Edward Banks v. Bank of America, N.A. , 598 F. App'x 274 ( 2015 )

Case: 14-50821 Document: 00512973328 Page: 1 Date Filed: 03/18/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50821 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
March 18, 2015
EDWARD BANKS, Lyle W. Cayce
Clerk
Plaintiff–Appellant,
v.
BANK OF AMERICA, N.A.; DHI MORTGAGE COMPANY, LIMITED,
formerly known as CH Mortgage Company I, Limited; JUANITA
STRICKLAND,
Defendants–Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:13-CV-426
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
Bank of America, N.A., argues that Edward Banks’s notice of appeal was
not timely filed, such that we lack jurisdiction over the appeal and must
dismiss. We agree and dismiss the appeal.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-50821 Document: 00512973328 Page: 2 Date Filed: 03/18/2015
No. 14-50821
I
Banks filed suit against DHI Mortgage Company, Ltd. (DHI), Bank of
America, and Juanita Strickland in Texas state court. Bank of America
removed to the district court on the bases of federal-question and diversity
jurisdiction. Banks filed a motion to remand. The district court denied this
motion, concluding that although there was no basis for federal-question
jurisdiction, diversity jurisdiction was proper. On October 31, 2013, the court
granted DHI’s and Strickland’s motions to dismiss. On April 3, 2014, the court
granted Bank of America’s motion for summary judgment and entered a final
judgment. On May 1, 2014, Banks filed a “motion for reconsideration, or, in
the alternative, motion for new trial.” On June 16, 2014, the district court
construed Banks’s motion as a motion for relief under Rule 60(b) and denied
the motion. Banks filed his notice of appeal on July 25, 2014.
II
Subject to certain exceptions, a notice of appeal in a civil case must be
filed “within 30 days after entry of the judgment or order appealed from.” 1
When certain motions are filed, “the time to file an appeal” is extended to begin
to run “from the entry of the order disposing of the last such remaining
motion.” 2 Here, Banks’s motion for reconsideration is the relevant motion. The
court disposed of this motion on June 16, 2014. Banks’s notice of appeal was
due on July 16, 2014, but was filed on July 25, 2014. Banks’s notice of appeal
is untimely.
1 FED. R. APP. P. 4(a)(1)(A); see also 28 U.S.C. § 2107(a).
2 FED R. APP. P. 4(a)(4)(A).
2
Case: 14-50821 Document: 00512973328 Page: 3 Date Filed: 03/18/2015
No. 14-50821
“The filing of a timely notice of appeal . . . is mandatory and
jurisdictional.” 3 Banks does not dispute that the notice of appeal was untimely.
Instead, he contends that because his appeal challenges the district court’s
subject-matter jurisdiction, this court may exercise jurisdiction over the
untimely appeal.
Banks relies on an exception to res judicata that allows “a collateral
attack on a state court judgment on the ground that the state court did not have
jurisdiction over the subject matter” in certain narrow circumstances. 4 This
exception does not apply to the present case, as Banks brings a direct appeal
of a federal court judgment. Further, when a party directly appeals on the
ground that a federal district court lacked subject-matter jurisdiction, we
enforce the normal deadlines for filing a notice of appeal. 5 Accordingly, we lack
jurisdiction over Banks’s appeal.
* * *
For the foregoing reasons, we DISMISS the appeal.
3Kinsley v. Lakeview Reg’l Med. Ctr. LLC, 570 F.3d 586, 588 (5th Cir. 2009) (citing
Bowles v. Russell, 551 U.S. 205, 214 (2007)).
4 Key v. Wise, 629 F.2d 1049, 1056 (5th Cir. 1980) (emphasis added).
5 See, e.g., Arena v. Graybar Elec. Co., 669 F.3d 214, 219 (5th Cir. 2012) (dismissing a
party from an appeal based on lack of subject-matter jurisdiction when that party’s notice of
appeal was untimely).
3