-
USCA1 Opinion
June 23, 1994 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 93-2227
AIR LINE PILOTS ASSOCIATION,
Plaintiff, Appellee,
v.
PRECISION VALLEY AVIATION, INC.,
Defendant, Appellant.
_________________________
ERRATA SHEET
ERRATA SHEET
The opinion of the court issued on June 7, 1994 is corrected
as follows:
On page 16, line 13, at the end of the sentence, after the
word "further." add a new footnote number 7.
7. The current version of Fed. R. Civ. P. 5(e) provides,
inter alia, that "[t]he clerk shall not refuse to
_____ ____
accept for filing any paper presented for that purpose
solely because it is not presented in proper form as
required by these rules or any local rules or
practices." Appellant neither cited this rule nor
relied on it in any way and has, therefore, waived any
potential benefit which might accrue from it. For this
reason, we do not refer to the rule in the body of this
opinion. But we note that, in all events, the clerk's
refusal to accept the noncompliant motion for filing in
this case was backed by the judge's specific order, see
___
Chronology, supra, at No. 4, leaving the record in
_____
essentially the same posture as though the motion had
been received and then stricken. Any error was,
therefore, harmless.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 93-2227
AIR LINE PILOTS ASSOCIATION,
Plaintiff, Appellee,
v.
PRECISION VALLEY AVIATION, INC.,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
___________________
_________________________
Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
_________________________
E. Scott Smith, with whom Michael J. Minerva, Jr. and Ford &
______________ _______________________ ______
Harrison were on brief, for appellant.
________
Jerry D. Anker for appellee.
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_________________________
June 7, 1994
_________________________
SELYA, Circuit Judge. This case took wing when the Air
SELYA, Circuit Judge.
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Line Pilots Association (ALPA), a labor organization, sued
defendant-appellant Precision Valley Aviation, Inc. (Precision)
to compel arbitration of a grievance initiated by the union on
behalf of certain probationary employees (all pilots). The
district court ordered Precision to arbitrate the dispute.
Precision now seeks to test the substance of the district court's
order. We do not reach that destination: the absence of
appellate jurisdiction defeats the main thrust of the appeal, and
what remains does not require us to extend our flight much beyond
takeoff.
I.
I.
__
A Chronology
A Chronology
____________
This appeal is enveloped in a jurisdictional fog. We
attempt to clear the air by chronicling the events that frame the
jurisdictional issue.
1.August 17, 1993: The district court,
_______________
acting on a motion for summary judgment,
entered a final judgment in ALPA's favor on
count 1 of its complaint. At the same time,
the court dismissed count 2 of the complaint
for want of subject matter jurisdiction. The
second part of the court's order is
immaterial to this appeal.
2.August 30, 1993: Precision attempted
_______________
to move for reconsideration, but failed to
comply with an applicable local rule.1
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1District courts are empowered to make local rules for the
administration of the court docket. See Fed. R. Civ. P. 83. The
___
District of New Hampshire has promulgated a set of local rules.
One such rule provides that, with regard to most motions, "[t]he
moving party shall certify to the court that he has made a good
faith attempt to obtain concurrence in the relief sought."
3
Consequently, the clerk of court refused to
accept the defective pleading (which we shall
refer to as the noncompliant motion) for
filing.
3.August 31, 1993. The district court,
_______________
acting at ALPA's request, entered an amended
judgment clarifying the original judgment.
On the same date, Precision filed a notice of
appeal.
4.September 1, 1993: The district court
_________________
entered an "Order of Refusal of Pleading,"
endorsing the clerk's refusal to place the
noncompliant motion on record.
5.September 9, 1993: Precision served a
_________________
new motion for reconsideration of the August
17 judgment. This motion satisfied the
requirements of the local rules.
6.September 10, 1993: Precision filed
__________________
the September 9 motion in the clerk's office.
