Boaz Rafaeli v. State of MO ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1747
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Boaz Rafaeli, *
*
Appellant, *
*
v. *
*
State of Missouri; St. Louis County; *
Public Defender’s Office, St. Louis *
County; Mary Beth McMahon; *
Lawrence Kendrick, Honorable; *
Calzona J. Hall, Director Adult *
Correctional Institution, County of St. *
Louis; Prosecuting Attorney, St. Louis * Appeal from the United States
County; Shawn Goulet, individually * District Court for the
and in his official capacity as Public * Eastern District of Missouri.
Defender of St. Louis County MO; *
Robert McCulloch, individually and * [UNPUBLISHED]
in his official capacity as Prosecuting *
Attorney for the County of St. Louis *
MO; Karen Murphy, individually and in *
her official capacity as Assistant *
Prosecuting Attorney for St. Louis *
County MO; John/Jane Doe, and all *
other unknown and unnamed *
Defendants, *
*
Appellees. *
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Submitted: January 5, 2001
Filed: January 29, 2001
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Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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PER CURIAM.
Boaz Rafaeli appeals following the District Court’s1 denial of his motion for
reconsideration under Federal Rule of Civil Procedure 60(b), which he filed after the
Court dismissed with prejudice his civil rights action for failure to prosecute, pursuant
to Federal Rule of Civil Procedure 41(b).
Rafaeli had thirty days from January 12, 2000, in which to appeal the order
dismissing his action, as his reconsideration motion was filed more than ten days after
the January 12 entry of the dismissal order. See Fed. R. App. P. 4(a)(1)(A), (4)(A)(vi)
(notice of appeal (NOA) must be filed with district clerk within thirty days of entry of
judgment or order appealed from; time for filing is tolled when Rule 60(b) motion is
filed within ten days of judgment’s entry). However, his NOA was filed on
February 23, and thus was timely only as to the February 15 denial of his motion for
reconsideration. Accordingly, we lack jurisdiction to review the January 12 dismissal
order. See Burgs v. Johnson County, Iowa, 79 F.3d 701, 702 (8th Cir. 1996) (per
curiam) (holding that timely NOA is mandatory and jurisdictional); Gaines v. Nelson
(In re Gaines), 932 F.2d 729, 731 (8th Cir. 1991) (“Every federal court has the inherent
power to determine as a preliminary matter its own subject matter jurisdiction.”);
Sanders v. Clemco Indus., 862 F.2d 161, 169 (8th Cir. 1988) (finding that appeal from
denial of Rule 60(b) motion does not raise underlying judgment for review).
1
The Honorable Terry I. Adelman, United States Magistrate Judge for the
Eastern District of Missouri, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
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Because Rafaeli asserted none of the enumerated grounds for granting Rule
60(b) relief and failed otherwise to show exceptional circumstances justifying such
relief, the District Court did not abuse its discretion in denying Rafaeli’s
reconsideration motion. See Fed. R. Civ. P. 60(b); Sanders, 862 F.2d at 169 & n.14
(setting out standard of review and summarizing grounds for granting Rule 60(b) relief).
We also find no abuse of discretion in the District Court’s denial of his simultaneous
motion for appointment of counsel. See Rayes v. Johnson, 969 F.2d 700, 703 (8th
Cir.), cert. denied, 506 U.S. 1021 (1992).
We deny Rafaeli’s motion for oral argument.
Accordingly, we affirm. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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