Beruflich Dokumente
Kultur Dokumente
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No. 92-1301
PEDRO C. VARGAS,
Plaintiff, Appellant,
v.
LEONARDO GONZALEZ, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gilberto Gierbolini, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Hector Gonzalez Lopez and Feijoo's Law Offices on brief
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appellant.
Jose A. Cestero and Cesar R. Miranda Law Offices on brief
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appellees.
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Per Curiam.
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parties to
motion
In June
this case
failed to
plaintiff's
apologies and
attorney,
an
for
Gonzalez
1991.
sanction,
Lopez, offered
his truancy.
He
Hector
explanation
of the
hearing on
for all
appear for a
lawyers involved.
the
1991, attorneys
Accordingly,
also
Puerto Rico
he asked the
"until
Gonzalez'
August."
request.
The
In an
court
complied
order dated
with
July 12,
Attorney
1991, the
decided
to dismiss
on August 9.
account Gonzalez'
the
case
previous
for failure
to
on the
3, at
which
to all parties.
The court next heard from Attorney Gonzalez on September
9,
when
he
filed
an "informative"
motion
requesting
an
In an
-2-
an
extension
dismissal, expressed
and,
referring
to
its exasperation at
the
now-month-old
Attorney Gonzalez'
October 7
order brought
a response
from Attorney
30th, 1991
and to Other
to Amend
Extremes."
In
August 9
his failure
delinquency,
received
until he
respect
to August 2,
received
to his
Gonzalez said
secretary,
9.
he
had
October 7
the status
order.
informed him
of the court's
also rescheduled
never
conference,
August
from
order had
As to the
though she
that
the court's
absence
same
claimed
dismissal
With
Gonzalez
to
the status
He
but his
July 12
that the
conference for
further continuance.
When
he returned to
Puerto Rico at
-3-
notice
and setting
the status
conference."
should not
be
made
to
and that in
suffer for
attorney's
Citing
court
said
days
of the entry
of the judgment
We affirm.
I
_
Civil
Procedure, but
characterized
indisputably
filed
within
challenged,
the
district court
any Rule
correctly
days
exclusive
Because Rule
of
of
the
59(e) motions
entry
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weekends
of
and
the
judgment
holidays,
must be
the
a copy of
to
run upon
entry
of
judgment even
if
party has
not
-4-
59.09[1] (1991).
notice of
appeal).
6(b),
entry
6A Moore's Federal
of judgment
does
not affect
time
to
951 F.2d 16, 19 (1st Cir. 1991) and cases cited therein;
see
___
to Amend
identified the
Rule 59(e).
Judgment .
district court
proof
that
the
had
erred by
client
was
October 18
And to
the
Other
dismissing the
responsible
for
case
his
It
is the settled
rule in
this
circuit that a motion asking the court "to modify its earlier
disposition of a case because of an allegedly erroneous legal
result is brought under
Sun Pipe Line Co.,
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Fed. R. Civ. P.
59(e)."
Appeal of
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II
__
-5-
judgment under
Fed. R.
Civ. P.
60(b)(1) or
(b)(4).1
However,
we do
not see
how the
to state a
district court
Rule
60(b).
First, even
if the judgment
was erroneous, it
645, 649
clear
usurpation of
lacks subject-matter
power," id.,
___
such
See Lubben
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453 F.2d
instance of a
as where
the court
void.
Second, the record establishes
triggered the
dismissal was
not of the
"excusable" variety
recognized by
Rule 60(b)(1).
Attorney
Gonzalez' failure to
June, Gonzalez
conference,
then
had
asked the
set for
court
July 16,
to sometime
the
in August.
When he left Puerto Rico for Florida on July 3, the court had
not ruled on this request for a continuance.
have understood,
therefore, that
Gonzalez should
he heard
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1. The brief also cites Rule 60(b)(6) but identifies no
"extraordinary circumstances" that might bring this residual
provision into play.
Gonzalez v. Walgreens Co., 918 F.2d
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303, 305 (1st Cir. 1990).
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July 16.
He claims not
through July.
that
Under
when Gonzalez
beginning
July 16.
of August,
whether the
he would
anxious to
gone off
learn
without him
on
request for
a continuance.
Instead, he
the court
Gonzalez must
to
continue the
have suspected
left
Surely, since
conference "until
when he
at the
ruled on his
August,"
would expect
Puerto Rico
have been
he
to
returned to
he had failed
Again,
As a matter
of law, such a
"palpable
cases
cited therein.
Nor can
such
an
60(b)(1).
its discretion
had it
have abused
as a
-7-
from judgment.
See
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Lavespere v.
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Niagara
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Machine & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990)
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(if failure
of party to
submit evidence is
negligence or carelessness
abuse
of discretion
attributable to
of his attorney,
for district
court to
it would be
an
reopen case
to
III
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Because
because it was
it
asked
for
filed late,
relief under
the October 18
underlying dismissal.
Rule
motion to
and
amend
notice of appeal
See Feinstein
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59(e),
v. Moses, 951
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the
on October 3;
February 11.
the appellant
We therefore
his notice
have no jurisdiction to
until
consider
notice
days
judgment.
which
of
of appeal,
it
the
denying
order
is true,
the
could only
be properly sought
was
filed within
motion
to
amend
under Rule
59(e), the
Id. at 21.
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