It also requested a stay of judgment pending
appeal. On the same date, Precision withdrew
its first notice of appeal.
7.September 22, 1993: The district
____________________
court entered an order declining to
reconsider the final judgment and denying
Precision's request for a stay. The court
stated that a motion for reconsideration
should have been served on or before August
27, and that Precision's efforts were,
therefore, untimely. The court erred in
identifying the end date; taking into account
the special directives of the Civil Rules,
see Fed. R. Civ. P. 6(a) (explaining
___
principles governing computation of periods
of 10 days or less), the 10-day period for
filing a motion to alter or amend the
judgment, Fed. R. Civ. P. 59(e), did not
expire until August 31.
____________________
D.N.H. Loc. R. 11(b). This rule applies foursquare to post-
judgment motions (such as are at issue in this case). See
___
Clausen v. Sea-3, Inc., ___ F.3d ___, ___ (1st Cir. 1994) [No.
_______ ___________
93-1106, slip op. at 42] (explaining that Local Rule 11(b)
applies to all motions other than those filed during trial); see
___
also D.N.H. Loc. R. 11(a)(1).
____
4
8.October 7, 1993: Precision filed a
________________
motion for reconsideration of the September
22 order (having served the motion a day
earlier). In this motion, Precision pointed
out the court's computational error and
contended that the noncompliant motion met
the applicable time constraints.
9.October 12, 1993: Although
______________________
acknowledging its computational error, the
district court nevertheless remained
steadfast and denied Precision's October 7
motion. The court noted that the
noncompliant motion did not conform to Local
Rule 11(b) and was, therefore, a nullity.
The September 9 motion also lacked force, as
that motion was neither served nor filed
within the requisite 10-day period.
10.October 13, 1993: The court entered
________________
a further judgment commemorating the October
12 order, as required by Fed. R. Civ. P. 58.
See Fiore v. Washington County Comm. Mental
___ _____ _______________________________
Health Ctr., 960 F.2d 229, 233 (1st Cir.
____________
1992) (en banc).
11.November 5, 1993: Precision filed
__________________
its notice of appeal, seeking to challenge
(a) the August 17 judgment, (b) the September
22 order, and (c) the October 13 judgment.
II.
II.
___
Analysis
Analysis
________
A.
A.
__
In civil cases in which the United States is not a
party, a notice of appeal must be filed within thirty days
following the entry of final judgment. See Fed. R. App. P.
___
4(a)(1). The requirement for punctual filing of a notice of
appeal is obligatory and jurisdictional. See Browder v. Illinois
___ _______ ________
Dep't of Correction, 434 U.S. 257, 264 (1978); Feinstein v.
____________________ _________
Moses, 951 F.2d 16, 19 (1st Cir. 1991). Precision filed notice
_____
of the instant appeal on November 5, 1993 far more than thirty
5
days after the entry of the August 17 judgment.2 Thus, the
threshold issue is whether some idiosyncratic feature of the case
breathed life into the (apparently tardy) notice of appeal.
Appellant offers a variety of possible scenarios, all
of which implicate Fed. R. Civ. P. 59(e). In terms, a motion to
alter or amend a judgment, made under that rule, interrupts the
running of the appeal period as long as it is "served not later
than 10 days after entry of the judgment." Thereafter, an order
disposing of the motion restarts the appeal period. See
___
Feinstein, 951 F.2d at 18; see also Fed. R. App. P. 4(a)(4). The
_________ ___ ____
rule's 10-day window is mandatory and jurisdictional.3 See
___
Vargas v. Gonzalez, 975 F.2d 916, 917 (1st Cir. 1992); Barrett v.
