freely
given when justice so requires.
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under Rule 15(a) once a motion to dismiss has been granted.
The court stated:
[W]hile the law in this circuit is that a
motion to dismiss is not a responsive
pleading, and therefore the complaint may
be amended without leave of the court
[after such a motion is made], it is
equally well established that this right
terminates upon the granting of the
motion to dismiss.
Id. (citations omitted). The Eighth Circuit, which shares
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the Second Circuit's view that the right to amend under Rule
15(a) terminates upon dismissal, found that this distinction
provided support for following the Second Circuit's rule that
the dismissal of a complaint was a "final decision," but did
not view the distinction dispositive.5 Ultimately, the
Eighth Circuit joined the Second, reasoning as follows:
Where matters of finality (and therefore
of appellate jurisdiction) are concerned,
we believe it preferable to adopt rules
that promote clarity and certainty. The
Second and Ninth Circuit rules have an
advantage over that of the Eleventh
Circuit in this regard because they focus
solely on the language of the dismissal
order, requiring an explicit contrary
statement to avoid a presumption of
finality (Second Circuit) or non-finality
(Ninth Circuit). Comparing the Second and
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5. The court cited the Eleventh Circuit's opinion in
Czeremcha, 724 F.2d at 1554-56, to illustrate this point.
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According to the Eleventh Circuit, after a complaint is
dismissed the right to amend under Rule 15(a) terminates. But
the dismissal does not act as a final judgment, and the
plaintiff may still move the court for leave to amend unless
the "court has clearly indicated either that no amendment is
possible or that dismissal of the complaint also constitutes
dismissal of the action." Id. at 1556 n.6.
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Ninth Circuit rules, that of the Second
Circuit commends itself because it avoids
confusion over when a plaintiff's right
to amend a dismissed complaint
terminates, the order becomes final, and
the time for appeal begins to run.
Quartana, 789 F.2d at 1300.
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The "intermediate approach" taken by the Eleventh
Circuit was grounded in that court's desire to formulate a
rule consistent with "Rule 15's liberal mandate that leave to
amend be `freely given when justice so requires,' without
granting the plaintiff carte blanche power to reopen a case
at will by filing an amendment." Czeremcha, 724 F.2d at
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1554-55. Under this approach, "[a]lthough the plaintiff does
not have a right to amend as a matter of course after
dismissal of the complaint [see supra note 5], the dismissal
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itself does not automatically terminate the action unless the
court holds either that no amendment is possible or that the
dismissal of the complaint also constitutes dismissal of the
action." Id. at 1554 (footnotes omitted).
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We find the reasoning employed by the Eighth
Circuit to be compelling, and thus adopt the approach
embraced by that court and the Second Circuit. Our
conclusion that the order in this case is final is
strengthened by several factors. First, consistent with the
Second and Eighth Circuits, a plaintiff's time to amend his
or her complaint as a matter of right within the First
Circuit terminates upon a district court's dismissal of the
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complaint. See Jackson v. Salon, 614 F.2d 15, 17 (1st Cir.
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1980). Second, the dismissal of the complaint in the present
case was set forth in a separate document, as required for
final judgments under Fed. R. Civ. P. 58. See Quartana, 789
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F.2d at 1300 n.2. Third, plaintiffs, as evidenced by their
Rule 59(e) motions, apparently understood the judgment to be
final. See id.6 And finally, the dismissal of the
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complaint fits comfortably under the Supreme Court's
definition of a "final decision." The Court has defined a
"final decision" as one that "`ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.'" Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
___________________________ _______
368, 373-74 (1981) (quoting Catlin v. United States, 324 U.S.
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229, 233 (1945)). A dismissal for failure to state a claim
under Fed. R. Civ. P. 12(b)(6) is a decision on the merits.
See Local No. 714 v. Greater Portland Transit Dist., 589 F.2d
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1, 6 (1st Cir. 1978); see also 5 James W. Moore et al.,
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Moore's Federal Practice 41.14 at 41-170 (2d ed. 1993).
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Here the complaint was dismissed by the district court for
failure to state a claim, and judgment was then entered on
the docket and set forth on a separate document in accordance
with Fed. R. Civ. P. 58 and 79(a). Accordingly, the
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6. Thus, it appears that plaintiffs have constructed their
present argument after the fact in an attempt to preserve
appellate review of the dismissal of their complaint.
