USCA11 Case: 23-10392 Document: 37-1 Date Filed: 07/19/2023 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10392
Non-Argument Calendar
____________________
DONNA THOMAS,
Plaintiff-Appellant,
versus
BLACK PEARL INVESTMENTS, LLC,
d.b.a. Massage Envy Spa Woodstock,
MALISSA CHAPMAN,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
USCA11 Case: 23-10392 Document: 37-1 Date Filed: 07/19/2023 Page: 2 of 4
2 Opinion of the Court 23-10392
D.C. Docket No. 1:21-cv-00318-JSA
____________________
Before JORDAN, NEWSOM, and BRASHER, Circuit Judges.
PER CURIAM:
Donna Thomas appeals the district court’s September 6,
2022 entry of judgment and its December 2, 2022 order denying
reconsideration of the judgment. Upon review of the record, the
parties’ responses to the jurisdictional question, and appellees
Black Pearl Investments, LLC and Malissa Chapman’s motion to
dismiss Thomas’s appeal as untimely, we GRANT the appellees’
1
motion and DISMISS this appeal.
First, Thomas’s notice of appeal is not timely to appeal the
September 6, 2022 judgment. Thomas’s October 5, 2022 motion
for reconsideration was untimely to toll the time to appeal the
judgment. See Fed. R. App. P. 4(a)(4)(A), (iv) (providing that a
timely-filed Federal Rule of Civil Procedure 59 motion tolls the ap-
peal period); Fed. R. Civ. P. 59(e) (providing that a Rule 59 motion
must be filed within 28 days after the entry of judgment). Accord-
ingly, Thomas had until October 6, 2022, which was 30 days after
the district court entered judgment, to appeal it.
28 U.S.C. §
1
Thomas’s motions for leave to file a response to the juris-
dictional question out of time and re-submit her position regarding
appellate jurisdiction are GRANTED. Her motion to correct the
appendix is DENIED as moot.
USCA11 Case: 23-10392 Document: 37-1 Date Filed: 07/19/2023 Page: 3 of 4
23-10392 Opinion of the Court 3
2107(a); Fed. R. App. P. 4(a)(1)(A) (providing that a notice of appeal
in a civil case must be filed within 30 days after entry of the judg-
ment or order appealed from). However, Thomas did not file her
notice of appeal until February 2, 2023.
Second, Thomas’s notice of appeal is untimely to appeal the
district court’s December 2, 2022 denial of her October 5, 2022 mo-
tion for reconsideration. Her December 16, 2022 “Response to Or-
der” did not effectively seek reconsideration of the December 2 or-
der and thus did not toll the time to appeal that order. See Fed. R.
App. P. 4(a)(4)(A), (iv); Fed. R. Civ. P. 59(e); Finch v. Vernon,
845 F.2d
256, 258 (11th Cir. 1988). Unlike Thomas’s October 5, 2022 motion
for reconsideration, her “Response to Order” was not styled as a
motion for reconsideration, did not expressly state that she was
moving for reconsideration, expressed her intent to appeal to a
higher court, and did not ask the district court to do anything other
than remove a statement from the record as explained in her mo-
tion for retraction. Additionally, Thomas filed the “Response to
Order” within the 14-day period that the December 2 order di-
rected her to explain the relief she sought in her motion for retrac-
tion, and she addressed the retraction motion in her response. Ac-
cordingly, because Thomas’s “Response to Order” did not seek re-
consideration of the district court’s December 2 order denying re-
consideration, it was not a tolling motion, and she had until Janu-
ary 3, 2023 to appeal from that order. Because Thomas did not file
her notice of appeal until February 2, 2023, it also is untimely to
appeal from the December 2 order.
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4 Opinion of the Court 23-10392
Accordingly, this appeal is DISMISSED as untimely.
