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Fuente v. Central Electric Cooperative Inc.

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


decided: March 30, 1983.

SHARON DE LA FUENTE AND MURRAY DE LA FUENTE, HER HUSBAND, INDIVIDUALLY AND DOING BUSINESS AS TAMARA'S GARDENS, APPELLANTS
v.
CENTRAL ELECTRIC COOPERATIVE, INC.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.

Seitz, Chief Judge, Higginbotham and Sloviter, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

On December 2, 1981, following a jury trial on liability, judgment was entered for defendant by the district court. Under Fed. R. Civ. P. 59(b), a motion for new trial must be served within ten days after the entry of judgment. On December 23, 1981, 21 days after the entry of judgment, plaintiffs served a "Motion for New Trial", which was filed the following day. The district court did not dismiss the motion as untimely, but instead entertained it, and did not deny it until September 13, 1982. Plaintiffs filed a notice of appeal on September 21, 1982. Because we conclude that the appeal is not timely, we must dismiss it for want of jurisdiction.*fn1

In civil cases in which the United States or an officer or agency thereof is not a party, the notice of appeal must be filed within 30 days of the entry of the judgment or order appealed from. Fed. R. App. P. 4(a)(1). In this case, considerably more than 30 days elapsed between the entry of judgment on December 2, 1981, and the filing of the notice of appeal on September 21, 1982. The period for appeal is tolled under Fed. R. App. P. 4(a)(4) when certain post-trial motions are filed.*fn2 In order to have this effect, a motion must satisfy two conditions: "First, that motion must be one of the motions listed in [Fed. R. App. P. 4(a)(4)]. Second, it must be timely." Richerson v. Jones, 572 F.2d 89, 93 (3d Cir. 1978); see generally Browder v. Director, Department of Corrections, 434 U.S. 257, 54 L. Ed. 2d 521, 98 S. Ct. 556 (1978).

A motion for a new trial under Fed. R. Civ. P. 59 is one of the motions specifically enumerated as tolling the period for taking an appeal.*fn3 Fed. R. App. P. 4(a)(4)(iv). However, as noted above, appellants did not serve their motion for a new trial within the ten days required by Fed. R. Civ. P. 59(b). The ten-day period is jurisdictional, and "cannot be extended in the discretion of the district court." Gribble v. Harris, 625 F.2d 1173, 1174 (5th Cir. 1980) (per curiam); Fed. R. Civ. P. 6(b); see Davidson v. Dixon, 386 F. Supp. 482, 492 (D. Del. 1974), aff'd mem., 529 F.2d 511 (3d Cir. 1975).*fn4 Because the motion for a new trial in this case was untimely, it could not operate to toll the running of the 30-day appeal period under Fed. R. App. P.4(a). The 30-day period must therefore be measured from the original entry of judgment on December 2, 1981, not from the denial of the motion for a new trial on September 13, 1982. Since the notice of appeal was not filed within the 30-day period, we are without jurisdiction to hear this appeal. See Browder v. Director, Department of Corrections, 434 U.S. at 264-65; Gribble v. Harris, 625 F.2d at 1174-75. We will therefore dismiss the appeal.*fn5


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