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Lally v. Matlack

filed: February 2, 1987.

PAUL T. LALLY, SR., HELEN A. LALLY, CHRISTINE M. LALLY, EDWARD C. LALLY, RICHARD J. STUART, J. GARFIELD DE MARCO, ARTHUR R. RAGO, NATALIE F. RAGO, GEORGE H. ADAMS, AND ELIZABETH B. ADAMS,
v.
MARVIN F. MATLACK, SHIRLEY MATLACK, LILLIAN M. TRAINOR, CHARLES V. THOMS, LINDA H. COSSEY, AND JOHN DOES 1-100, SAID NAMES BEING FICTICIOUS AND UNKNOWN AND USED TO CONNOTE EITHER SINGULAR AND/OR PLURAL INDIVIDUALS AND/OR ASSOCIATIONS OR OTHER JUDICIAL ENTITIES



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY, D.C. Civil No. 85-0990

Before: GIBBONS, Chief Judge, and WEIS, Circuit Judge, and ZIEGLER,*fn* District Judge

Opinion OF THE COURT

Per Curiam.

This lawsuit grew out of alleged improprieties during a primary election in Burlington County, New Jersey. Defendant Trainor, a member of the local election board, precipitated a grand jury investigation into these activities, resulting in some notoriety to plaintiffs, although no indictment was returned. Plaintiffs then brought suit against Trainor and other defendants asserting federal civil rights violations and pendent state tort claims.

In their complaint, plaintiffs alleged seven causes of action. The district court found none of the pleadings for the four federal claims to be sufficient. The court concluded that count one, a claim for malicious prosecution, failed to state a claim under 42 U.S.C. § 1983. The court held that the second count, a claim for defamation under § 1983, requires a deprivation of a federally protected right as well and plaintiffs had not stated a federal cause of action. Count six charged a violation of the Voting Rights Act, 42 U.S.C. § 1971(b), but was dismissed because plaintiffs did now show that racial animus motivated the defendants' behavior. The district court also dismissed the allegation of a conspiracy under § 1985(3) because it applies only when racial or class-based discrimination is a motivating factor.

Having dismissed the federal causes of action, the court declined to exercise pendent jurisdiction over the three state law claims.

Plaintiffs have appealed to this court. They argue that the district court erred in finding their pleadings vague and conclusory and contend they should be permitted to amend.

Pursuant to 42 U.S.C. § 1988, defendant Trainor applied for attorney's fees and costs totalling $5,446.12. The district court ruled that the dismissal was based on deficient and defective pleadings, rather than on the merits or validity of the contentions advanced and, therefore, attorney's fees would be denied. Trainor appeals here from that judgment. The two appeals have been consolidated.

Plaintiffs appeal at docket No. 86-5170 was untimely filed and must be dismissed. The district court's order was entered on the docket on January 30, 1986, and the thirty-day period for the filing of an appeal ended on Saturday, March 1, 1986. Because the final day fell on a Saturday, the due date was carried over to Monday, March 3, 1986. The notice of appeal was not filed until March 4, 1986 -- one day late. Because the time for taking an appeal is jurisdictional, we may not extend it. See Fed. R. App. P. 4(a).

We find no merit in the defendant's appeal. An award of counsel fees in a suit under the civil rights statutes requires a prevailing defendant to persuade the court that the plaintiffs' claim was "unreasonable, frivolous, meritless or vexatious." Christianburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421 (1978). Defendant did not satisfy the district court that the standard had been met. We find no error in the district court's determination and will affirm that order.

Accordingly, the appeal at docket No. 86-5170 will be dismissed. In the appeal at docket No. 86-5420, the order of the district court will be affirmed.

The parties will bear their ...


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