Filed: Feb. 21, 2006
Latest Update: Feb. 21, 2020
Summary: Jose L. Diaz on brief pro se.1, In each of his post-judgment motions, Diaz also argued that, the court's summary judgment ruling should be reversed and judgment, should be entered for him.litigant must file a notice of appeal, see Fed.was no abuse of discretion in issuing a summary denial.
Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1923
JOSE L. DIAZ,
Plaintiff, Appellant,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpi, U.S. Magistrate Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge
and Lipez, Circuit Judge.
Jose L. Diaz on brief pro se.
H.S. Garcia, United States Attorney, Miguel A. Fernandez,
Assistant U.S. Attorney, and Lisa E. Bhatia-Gautier, Assistant U.S.
Attorney, on brief for appellee.
February 21, 2006
Per Curiam. This appeal presents a veritable thicket of
post-judgment motions for relief. At best, only the district
court's denial of appellant's third and fourth motions for
reconsideration are properly before us for review, and with respect
to these two orders we conclude that the district court did not
abuse its discretion. We set forth an abbreviated history so as to
explain why only these two motions, at most, are open to appellate
review.
On July 1, 2004, the district court entered summary
judgment for appellees Alberto Gonzales, Attorney General, and the
United States Department of Justice, dismissing this employment
discrimination case involving the United States Marshals Service
(USMS) in Puerto Rico. Within ten days of the entry of final
judgment for appellees, appellant Jose L. Diaz (who has acted pro
se throughout this litigation) filed his first post-judgment motion
for relief. The district court properly considered Diaz's motion
a motion for reconsideration under Fed. R. Civ. Pro. 59(e), which
stayed the operation of the appeals clock until such time as the
court ruled on it. Fed. R. App. Pro. 4(a)(4)(A); Aybar v. Crispin-
Reyes, 118 F.3d 10, 14 (1st Cir. 1997), cert. denied,
522 U.S. 1078
(1998).
The district court denied Diaz's first motion for
reconsideration on July 23, 2004, and the docket reports the case
closed again on July 27, 2004. Diaz did not appeal. Instead, ten
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days later, Diaz filed his second post-judgment motion, titled
simply "supplemental motion." Because this second motion sought
the same relief (reversal of the summary judgment decision and
entry of judgment for Diaz) on essentially the same grounds as the
first post-judgment motion, the district court apparently
considered it a second Rule 59(e) motion for reconsideration.
Because the motion was filed more than ten days after entry of
final judgment, however, it was more properly considered as arising
under Rule 60(b).
In response to Diaz's second motion, the court ordered
appellees to file a certification regarding the existence of
vacancies in the USMS in Puerto Rico in the years immediately
following Diaz's application for employment. Diaz did not respond
to the certification. Approximately two weeks later, the court
denied Diaz's motion. Again Diaz did not appeal.
Almost three months passed without activity in the case.
Diaz then filed his third post-judgment motion. In this motion for
reconsideration, Diaz asserted that he had never received
appellees' certification or the court's order denying his second
motion and he had, therefore, been denied the opportunity to file
his objections prior to the court's ruling.1 The court ordered
appellees to respond to Diaz's arguments and requested additional
1
In each of his post-judgment motions, Diaz also argued that
the court's summary judgment ruling should be reversed and judgment
should be entered for him.
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briefing by both parties on the question of whether the court had
jurisdiction to consider the motion and whether a party who does
not subscribe to the electronic filing system has a duty to check
the docket. After receiving the parties' pleadings, the court
denied Diaz's third motion, stating, among other things, that
Diaz's arguments were "legally insufficient" to reopen this case
"in which judgment has become final." Again, Diaz did not appeal.
Within ten days of entry of the court's order denying his
third motion for reconsideration, Diaz filed his fourth and final
motion for reconsideration, seeking the same relief on virtually
the same grounds as his previous motion. The court denied this
motion. Sixty days after entry of this ruling, and nearly ten
months after the court entered summary judgment for the appellees,
Diaz filed his first and only notice of appeal.
It is well-settled that "[w]hile the timely service of a
motion for reconsideration will toll the time in which an aggrieved
litigant must file a notice of appeal, see Fed. R. Civ. P. 59(e),
an untimely motion for reconsideration will not." Acevedo-
Villalobos, 22 F.3d at 389 (quoting Feinstein v. Moses,
951 F.2d
16, 18 (1st Cir. 1991) (collecting cases)). A post-judgment motion
filed more than ten days after the entry of final judgment does not
toll the running of the time for filing an appeal. Aybar v.
Crispin-Reyes, 118 F.3d at 14.
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At best, the only rulings timely appealed and properly
before us, therefore, are the district court's denial of Diaz's
third and fourth motions for reconsideration.2 We have reviewed
the record and find no abuse of discretion in the court's denial of
both motions.
The district court carefully considered Diaz's third
motion for reconsideration. It ordered additional briefing on the
merits of Diaz's claim that he should have been given an
opportunity to reply to appellees' certification. It ordered the
parties to address the issue of whether the court had jurisdiction
to consider the motion. After receiving those pleadings, the court
ordered further briefing on yet another issue: whether a party who
does not subscribe to the court's electronic filing system (as Diaz
apparently did not) has a duty to check the court's docket. It was
only after considering all of these issues that the court denied
the third motion for reconsideration.
"We have made it transparently clear that relief under
Rule 60(b) is 'extraordinary in nature"' and that "motions invoking
2
Because the third motion was filed several months after
entry of final judgment, we will assume without deciding that it
arose under Rule 60(b). We will also assume without deciding that
the fourth motion for reconsideration, filed within ten days of the
court's denial of Diaz's third motion for reconsideration, arose
under Rule 59(e) and tolled the time for appealing from the denial
of the third. We have frequently stated that regardless of what
the motion is labeled, "we review the district court's disposition
of it for abuse of discretion." Cintron-Lorenzo v. Departmento de
Asuntos del Consumidor, 312 F.3d 522, 527 (1st Cir. 2002).
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the rule should be granted sparingly." Moreover, "[i]n considering
such a motion, we recognize the district court's 'intimate, first-
hand knowledge of the case,' and, thus, defer broadly to that
court's informed discretion." Cintron-Lorenzo v. Departmento de
Asuntos del Consumidor, 312 F.3d 522, 527 (1st Cir. 2002) (quoting
Karak v. Bursaw Oil Corp.,
288 F.3d 15, 19 (1st Cir. 2002)). In his
third motion for reconsideration, Diaz failed to show that he was
entitled to extraordinary relief. When Diaz's fourth motion for
reconsideration simply restated the arguments already fully
considered and rejected by the court in its previous ruling, there
was no abuse of discretion in issuing a summary denial.
Insofar as Diaz's appeal seeks to challenge the July 1,
2004 entry of summary judgment dismissing the case or the denial of
his first two motions for reconsideration, it is dismissed for want
of appellate jurisdiction. The orders of the district court
denying Diaz's third and fourth motions for reconsideration are
hereby affirmed.
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