Unpublished Disposition, 869 F.2d 1497 (9th Cir. 1987)

MEMORANDUM^** 

Stephen Maglione, Gregory Paetz, Keith Kossman, and Ronald Hakanson ("Appellants") appeal the denial of their motion for reconsideration brought pursuant to Fed. R. Civ. P. 59(e). Before reaching the merits of appellants' claim, however, we must initially determine whether their notice of appeal was timely. If appellants failed to file a timely notice of appeal, we do not have jurisdiction over the matter and must dismiss. See Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 386 (9th Cir. 1988) (" [t]he requirement of a timely notice of appeal is mandatory and jurisdictional" (citation omitted)); Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984) (failure to file timely notice of appeal results in dismissal for lack of appellate jurisdiction).

After the Pacific Maritime Association ("PMA") and the International Longshoremen and Warehousemen's Union, Local 23 ("the Union") made the joint decision not to register appellants as Class B longshoremen for the Port of Tacoma in 1986, the four men filed this action alleging that the Union had breached its duty of fair representation, that PMA had breached the applicable collective bargaining agreement, and that both parties were guilty of age and sex discrimination. The Union and PMA both filed motions for summary judgment which the district court granted on September 17, 1987. [ER 86] The court entered judgment dismissing the suit on the same day. [ER 91]

On October 1, Appellants filed a motion for reconsideration under Rule 59(e). [ER 92] The motion was filed within the ten-day time period allotted for such motions. Rule 59(e), however, provides that " [a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment" (emphasis added), and this circuit has held that the date of service, not filing, is the critical date for determining whether a Rule 59(e) motion is timely. See Clipper Express v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1247 n. 9 (9th Cir. 1982), cert. denied, 459 U.S. 1227 (1983). Appellants concede that they did not serve their motion until October 2, one day after the statutory deadline.

District courts have no discretion to extend the ten-day period in which petitioners must serve a motion for reconsideration. See Fed. R. Civ. P. 6(b); Scott, 739 F.2d at 1467 (ten-day time period "is jurisdictional and cannot be extended by the court" (citations omitted)). Nevertheless, the district court in the instant case appeared, at least initially, to accept appellants' motion as timely. On October 7, it issued an order setting the motion for hearing and granting the request of one of the individual appellants to file late supporting papers. [ER 461] Two weeks later, however, on October 21, the district court reversed itself. Citing rules 59(e) and 6(b), the court denied "Plaintiffs' Motion to Permit Late Filing," struck from the record all of "Plaintiffs' pleadings filed after entry of this Court's Summary Judgment Order and Judgment," and denied the motion for reconsideration. [ER 598] When appellants moved for clarification, the district court responded on November 16 by changing its position a second time. The November 16 Order reinstated the Order of October 7, vacated the October 21 Order, and once again denied appellants' motion for reconsideration. [ER 608] Appellants sought appellate review of this decision by filing a notice of appeal on December 2, 1987.

In order to be timely, the notice of appeal in a civil case must be filed "within 30 days after the date of entry of the judgment." Fed. R. App. P. 4(a) (1). If, however, a party timely moves for reconsideration under Rule 59(e), the appeal period is suspended until such time as the district court disposes of the motion. See Fed. R. App. P. 4(a) (4); Swimmer v. IRS, 811 F.2d 1343, 1344 (9th Cir. 1987). In the present case, appellants' Rule 59(e) motion was not timely and thus did not toll the appeal period. Appellants were therefore forced either to file a notice of appeal within thirty days of the September 17 judgment, or lose their right to appeal. Under this reasoning, their December 2 notice was clearly tardy.

Having determined that appellants' notice of appeal was defective, we would ordinarily dismiss for lack of jurisdiction. However, the Supreme Court has established, and this circuit has endorsed, "a limited exception so that ' [u]nder certain unique circumstances, an appellate tribunal may have jurisdiction to hear an appeal that was not filed within the prescribed time limits.' " United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265, 1267 (9th Cir. 1985) (citations omitted). Unique circumstances are present " [w]here the district court itself suggests that the time for appeal has been extended or tolled, and a party acts in reasonable reliance upon that suggestion." Barry v. Bowen, 825 F.2d 1324, 1329 (9th Cir. 1987). A party's reliance is never reasonable unless "the period for timely filing had not elapsed at the time of the district court's action." Id. (citations omitted).

The facts of the instant case present a paradigm example of a situation in which application of the unique circumstances doctrine is warranted. When the district court issued its October 7 order, apparently accepting as timely appellants' Rule 59(e) motion, the time for filing a notice of appeal from the original judgment was still running. Appellants could easily have filed a notice of appeal within the proper jurisdictional time period had they not reasonably relied upon the district court's actions. Further, the district court's subsequent orders, rather than clarifying the situation, simply added to the confusion. We therefore conclude that unique circumstances exist that permit us to accept appellants' notice of appeal as timely. This being so, jurisdiction is proper pursuant to 28 U.S.C. § 1291 (1982).

Having determined that we possess jurisdiction, the merits of appellants' claim may be quickly resolved. Appellants protest the denial of their motion for reconsideration. Specifically, they claim that the district court erred in refusing to consider the numerous supporting papers submitted with the motion before reaching its decision to stand by its earlier ruling. We review a district court's denial of a Rule 59(e) motion for abuse of discretion. See Swimmer, 811 F.2d at 1345.

Appellants offer on reconsideration a host of new evidence that they claim creates genuine issues of material fact, making the district court's earlier grant of summary judgment inappropriate. They do not, however, contend that this evidence was unavailable at the time of the court's earlier ruling. Rather, having failed once to provide facts sufficient to support their claim, they now seem simply to be seeking a second chance.

If appellants had a plausible reason for being unable to marshall all of their evidence in time to oppose appellees' motion for summary judgment, they could have sought relief from the district court before judgment was entered against them. See Fed. R. Civ. P. 56(f) (providing for continuances and/or further discovery if good cause shown); see also Frederick S. Wyle, P.C. v. Texaco, Inc., 764 F.2d 604, 612 (9th Cir. 1985) (citing Rule 56(f)). Given appellants' failure to avail themselves of the procedural protections offered by Rule 56, we cannot say that the district court abused its discretion by refusing to award them after-the-fact relief via a motion for reconsideration. See Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553, 1557 n. 4 (9th Cir. 1987) (motion for reconsideration not justified on the basis of "new" evidence that was available to party at time of earlier ruling); Fay Corp. v. Bat Holdings I, Inc., 651 F. Supp. 307, 309-09 (W.D. Wash. 1987) (same).

The district court's denial of appellants' motion for reconsideration is AFFIRMED.