849 F.2d 24 (1st Cir. 1988), 87-1526, Echevarria-Gonzalez v. Gonzalez-Chapel

Docket Nº:87-1526.
Citation:849 F.2d 24
Party Name:Aurelio ECHEVARRIA-GONZALEZ, Plaintiff, Appellee, v. Antonio GONZALEZ-CHAPEL, etc., Defendant, Appellant.
Case Date:June 10, 1988
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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849 F.2d 24 (1st Cir. 1988)

Aurelio ECHEVARRIA-GONZALEZ, Plaintiff, Appellee,

v.

Antonio GONZALEZ-CHAPEL, etc., Defendant, Appellant.

No. 87-1526.

United States Court of Appeals, First Circuit

June 10, 1988

Heard Feb. 3, 1988.

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Reina Colon de Rodriguez, Asst. Sol. Gen., with whom Rafael Ortiz Carrion, Sol. Gen., and Norma Cotti Cruz, Deputy Sol. Gen., were on brief, for defendant, appellant.

Israel Roldan Gonzalez, Aguadilla, P.R., for plaintiff, appellee.

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

LEVIN H. CAMPBELL, Chief Judge.

The Secretary of Agriculture of Puerto Rico ("the Secretary") appeals from a default judgment entered against him by the district court, and from the court's denial of a Rule 60(b) motion, Fed.R.Civ.P. 60. Plaintiff-appellee Aurelio Echevarria Gonzalez ("Echevarria") brought this action alleging that he had been fired from his position in the Puerto Rico Department of Agriculture ("the Department") because of his political affiliation. The district court ordered the Secretary to reinstate Echevarria. The Secretary argues that the default judgment is void because it was entered without personal jurisdiction having been obtained over him. Before considering that issue, however, we first address Echevarria's contention that this court lacks appellate jurisdiction because the notice of appeal was untimely filed.

I.

A default judgment was entered by the court below against the defendant Secretary on January 20, 1987. On January 30, the defendant filed a motion ostensibly under Fed.R.Civ.P. 55(c) and 60(b), in which he requested that the default judgment be set aside because, inter alia, it was void for lack of personal jurisdiction over the defendant. 1 The district court denied this motion without explanation on March 10,

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1987. Defendant then moved under Fed.R.Civ.P. 59(e) for reconsideration, a motion which the district court denied on April 21, 1987.

On May 20, 1987, defendant filed a notice of appeal stating that he was appealing both from the default judgment entered on January 20, 1987, and from the order of April 21, 1987, refusing to reconsider the order denying the Rule 60(b) motion brought under Rule 55(c). Echevarria now asserts that this court is without jurisdiction to entertain that appeal. Respecting the appeal from the default judgment itself, we agree that we lack appellate jurisdiction.

A notice of appeal must be filed with the clerk of the district court within 30 days after the date of entry of the order of judgment appealed from. Fed.R.App.P. 4(a)(4); Rivera v. M/T Fossarina, 840 F.2d 152, 154 (1st Cir.1988). The default judgment was entered on January 20, 1987, four months before May 20, 1987, the date defendant filed his notice of appeal. Thus, unless the running of the 30-day appeal period was somehow interrupted or tolled, the notice of appeal from the default judgment was untimely filed.

The Secretary filed the motion under Rules 55(c) and 60(b) ten days after the entry of judgment. However, the filing of such a motion under Rules 55(c) and 60(b) does not toll the running of the 30-day appeal period. Browder v. Illinois Department of Correction, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978); Fed.R.App.P. 4. The Secretary seeks to avoid this fact by arguing that the motion he filed on January 30, 1987, although denominated as a motion under Rules 55(c) and 60(b), was in reality a Rule 59(e) motion to alter or amend the judgment. The latter type motion, served not later than ten days after the entry of judgment, would toll the running of the 30-day appeal period. Fed.R.App.P. 4(a)(4); 2 Rivera v. M/T Fossarina, 840 F.2d at 154. The motion in question was, in fact, served within ten days of the entry of the default judgment.

We are unable to construe defendant's first post-judgment motion as a Rule 59(e) motion. While "nomenclature should not be exalted over substance," Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 41 (2d Cir.1982), defendant not only called his motion a "Motion Requesting Order Vacating Judgment Under Rules 55(c) and 60," but in a memorandum in support of the motion, he relied on the language of those rules and on the cases interpreting them. Defendant particularly argued subsections (1) and (4) of Rule 60(b), the former allowing relief from a final judgment because of mistake, inadvertence, surprise, or excusable negligence, and the latter allowing relief if the judgment is void.

