435 F.2d 1266 (1st Cir. 1971), 7769, Silk v. Sandoval

Docket Nº:7769.
Citation:435 F.2d 1266
Party Name:Beatrice SILK, Plaintiff, appellant, v. Hilary SANDOVAL et al., Defendants, Appellees.
Case Date:January 06, 1971
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 1266

435 F.2d 1266 (1st Cir. 1971)

Beatrice SILK, Plaintiff, appellant,

v.

Hilary SANDOVAL et al., Defendants, Appellees.

No. 7769.

United States Court of Appeals, First Circuit.

January 6, 1971

Page 1267

         Beatrice Silk pro se, on motion for summary action.

         Herbert F. Travers, Jr., U.S. Atty., and Wayne B. Hollingsworth, Asst. U.S. Atty., on motion for summary disposition.

         Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

         ALDRICH, Chief Judge.

         Plaintiff filed a complaint in the district court alleging loss of her employment due to unlawful action by defendant government employees. Defendants moved to dismiss on various grounds, and on July 8, 1970, the court dismissed an amended complaint on a ground not here relevant. There was a further hearing on July 16, and on July 21 the court affirmed its earlier dismissal. On July 31, within the ten days permitted by F.R.Civ.P. 59(e), the plaintiff moved to vacate the order of dismissal. The court vacated that order by entering a new one dated August 12, dismissing not on the merits, but on the ground that indispensable parties had not been joined. On September 9 the plaintiff moved to vacate the dismissal of August 12. The court denied the motion on October 15. On November 12 the plaintiff filed a notice of appeal from the order of October 15. Defendants move to dismiss the appeal for want of appellate jurisdiction, asserting untimeliness of the September 9 motion.

          The September 9 motion to vacate, if construed as a second Rule 59(e) motion, was not timely, and hence did not stay the running of the period in which appeal could be taken from the August 12 order. F.R.A.P. 4(a). The order was, accordingly, no longer appealable when the notice of appeal was filed on November 12, and, indeed, the notice was expressly limited to the order of October 15. As to that order the notice was timely, and the appeal cannot be dismissed, as defendants would have it, for want of jurisdiction.

          We turn to a consideration of the merit, if any, of the appeal from the October 15 order. Plaintiff did not specify under what rule she was proceeding. If the September 9 motion is construed as one brought under Rule 59(e) it was subject to summary dismissal as untimely. Plaintiff can avoid that result only if the motion was also maintainable under F.R.Civ.P. 60. Motions under this rule need be made only 'within...

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