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dismissal of plaintiffs' complaint possesses all of the
markings of a "final decision."
In short, we hold that when a district court uses
the words, "The complaint is dismissed," without expressly
granting the plaintiff leave to amend, this is a "final
decision" from which a timely appeal may be taken. Because
there was not a timely appeal taken by plaintiffs we lack
appellate jurisdiction over their attack on the dismissal of
the complaint.
Plaintiffs also argue that the second motion to
reconsider, which was served within 10 days of the denial of
the first motion, extended the time period for filing a
notice of appeal from the dismissal of the complaint, thereby
rendering the notice timely. This argument has no merit. It
is well settled that a motion for reconsideration served more
than ten days after the entry of judgment does not effect the
time for appealing from that judgment. See Feinstein v.
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Moses, 951 F.2d 16, 18 (1st Cir. 1991); Fed. R. App. P.
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4(a)(4); see also 6A Moore, supra 59.13[3] at 59-282 ("A
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[second] motion for reconsideration that is served more than
ten days after the entry of judgment has no effect upon
appeal time, which runs from the entry of the original order
denying . . . an alteration or amendment of the judgment.").
Because plaintiffs' second motion for reconsideration was
served two months after entry of the judgment dismissing the
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complaint, it was untimely under Rule 59(e), and did not toll
the appeal period for that judgment. See Jusino v. Zayas,
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875 F.2d 986, 989 (1st Cir. 1989).7
B. Postjudgment Motions for Reconsideration
B. Postjudgment Motions for Reconsideration
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Where, as here, a complaint is dismissed without
leave to amend, the plaintiff can appeal the judgment, or
alternatively, seek leave to amend under Rule 15(a) after
having the judgment reopened under either Rule 59 or 60.
Unless postjudgment relief is granted, the district court
lacks power to grant a motion to amend the complaint under
Rule 15(a). See Public Citizen v. Liggett Group, Inc., 858
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F.2d 775, 781 (1st Cir. 1988), cert. denied, 488 U.S. 1030
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(1989); see also 3 Moore supra 15.10 at 15-107 ("[A]fter a
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judgment of dismissal plaintiff must move under Rules 59(e)
or 60(b) to reopen the judgment."); 6 Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure 1489 at
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692-93 (1990) ("[O]nce judgment is entered the filing of an
amendment cannot be allowed until the judgment is set aside
or vacated under Rule 59 or Rule 60.").
On February 1, 1993, within ten days of the entry
of judgment, plaintiffs served a motion for reconsideration
and/or to alter or amend the judgment pursuant to Rule 59(e),
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7. In addition, plaintiffs appeal from the district court's
decision to stay discovery pending the resolution of the
state defendants' motion to dismiss or for summary judgment.
As a result of the foregoing discussion, we lack jurisdiction
over this appeal.
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together with a motion to amend the complaint accompanied by
a proposed amended complaint.8 On February 12, plaintiffs
filed a document entitled "Supplemental Arguments to our
Motion for Reconsideration." These supplemental arguments
were an expansion of several arguments made by plaintiffs in
the Rule 59(e) motion. On February 26, federal defendants
filed a response to plaintiffs' supplemental arguments.
Finally, on March 3, the district court denied plaintiffs'
motion for reconsideration, effectively denying their motion
for leave to amend the complaint. The court declined to
address plaintiffs' supplemental arguments, indicating that
they were "moot."9
On March 15, 1993, plaintiffs filed a second motion
for reconsideration under Rule 59(e). We note that
plaintiffs' second motion for reconsideration did not
specifically invoke Rule 59(e), or for that matter, any
federal rule. Nonetheless, we have consistently held that
"`a motion which ask[s] the court to modify its earlier
disposition of the case because of an allegedly erroneous
legal result is brought under Fed. R. Civ. P. 59(e).'"
Feinstein, 951 F.2d at 19 n.3 (quoting Lopez v. Corporacion
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8. The motion also cites Rule 60(b)(6) but identifies no
"extraordinary circumstances" that might bring this provision
into play. Vargas v. Gonzalez, 975 F.2d 916, 917-18 n.1 (1st
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Cir. 1992).
