Anglin v. Local Union 1351, International Longshoremen's Ass'n , 102 F. App'x 367 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 18, 2004
Charles R. Fulbruge III
No. 03-21043 Clerk
Summary Calendar
MARTHA L. ANGLIN,
Plaintiff-Appellant,
versus
LOCAL UNION 1351, INTERNATIONAL LONGSHOREMEN’S ASSOCIATION,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(H-00-CV-4392)
--------------------
Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Martha L. Anglin appeals the district
court’s Order of Dismissal, its order sustaining defendant-
appellee’s objection to the recommendation of the Magistrate Judge
to reinstate the case, and its subsequent order denying Anglin’s
Motion to Reconsider. As Anglin’s appeal is not timely as to two
of the orders that she attempts to appeal, we dismiss as to those
orders for lack of appellate jurisdiction. And as the district
*
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this opinion should not be published and is not precedent except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.
court’s order refusing to reconsider its prior orders does not
constitute an abuse of discretion, we affirm as to it.
I. Facts and Proceedings
Anglin sued defendant-appellee Local Union 1351, International
Longshoremen’s Association (“the Union”) in the district court
alleging discrimination on the basis of sex, in violation of Title
VII of the Civil Rights Act of 1964, and on the basis of disparate
pay, in violation of the Equal Pay Act. The district court
disposed of the latter claim at summary judgment, but was prepared
to conduct a trial on the Title VII claim when the parties advised
the court that they had reached a settlement. Based on that
information, the district court entered an order on December 17,
2002, dismissing the case “without prejudice to the right of the
parties to move for reinstatement, for good cause shown, within
ninety (90) days after the entry of this order.”
The anticipated settlement was never consummated. Under the
settlement agreement, Anglin was required to obtain approval of the
settlement from the Union membership, but she failed to do so
within the ninety-day period specified in the dismissal order. On
April 22, 2003, well after the expiration of that period, the Union
informed Anglin that it would not proceed with the settlement
unless the case were reinstated in the district court. As noted,
however, by that time the dismissal order’s ninety-day period
within which to reinstate the suit had passed. Anglin filed a
2
“Motion for Extension of Time for Filing Reinstatement of Claim and
Request for Reinstatement,” which the district court denied despite
a Magistrate Judge’s recommendation that the case be reinstated.
Then, on August 11, 2003, Anglin filed a “Motion to Reconsider
Denial of Plaintiff’s Motion to Extend Time for Reinstatement,”
which the district court also denied. In her Notice of Appeal,
Anglin appeals the Order of Dismissal, as well as all orders
denying her requests to reinstate her case and denying
reconsideration.
II. Analysis
A. Jurisdiction
1. Order of Dismissal, Entered December 17, 2002
In her Notice of Appeal, Anglin specified that she was
appealing all three of the district court orders relating to the
dismissal of her case:
... the Order of Dismissal entered ... on the 17th Day of
December, 2002, the Order Sustaining the Defendant’s
Objection to the Recommendation of the Magistrate’s [sic]
Judge to reinstate the case entered on [the] 31st day of
July, 2003 which ultimately denied Plaintiff’s Motion for
Extension of Time for Filing Reinstatement of Claim and
Request for Reinstatement, and the subsequent denial of
her Motion to Reconsider ... entered in this action on
the 11th day of September, 2003.
