Gary Mosher v. Cindy Keanster , 421 F. App'x 381 ( 2011 )

Case: 10-20492 Document: 00511436587 Page: 1 Date Filed: 04/06/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 6, 2011
No. 10-20492
Summary Calendar Lyle W. Cayce
Clerk
GARY MOSHER,
Plaintiff-Appellant
v.
CINDY KEANSTER; DOUGLAS JONES; JUAN GUTIERREZ-GARRALDA;
JOHN DOES,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CV-2105
Before KING, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Gary Mosher filed a complaint against several defendants alleging claims
of copyright infringement, defamation, and libel. This court vacated a judgment
dismissing the suit based on Mosher’s failure to appear personally for a
scheduling conference. Following additional proceedings on remand, the district
court dismissed Mosher’s complaint because it failed to state a claim and
because Mosher had not served three of the four named defendants. The court
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20492 Document: 00511436587 Page: 2 Date Filed: 04/06/2011
No. 10-20492
also denied a motion for recusal. Mosher moved for reconsideration, which the
court also denied. Mosher then filed a notice of appeal.
The timing of Mosher’s notice of appeal raises an issue regarding this
court’s jurisdiction, which we must examine sua sponte. See Bailey v. Cain, 609
F.3d 763, 765 (5th Cir. 2010), cert. denied, 131 S. Ct. 931 (2011). In a civil case,
the filing of a timely notice of appeal is a jurisdictional requirement that is not
subject to equitable exceptions. Bowles v. Russell, 551 U.S. 205, 214-15 (2007);
Bailey, 609 F.3d at 765. A notice of appeal must be filed within 30 days of entry
of the order or judgment being appealed. F ED. R. A PP. P. 4(a)(1)(A). The notice
is deemed filed on the date it is actually received by the district court and not the
date it is mailed. Ludgood v. Apex Marine Corp. Ship Mgmt., 311 F.3d 364, 367
(5th Cir. 2002).
Mosher’s motion for reconsideration suspended the running of the 30-day
period as to the underlying judgment until entry of the order disposing of his
motion. See F ED. R. A PP. P. 4(a)(4)(A)(v), (vi). The court’s order denying the
motion for reconsideration was entered on June 15, 2010. Mosher then had 30
days to file his notice of appeal, or until July 15, 2010. Mosher’s notice of appeal
was not filed until July 19, 2010, four days beyond the deadline. Thus, it was
not timely and we lack jurisdiction over the appeal. See Bowles, 551 U.S. at 214-
15; Matter of Lacey, 114 F.3d 556, 556-57 (5th Cir. 1997).
Finally, we caution Mosher that the abusive and insulting language
directed at the district court and the judiciary is inappropriate, and the use of
such language in future filings will result in the imposition of sanctions.
DISMISSED FOR LACK OF JURISDICTION; SANCTION WARNING
ISSUED.
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