______ ________ _______
United States, 965 F.2d 1184, 1187 (1st Cir. 1992). Thus, the
_____________
period set for prosecuting a Rule 59(e) motion may not be
extended. See Fed. R. Civ. P. 6(b) (explaining that the district
___
____________________
2The parties agree that final judgment entered on August 17,
1993. Though the district court entered an amended judgment on
August 31, 1993, see Chronology, supra, at No. 3, the amendment
___ _____
served strictly as a means of clarification and did not alter the
parties' substantive rights under the preexisting judgment. The
settled rule is that the non-substantive revision of a previously
entered judgment does not restart or otherwise affect the period
within which appellate review must be sought. See FTC v.
___ ___
Minneapolis-Honeywell Co., 344 U.S. 206, 211-12 (1952). It is
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only when the judgment-issuing court alters matters of substance
or resolves some genuine ambiguity that the entry of an amended
judgment winds the appeals clock anew. See id.; see also Charles
___ ___ ___ ____ _______
v. Daley, 799 F.2d 343, 348 (7th Cir. 1986). In this case,
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Precision never has contended that entry of the amended judgment
signalled the commencement of a new appeal period.
3The timeliness of a Rule 59(e) motion is determined by the
date of service, not the date of filing. See Perez-Perez v.
___ ___________
Popular Leasing Rental, Inc., 993 F.2d 281, 283 (1st Cir. 1993);
_____________________________
Roque-Rodriguez v. Lema Moya, 926 F.2d 103, 107 (1st Cir. 1991);
_______________ _________
Rivera v. M/T Fossarina, 840 F.2d 152, 154 (1st Cir. 1988).
______ _____________
6
court "may not extend the time for taking any action" under Rule
59(e)); see also de la Torre v. Continental Ins. Co., 15 F.3d 12,
___ ____ ___________ ____________________
14 (1st Cir. 1994); Feinstein, 951 F.2d at 19; Rivera v. M/T
_________ ______ ___
Fossarina, 840 F.2d 152, 154 (1st Cir. 1988).
_________
This is not to say that a motion for reconsideration
filed after the 10-day window closes is completely inutile.
While such a motion will not extend the appeal period, the
district court, so long as it still retains jurisdiction, may
choose to grant the requested relief. See Jusino v. Zayas, 875
___ ______ _____
F.2d 986, 989-90 & n.3 (1st Cir. 1989) (discussing district
court's inherent power to correct errors in its own decrees).
Moreover, if such a motion is denied, the movant may seek
appellate review of the denial. See Rodriguez-Antuna v. Chase
___ ________________ _____
Manhattan Bank Corp., 871 F.2d 1, 2 (1st Cir. 1989). We caution,
____________________
however, that a timely appeal from an order denying a motion for
reconsideration brought other than in conformity with Rule 59(e)
does not "resurrect [the appellant's] expired right to contest
the merits of the underlying judgment, nor bring the judgment
itself before [the court of appeals] for review." Id.
___
B.
B.
__
It is against this tightly woven backdrop that we turn
to appellant's asseverational array. Appellant's central claim
is that, whatever its deficiencies might have been, the
noncompliant motion was a timely-filed Rule 59(e) motion and,
therefore, tolled the appeal period in respect to the August 17
judgment. We do not agree.
7
This initiative depends on the significance of the
admitted defect in the motion the motion plainly did not
satisfy the requirements of the local rules and the
supportability of the lower court's response to it. Appellant
attempts to shrug off the matter of noncompliance, contending, in
effect, that Local Rule 11(b) is somewhat silly, and that the
district court's slavish adherence to it sanctifies "an empty
formality."
We think appellant presumes too much. Rules of
procedure are vitally important in judges' efforts to manage
burgeoning caseloads with some semblance of efficiency. Within
wide limits, it is for courts, not litigants, to decide what
rules are desirable and how rigorously to enforce them. See
___
Maldonado-Denis v. Castillo-Rodriguez, ___ F.3d ___, ___ (1st
_______________ __________________
Cir. 1994) [No. 93-2012, slip op. at 16] ("The judge, not
counsel, must run the court and set the agenda."). Valid local
rules are an important vehicle by which courts operate.4 Such
rules carry the force of law, see 12 Charles A. Wright & Arthur
___
R. Miller, Federal Practice & Procedure 3153 (1973), and they
_____________________________
are binding upon the litigants and upon the court itself, see
___
United States v. Diaz-Villafane, 874 F.2d 43, 46 (1st Cir.),
______________ ______________
cert. denied, 483 U.S. 862 (1989). Consequently, the court below
_____ ______
acted appropriately in refusing to disregard Local Rule 11(b).