Even if we assume without granting that the December 17, 2002 order
did not become a final, appealable order until March 17, 2003 when
the 90-day reinstatement period expired, Anglin’s appeal of that
3
order still was not timely filed.1 As Anglin did not file her
Notice of Appeal until October 10, 2003, almost six months after
March 17, 2003, the latest conceivable date of commencement of the
30-day period for filing a notice of appeal in a civil case, her
appeal was not timely as to the Order of Dismissal, and we do not
have jurisdiction to consider it.2
2. Order Denying Extension and Reinstatement, Entered July
31, 2003
We must determine preliminarily the nature of Anglin’s “Motion
for Extension of Time for Filing Reinstatement of Claim and Request
for Reinstatement” (“Motion for Extension”). As we have noted
previously, the Federal Rules of Civil Procedure
1
In Otis v. City of Chicago, 29 F.3d 1159 (7th Cir. 1994) (en
banc), the Seventh Circuit considered the appellate time frame for
a similar dismissal order, which allowed for reinstatement by the
plaintiff if the plaintiff answered the defendant’s interrogatories
within six months. The Otis court decided that “‘entry’ [of
judgment] should be deemed to occur on the date the condition is
satisfied or the time to satisfy it ends.” Id. at 1167. As
Anglin’s appeal is not timely as to the dismissal order regardless
of whether that order was “entered” on December 17, 2002, or March
17, 2003, we need not address that issue today.
2
See Fed. R. App. P. 4(a)(1); Huff v. Int’l Longshoremen’s
Ass’n, Local # 24, 799 F.2d 1087, 1089 (5th Cir. 1986)(“In civil
cases the notice of appeal must be filed within thirty days of the
date of entry of the judgment or order appealed from.”) We note,
also, that if Anglin’s subsequent Rule 60 motion had been filed
within 10 days of the entry of judgment, the filing of that motion
would have tolled the running of the 30-day appellate timetable.
See Fed. R. App. Proc. 4(a)(4)(A)(vi). Anglin did not file her
first Rule 60 motion until more than three months after the order
of dismissal was entered, however, so the filing of that motion did
not effect such a suspension of the 30-day period in which to file
a notice of appeal.
4
do not recognize a ‘motion for reconsideration” in haec
verba. We have consistently stated, however that a
motion so denominated, provided that it challenges the
prior judgment on the merits, will be treated as either
a motion ‘to alter or amend’ under Rule 59(e) or a motion
for ‘relief from judgment’ under Rule 60(b). Under which
Rule the motion falls turns on the time at which the
motion is served. If the motion is served within ten
days of the rendition of judgment, the motion falls under
Rule 59(e); if it is served after that time, it falls
under Rule 60(b).3
As her Motion for Extension was not filed within 10 days following
the entry of the dismissal order, it was not a Rule 59 motion,4 so
we must treat it as a Rule 60 motion.5 Like appeals from final
civil judgments, appeals from denials of Rule 60 motions must be
filed “within 30 days after the judgment or order appealed from is
entered.”6 As Anglin’s Notice of Appeal was filed more than 30
days after the filing of the order denying her Motion for
3
Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167,
173 (5th Cir. 1990)(citations omitted; partially abrogated on other
grounds, see Little v. Liquid Air Corp., 37 F.3d 1069, 1076 n.14
(5th Cir. 1994)(en banc)).
4
Federal Rule of Civil Procedure 59(e) dictates that a motion
to alter or amend judgment “shall be filed no later than 10 days
after entry of the judgment.” Fed. R. Civ. P. 59(e). See also
United States Leather, Inc. v. H & W P’ship, 60 F.3d 222, 225 (5th
Cir. 1995) (noting that the time limit for post trial motions under
Rule 59 is jurisdictional and cannot be extended by the parties or
the district court).
5
Anglin appears to agree with this characterization, as she
argues in her brief that her counsel’s failure to track the
appellate time frame in this case amounted to “excusable neglect”
under Fed. R. Civ. P. 60(b)(1).
6
Fed. R. Civ. P. 4(a)(1)(A).
5
Extension, her appeal of that order is not timely, so we do not
have jurisdiction to hear it either.
