U.S. v. Tuckman Intern., Ltd.

• Decision Date: 29 November 1993
• Citation: 43 F.3d 1484
• Parties: NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1484

43 F.3d 1484

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee, v. TUCKMAN INTERNATIONAL, LTD., Abek. Suleman, Anisa J Suleman, aka Anisa J. Suleman, Defendants-Appellants and RAILROAD SAVINGS BANK, fka Railroad Savings and Loan Association, Bank IV McPherson fka McPherson Bank and Trust Company, Defendants First American State Bank, Defendant-Appellee.

No. 94-3018.

United States Court of Appeals, Tenth Circuit.

Dec. 19, 1994.

ORDER AND JUDGMENT ¹

Before ANDERSON, and TACHA, Circuit Judges, and CAMPOS, ² District Judge.

The facts central to this disposition are as follows. Tuckman International ("Tuckman") is a Kansas corporation which deals in colored gemstones. In October, 1991, the United States Small Business Administration filed a foreclosure action against Tuckman, its guarantors, and other lien holders in the United States District Court for the District of Kansas. On July 29, 1992, judgment was entered for the United States foreclosing the government's security interest, and the court ordered certain personal property sold pursuant to a stipulation between the interested parties. On August 25, 1993, First American State Bank, a Tuckman creditor, filed a motion requesting approval of a sale of the property. The court granted the motion on September 2, 1993, and entered an order approving the sale. That order, however, was entered prior to the expiration of the ten-day period allowed Tuckman to object to the motion. See D. Kan. Local R. 206.

On September 7, 1993, Tuckman filed a motion to set aside the September 2 order, on the ground that the ten-day objection period had not run. On September 28, 1993, the district court entered an order denying that motion. Tuckman then moved the court, on October 8, 1993, to reconsider its September 28 order. On November 18, 1993, that motion also was denied. Tuckman filed its notice of appeal to this court on January 14, 1994.

Where, as here, the United States is a party to the litigation, a party seeking review by this court must file its notice of appeal no later than sixty days following entry of judgment. Fed. R.App. P. 4(a)(1). Tuckman contends that its January 14 notice of appeal was timely filed because the initial order entered on September 2, 1993, was void. Thus, according to Tuckman, the sixty-day period for filing a notice of appeal did not begin to run until November 18, 1993, the date that the district court denied Tuckman's second motion to reconsider. We disagree.

The order entered September 2, 1993, was a final order. Thus, absent some tolling motion, Tuckman's notice of appeal was due no later than sixty days following entry of that order. Rule 4(a)(4) delineates four post-judgment motions which, if timely filed, toll the running of the sixty-day period until entry by the district court of an order denying the motion, at which time the sixty-day period begins to run anew. See Chesson v. Jaquez, 986 F.2d 363, 365 (10th Cir.1993).

Tuckman filed its first motion to reconsider on September 7, 1993, and the district court denied the motion on September 28, 1993. While the Federal Rules of Civil Procedure do not recognize a "motion to reconsider," we construe Tuckman's motion as a motion to alter or amend the September 2 order. See Fed R. Civ. P. 59(e). This motion was timely filed. Accordingly, pursuant to Fed. R.App. P. 4(a)(4), Tuckman had sixty days from September 28, in which to file its notice of appeal with this court.

Tuckman filed its second motion to reconsider on October 8, 1993, and that motion was denied by the district court on November 18, 1993. We may construe the motion either as a second motion made pursuant to Fed.R.Civ.P. 59(e) to alter or amend the September 2 order, or as a motion made pursuant to Fed. R. Civ. P. 60(b) seeking...