____________________
4This court has recently upheld the validity of D.N.H. Loc.
R. 11(b), see Clausen v. Sea-3, Inc., ___ F.3d ___, ___ (1st Cir.
___ _______ ___________
1994) [No. 93-1106, slip op. at 42-43], and appellant has
advanced no plausible claim of invalidity.
8
By like token, we do not discern any error in the
court's application of the rule. District courts enjoy broad
latitude in administering local rules. See United States v.
___ ______________
Roberts, 978 F.2d 17, 20 (1st Cir. 1992); Diaz-Villafane, 874
_______ ______________
F.2d at 46. In the exercise of that discretion, district courts
are entitled to demand adherence to specific mandates contained
in the rules. See, e.g., Clausen v. Sea-3, Inc., ___ F.3d ___,
___ ____ _______ ___________
___ (1st Cir. 1994) [No. 93-1106, slip op. at 43]; Witty v.
_____
Dukakis, 3 F.3d 517, 519 (1st Cir. 1993); Jardines Bacata, Ltd.
_______ ______________________
v. Diaz-Marquez, 878 F.2d 1555, 1560 (1st Cir. 1989); see also
____________ ___ ____
Mendez v. Banco Popular de Puerto Rico, 900 F.2d 4, 7 (1st Cir.
______ _____________________________
1990) ("Rules are rules and the parties must play by them.").
In this instance, the local rules explicitly warn
litigants that the court will "not accept any motions not in
compliance with procedures outlined in [the local rules]."
D.N.H. Loc. R. 11(a)(1). This provision, aposematic in and of
itself, is reinforced by a further provision that clearly
contemplates the striking of noncompliant pleadings. See D.N.H.
___
Loc. R. 2(f).5 Mindful of this profusion of red flags, we
____________________
5Appellant senses a possible contradiction in the district's
local rules. We perceive no inconsistency. While Local Rule
2(f) instructs that "[d]ocuments which fail to comply with the
provisions of these rules shall be filed by the clerk, subject to
being stricken by the court," Local Rule 11(a)(1) instructs that
"[t]he Clerk shall not accept any motions not in compliance with
procedures outlined in these Rules." The latter rule is narrowly
tailored and relates specifically to motions. Hence, it governs
in cases involving nonconforming motions. See generally 2B
___ _________
Norman J. Singer, Sutherland Statutory Construction 51.05 (5th
__________________________________
ed. 1992) (explaining that, when two statutes are in seeming
conflict, the more specific statute ordinarily controls).
9
cannot say that the judge responded inappropriately to
appellant's breach of Local Rule 11(b). See Clausen, ___ F.3d at
___ _______
___ [slip op. at 43] (holding that a district court, sitting in
New Hampshire, is entitled to enforce Local Rule 11(b) by
refusing to accept a noncompliant motion for filing); see also
___ ____
Atlas Truck Leasing, Inc. v. First NH Banks, Inc., 808 F.2d 902,
_________________________ ____________________
903 (1st Cir. 1987) (holding, in analogous circumstances, that
the trial court's application of a rule will only be reversed if
its disposition "results in clear injustice"). Indeed, it is
difficult to imagine how a judge could be found to have abused
his discretion in following the very course of action openly
advocated by the court's rules.
C.
C.
