Porter v. Fidelity National ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
October 5, 2004
FIFTH CIRCUIT
_______________________
Charles R. Fulbruge III
Clerk
No. 04-60212
Summary Calendar
_______________________
WILTON TYRONE ANTHONY; ET AL,
Plaintiffs,
AMELITA PORTER; E.J. ROBIE; SARAH STANLEY,
Plaintiffs-Appellees,
versus
AMERICAN HERITAGE LIFE INSURANCE CO.; ET AL,
Defendants,
AMERICAN HERITAGE LIFE INSURANCE CO.; FIRST COLONIAL INSURANCE CO.,
Defendant-Appellant,
REPUBLIC FINANCE LLC, doing business as Republic Finance Inc., Successor in interest
of Fidelity National Corporation,
Appellant.
______________________________________________________________________________
Appeal from United States District Court
for the Northern District of Mississippi, Greenville
USDC No. 4:01-CV-278-PB
______________________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
Before the court is an appeal from the district court’s grant of a Fed. R. Civ. P. 60(b)
motion to reconsider. The appellees have filed a motion to dismiss the appeal for lack of
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
jurisdiction.
The plaintiffs-appellees (“Porter”) filed a complaint in state court alleging various claims
arising out of loan transactions between themselves and Fidelity National Corporation
(“Fidelity”). In the complaint Porter also named several in-state defendants. Fidelity removed the
case to federal district court. Porter then filed a motion to remand. The district court denied the
motion to remand and subsequently granted Fidelity’s motion for summary judgment and
dismissed Porter’s claims as barred by the statute of limitations.
After the entry of the district court’s judgment, but before the time had run for filing a
notice of appeal, this court issued Smallwood v. Illinois Central R.R. Co., 342 F.3d 400 (5th Cir.),
vacated by 355 F.3d 357 (5th Cir. 2003), and aff’d en banc, 2004 WL 2047314 (5th Cir. Sept. 10,
2004). Porter then filed a Rule 60(b) motion to reconsider based on the Smallwood opinion. The
district court granted the motion to reconsider the order denying the motion to remand; vacated
the order dismissing the case with prejudice and granting summary judgment; directed the clerk to
re-open the case; denied without prejudice the motion for summary judgment; and stayed
proceedings pending resolution of a perceived conflict between Smallwood and Ross v.
CitiFinancial, 344 F.3d 458 (5th Cir. 2003).
Fidelity argues that the district court lacked jurisdiction to entertain the motion to
reconsider. Specifically, Fidelity argues that a subsequent change in law is not a permissible basis
for a Rule 60(b) motion; therefore, the district court was without power to vacate the judgment.
Furthermore, Fidelity argues that Porter should not be allowed to use a Rule 60(b) motion as a
substitute for filing a notice of appeal. Smallwood was issued prior to the time for filing a notice
of appeal had expired. Rather than seeking reconsideration of the district court’s order based on
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an impermissible ground, Fidelity asserts that Porter should have filed an appeal to this court.
Porter counters that the grant of a motion for reconsideration that vacates the judgment
and leaves the case pending for further determination is akin to an order granting a new trial and
is therefore interlocutory and non-appealable. Porter further argues that the motion for
reconsideration was not based on a subsequent change in law. Rather, he asserts that the district
court lacked subject-matter jurisdiction; therefore, the district court’s order granting summary
judgment was void.
A challenge to the district court’s jurisdiction is reviewed de novo. United States v.
Bredimus, 352 F.3d 200, 203 (5th Cir. 2003). Ordinarily, this court does not have jurisdiction to
hear an appeal from the grant of a Rule 60(b) motion vacating the judgment. Shepherd v. Int’l
Paper, 372 F.3d 326, 328 (5th Cir. 2004); Parks by and through Parks v. Collins, 761 F.2d 1101,
1104 (5th Cir. 1985) (holding that order pursuant to Rule 60(b) motion that vacates or sets aside a
prior judgment and leaves the case pending further determination is interlocutory and non-
appealable). In Shepherd, this court created an exception that permits appeals when a district
court enters an order pursuant to Rule 60(b) over which it has no jurisdiction. See 372 F.3d at
329-33. Fidelity relies on Shepherd in its assertion of appellate jurisdiction.
Shepherd is distinguishable from the present case because the district court in Shepherd
granted a Rule 60(b) motion after a notice of appeal had been filed. It is well-settled that the
filing of a notice of appeal divests the district court of jurisdiction to grant a Rule 60(b) motion.
See Shepherd, 372 F.3d at 329. In the present case, the district court granted the Rule 60(b)
motion before a notice of appeal had been filed. Thus the exception in Shepherd does not apply
to the present case.
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Fidelity essentially argues that the Rule 60(b) motion was without merit because it was
based on a subsequent change of law. See Batts v. Tow-Motor Forklift Co., 66 F.3d 743, 747 (5th
Cir. 1995) (holding that district court abused discretion when it vacated judgment based on
change in decisional law announced after the final judgment); Bailey v. Ryan Stevedoring Co.,
894 F.2d 157, 160 (5th Cir. 1990) (“[a] change in decisional law after entry of judgment does not
constitute exceptional circumstances and is not alone grounds for relief from final judgment.”).
By extension, Fidelity argues that a Rule 60(b) motion based on an impermissible theory divests a
district court of jurisdiction over that motion. We disagree. The mere fact that the motion may
have been without merit and that the district court may have abused its discretion in granting the
motion to reconsider does not create appellate jurisdiction over this case. Fidelity’s vigorous
arguments notwithstanding, this appeal strikes at the merits of the Rule 60(b) motion and not at
the district court’s jurisdiction to entertain the motion. We do not reach the issue of whether the
district court abused its discretion in granting a motion to reconsider based on a subsequent
change in decisional law because we do not have jurisdiction over this appeal. See Parks, 761
F.2d at 1104.
Fidelity’s contention that Porter should have filed a notice of appeal rather than a motion
to reconsider is equally unavailing. A Rule 60(b) motion is not a substitute for a timely appeal.
Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002) (holding that district court abused discretion
when it granted Rule 60(b) motion). Nevertheless, we do not reach the issue of whether the
district court abused its discretion in granting the Rule 60(b) motion as a substitute for a timely
notice of appeal, because Fidelity has not established that this court has appellate jurisdiction to
consider the issue. See Parks, 761 F.2d at 1104.
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Accordingly, Fidelity’s appeal is DISMISSED.
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