9. Plaintiffs do not appeal from the court's order declining
to address the supplemental arguments.
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Azucarera de Puerto Rico, 938 F.2d 1510, 1513 (1st Cir.
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1991)); 789 Cases of Latex Surgeon Gloves, 13 F.3d at 14
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("[A] post judgment motion asking the court to change its
disposition solely because of legal error must be brought
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under Rule 59(e)." (emphasis in original)). Where, as here,
the motion sought to set aside the court's prior rulings
solely on the basis of alleged legal errors, it is properly
treated as a motion brought under Rule 59(e).
On April 21, the district court denied the second
motion to reconsider and warned plaintiffs that it would no
longer entertain motions for postjudgment relief. Plaintiffs
appeal from the district court's orders denying both
postjudgment motions. We have consistently held that an
order denying a Rule 59(e) motion challenging the judgment
constitutes a "judgment," and is therefore appealable
separately from the appeal of the underlying judgment.
Kersey v. Dennison Mfg. Co., 3 F.3d 482, 485 n.6 (1st Cir.
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1993); Fiore v. Washington Cty. Com. Mental Health Ctr., 960
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F.2d 229, 233 (1st Cir. 1992).
In this case, plaintiffs' original Rule 59(e)
motion was timely, i.e., it was served within ten days of the
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judgment, excluding intermediate weekends and holidays, as
required by Fed. R. Civ. P. 6(a). But plaintiffs' notice of
appeal was not filed until sixty-four days after the denial
of this motion, and therefore the notice was untimely. See
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supra page 7. Plaintiffs argue, however, that their second
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Rule 59(e) motion (served within ten days of the denial of
the original Rule 59(e) motion) extended the time period
within which to file a notice of appeal from the order
denying the original motion. Id.10 Because the notice of
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appeal was filed within sixty days from the entry of the
order denying the second motion, plaintiffs conclude that the
notice was timely with respect to both postjudgment motions.
We disagree.
Although it was entitled "Motion for
Reconsideration of the Last Decision Issued and Entered by
the Honorable Court," plaintiffs' second Rule 59(e) motion
was an obvious attempt to have the district court revisit the
legal basis for its January 15, 1993 opinion and order
dismissing the complaint. In their second motion to
reconsider, plaintiffs merely elaborated on various legal
arguments that were addressed, albeit in less detail, in
their original Rule 59(e) motion. Thus, plaintiffs not only
requested the same relief in the second Rule 59(e) motion as
they did in the first, including, inter alia, that (1) "[t]he
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judgment dismissing the complaint be set aside," and (2)
"[d]iscovery proceedings be allowed to continue," they sought
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10. We have already determined that plaintiffs' second Rule
59(e) motion did not extend the time for filing a notice of
appeal from the dismissal of the complaint. See supra p. 13-
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14.
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that relief on the same grounds. Accordingly, plaintiffs'
second Rule 59(e) motion must be viewed as a motion to
reconsider the judgment dismissing the complaint. See
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Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 26 (1st
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Cir. 1988) ("`nomenclature should not be exalted over
substance'" (quoting Lyell Theatre Corp. v. Loews Corp., 682
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F.2d 37, 41 (2d Cir. 1982))).
Because plaintiffs' second Rule 59(e) motion to
reconsider was, in reality, a motion to reconsider the
judgment dismissing the complaint, and it was untimely (not
served within 10 days of entry of the judgment), the district
court was without jurisdiction to grant it. Vargas, 975 F.2d
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at 918; Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871
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F.2d 1, 2-3 (1st Cir. 1989). Furthermore, the untimely
second motion to reconsider could not enlarge the time for
filing a notice of appeal from the order denying the original
motion to reconsider. See Feinstein, 951 F.2d at 18; Fed. R.
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App. P. 4(a)(4).
Therefore, to the extent that plaintiff challenges
the March 3, 1993 order denying the original Rule 59(e)
motion, the appeal is dismissed for lack of appellate
jurisdiction. To the extent that they seek to challenge the
April 19, 1993 order denying the second Rule 59(e) motion,
the order is affirmed.
The judgment of the district court is Affirmed.
Affirmed
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