McCullough v. Desmond
Case Date: 08/23/1995
Court: United States Court of Appeals
Docket No: 95-1244
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August 23, 1995 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 95-1244 DONALD F. MCCULLOUGH, Plaintiff, Appellee, v. ROBERT DESMOND, ET AL., Defendants, Appellants. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Henry A. Mentz, Jr.,* Senior U.S. District Judge] __________________________ ____________________ Before Cyr, Boudin and Lynch, Circuit Judges. ______________ ____________________ Robert M. Desmond on brief pro se. _________________ John Kenneth Felter, P.C. and Goodwin, Proctor & Hoar on brief __________________________ _________________________ for appellee. ____________________ ____________________ ________________ * Of the Eastern District of Louisiana, sitting by designation. Per Curiam. Appellant, Robert M. Desmond, filed a ___________ notice of appeal which bore the district court docket number of McCullough v. Desmond et al., 90-cv-11788. Any appeal in __________ ______________ that case is untimely. Desmond says, however, that he intended to appeal in the district court case of McCullough __________ v. Desmond, 94-cv-12216. In particular, Desmond seeks to _______ appeal the judgment, which entered on December 30, 1994, and the denial of his motion to vacate that judgment, which entered on February 1, 1995. His notice of appeal specified those rulings, as well as the party taking the appeal and the court to which the appeal was taken. See Fed. R. App. P. ___ 3(c). As his notice of appeal did not bear the docket number of 94-cv-12216, however, it was not entered in that case and it is now too late to file a timely notice of appeal in that case. Assuming without deciding that the notice of appeal erroneously filed in docket number 90-cv-11788 may be treated as having been timely filed in docket number 94-cv-12216, we would, in any event, affirm. Desmond was on timely notice that McCullough had filed a motion for judgment on the pleadings. Yet, he did not notify either McCullough or the district court that he allegedly had not received his copy of that motion and supporting memorandum until his receipt one month later of the order granting McCullough's motion. Further, he has never proffered any grounds to oppose the -2- entry of judgment on the pleadings that would warrant vacating that judgment. There was no abuse of discretion in denying the motion to vacate the judgment and the order of the district court is affirmed. _________ Appellee's motion for just damages and double costs pursuant to Fed. R. App. P. 38 is denied. Ordinary costs, _______ pursuant to Fed. R. App. P. 39, are awarded. -3- |