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USCA1 Opinion

[NOT FOR PUBLICATION]


UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 95-1185

RAFAELA ROJAS-MORALES, ET AL.,


Plaintiffs, Appellees,

v.

CAGUAS LUMBER YARD, ET AL.,


Defendants, Appellees,
_______________,

AMERICAN INTERNATIONAL INSURANCE COMPANY,


Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]


___________________

____________________

Before

Selya, Cyr and Boudin,


Circuit Judges.
______________

____________________

Rene Pinto Lugo, Dario Rivera Carrasquillo, Jaime Morales Mora


________________ _________________________ __________________
and Cordero, Miranda & Pinto on brief for appellant.
________________________
Pedro Toledo Gonzalez Law Offices
___________________________________

on

Yard, Inc. et al., appellees.

____________________
August 4, 1995
____________________

brief for

Caguas

Lum

Per Curiam.
__________

lawsuit

following

This appeal arises out of a personal injury

brought by Rafaela Rojas-Morales and her son, Brian,

chemical

explosion

products, Crosco Clean Up and

which

occurred

when

two

Lewis Red Devil Lye, were used

to

unclog

drain

stipulation, the

pipe.

After

district court

approving a

dismissed the entire

Defendant-appellant American International

("AIICO") appeals.

settlement

case.

Insurance Company

For the following reasons, we affirm.

BACKGROUND

We

recite only the background of this case necessary to

an understanding of

names as defendants:

Gonzalez,

his

wife

our disposition.

The

amended complaint

Caguas Lumber Yard, Inc.; Gildo

Carmen

Aponte,

and

the

Masso-

conjugal

partnership between them; Hector L. Rivera-Fontanez, his wife

Cecilia Rivera-Munoz,

them;

all

and the

conjugal partnership

between

Max Chemicals, Inc.; AIICO; Association of Warranty of

Types

of

Insurance

("Association");

and

Eagle

Star

Insurance Company of

23, 1994, AIICO,

Puerto Rico ("Eagle

Star").

an excess insurer, filed an

On

March

amended cross-

claim for contribution against co-defendants Association

Eagle Star, both

later,

primary insurers.

AIICO filed

motion for

Approximately

summary

and

one month

judgment on

its

several months

of

amended cross-claim.

On

September

negotiation,

29,

1994,

a stipulation

of

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following

settlement and

request

for

judgment

request

was filed.

for

judgment.

a ruling

On

Later

on

that

its

stipulation.

AIICO filed

pending motion

October 4, 1994,

the settlement

same day,

for

the district court

Approximately

the court denied AIICO's request

summary

approved

two weeks later,

for a ruling on its summary

judgment motion on the ground that the settlement stipulation

put

an

end

to

all matters

settlement, including

1994,

pending

at

the

AIICO's cross-claim.

On

time of

the

November 1,

final judgment dismissing the entire case was entered.

On November

21, 1994,

reconsideration.

AIICO served and

filed a

motion for

This motion was denied on December 1, 1994.

AIICO filed a notice of appeal on December 12, 1994.

DISCUSSION

Appellees argue, and

have a timely appeal

P. 4(a)(1),

appeal

notice

appellant

was required

days after

It is well

of

appeal

Acevedo-Villalobos
__________________

(quoting

from the judgment.

within thirty

judgment.

Under

to file

the date

does not

Fed. R. App.

its notice

of entry

is

`mandatory

and

of

of the

established that "timely filing

of a

jurisdictional.'"

v. Hernandez, 22 F.3d 384, 387 (1st Cir.)


_________

Perez-Perez v.
___________

F.2d 281, 283

we agree, that appellant

Popular Leasing Rental, Inc.,


_____________________________

(1st Cir. 1993) (quoting

Dep't of Corrections,
______________________

434 U.S.

257,

993

Browder v. Director,
_______
_________

264

(1978))), cert.
_____

denied,
______

115

S.

Ct.

574

appellant did not file its

(1994).

In

the

instant

notice of appeal until

case,

forty-one

-33

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

filing a

notice of

appeal.

Although

appellant's

See Fed.
___

motion

for

Puerto Rico, 938


___________

See Lopez
___ _____

Since

appellant's

outside the

after the

motion

for

ten-day period, it

appealing from the judgment.

not

aside the judgment

F.2d 1510, 1513 (1st Cir.

10 days

did

v. Corporacion Azucarera de
________________________

Rule 59(e) requires a motion to alter

later than

P. 4(a)(4).

is properly treated as

since it sought to set

as legally erroneous.

not

R. App.

reconsideration

specifically invoke Rule 59(e), it

Rule 59(e) motion

time period for

1991).

However,

or amend to be "served

entry of

the judgment."

reconsideration

was

did not affect the

served

time for

See Acevedo-Villalobos, 22 F.3d


___ __________________

at

389.

Under

the circumstances,

we lack

jurisdiction to

review the judgment.

Although appellant's

respect to

denial

the judgment,

notice of appeal

it is timely

with respect

of the motion for reconsideration.

appellant, since

is untimely with

to the

Unfortunately for

the motion for reconsideration

is properly

construed as one brought under Rule 59(e), the district court

was

without jurisdiction

explained, it was untimely.

21 (1st Cir. 1991).

to

grant it

because, as

we have

Feinstein v. Moses, 951 F.2d 16,


_________
_____

Accordingly, the district court did not

-44

err

in denying the

motion for reconsideration,

need not have reached the merits.1

Affirmed.2
________

See Loc. R. 27.1.


___

Id.
__

although it

____________________

1.

Even

if

we

construe

appellant's

reconsideration as a Rule 60(b)

should be

granted `only

"Rule 60(b) is a vehicle

and "motions invoking the

under exceptional

(1st

Cir. 1986)).

essentially
arguments

Lepore v. Vidockler,
______
_________
Appellant's motion

reiterated, with
made in

citation

appellant's reply

792 F.2d 272,

(1st
274

for reconsideration
to legal

to

rule

circumstances.'"

de la Torre v. Continental Ins. Co., 15 F.3d 12, 14-15


___________
_____________________
Cir. 1994) (quoting

for

motion, and thus treat it as

timely, our conclusion is the same.


for `extraordinary relief,'"

motion

authority,

opposition to

its

request for

a ruling on

the

cross-claims.

any

"exceptional

Under

its motion for summary

judgment on

the circumstances, we

do not find

circumstances"

discretion by the district court.

here,

or

any

abuse

of

See Feinstein, 951 F.2d at


___ _________

21.

2.

Appellees

request

sanctions pursuant
separately

attorneys'

fee.

to Fed. R. App. P. 38

filed motion."

In the instant

motion was not separately filed.


fees is denied.

-55

request

for

must be made in "a


case, appellees'

The request for attorneys'