Documente Academic
Documente Profesional
Documente Cultură
August 6, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1443
TOOLING RESEARCH, INC., ET AL.,
Plaintiffs, Appellees,
v.
TRI-ONICS, INC.,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Cyr, Boudin and Stahl,
Circuit Judges.
______________
____________________
Thomas
E.
Nannicelli
and
Nannicelli
&
Woods
on
brief
______________________
____________________
appellant.
Richard T. Rook on brief for appellee, Tooling Research, Inc.
_______________
____________________
____________________
Per Curiam.
__________
timely
Appellant claims it
did not
of its timely
receive
served motion to
Shortly
after
denied,
learning that
appellant asked
the district
the motion
R. App.
motion without
to amend
court
to reopen
P. 4(a)(6).
stating
had been
the time
The district
any reasons
or
to
court
finding
district court
time for
appeal, Fed.
R. App.
P. 4(a)(6),
because we
conclude that the time for appealing has not yet commenced to
docket
indicates
that
the
district
court
judgment
There is
and
complying
with Fed.
R.
Civ.
P.
58 was
ever
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1. We note, however, that the district court docket does not
record notice having been sent to counsel of the April 13,
1992 order denying defendant's motion to amend judgment. See
___
Fed. R. Civ. P. 77(d) (directing clerk to serve notice of
entry by mail and to "make a note in the docket of the
mailing").
This circumstance lends support to counsel's
uncontradicted statement that he did not receive timely
notice of the April 13, 1992 order. In such circumstances,
we would benefit from the district court's statement of
reasons for denying the motion to reopen the time for appeal.
See, e.g., Foster v. Mydas Associates, Inc., 943 F.2d 139,
___ ____ ______
_______________________
141-42 (1st Cir. 1991) (need for findings or reasons in order
to afford informed appellate review).
prepared.
Fiore v. Washington
_____
__________
County Community Mental Health Center, 960 F.2d 229 (1st Cir.
_____________________________________
1992).
To
be
exceptional
sure, in
Fiore
_____
circumstances," a
waiting
a separate
within
three months
we indicated
party wishing
document should
of the
affidavit
appeal and
court's last
order lest
one
he be
to
"absent
ordinarily request
that
(see note one), and the district court did not find
the failure
Therefore,
Consequently, as
waiver
will
circumstances are
not
be
inferred.
requirement has
not
been satisfied, the time for appealing from the July 29, 1991
judgment
and April
therefore affirm
13,
has
not expired.
1992 order
of appellant's
such motion was
949 F.2d
We
504, 510
See, e.g.,
___ ____
(1st Cir.
-3-
Appellant's
August
25,
manifests an
intention
judgment and
served by requiring
to appeal
1992
from
motion
to
the July
29,
As no purpose
appellant to file
reopen
1991
would be
of
motion as a notice
of appeal.
McMillan v. Barksdale,
________
_________
823 F.2d 981, 983 (6th Cir. 1987) (document meeting Rule 3(c)
requirements and
treated
F.2d
as a
manifesting an
notice of
intention to appeal
appeal); Stallworth v.
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We transmit
may be
Shuler, 758
______
order is
summarily affirmed.
request for
-4-