* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-10763

_____________________

STEWART HOFFMAN; PETER GULLO,

Plaintiffs-Appellants,

v.

JOHN MECKLING; HELGA MECKLING; HYDRODYNAMICS

CORPORATION, a Louisiana Corporation; HYDRO

INTERNATIONAL INCORPORATED, a Louisiana Corporation;

TIMOTHY MCCARTNEY,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(4:97-CV-19-Y)

_________________________________________________________________

March 11, 1998

Before KING, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Plaintiffs-Appellants Stewart Hoffman and Peter Gullo appeal

the district court’s dismissal of their complaint for improper

venue and the district court’s denial of their Motion to

Reconsider. We dismiss the appeal of the dismissal for lack of

appellate jurisdiction because of the Appellants’ failure to file

a timely notice of appeal under Federal Rule of Appellate

Procedure 4(a).
2

“The failure to file a timely notice of appeal is

jurisdictional and cannot be waived.” United States v.

Montgomery, 778 F.2d 222, 224 (5th Cir. 1985). A party in a

civil case who has a right of appeal by law has thirty days from

the entry of judgment to file notice. FED. R. APP. P. 4(a). 

However, if a party files a timely motion to alter or amend the

judgment under Rule 59, “the time for appeal runs . . . from the

entry of the order disposing of the last such motion

outstanding.” FED. R. APP. P. 4(a)(4). Federal Rule of Civil

Procedure 59(e) requires that “[a]ny motion to alter or amend a

judgment shall be filed no later than 10 days after entry of

judgment.” FED. R. CIV. P. 59(e). An untimely Rule 59(e) motion,

even if acted upon by the district court, cannot toll the time

period for filing a notice of appeal. Washington v. Patlis, 868

F.2d 172, 174 (5th Cir. 1989). Moreover, a district court cannot

extend the ten-day time period for filing a Rule 59(e) motion. 

Id.

The district court entered final judgment on April 29, 1997. 

The thirty-day deadline for filing the notice of appeal expired

on May 29, 1997. Under Federal Rule of Civil Procedure 6(a),

Appellants had until May 13, 1997 to file a Rule 59(e) motion,

which would toll the thirty-day deadline. On May 9, 1997,

Appellants filed a Motion to Reconsider, recognized by this court

as a Rule 59(e) motion. See Teal v. Eagle Fleet, Inc., 933 F.2d
 

1In Teal, this court distinguished a Rule 59(e) motion from

a Rule 60(b) motion by the time at which the motion was filed. 

933 F.2d at 347. Appellants did not argue that their Motion to

Reconsider constituted a Rule 60(b) motion, nor did they

establish any of the bases for which a Rule 60(b) motion may be

filed. See FED. R. CIV. P. 60(b). 

3

341, 347 (5th Cir. 1991).1 However, because the motion lacked

the certificate of conference required under Local Rule 5.1(a),

the district court unfiled the motion and struck it from the

record. LOCAL R. N.D. TEX. 5.1(a) & app. I. In a case directly on

point, the First Circuit held that a motion struck for failure to

comply with the local rules did not toll the time period for

filing a notice of appeal, declaring that local rules are

essential tools in aiding the courts to manage judicial

resources. See Air Line Pilots Ass’n v. Precision Valley

Aviation, Inc., 26 F.3d 220, 223-24 (1st Cir. 1994) (applying

similar reasoning). Therefore, Appellants’ untimely Rule 59(e)

motion did not toll the time period for filing their notice of

appeal; thus, the notice of appeal was untimely filed.

Appellants argue that the district court mistakenly struck

their Rule 59(e) motion because their motion to reconsider was,

in effect, a motion for new trial and thus, did not require the

certificate of conference. Nothing in the proceedings even

suggests that the Appellants themselves considered their Motion

to Reconsider a motion for new trial at the time that they filed

it. If they had thought that it was essentially a motion for new
4

trial, the Appellants could have simply retitled it as “Motion

for New Trial” and filed it by May 13. The district court did

not err in striking the Appellants’ motion because (1) the

district court dismissed Appellants’ complaint for improper venue

and not after trial, making it impossible for Appellants to

establish appropriate grounds for a new trial under Rule 59(a);

(2) the Appellants entitled all of the relevant motions as

“Motion to Reconsider”; and (3) Appellants’ prayer for relief in

the motions asked the court to “reconsider its order dismissing

the claim and reinstate” the case. Appellants only suggested

that their motion was a motion for new trial after the time to

file their Motion to Reconsider had run. Appellants’ claim that

their motion was actually for a new trial has no basis in the

record and is, at best, a disingenuous attempt to avoid their own

mistake rather than a mistake of the district court or its clerk.

