Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.donald F. Mccullough, Plaintiff, Appellee, v. Robert Desmond, et al., Defendants, Appellants, 64 F.3d 654 (1st Cir. 1995)

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 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.

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