__
Appellant's next argument is ingenious, but
unpersuasive. Although phrased in various ways, the argument
amounts to a claim that the September 9 motion, see Chronology,
___
supra at No. 5, somehow related back to the date of the
_____
noncompliant motion or served to reinstate that motion nunc pro
____ ___
tunc.
____
The short, dispositive answer to this claim is that the
local rules do not accord a noncompliant motion any force or
effect. To the contrary, the rules rather conspicuously convey
the court's intention to treat noncompliant motions as null and
void. See D.N.H. Loc. R. 11(a)(1) (stating that the clerk of
___
court shall refuse to accept noncompliant motions for filing);
see also D.N.H. Loc. R. 2(f) (explaining that noncompliant
___ ____
10
documents are subject to being stricken).
If there is any lingering doubt as to this reading of
the local rules and we see no room for any such dubiety it is
dispelled by the instruction contained in the district court's
order of refusal, Chronology, supra, at No. 4, which stated:
_____
"When/if resubmitted, the [motion] should contain a
recertification of service on opposing counsel/parties." The
order of refusal also discussed the possibility that resubmission
of the motion might "bring the filing outside of a specific date
as set by court rule." In other words, the court made plain that
the old motion was dead and that a new motion, having a new
filing date, would be required. Since a district court's
plausible construction of its own local rule is entitled to
considerable deference, see, e.g., City of Waltham v. United
___ ____ ________________ ______
States Postal Serv., 11 F.3d 235, 243 (1st Cir. 1993); see also
___________________ ___ ____
12 Wright & Miller, supra, 3153 (1973), this viewpoint is
_____
telling.
To sum up, the noncompliant motion was a nullity. It
follows inexorably that the September 9 motion did not relate
back to the earlier motion or supplant it nunc pro tunc. Rather,
____ ___ ____
the new motion had to be evaluated on its own merit, not as an
extension of the noncompliant motion. So viewed, the September 9
motion cannot serve as a vehicle for restarting the appeal period
because it was filed beyond the 10-day period stipulated in Rule
59(e).
D.
D.
__
11
Appellant's next attempt to reach the August 17
judgment smacks of trying to cram a square peg into a round hole.
Precision posits that an appellate court may grant special
dispensation from the temporal requirement for docketing a notice
of appeal "where an appellant has filed a belated motion for
reconsideration and relied on the district court's statement that
the motion was timely in forgoing the timeous filing of a notice
of appeal." Feinstein, 951 F.2d at 19; see also Thompson v. INS,
_________ ___ ____ ________ ___
375 U.S. 384, 386-87 (1964) (per curiam). It then hints that it
is deserving of sanctuary under this principle. We agree with
appellant's premise a limited exception does exist for "unique
circumstances" but we disagree with its conclusion that this
appeal is eligible for such special swaddling. We explain
briefly.
There are two preconditions to the availability of the
"unique circumstances" exception. First, the exception "applies
only where a party has performed an act which, if properly done,
would postpone the deadline for filing his appeal and has
received specific assurance by a judicial officer that this act
has been properly done." Osterneck v. Ernst & Whinney, 489 U.S.
_________ _______________
169, 179 (1989). Second, the court's action or statement must
have occurred at a point when, had the party not been led astray,
it would have been able to file a timeous notice of appeal. See
___
Feinstein, 951 F.2d at 20. Here, neither precondition is
_________
satisfied, for the district court did nothing to lull appellant
into inactivity.
12
Appellant's contrary claim has two prongs. One centers
around the district court's initial denial of the September 9
motion. See Chronology, supra, at No. 7. This prong is easily
___ _____
blunted. After all, the court ruled unequivocally that the
motion was untimely vis-a-vis the final judgment. The fact that
the court made an erroneous calculation in the course of
announcing its ruling was unfortunate but, given the denial of
the motion, the bevue could not in any way have lulled appellant
into a false sense of security regarding filing deadlines.
