996 F.2d 1111 (11th Cir. 1993), 92-2678, Cavaliere v. Allstate Ins. Co.

Docket Nº:92-2678, 92-2711.
Citation:996 F.2d 1111
Party Name:Dominic M. CAVALIERE, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.
Case Date:July 30, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1111

996 F.2d 1111 (11th Cir. 1993)

Dominic M. CAVALIERE, Plaintiff-Appellant,

v.

ALLSTATE INSURANCE COMPANY, Defendant-Appellee.

Nos. 92-2678, 92-2711.

United States Court of Appeals, Eleventh Circuit

July 30, 1993

Page 1112

Mark F. Kelly, Kelly, McKee, Herdman & Ramus, P.A., Charleen Catherine Ramus, Tampa, FL, for plaintiff-appellant.

R. David de Armas, Rumberger, Kirk & Caldwell, P.A., Darryl L. Gavin, Lori J. Caldwell, Orlando, FL, for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before EDMONDSON and CARNES, Circuit Judges, and HILL, Senior Circuit Judge.

CARNES, Circuit Judge:

Plaintiff Dominic Cavaliere appeals two orders of the district court. The first order denied Cavaliere's motion for new trial as untimely by two days, rejecting Cavaliere's contention that Rule 6(e) entitled him to three extra days for the filing of that motion. The second order denied Cavaliere's untimely motion for leave to file a late notice of appeal, and also denied Cavaliere's alternative request for relief from the final judgment. We affirm the decisions of the district court as to both orders.

I. BACKGROUND

Following termination of his employment by Allstate Insurance Company, Cavaliere filed a complaint in state court alleging negligence, slander, and promissory estoppel. The case was removed on diversity grounds to federal district court where Cavaliere suffered a jury verdict in favor of Allstate. Final judgment was entered by the clerk on March 24, 1992.

Cavaliere filed a motion for new trial on April 9, 1992, which was two days after the ten-day period under Fed.R.Civ.P. 59(b) had run. The district court denied this motion as untimely, and added that even if the motion had been timely, it would have denied the motion on the merits.

On June 17, 1992, eighty-five days after final judgment had been entered, Cavaliere filed a motion for extension of time to file his notice of appeal. The court held that this motion was not timely, and it also held that Cavaliere had failed to establish the "excusable neglect or good cause" requirement of Fed.R.App.P. 4(a)(5). In the alternative, Cavaliere also requested the district court to grant relief from the final judgment under Fed.R.Civ.P. 60(b). The district court denied that relief.

II. DISCUSSION

  1. THE MOTION FOR NEW TRIAL

    The district court explained that "[e]xcluding intermediate Saturdays, Sundays and legal holidays, Fed.R.Civ.P. 6(a), the motion [for a new trial] was required to

    Page 1113

    be served by April 7, 1992. The subject motion was not served until April 9, 1992." Cavaliere does not contest this calculation. Instead, he argues that the motion was filed late "because [Cavaliere's] counsel, in good faith, interpreted the Rules of Civil Procedure as giving [Cavaliere] an additional three days for filing a motion for new trial under Rule 6(e)." Federal Rule of Civil Procedure 6(e) provides:

    Additional Time After Service By Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.

    Cavaliere's argument runs as follows: Under Rule 77(d), the court clerk was required to serve the judgment on Cavaliere by mail; Cavaliere had the "right" to file his motion for a new trial "within a prescribed period"; therefore, Cavaliere was entitled to three extra days. Cavaliere cites no authority to support his argument and recognizes that "there is no case law in the Eleventh Circuit addressing the issue of whether Rule 6(e), regarding three additional days for filing, is applicable to Rule 59(b)."

    We review a district...

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