Luckerman v. Narragansett Indian Tribe, 1st Cir. (2015)

United States Court of Appeals
For the First Circuit

No. 14-1106
DOUGLAS J. LUCKERMAN,
Plaintiff, Appellee,
v.
NARRAGANSETT INDIAN TRIBE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Lynch, Chief Judge,
Kayatta and Barron, Circuit Judges.
John F. Killoy, Jr., with whom Law Office of John F. Killoy,

Jr., LLC, was on brief, for appellant.
Anthony F. Muri, with whom Muri Associates LLC, Albert L.
Farrah, Jr., and Farrah & Farrah were on brief, for appellee.
May 29, 2015
KAYATTA, Circuit Judge.
The Narragansett Indian Tribe
("the Tribe") moved in the district court to dismiss this breach

of
contract
immunity.
lawsuit
against
it
on
the
grounds
of
sovereign
After denying that motion, the district court also
denied a subsequent and belated motion under Federal Rule of Civil

Procedure 59(e) to reconsider that denial.
The Tribe now seeks
interlocutory review of the order denying its motion to reconsider.

For the following reasons, we find that we have no jurisdiction to
entertain such an appeal.
I.
Background
Attorney Douglas J. Luckerman seeks an award of $1.1

million in legal fees that he claims the Tribe owes him for his
services.
His complaint alleges that the Tribe contractually
waived the sovereign immunity that would otherwise have prevented

him from bringing this suit outside the tribal courts.
The Tribe
moved to dismiss the case on sovereign immunity grounds, making

various arguments for why its apparent waiver was invalid.
We
will call that motion the "Motion to Dismiss" to distinguish it

from the later motion for reconsideration, which we will call the
"Rule 59(e) Motion."
On August 30, 2013, the district court
entered on the docket an order denying the Motion to Dismiss.
- 2 -
The order denying the Motion to Dismiss was plainly not

a final decision, as it did not end the litigation in the district
court.
Catlin
v.
United
States,
324
U.S.
229,
233
(1945).
Accordingly, traditional appellate review under 28 U.S.C. 1291

was unavailable.
U.S.
541,
545
announced
in
See Cohen v. Beneficial Indus. Loan Corp., 337

(1949).
Cohen,
Under
id.
at
the
546,
collateral
however,
order
the
doctrine
Tribe
might
nevertheless have been able to appeal the denial of this particular

Motion to Dismiss, which rejected a defense based on tribal
immunity
from
suit.
See
Breakthrough
Mgmt.
Grp.,
Inc.
v.
Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1177 & n.1 (10th
Cir.
2010)
(holding
that
the
denial
of
motion
to
dismiss
involving a claim of tribal sovereign immunity is an appealable

collateral order).
The Tribe, though, did not appeal the denial of the
Motion to Dismiss, at least not effectively.
Federal Rule of
Appellate Procedure 4(a)(1)(A) establishes the general rule that

a party must appeal a judgment or order "within 30 days after entry
of the judgment or order appealed from." The Tribe filed no appeal
within those thirty days.
Nor did it extend the thirty-day limit
by filing, within twenty-eight days of the district court's order,

a motion to alter or amend the judgment under Federal Rule of Civil
- 3 -
Procedure 59(e).
See Fed. R. App. P. 4(a)(4)(A)(iv) (providing
that a timely Rule 59(e) motion tolls the time for appeal).
Instead, thirty-one days after entry of the order denying the
Motion to Dismiss, the Tribe filed its plainly untimely Rule 59(e)
Motion,
which,
despite
its
untimeliness,
considered and denied on January 7, 2014.
the
district
court
Ten days later, the
Tribe then filed a notice purporting to appeal from both the

