DOUGLAS J. LUCKERMAN, Plaintiff, Appellee,
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.
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.
Before Lynch, Chief Judge, Kayatta and Barron, Circuit Judges.
KAYATTA, Circuit Judge.
The Narragansett Indian Tribe (" the Tribe" ) moved in the district court to dismiss this breach of contract lawsuit against it on the grounds of sovereign immunity. 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.
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.
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, 65 S.Ct. 631, 89 L.Ed. 911 (1945). Accordingly, traditional appellate review under 28 U.S.C. § 1291 was unavailable. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Under the collateral order doctrine announced in Cohen, id. at 546, however, the 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 a 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 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, the district court considered and denied on January 7, 2014. 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: the denial of the untimely Rule 59(e) Motion. For the reasons described below, we conclude that the ...