The remaining prong of appellant's claim focuses on
Precision's ostensible belief that, when the district court
rejected the noncompliant motion, it (Precision) could refile the
motion nunc pro tunc after paying belated obeisance to Local Rule
____ ___ ____
11(b). But if appellant harbored this belief, it was wishful
thinking not premised on anything that the district court did
or said. Indeed, the order of refusal expressly stated that "if
the resubmission of said pleading will bring the filing outside
of a specific date as set by court rule or court order, a motion
for extension must accompany the refiling."
That effectively ends the matter. Where a party claims
to have relied to its detriment on a trial judge's statement or
action, it can derive no benefit unless its reliance is
objectively reasonable. See Feinstein, 951 F.2d at 20; Pinion v.
___ _________ ______
Dow Chemical, 928 F.2d 1522, 1532 (11th Cir.), cert denied, 112
____________ ____ ______
S. Ct. 438 (1991). Here, especially in light of the court's
specific admonition, Precision could not reasonably have relied
13
on the refusal of the noncompliant motion as evidence that a
resubmission would be accepted nunc pro tunc.
____ ___ ____
Appellant's remaining attempts to reach the underlying
judgment are meritless and do not require discussion. We lack
jurisdiction to review the August 17 judgment.
E.
E.
__
Appellant also contends that the district court erred
in denying its two later motions for reconsideration. See
___
Chronology, supra, at Nos. 5-6, 8. Although the notice of appeal
_____
is timely as to these rulings,6 it does not serve to reopen the
expired appeal period vis-a-vis the underlying judgment. See
___
Rodriguez-Antuna, 871 F.2d at 2; Appeal of Sun Pipe Line Co., 831
________________ ___________________________
F.2d 22, 24-25 (1st Cir. 1987), cert. denied, 486 U.S. 1055
_____ ______
(1988). In the circumstances of this case, appellate
jurisdiction is restricted to the September 22 order and the
October 13 judgment.
As a practical matter, the October 13 judgment adds
very little to the mix. That judgment memorializes the district
court's denial of the October 6 motion for reconsideration. To
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6The district court denied the September 9 motion by order
entered September 22, 1993. See Chronology, supra, at No. 7. We
___ _____
assume arguendo, favorably to appellant, that the ensuing motion
________
for reconsideration, filed on October 6, see id. at No. 8,
___ ___
suspended the running of the appeal period with respect to a
possible appeal of the September 22 order. See Fed. R. Civ. P.
___
59(e); Fed. R. App. P. 4(a)(1). On this assumption, the appeal
period began to run afresh on October 13, following the denial of
appellant's October 6 motion. The notice of appeal was filed
within thirty days of this date. See Chronology, supra, at No.
___ _____
11.
14
the extent that the motion successfully sought correction of a
misstatement made by the district court in the September 22
order, see Chronology, supra, at No. 7, appellant prevailed, and
___ _____
cannot appeal. To the extent that the October 6 motion
unsuccessfully sought a change in the bottom-line disposition of
the case, the court's rejection of it stands on a par with the
court's rejection of the September 9 motion for reconsideration,
memorialized in the September 22 order. Accordingly, we discuss
only the September motion and order but we do so on the express
understanding that our comments apply with undiminished force to
what transpired in October.
The September 9 motion sought reconsideration of the
underlying judgment. Under First Circuit precedent, an untimely
Rule 59(e) motion may be dismissed summarily by the trial court.
See, e.g., Rodriguez-Antuna, 871 F.2d at 2-3; Silk v. Sandoval,
___ ____ ________________ ____ ________
435 F.2d 1266, 1267 (1st Cir. 1971). But the court, if it so
elects, may use even a belated Rule 59(e) motion as a vehicle for
rethinking its original ruling, so long as the court still
retains jurisdiction over the case. See, e.g., United States v.
___ ____ _____________
789 Cases of Latex Surgeon Gloves, 13 F.3d 12, 14 (1st Cir.
____________________________________
1993); Jusino, 875 F.2d at 989-90; see also 11 Wright & Miller,
______ ___ ____
supra, 2858 & n.22 (1973 & Supp. 1994).
