At page 19 Preventing resurrection of expired appeal rights12 citing cases“a dilatory defendant would receive not only his allotted bite at the apple, but an invitation to gnaw at will.”
- Luckerman v. Narragansett Indian Tribe, 787 F.3d 621 (1st Cir. 2015).published ([Ajppealing from the denial of *624 a motion to rehear ... cannot resurrect a party’s expired right to contest the appropriateness of the order underlying the motion to rehear.)
- Kolosai v. Azem, 2016-Ohio-5831.publishedCozza rebutted that: [S]imilar reasoning has been rejected in the context of qualified immunity, where the thirty day deadline to appeal interlocutory orders under Federal Rules of Appellate Procedure 4(a)(1) has been enforced, and appeals…
- Maxwell v. AIG Dom. Claims, Inc., 950 N.E.2d 40 (Mass. 2011).publishedFurther, “[i]f the rule were otherwise, ‘a dilatory defendant would receive not only his allotted bite at the apple, but an invitation to gnaw at will.” McGrath v. McGrath, supra, quoting Fisichelli v. Methuen, 884 F.2d 17, 19 (1st Cir. 19…
- McGrath v. McGrath, 843 N.E.2d 100 (Mass. App. Ct. 2006).published(involving similar procedural circumstances under rule 4[a][4] of the Federal Rules of Appellate Procedure)
- Littles v. Comm'r of Corr., 444 Mass. 871 (2005).published In Fisichelli v. Methuen, 884 F.2d 17, 18 (1st Cir. 1989), for example, the United States Court of Appeals for the First Circuit concluded that while the denial of a substantial claim of qualified immunity is immediately appealable, such a…
- Ungar v. Palestine Liberation Org., 402 F.3d 274 (1st Cir. 2005).publishedDemanding such diligence is “virtually essential to orderly judicial management of the vexing procedural problems” that accompany assertions of immunity. 11 Fisichelli v. City Known as Town of Methuen, 884 F.2d 17, 19 (1st Cir.1989).
- Cozza v. Network Assocs., Inc., 362 F.3d 12 (1st Cir. 2004).publishedCozza argues that similar reasoning has been rejected in the context of qualified immunity, where the thirty-day deadline to appeal interlocutory orders under Federal Rules of Appellate Procedure 4(a)(1) has been enforced, and appeals of o…
- Phillips v. Montgomery Cnty., 24 F.3d 736 (5th Cir. 1994).publishedFisichelli v. City Known as the Town of Methuen, 884 F.2d 17, 19 (1st Cir.1989).
- Taylor v. Carter, 960 F.2d 763 (8th Cir. 1992).published Fisichelli v. City Known as Town of Methuen, 884 F.2d 17, 19 (1st Cir.1989).
- Marco Tammaro v. Stephanie Rauseo., 263 N.E.3d 251 (Mass. App. Ct. 2025).unpublished(defendants who failed to pursue timely interlocutory appeal on qualified immunity could raise issue on appeal after trial)
Show 1 more citing case
- Marie v. Allied Home Mortg. Corp., 402 F.3d 1 (1st Cir. 2005).published(no appellate jurisdiction over motion to reconsider, raising no newly available facts or arguments, filed one and a half years after denial of original motion for qualified immunity)
At page 18 Collateral order exception to finality rule for appeal10 citing cases[T]he denial of a substantial claim to qualified immunity can be immediately appealed under [the collateral order] exception.
- Morales Posada v. Cultural Care, Inc., 66 F.4th 348 (1st Cir. 2023).published([T]he denial of a substantial claim to qualified immunity can be immediately appealed under [the collateral order] exception.)
- Luckerman v. Narragansett Indian Tribe, 787 F.3d 621 (1st Cir. 2015).published See Fisichelli, 884 F.2d at 19 (“[Ajppealing from the denial of *624 a motion to rehear ... cannot resurrect a party’s expired right to contest the appropriateness of the order underlying the motion to rehear.”).
