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 1999-08

Moore v. Fed Deposit Ins Corp ( 1999 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-11048
Summary Calendar
_____________________
CHERYL A. MOORE,
Plaintiff-Appellant,
versus
FEDERAL DEPOSIT INSURANCE
CORPORATION c/o Andrew Hove, COB,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:97-CV-3126-H
_________________________________________________________________
August 26, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Proceeding     pro   se,    Cheryl   A.    Moore   filed   an   employment
discrimination complaint against the Federal Deposit Insurance
Corporation (FDIC). The district court dismissed Moore’s complaint
pursuant to Fed. R. Civ. P. 12(b)(6).           Subsequently, Moore filed a
motion to file a supplemental pleading in the case, which the
district court denied.      Moore filed a timely notice of appeal from
that order.
On   appeal,   Moore   reargues      the    underlying     merits   of   her
complaint and challenges the district court’s dismissal of the
*
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this opinion should not be published and is not precedent except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.
complaint based on a lack of exhaustion.     However, because Moore
did not file a timely notice of appeal of the district court’s
judgment, this court does not have jurisdiction to review the
propriety of the court’s dismissal.   See United States v. Carr,
    979 F.2d 51
    , 55 (5th Cir. 1992).   Although Moore filed a motion seeking
both permission to appeal and reconsideration by the district court
within 60 days of the court’s dismissal, the district court did not
construe such motion as a timely notice of appeal, presumably
because the motion did not clearly evince an intent to appeal.   See
Mosley v. Cozby,
    813 F.2d 659
    , 660 (5th Cir. 1987).   Moore does not
argue on appeal that this was error.    Further, because the motion
was not filed within 10 days of the court’s order, it cannot be
construed as a Fed. R. Civ. P. 59 motion, which would have
suspended the time for filing an appeal.   See Huff v. International
Longshoremen’s Ass’n, Local No. 24,
    799 F.2d 1087
    , 1089-90 (5th
Cir. 1986).
This court does, however, have jurisdiction to review the
district court’s denial of Moore’s motion to file a supplemental
pleading.     Moore argues that by moving to file a supplemental
pleading, she was attempting to put before the court information
that she was not aware of at the time of her initial filing.   Moore
has not shown that the district court abused its discretion by
denying her motion to file a supplemental pleading.   See Latham v.
Wells Fargo Bank, N.A.,
    987 F.2d 1199
    , 1203 (5th Cir. 1993);
2
Southern Constructors Group v. Dynalectric Co.,
    2 F.3d 606
    , 611 &
n.18 (5th Cir. 1993).
The judgment of the district court is
A F F I R M E D.1
1
All outstanding motions are DENIED.
3