2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-23-2012

Patrick Tillio Sr. v. Joe Rodriguz

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-2550

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Recommended Citation

"Patrick Tillio Sr. v. Joe Rodriguz" (2012). 2012 Decisions. Paper 543.

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BLD-253 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2550

___________

PATRICK D. TILLIO, SR.,

Appellant

v.

JOE RODRIGUZ; VINCENT’S HARWOOD FLOORING

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 12-cv-01170)

District Judge: Honorable Cynthia M. Rufe

____________________________________

Submitted for Possible Summary Action Pursuant to 

Third Circuit LAR 27.4 and I.O.P. 10.6

August 9, 2012

Before: SCIRICA, SMITH and CHAGARES, Circuit Judges

(Opinion filed: August 23, 2012)

_______

OPINION

_________

PER CURIAM

Appellant Patrick Daniel Tillio, Sr., appeals pro se and in forma pauperis from the 

District Court’s order denying his motion for reconsideration. For the reasons set forth 

below, we will summarily affirm the District Court’s order. 
2

Tillio filed a complaint in the District Court against Joe Rodriguz and Vincent’s 

Hardwood Flooring. By order entered March 9, 2012, the District Court dismissed 

Tillio’s “rambling and unclear” complaint without prejudice and gave leave to amend 

within 30 days. Pursuant to the Court’s order, the case was to terminate after 30 days if

Tillio failed to file an amended complaint. On May 17, 2012, Tillio filed a motion for 

reconsideration pursuant to Fed. R. Civ. P. 59(e), which the district court denied as 

untimely in an order entered May 18, 2012. Tillio filed a notice of appeal on May 29, 

2012.

To the extent Tillio seeks review of the District Court’s order denying the motion 

for reconsideration, we have jurisdiction over the appeal pursuant to: 28 U.S.C. § 1291.1 

We review the denial of a motion for reconsideration for abuse of discretion. Lazaridis v. 

Wehmer, 591 F.3d 666, 669 (3d Cir. 2010). A litigant has 28 days from the entry of the 

order being challenged in which to file a motion for reconsideration. See Fed. R. Civ. 

Pro. 59(e). Because the Rule 59(e) motion was filed more than 28 days after the final 

order, the District Court did not abuse its discretion in denying it as untimely. We will 

therefore summarily affirm the District Court’s order entered May 18, 2012. 

 

1 We lack jurisdiction to review the dismissal of the complaint. While a timely Rule 

59(e) motion tolls the time for appeal until the District Court’s disposition of the motion, 

an untimely Rule 59(e) motion has no tolling effect. See Fed. R. App. P. 4(a)(4)(A);

Lizardo v. United States, 619 F.3d 273, 280 (3d Cir. 2010). As Tillio did not file an 

amended complaint, the order of dismissal became final after 30 days. See Batoff v. State 

Farm Ins. Co., 977 F.2d 848, 851 n.5 (3d Cir. 1992) (order of dismissal becomes final 

after 30 days where plaintiff fails to file amended petition and thereby elects to stand on 

his complaint). Tillio filed a notice of appeal more than 30 days after the final order, but 

within 30 days of the order denying the motion for reconsideration. See Fed. R. App. P. 

4(a). Accordingly, our jurisdiction extends only to the District Court’s order denying 

Tillio’s motion for reconsideration.