- Littles v. Comm'r of Corr., 444 Mass. 871 (2005).published In Fisichelli v. Methuen, 884 F.2d 17, 18 (1st Cir. 1989), for example, the United States Court of Appeals for the First Circuit concluded that while the denial of a substantial claim of qualified immunity is immediately appealable, such a…
- Michel v. Fisher (In Re Lake States Commodities, Inc.), 185 B.R. 259 (N.D. Ill. 1995).published(appealing from denial of a motion to rehear ‘does not automatically produce a Lazarus-like effect’ ... such an appeal cannot resurrect a party’s expired right to contest the appropriateness of the order underlying the…)
- Dewayne Johnson v. Matthew Jochums, 28 F.3d 1216 (7th Cir. 1994).unpublishedIn any event, "[a]n order declining reconsideration of the qualified immunity question--unlike an order rejecting the defense--has never been thought immediately appealable." Fisichelli v. City Known as Town of Methuen, 884 F.2d 17, 18 (1s…
- Kenworthy v. Hargrove, 826 F. Supp. 138 (E.D. Pa. 1993).publishedWeir v. Propst, 915 F.2d 283, 286 (7th Cir.1990) (citing Fisichelli v. City Known as Town of Methuen, 884 F.2d 17, 18 (1st Cir. 1989); Kennedy v. City of Cleveland, 797 F.2d 297, 304 (6th Cir. 1986); Kenyatta v. Moore, 744 F.2d 1179, 1186…
- Witty v. Dukakis, 3 F.3d 517 (1st Cir. 1993).published See, ___ e.g., Fisichelli v. City, Etc. of Methuen, 884 F.2d 17 , 18-19 ____ __________ ______________________ (1st Cir. 1989); Rodriguez-Antuna v. Chase Manhattan Bank Corp., ________________ __________________________ 871 F.2d 1, 2 (1st…
- Leonel Buenrostro v. Pablo Collazo, 973 F.2d 39 (1st Cir. 1992).published See, e.g., Fisichelli v. City ___ ____ __________ ____ Known as the Town of Methuen, 884 F.2d 17, 18 (1st Cir. 1989); _____________________________ 3 see also 28 U.S.C. 1291 (1988) ("[t]he courts of appeals . . . ___ ____ shall have jurisd…
- Jose Zayas-Green v. Sergio Casaine, Jose Zayas-Green v. Sergio Casaine, Etc., Appeal of Esteban Davila-Diaz, 906 F.2d 18 (1st Cir. 1990).published (defendants waive right to bring appeal prior to trial when they fail to bring timely appeal from *23 district court’s pretrial order denying qualified immunity)
Other citing cases
- Om Records, LLC v. OM Developpement, SAS, No. 4:23-cv-04506 (N.D. Cal. June 17, 2024).
v.
the CITY KNOWN AS the TOWN OF METHUEN, Et Al., Defendants, Appellants
It is true, in federal appellate practice as in nature, that “[t]o every thing there is a season, and a time to every purpose....” Ecclesiastes 3:1. Because this appeal comes before us out of season and time, we refuse to entertain it.
I
We take from the district court docket a chronology of critical events, omitting mention of numerous matters not vital to an understanding of the current problem.
1. October 1,1985. Plaintiffs Alfred D. Fisichelli and Salvatore I. Ambra, trustees[*18] of Am-Fis Realty Trust, filed a complaint seeking money damages against a raft of defendants, including the Town of Me-thuen, the Methuen Industrial Finance Authority (a municipal agency), and several present and/or former municipal officials. Plaintiffs asserted claims under 42 U.S.C. § 1983 and under federal and state antitrust statutes, 15 U.S.C. §§ 1, 2; Mass. Gen.L. ch. 93, §§ 4, 5.
2. December 13, 1985. Defendants answered the complaint, alleging fourteen affirmative defenses. Arguably, their “fifth defense” put qualified immunity in issue.
3. February 27, 1986. Defendants moved for dismissal, contending that the complaint failed to state actionable claims. Fed.R.Civ.P. 12(b)(6).
4. February 23, 1987. The district court (Wolf, D.J.) dismissed the section 1983 claims, Fisichelli v. Methuen, 653 F.Supp. 1494, 1497-99 (D.Mass.1987), but allowed the federal and state antitrust counts to stand, id. at 1499-1502. As to these counts, the judge considered and rejected the suggestion that qualified immunity barred an award of money damages. Id. at 1503-04. Defendants essayed no appeal. [1]
5. March 22, 1988. Following Judge Harrington’s appointment to the federal bench, the case was transferred to his calendar.
6. November 18, 1988. Defendants moved “for reconsideration of Judge Wolfs February 23, 1987, partial denial of their motion to dismiss the plaintiffs’ complaint,” asserting that the antitrust counts “should be dismissed because the defendants are entitled to qualified immunity.”
7. January 30, 1989. Judge Harrington denied the motion to reconsider without opinion.
8. February 23, 1989. Defendants filed their first (and only) notice of appeal, purporting to appeal “from the Order ... denying the Motion ... for Reconsideration....”