3. Order Denying Reconsideration, Entered September 11, 2003
Although Anglin did not timely appeal the July 31, 2003,
denial of her Motion for Extension, she did file a “Motion for
Reconsideration” on August 11, 2003, which essentially repeated the
contentions made in her earlier Motion for Extension.7 This latter
motion too was a Rule 60(b) motion. As Anglin’s Notice of Appeal
was filed on October 10th, precisely 30 days after the district
court’s September 11 denial of Anglin’s Motion for Reconsideration,
her appeal of that order is timely. As no Rule 60 motion was filed
within 10 days after March 17, 2003, being the latest date on which
the original dismissal order could have become final, however, the
30-day time frame in which to appeal that dismissal was never
suspended. The same is true regarding the July 31, 2003 order
denying the Motion for Extension. Thus, as noted above, Anglin
cannot appeal the dismissal order itself or the order denying
extension. We do, however, have jurisdiction to review whether the
district court’s refusal to reconsider its denial of Anglin’s
Motion for Extension was an abuse of discretion.
B. Denial of “Motion for Reconsideration”: Abuse of Discretion?
7
This fact alone could conceivably doom Anglin’s Motion to
Reconsider, as we have previously held that “absent truly
extraordinary circumstances, ... the basis for [a] second [Rule
60(b)] motion must be something other than that offered in the
first.” Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199, 1204 (5th
Cir. 1993).
6
The decision to grant or deny relief under Rule 60(b) “lies in
the sound discretion of the district court and will be reversed
only for an abuse of that discretion.”8 Furthermore, we have an
obligation to ensure that Rule 60(b) motions are not used to
circumvent the ordinary appeals process, including the time limits
that this process dictates. Thus our review of such a motion is
“narrower in scope than review of the underlying order of
dismissal.”9 Given this highly deferential standard of review, and
the lack of evidence suggesting that Anglin’s failure timely to
seek reinstatement of her case was caused by anything other than
inattention on her part or the part of her counsel, we are
satisfied that the district court did not abuse its discretion when
it declined to reconsider its decision not to reinstate her case.
First, as the district court noted, this was “not a case where
the deadline was barely missed by a day or so due to unforeseen
circumstances or the like: Plaintiff’s motion was not filed until
about a month and a half after the 90 day period expired.”
Additionally, the original Order of Dismissal clearly expressed the
90-day period for reinstatement. Even though Anglin’s attorney
claims that he did not receive his copy of that order, such a bald,
potentially self-serving assertion, without more, is insufficient
8
New Hampshire Ins. Co. v. Martech USA, Inc., 993 F.2d 1195,
1200 (5th Cir. 1993).
9
Huff v. Int’l. Longshoremen’s Ass’n., Local # 24, 799 F.2d
1087, 1091 (5th Cir. 1986)(quoting Pryor v. U.S. Postal Service,
769 F.2d 281, 286 (5th Cir. 1985)).
7
to demonstrate excusable neglect under Rule 60(b): “[T]o be
relieved from the effect of judgment, a party must show more than
mere reliance on the clerk to give notice of a judgment.”10 Our
painstaking review of the record, the pleadings, and the
contentions of the parties in their respective appellate briefs,
reveals nothing in law or fact to indicate that the district court
abused its discretion when it declined to reconsider its earlier
refusal to reinstate Anglin’s claim well after the expiration of
the time allowed for the parties to have reinstated it.
III. Conclusion
As Anglin’s appeal of the Order of Dismissal entered on
December 17, 2002 and the order denying extension and reinstatement
entered July 31, 2003 is not timely, we have no jurisdiction to
review those orders. Although her notice of appeal was timely
filed as to the district court’s September 11, 2003 order denying
Anglin’s August 11, 2003 reconsideration motion, the district court
did not abuse its discretion when it refused to reconsider its
prior order denying Anglin’s Motion for Extension. For the
foregoing reasons, we dismiss for lack of appellate jurisdiction
Anglin’s appeal as to the district court’s December 17, 2002 and
July 31, 2003 orders; and we affirm the district court’s denial of
her August 11, 2003 motion to reconsider.
DISMISSED in part; AFFIRMED in part.
10
Latham, 987 F.2d at 1204 (quoting Wilson v. Atwood Group,
725 F.2d 255, 258 (5th Cir. 1984)(en banc)).
8
9