The Appellants argue that the district court “impliedly

acknowledged its error” in striking the Motion to Reconsider by

granting the Motion for Leave to Refile Motion to Reconsider. 

The district court did nothing more than acknowledge that the

refiling included a certificate of conference, which does not

impliedly acknowledge any error. Nothing in the district court’s

orders suggests that the district court thought that it or its

clerk erred in requiring the Appellants to comply with the local

rules. We are troubled by the Appellants’ attempt to read into

the orders something that has no basis in the district court’s
5

rulings and to then misrepresent the content of those orders to

us.

Lastly, Appellants urge this court to apply the unique

circumstances doctrine. The Supreme Court has applied this

doctrine where a party has missed the deadline for filing a

motion as a result of “‘excusable neglect based on a failure of

[the] party to learn of the entry of judgment.’” Thompson v.

Immigration and Naturalization Serv., 375 U.S. 384, 386-87 (1964)

(quoting FED. R. CIV. P. 73(a)); see also Harris Truck Lines, Inc.

v. Cherry Meat Packers, Inc., 371 U.S. 215, 217 (1962). In both

Thompson and Harris, the parties relied upon express statements

of the district courts in filing their untimely motions. See

Thompson, 375 U.S. at 386-87; Harris, 371 U.S. at 216-17. When

the district court makes no affirmative statement to a party that

it has timely filed a post-trial motion, the unique circumstances

doctrine does not apply. Osterneck v. Ernst & Whinney, 489 U.S.

169, 178-79 (1989). In a case in which the district court

neither made findings of good cause or excusable neglect nor made

explicit statements that the notice of appeal was timely filed,

this court held that the unique circumstances doctrine did not

apply. See Mann v. Lynaugh, 840 F.2d 1194, 1200-01 (5th Cir.

1988).

The district court’s granting of Appellants’ Motion for

Leave to Refile Motion to Reconsider did not constitute an
6

affirmative statement that they had timely filed a Rule 59(e)

motion. Cf. id. at 1200 (granting of a certificate of probable

cause did not constitute a finding of excusable neglect or good

cause). Nothing indicates that the district court explicitly

stated that Appellants’ motion was timely filed, nor is there any

indication that Appellants relied upon any statement of the

district court in filing an untimely notice of appeal. See Air

Line Pilots Ass’n, 26 F.3d at 225 (refusing to apply the unique

circumstances doctrine in a similar situation). Additionally, as

noted above, there was no statement by the district court upon

which Appellants could have relied. The unique circumstances

doctrine does not apply, and this court is therefore without

jurisdiction.

The Appellants’ failure to address the central issue in the

district court’s order dismissing this case for improper venue

and their mischaracterization of the district court’s actions

cause this appeal to border on being frivolous. The court feels

that its resources have been misused in having to consider this

case and admonishes Appellants and their counsel for bringing

such an appeal.

For the foregoing reasons, we DISMISS Appellants’ appeal of

the district court’s order dismissing the Appellants’ complaint

for improper venue. Costs are to be borne by Appellants.
7

RHESA HAWKINS BARKSDALE, Circuit Judge, specially concurring:

Appellants’ lunge to rescue jurisdiction — by claiming that

their motion to reconsider was one for a new trial, and that the

district court “impliedly acknowledged its error” in striking

that motion — is much more egregious than as described in our

opinion: “disingenuous”, “attempt[s] to read [something] into

the orders”, and “mischaracterization”. Indeed, our opinion is

closer to the mark in calling them “misrepresentations”. Sadly,

that is the absolute best that can be said.

This conduct falls far below that expected, required, and

demanded of officers of the court. It cannot be tolerated.

Accordingly, I would have ordered Appellants’ counsel to show

cause why they should not be sanctioned.