II
Ordinarily, only the district court’s “final decisions” are immediately appeal-able to this court. 28 U.S.C. § 1291 (1982). In the absence of finality, orders cannot be appealed when entered “unless appellate jurisdiction attaches in some other fashion.” In re Recticel Foam Corp., 859 F.2d 1000, 1003 (1st Cir.1988). The collateral-order exception to the finality rule furnishes one such route. It is by now well established that the denial of a substantial claim to qualified immunity can be immediately appealed under that exception. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814, 86 L.Ed.2d 411 (1985); Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 320 (1st Cir.1987). But such an appeal must be timely, that is, taken “within 30 days after the date of entry of the ... order appealed from_” Fed.R.App.P. 4(a)(1). In this case, appellants did not file a timely appeal from the district court’s order of February 23, 1987.
An order declining reconsideration of the qualified immunity question — unlike an order rejecting the defense — has never been thought immediately appealable. We have so held, squarely and recently, see Domegan v. Fair, 859 F.2d 1059, 1062 (1st Cir.1988) (order declining reconsideration of Mitchell-type motion lies “outside the scope of interlocutory review”), and reaffirm that holding today. Accordingly, the present interlocutory appeal — which brings up only the order denying reconsideration, see supra No. 8 — has no visible means of jurisdictional support.
We need not belabor the obvious. A motion to rehear does not bring the underlying merits of the original, already-decided motion before the nisi prius court. Cf. [*19] Rodriguez-Antuna v. Chase Manhattan Bank Corp., 871 F.2d 1, 2 (1st Cir.1989). By the same token, appealing from the denial of a motion to rehear “does not automatically produce a Lazarus-like effect,” id.; such an appeal cannot resurrect a party’s expired right to contest the appropriateness of the order underlying the motion to rehear. Thus, the issue before us— and before the district court on the November 1988 motion — was not qualified immunity, but whether or not reconsideration should be undertaken. Mitchell does not apply.
As a practical matter, this holding is virtually essential to orderly judicial management of the vexing procedural problems which have trailed in Mitchell’s roiled wake. If we were forced to entertain appeals such as this whenever a defendant had unsuccessfully sought reconsideration, the district court’s trial calendar would be bemired; Rule 4(a)(1) would be stripped of all meaning; the uncertain business of qualified immunity would be made measurably more problematic; and a dilatory defendant would receive not only his allotted bite at the apple, but an invitation to gnaw at will. [2] We do not think that the Mitchell Court meant to promote multifariousness on so grand a scale. Cf. Kaiter v. Town of Boxford, 836 F.2d 704, 708 (1st Cir.1988) (a defendant who claims immunity has a right to only a single interlocutory appeal).
Ill
We need go no further. It is all too clear that defendants are seeking to accomplish by indirection what their own inaction now prevents them from doing directly: contesting, before trial, the appropriateness of the district court’s earlier denial of their motion to dismiss. See supra No. 4. We cannot allow such an end run to prevail, for we are without jurisdiction to hear an interlocutory appeal from the denial of a motion to reconsider. [3] Accordingly, we dismiss the appeal; and, because prosecution of it was clearly beyond the well-defined borders of our jurisdiction, we honor appellees’ request and award double costs and a token counsel fee of $1000 to them, to be taxed against appellants and appellants’ counsel, jointly and severally. See Fed.R. App.P. 38; 28 U.S.C. § 1927 (1982).
The appeal is dismissed without prejudice for want of appellate jurisdiction. Double costs, together with attorneys’ fees in the amount of $1000, are to be taxed in favor of appellees.
. On April 3, 1987, defendants unsuccessfully sought to have the district court certify the underlying questions pursuant to 28 U.S.C. § 1292(b). No appeal was taken from the court’s refusal to grant a section 1292(b) certificate. The filing of the motion is puzzling, inasmuch as defendants had an absolute right to appeal forthwith on qualified immunity grounds without leave of court. See Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-17, 86 L.Ed.2d 411 (1985); Vazquez Rios v. Hernandez Colon, 819 F.2d 319, 320 (1st Cir.1987).
. We note in passing that defendants had — but eschewed — a further opportunity to test the qualified immunity waters. In late 1987, they filed a motion for summary judgment, but elected not to proffer qualified immunity as a ground in support of it. Judge Harrington denied the motion on May 25, 1988. Had a qualified immunity defense been asserted as part of the Rule 56 motion, and overruled by the district court, an immediate appeal could have been prosecuted. See Mitchell, 472 U.S. at 527, 105 S.Ct. at 2816 (appealable interlocutory decision results when "defendant’s motion for dismissal or summary judgment on the ground of qualified immunity” is rejected) (emphasis supplied).
. Defendants, of course, retain the right to challenge the district court’s refusal to dismiss the damage claims on qualified immunity grounds, and any later rulings of a similar bent, in an end-of-case appeal from final judgment. See Kaiter, 836 F.2d at 708 n. 3; cf. Vazquez Rios, 819 F.2d at 329 (even if qualified immunity claim is rejected at summary judgment stage, defendants remain free to assert the defense at trial).