That the January 30 motion was not a Rule 59(e) motion is underscored by the fact that defendant was attacking a default judgment. Fed.R.Civ.P. 55(c) indicates that Rule 60(b) is the appropriate provision relative to setting aside a default judgment. See note 1, supra. In Gulf Coast Fans, Inc. v. Midwest Electronics Importers, Inc., 740 F.2d 1499 (11th Cir.1984), confronted with a situation strikingly similar to this one, the Eleventh Circuit refused to treat an unlabeled motion for "rehearing" filed within ten days of a default judgment as a motion under Rule 59 such as would toll the running of the appeal period. The court viewed the unlabeled post-judgment motion as one under Rules 55(c) and 60(b). It construed Rule 55(c) as providing that "the proper, and ... exclusive method for attacking a default judgment in the district court is by way of a Rule 60(b) motion." Id. at 1507. The court thus dismissed the appeal from the default judgment for lack of jurisdiction. Id.

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We need not decide here whether a Rule 60(b) motion is the sole mechanism for attacking a default judgment. In the instant case the post-judgment motion, unlike the one in Gulf Coast, specifically invoked Rules 55(c) and 60(b). We have little choice but to conclude that the first post-judgment motion was intended to be exactly what defendant called it, a motion under Rules 55(c) and 60(b). Defendant cannot conveniently change his position at this time.

It follows that the notice of appeal filed on April 21, 1987, came too late to give this court jurisdiction over an appeal from the January 20, 1987, default judgment. We, therefore, dismiss defendant's appeal from the default judgment for lack of appellate jurisdiction. Browder v. Illinois Department of Correction, 434 U.S. at 264, 98 S.Ct. at 560 (a notice of appeal must be timely filed if the court of appeals is to obtain jurisdiction over an appeal).

That does not mean, however, that there is no appeal properly before us. In the April 21, 1987, notice of appeal, the Secretary also appealed from the order denying the Rule 60(b) motion which defendant brought pursuant to Rule 55(c). See note 1, supra. The court's order denying that motion was itself a final appealable order. J. Moore & J. Lucas, 7 Moore's Federal Practice p 60.30 (1987). Defendant's Rule 60(b) motion was denied on March 10, 1987. But as the order of denial meets the definition in the Federal Rules of a "judgment," it was properly subject to a Rule 59(e) motion. Fed.R.Civ.P. 54(a). On March 23, 1987, defendant filed and served a Rule 59(e) motion for reconsideration of the order denying the Rule 60(b) motion. The Rule 59(e) motion, which was timely served, see Fed.R.Civ.P. 6(a), had the effect of tolling the 30-day time period to appeal from the denial of the Rule 60(b) motion. The 30-day appeal period started to run anew on April 21, when the Rule 59(e) motion was denied by the district court. The notice of appeal was filed on May 20, 1987. We, therefore, have jurisdiction to entertain an appeal from the denial of the Rule 60(b) motion. Our review on appeal is restricted to the issue of whether the district court abused its discretion in its order denying the Rule 60(b) motion filed by defendant under Rule 55(c). Rivera v. M/T Fossarina, 840 F.2d at 156. "While the denial order brings up for review the matters pertinent thereto, it does not bring up the judgment for review." J. Moore & J. Lucas, 7 Moore's Federal Practice at p 60, pages 344-45.

II.

We turn next to whether the default judgment was void for lack of personal jurisdiction over the Secretary and, consequently, whether the district court erred in refusing to vacate the judgment pursuant to defendant's motions under Rules 55(c) and 60(b).

Echevarria sued Antonio Gonzalez Chapel in both his personal capacity and in his official capacity as Secretary of the Department of Agriculture. The complaint alleged that Echevarria was fired from his position as Cattle Inspector at the Department because of his political affiliation, in violation of the First Amendment. Although Gonzalez Chapel was the Secretary of Agriculture at the time Echevarria was fired, Gonzalez Chapel had left the Department by the time this action was brought, and Juan Bauza Salas had become the Secretary. The instant action was filed on June 26, 1986, almost seven months after Gonzalez Chapel's departure from office. Nonetheless, the complaint named as defendant "Antonio Gonzalez Chapel, Secretary of Agriculture, of the Commonwealth of Puerto Rico and in his personal capacity." The name of the incumbent Secretary of Agriculture, Bauza Salas, did not appear.

Service of process was made on July 14, 1986, by leaving copies of the summons and complaint with Maria de Jesus Clemente, secretary to the Secretary of Agriculture, Bauza Salas. De Jesus Clemente had been authorized by Bauza Salas to receive and be served with all the summonses and complaints addressed to the Secretary of Agriculture.

On November 12, 1986, after the time allowed by Fed.R.Civ.P. 12(a) to answer the

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complaint had elapsed without any answer or motion having been filed, plaintiff moved for entry of a default pursuant to Fed.R.Civ.P. 55(a). The district court entered...

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