USCA1 Opinion
August 23, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1244
DONALD F. MCCULLOUGH,
Plaintiff, Appellee,
v.
ROBERT DESMOND, ET AL.,
Defendants, Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Henry A. Mentz, Jr.,* Senior U.S. District Judge]
__________________________
____________________
Before
Cyr, Boudin and Lynch,
Circuit Judges.
______________
____________________
Robert M. Desmond on brief pro se.
_________________
John Kenneth Felter, P.C. and Goodwin, Proctor & Hoar on brief
__________________________ _________________________
for appellee.
____________________
____________________
________________
* Of the Eastern District of Louisiana, sitting by designation.
Per Curiam. Appellant, Robert M. Desmond, filed a
___________
notice of appeal which bore the district court docket number
of McCullough v. Desmond et al., 90-cv-11788. Any appeal in
__________ ______________
that case is untimely. Desmond says, however, that he
intended to appeal in the district court case of McCullough
__________
v. Desmond, 94-cv-12216. In particular, Desmond seeks to
_______
appeal the judgment, which entered on December 30, 1994, and
the denial of his motion to vacate that judgment, which
entered on February 1, 1995. His notice of appeal specified
those rulings, as well as the party taking the appeal and the
court to which the appeal was taken. See Fed. R. App. P.
___
3(c). As his notice of appeal did not bear the docket number
of 94-cv-12216, however, it was not entered in that case and
it is now too late to file a timely notice of appeal in that
case.
Assuming without deciding that the notice of appeal
erroneously filed in docket number 90-cv-11788 may be treated
as having been timely filed in docket number 94-cv-12216, we
would, in any event, affirm. Desmond was on timely notice
that McCullough had filed a motion for judgment on the
pleadings. Yet, he did not notify either McCullough or the
district court that he allegedly had not received his copy of
that motion and supporting memorandum until his receipt one
month later of the order granting McCullough's motion.
Further, he has never proffered any grounds to oppose the
-2-
entry of judgment on the pleadings that would warrant
vacating that judgment.
There was no abuse of discretion in denying the motion
to vacate the judgment and the order of the district court is
affirmed.
_________
Appellee's motion for just damages and double costs
pursuant to Fed. R. App. P. 38 is denied. Ordinary costs,
_______
pursuant to Fed. R. App. P. 39, are awarded.
-3-
