Bob J. Settle v. Tim Hendrix

956 F.2d 278

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Bob J. SETTLE, Plaintiff-Appellant,
v.
Tim HENDRIX, et al. Defendants-Appellees.

No. 91-3273.

United States Court of Appeals, Tenth Circuit.

Feb. 5, 1992.

Before LOGAN, Circuit Judge, BARRETT, Senior Circuit Judge, and EBEL, Circuit Judge.*

ORDER AND JUDGMENT**

EBEL, Circuit Judge.

1

Appellant Settle appeals the district court's dismissal of his claim construed by that court to be brought under 42 U.S.C. § 1983. Because Settle failed to file a timely notice of appeal, we have no jurisdiction. We therefore must dismiss this appeal.

2

The district court entered final judgment dismissing Settle's case on June 6, 1991. On June 11, Settle filed a "Motion for Finding of Facts and Conclusions of Law, Specify [sic] Grounds for Granting Defendants Motion to Dismiss, and Amendment of Judgment." This motion could be treated as arising under either Rule 52(b) or Rule 59(e) of the Federal Rules of Civil Procedure. In either case, under Fed.R.App.P. 4(a)(4), the time to appeal began to run upon the district court's denial of Settle's motion, which occurred on July 11, 1991. On July 18, Settle filed a "Motion to Reconsider the Court's Order of July 11, 1991, Amendment of Judgment and Sanctions." However this motion was not filed within ten days of the entry of judgment as required by Fed.R.Civ.P. 52(b) & 59(e). Fed.R.App.P. 4(a) requires a "timely motion." Therefore, the time to appeal was not tolled or reset. Needham v. White Laboratories, Inc., 639 F.2d 394, 397 (7th Cir.1981); Yates v. Behrend, 280 F.2d 64, 65-66 (D.C.Cir.1960); Charles Wright, Arthur Miller, Edward Cooper & Eugene Gressman, Federal Practice and Procedure § 3950, at 364 (1977) ("Nor does a motion to reconsider the district court's denial of one or more of the four specified motions operate to suspend further running of the appeal periods; the losing party is entitled to but one suspension."). Settle filed his notice of appeal on August 16, which was not within thirty days of July 11, as required by Fed.R.App.P. 4(a)(1). Accordingly, the appeal is dismissed as untimely.

3

The appellees' motion for sanctions on appeal is denied.

4

It is so ORDERED. The mandate shall issue forthwith.

*

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. Therefore, the case is ordered submitted without oral argument

**

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3