_____
In this instance, the lower court chose the former
option. Even had the court chosen the latter option, however, an
equally unhappy fate would have awaited the movant. In the last
analysis, the court of appeals will overturn a district court's
15
denial of a motion for reconsideration only if the record evinces
a clear abuse of discretion. See Fragoso v. Lopez, 991 F.2d 878,
___ _______ _____
888 (1st Cir. 1993); Weinberger v. Great Northern Nekoosa Corp.,
__________ _____________________________
915 F.2d 518, 528-29 (1st Cir. 1991); Sun Pipe Line, 831 F.2d at
_____________
25. This is a steep climb and appellant lacks the necessary
horsepower to attain such altitudes.
In its motion, Precision asked that the order to compel
arbitration be reexamined for two reasons. First, it asserted
that the court reached an erroneous legal result, pure and
simple. Insofar as the motion was predicated on this ground, the
court appropriately rejected it: a trial court, having
considered the parties' arguments and ruled on them, is under no
obligation to repastinate well-ploughed soil simply because an
unsuccessful litigant balks at taking "no" for an answer. See
___
National Metal Finishing Co. v. BarclaysAmerican Commercial,
_______________________________ _____________________________
Inc., 899 F.2d 119, 123 (1st Cir. 1990); Van Skiver v. United
____ __________ ______
States, 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 113
______ _____ ______
S. Ct. 89 (1992).
Appellant also requested reconsideration in light of a
ruling handed down by the National Mediation Board (NMB) on
August 11, 1993, while ALPA's motion for summary judgment was
pending in the district court. This constituted new matter. The
issue before the NMB concerned the representation of pilots
employed by Precision and by an affiliated airline. The NMB
determined that the two airlines comprised a "single
transportation system" for collective bargaining purposes under
16
the Railway Labor Act, 45 U.S.C. 151-188 (1988), and ordered a
representation election. Seizing on this development,
appellant's motion posited that arbitrating the grievance
underlying this case with a representation election in the offing
would infringe upon the jurisdiction of the NMB.
This contention comprises more bleat than wool.
Precision neglects to mention that the NMB's order specifically
provides that "[p]ending resolution of this representation
dispute, ALPA's certification [as the collective bargaining
representative for Precision's pilots] remains in effect." Given
the untimeliness of appellant's motion and the NMB's clear
statement anent ALPA's representational authority, we find no
hint of abused discretion in the district court's order refusing
reconsideration.
III.
III.
____
Conclusion
Conclusion
__________
We need go no further.7 When Precision elected to
____________________
7 The current version of Fed. R. Civ. P. 5(e) provides,
inter alia, that "[t]he clerk shall not refuse to
_____ ____
accept for filing any paper presented for that purpose
solely because it is not presented in proper form as
required by these rules or any local rules or
practices." Appellant neither cited this rule nor
relied on it in any way and has, therefore, waived any
potential benefit which might accrue from it. For this
reason, we do not refer to the rule in the body of this
opinion. But we note that, in all events, the clerk's
refusal to accept the noncompliant motion for filing in
this case was backed by the judge's specific order, see
___
Chronology, supra, at No. 4, leaving the record in
_____
essentially the same posture as though the motion had
been received and then stricken. Any error was,
therefore, harmless.
17
disregard Local Rule 11(b), it flew headlong into unfriendly
skies. In the aftermath of this pilot error, we lack appellate
jurisdiction to review the underlying judgment on the merits.
Substantively, then, our scrutiny must be confined to the denial
of two post-judgment motions. On that circumscribed basis,
Precision's appeal stalls.
Affirmed.
Affirmed.
________
18
Document Info
Docket Number： 93-2227
Filed Date： 6/23/1994
Precedential Status： Precedential
Modified Date： 9/21/2015