840 F.2d 152 (1st Cir. 1988), 87-1862, Rivera v. M/T Fossarina

Docket Nº:87-1862.
Citation:840 F.2d 152
Party Name:Jose RIVERA, Plaintiff, Appellant, v. M/T FOSSARINA, et al., Defendants, Appellees.
Case Date:February 29, 1988
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 152

840 F.2d 152 (1st Cir. 1988)

Jose RIVERA, Plaintiff, Appellant,

v.

M/T FOSSARINA, et al., Defendants, Appellees.

No. 87-1862.

United States Court of Appeals, First Circuit

February 29, 1988

Heard Feb. 4, 1988.

Page 153

Harry A. Ezratty, San Juan, P.R., for plaintiff, appellant.

Cheryl C. Burke with whom Neil J. Welch, Jr., and Heron, Burchette, Ruckert & Rothwell, Washington, D.C., were on brief, for defendants, appellees Phillips Petroleum Co. and Phillips Puerto Rico Core, Inc.

Alexis D. Mattei with whom Ledesma, Palou & Miranda, Hato Rey, P.R., was on brief, for defendants, appellees Puerto Rico Fuels, Inc., Tug Texan, Trans Gulf Towing Co. and Blutco Barge & Towing Co.

Before CAMPBELL, Chief Judge, SELYA, Circuit Judge, and CAFFREY, [*] Senior District Judge.

LEVIN H. CAMPBELL, Chief Judge.

Jose Rivera, a pilot for the port of Las Mareas, Puerto Rico, brought a complaint in admiralty against numerous defendants, claiming that they owed him approximately $4,000 in pilotage fees for services he allegedly rendered in connection with the anchoring of vessels at the port. The district court granted defendants' motions for summary judgment, 663 F.Supp. 544, concluding, inter alia, that the vessels in question had anchored outside compulsory pilotage waters. Rivera now appeals.

Appellees assert, and we agree, that this court is without jurisdiction to entertain an appeal from the district court's granting of summary judgment because a timely notice of appeal sufficient to confer jurisdiction upon this court was not filed.

I.

On June 17, 1987, a final judgment was entered in the district court dismissing Rivera's complaint pursuant to the court's prior order and opinion granting defendants' motion for summary judgment. On June 25, Rivera filed a Fed.R.Civ.P. 59(e) motion to alter and amend the judgment. The district court denied this motion on July 30, 1987. On August 25, 1987, Rivera filed a notice of appeal to this court from the district court's judgment of June 17, 1987, and from the denial of his Rule 59(e) motion.

On August 27, 1987, Rivera filed a motion for relief from the district court's final judgment, on the ground of alleged newly discovered evidence. Fed.R.Civ.P. 60(b)(2). On September 30, 1987, the district court denied appellant's Rule 60(b)(2) motion. On October 16, 1987, appellant filed a notice of appeal to this court from the district court's order denying his Rule 60(b)(2) motion. On November 18, 1987, this court

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ordered the consolidation of appellant's August 25 and October 16 appeals.

II.

Appellees have moved us to dismiss the appeal of August 25, 1987, for lack of appellate jurisdiction. It is undisputed the notice of appeal was not filed within 30 days from the entry of judgment. Fed.R.App.P. 4(a)(1). The judgment dismissing appellant's complaint was entered on June 17, 1987, over two months before appellant filed his August 25 notice of appeal. However, appellant filed an intervening motion under Rule 59(e) on June 25, and this was not denied until July 30, 1987. If the Rule 59(e) motion were timely, appellant had 30 days from the date of its denial (on July 30) to file a notice of appeal from the judgment. Fed.R.App.P. 4(a)(4).

However, appellees contend the Rule 59(e) motion was not timely, hence it was ineffective to toll the running of the 30-day appeal period from the judgment. According to appellees, none of them was served with the motion until late in August. 1 Since a Rule 59(e) motion must be served within ten days after entry of the judgment, 2 Rivera's motion was allegedly untimely and incapable of tolling the appeal period. 3

The timeliness of a motion to alter or amend a judgment is determined by the date it is served, not by the date it is filed. Callahan v. Shultz, 783 F.2d 1543, 1546 (11th Cir.1986); Harcon Barge Co. v. D. & G. Boat Rentals, Inc., 746 F.2d 278, 285 n. 5, 289 (5th Cir.1984), cert. denied, --- U.S. ----, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). The ten-day limitation period of Rule 59(e) "is one of the few limitary periods which the court has no power...

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