Grant v. Miami Dade County School Board , 284 F. App'x 779 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 8, 2008
No. 07-14716
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 06-20741-CV-JLK
ANDRE LAVON GRANT,
Plaintiff-Appellant,
versus
MIAMI DADE COUNTY SCHOOL BOARD,
d.b.a. Miami-Dade County Public Schools,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 8, 2008)
Before BLACK, HULL and PRYOR, Circuit Judges.
PER CURIAM:
In this civil case, Andre Lavon Grant appeals the district court’s order
denying his motion for reconsideration of its order granting summary judgment to
the defendant, the Miami-Dade County School Board (“the Board”). After review,
we affirm the district court’s denial of Grant’s motion for reconsideration.
I. District Court’s August 24, 2007 Summary Judgment Order
Following the Board’s motion for summary judgment, the district court
entered final judgment for the Board on August 24, 2007. On September 11, 2007,
Grant filed a motion for reconsideration. On September 21, 2007, the district court
denied Grant’s motion for reconsideration as untimely because it was not filed
within ten days after entry of judgment as required by Federal Rule of Civil
Procedure 59(e). On October 5, 2007, Grant filed a notice of appeal “from the
Order entered September 21, 2007.”
Grant’s brief on appeal argues the merits of his case, i.e., that the district
court erred in its August 24, 2007 grant of summary judgment. However, Grant’s
October 5, 2007 notice of appeal was filed more than thirty days after the district
court’s order entering final judgment for the Board on August 24, 2007. See Fed.
R. App. P. 4(a)(1)(A) (stating that notice of appeals in civil cases must be filed
within thirty days of final judgment). Moreover, Grant’s motion for
reconsideration was filed more then ten days after the August 24, 2007 order and
thus did not toll the time to appeal the August 24, 2007 order. See Fed. R. Civ. P.
2
59(e) (“A motion to alter or amend a judgment must be filed no later than 10 days
after the entry of the judgment.”); Jackson v. Crosby, 375 F.3d 1291, 1295 (11th
Cir. 2004) (“‘Untimely motions under Rule[] 59 . . . will not toll the time for filing
an appeal.’” (quoting Advanced Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 1323
(11th Cir. 1996))).1 And in any event, Grant did not designate the August 24, 2007
order as the order that he was appealing in his notice of appeal. See Fed. R. App.
P. 3(c)(1)(B) (“The notice of appeal must . . . designate the judgment, order, or part
thereof being appealed.”). Therefore, we lack jurisdiction to review the August 24,
2007 summary judgment order.
II. District Court’s September 21, 2007 Denial of Motion for Reconsideration
Grant’s notice of appeal is timely only as to the district court’s September
21, 2007 order denying as untimely the motion for reconsideration. However, on
appeal, Grant does not contend that the district court erred in denying his motion
for reconsideration as he argues only the merits of the August 24, 2007 order
granting summary judgment to the defendant. Thus, Grant has waived any
argument that the district court erred in denying his motion for reconsideration.
See Flanigan’s Enters. v. Fulton County, 242 F.3d 976, 987 n.16 (11th Cir. 2001)
(noting that a party waives an argument if the party “fail[s] to elaborate or provide
1
Grant’s motion for reconsideration does not cite a particular rule, but even if we
construe it, in his favor, as a Rule 59 motion, it was not filed within the requisite ten days.
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any citation of authority in support” of the argument).
III. Conclusion
Because Grant’s notice of appeal is untimely as to the district court’s August
24, 2007 order granting summary judgment, and because Grant has waived any
challenge to the district court’s September 21, 2007 order denying his motion for
reconsideration as untimely (which is the only order as to which his notice of
appeal is timely), we affirm.2
AFFIRMED.
2
Grant, for the first time on appeal, argues that this Court should grant him relief from
judgment because he has obtained new evidence in the case. Grant filed no motion in the district
court and did not present the evidence to the district court. Grant’s claim regarding new
evidence is irrelevant to the question of whether the district court properly denied his motion for
reconsideration as untimely, and further, we decline to consider arguments or evidence presented
for the first time on appeal. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324,
1331 (11th Cir. 2004).
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