August 30 denial of the Motion to Dismiss and the January 7 denial
of the untimely Rule 59(e) Motion.
Surveying the foregoing, a prior duty panel of this court
cleared the underbrush by dismissing as untimely any appeal from
the denial of the Motion to Dismiss.
Luckerman v. Narragansett
Indian Tribe, No. 14-1106, Order at 1 (1st Cir. Aug. 29, 2014).
That decision obviates the need to decide whether we would have
had jurisdiction over an interlocutory appeal from the Motion to
Dismiss.
We do need to decide, though, whether we have appellate
jurisdiction under the collateral order doctrine to review the

only order before us:
Motion.
the denial of the untimely Rule 59(e)
For the reasons described below, we conclude that the
denial of the Tribe's untimely Rule 59(e) Motion does not qualify
as a collateral order that we may review prior to the end of the
litigation in the district court.
- 4 -
II.
Analysis
In an analogous context, this court has held that denial

of a Rule 59(e) motion for reconsideration was not an immediately
appealable collateral order, even though the denial of the original
motion--a cross-motion to dismiss on qualified immunity grounds-might have qualified for immediate review.
Fisichelli v. City
Known as Town of Methuen, 884 F.2d 17, 18-19 (1st Cir. 1989); see
also Lora v. O'Heaney, 602 F.3d 106, 110 (2d Cir. 2010).
We reach
the same conclusion here, and explain our reasoning as follows.

This
circuit
uses
four-part
test
for
determining
whether an order is sufficiently collateral to be directly appealed

prior
to
entry
litigation.
of
final
order
ending
the
district
court
Under this test, the order must involve:
(1) an issue essentially unrelated to the

merits of the main dispute, capable of review
without disrupting the main trial; (2) a
complete resolution of the issue, not one that
is "unfinished" or "inconclusive"; (3) a right
incapable of vindication on appeal from final
judgment; and (4) an important and unsettled
question of controlling law, not merely a
question of the proper exercise of the trial
court's discretion.
United States v. Sorren, 605 F.2d 1211, 1213 (1st Cir. 1979); see
also Espinal-Dominguez v. Puerto Rico, 352 F.3d 490, 496 (1st Cir.
2003).
- 5 -
The last of these criteria poses a hurdle too high for

the Tribe because its appeal of the Rule 59(e) Motion does not
encompass review of the merits of the underlying Motion to Dismiss
on sovereign immunity grounds.
See Fisichelli, 884 F.2d at 19
("[A]ppealing from the denial of a motion to rehear . . . cannot

resurrect a party's expired right to contest the appropriateness
of the order underlying the motion to rehear.").
True, there are
some circumstances in which review of a ruling on a timely motion

for reconsideration may be considered to encompass the issues
raised in the original motion.
See McKenna v. Wells Fargo Bank,
N.A., 693 F.3d 207, 213-14 (1st Cir. 2012).
Extending that
latitude to encompass an untimely motion to reconsider, however,

would defeat the principle of finality in Federal Rule of Appellate
Procedure 4 by allowing a party to file at any time a motion for
reconsideration rehashing its original argument and then, when
that motion is denied, make whatever appeal it had previously
foregone.
See Fisichelli, 884 F.2d at 19 (noting that allowing a
motion to reconsider to revive an expired right to appeal would

mean "a dilatory defendant would receive not only his allotted
bite at the apple, but an invitation to gnaw at will").
Thus, if we were to entertain this appeal, we would be
deciding only whether the district court abused its discretion in
- 6 -
denying the untimely Rule 59(e) Motion.
See Global NAPS, Inc. v.
Verizon New Eng., Inc., 489 F.3d 13, 25 (1st Cir. 2007) (explaining
that denials of motions for reconsideration are reviewed for abuse
of discretion).
An appeal that directly challenges only the trial
court's exercise of discretion in denying a Rule 59(e) motion,

rather than the original ruling of law, usually concerns "merely
a question of the proper exercise of the court's discretion,"
rather than "an important and unsettled question of controlling
law," and thus usually fails to pass the fourth part of Sorren's
collateral order test.1
Sorren, 605 F.2d at 1213; cf. Johnson v.
Jones, 515 U.S. 304, 313-20 (1995) (holding that the denial of a
defendant's motion for summary judgment based on a qualified
immunity defense is an immediately appealable collateral order
only if the denial was based on a ruling of law and not a
determination of contested fact).
That the Rule 59(e) Motion
itself was untimely, and thus a possible "nullity," see Morris v.

