Yvette Holmes-Cannon v. Carnival Cruise Lines , 148 F. App'x 831 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11940 September 6, 2005
________________________ THOMAS K. KAHN
CLERK
District Court No. 04-21733-CV-UUB
YVETTE HOLMES CANNON,
Plaintiff-Appellant,
versus
CARNIVAL CRUISE LINES,
a/k/a Carnival Corporation,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 6, 2005)
Before BLACK, PRYOR and HILL, Circuit Judges.
PER CURIAM:
On May 10, 2005, a two-judge panel of this court dismissed the plaintiff-
appellant’s appeal in part. It found that the appeal was untimely filed as to the
district court’s order of October 14, 2004, dismissing the complaint without
prejudice, for failure to timely respond to the order to show cause, and its order of
October 20, 2004, denying plaintiff-appellant’s motion for reconsideration. We are
without jurisdiction to consider either of these two orders. Fed.R.App.P.
4(a)(1)(A), (a)(4); see Wright v. Preferred Research, Inc., 891 F.2d 886, 889 (11th
Cir. 1990).1
The panel did allow, however, this appeal to proceed in part. It found that
the notice of appeal was timely filed as to a third order of the district court, that
filed March 11, 2005, denying plaintiff-appellant’s construed Fed.R.Civ.P. 60(b)
motion for relief from judgment. See Rice v. Ford Motor Co., 88 F.3d 914, 918-19
(11th Cir. 1996)(the denial of a Fed.R.Civ.P. 60(b) motion is separately appealable).
1
A second motion for reconsideration was filed on October 28, 2004, and denied by the
district court on December 30, 2004.
2
Our jurisdiction is limited to whether or not the district court abused its
discretion in this third order, denying the plaintiff-appellant’s motion for relief
from judgment for the third time. It does not extend to a consideration of the
validity of the underlying judgment. See Cavaliere v. Allstate Ins. Co., 996 F.2d
1111, 1115 (11th Cir. 1993).
Under the federal rules of civil procedure, a court may relieve a party from
an order for mistake, inadvertence, surprise, excusable neglect or any other reason
justifying relief from the operation of the judgment. Fed.R.Civ.P. 60(b)(1),
60(b)(6). Here the plaintiff-appellant argues that manifest injustice will result if
she does not have her day in court due to excusable neglect, i.e., a clerical error in
her attorney’s office resulting in her failure to file a timely scheduling report as
ordered by the district court.2
Counsel now complains in the third motion that plaintiff-appellant’s alleged
personal injury claims are now time-barred under the terms of her cruise passenger
ticket. The district court correctly noted that this is not grounds for reconsideration
2
Counsel failed to comply with two pretrial deadlines and failed to move to enlarge these
deadlines prior to their expiration. Counsel also failed to show cause for his failure to comply
with the orders of the district court. (The ‘excusable neglect of clerical error’ offered in the third
motion for reconsideration is the same ‘excusable neglect of clerical error’ offered in the first and
second motions for reconsideration and ruled upon in two earlier orders of the district court that
are not before us.)
3
as the terms of the ticket were known to counsel at the time the earlier two motions
were filed. It also noted that counsel should have exercised special caution so as
not to jeopardize his client’s claim as the complaint was filed just as the limitations
period set by the ticket was expiring.
The district court correctly found that the plaintiff-appellant had failed to
enumerate any new grounds for reconsideration required by the federal rules. It did
not abuse its discretion in making this determination. See Cavaliere, 996 F.2d at
1115.
The judgment of the district court is
AFFIRMED.
4