Unum Life Ins. Co. of America, 430 F.3d 500, 502 (1st Cir. 2005),
That being said, we do not answer the question of whether

we would have interlocutory jurisdiction over the denial of a
request, under Federal Rule of Civil Procedure 56 or 60, to revisit
the immunity defense when a new fact that speaks to that defense
arises after an initial motion to dismiss has been denied and the
deadline for appeal or filing a reconsideration motion has passed.
One example that comes to mind is a motion based on a new revelation
that a waiver that initially appeared to be properly authorized
pursuant to express tribal procedures was actually forged.
- 7 -
further supports the conclusion that this appeal presents an issue

too far removed from controlling questions of law, and too focused
on questions of discretion, to qualify under the collateral order
doctrine.2
III.
Conclusion
For the foregoing reasons, we dismiss this appeal for

lack of jurisdiction.
Because our decision turns on an interpretation of our

collateral order jurisprudence, the result is the same whether or
not the time limit for filing a Rule 59(e) motion is a
jurisdictional rule or a claims-processing rule under Bowles v.
Russell, 551 U.S. 205, 213-14 (2007).
- 8 -

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United States Court of Appeals

For the First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT

John F. Killoy, Jr., with whom Law Office of John F. Killoy,

May 29, 2015

KAYATTA, Circuit Judge.

The Narragansett Indian Tribe

("the Tribe") moved in the district court to dismiss this breach

After denying that motion, the district court also

denied a subsequent and belated motion under Federal Rule of Civil

The Tribe now seeks

interlocutory review of the order denying its motion to reconsider.

Attorney Douglas J. Luckerman seeks an award of $1.1

His complaint alleges that the Tribe contractually

waived the sovereign immunity that would otherwise have prevented

moved to dismiss the case on sovereign immunity grounds, making

will call that motion the "Motion to Dismiss" to distinguish it

On August 30, 2013, the district court

entered on the docket an order denying the Motion to Dismiss.

The order denying the Motion to Dismiss was plainly not

Accordingly, traditional appellate review under 28 U.S.C. 1291

See Cohen v. Beneficial Indus. Loan Corp., 337

nevertheless have been able to appeal the denial of this particular

involving a claim of tribal sovereign immunity is an appealable

Appellate Procedure 4(a)(1)(A) establishes the general rule that

Nor did it extend the thirty-day limit

by filing, within twenty-eight days of the district court's order,

See Fed. R. App. P. 4(a)(4)(A)(iv) (providing

considered and denied on January 7, 2014.

Ten days later, the

Tribe then filed a notice purporting to appeal from both the

We do need to decide, though, whether we have appellate

jurisdiction under the collateral order doctrine to review the

the denial of the untimely Rule 59(e)

For the reasons described below, we conclude that the

In an analogous context, this court has held that denial

the same conclusion here, and explain our reasoning as follows.

whether an order is sufficiently collateral to be directly appealed

Under this test, the order must involve:

(1) an issue essentially unrelated to the

The last of these criteria poses a hurdle too high for

See Fisichelli, 884 F.2d at 19

("[A]ppealing from the denial of a motion to rehear . . . cannot

True, there are

some circumstances in which review of a ruling on a timely motion

See McKenna v. Wells Fargo Bank,

N.A., 693 F.3d 207, 213-14 (1st Cir. 2012).

latitude to encompass an untimely motion to reconsider, however,

See Fisichelli, 884 F.2d at 19 (noting that allowing a

motion to reconsider to revive an expired right to appeal would

denying the untimely Rule 59(e) Motion.

See Global NAPS, Inc. v.

An appeal that directly challenges only the trial

court's exercise of discretion in denying a Rule 59(e) motion,

Sorren, 605 F.2d at 1213; cf. Johnson v.

That the Rule 59(e) Motion

itself was untimely, and thus a possible "nullity," see Morris v.

That being said, we do not answer the question of whether

further supports the conclusion that this appeal presents an issue