Harrington v. Runyon

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-60117
Summary Calendar
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WILLIAM A HARRINGTON
Plaintiff-Appellant,
v.
MARVIN T RUNYON, Postmaster General of the United States Postal
Service
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Mississippi
(4:92CV2-B-0)
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September 3, 1996
Before KING, HIGGINBOTHAM, and STEWART, Circuit Judges.
PER CURIAM:*
William Harrington appeals the district court’s final
judgment, entered on December 8, 1995, granting summary judgment
in favor of Marvin Runyon and the order denying his motion for
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*Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
extension of time to file a motion for reconsideration entered on
January 25, 1996. Because Harrington’s notice of appeal was not
timely filed with respect to the summary judgment order, we
dismiss that appeal. The notice of appeal for the motion for an
extension of time to file a motion for reconsideration was timely
and we affirm the district court’s decision denying the motion.
I. BACKGROUND
On January 3, 1994, after exhausting his administrative
remedies, William Harrington (“Harrington”) filed a Title VII
discrimination suit against Marvin Runyon (“Runyon”), the
Postmaster General of the United States. On May 11, 1995, Runyon
filed a motion for summary judgment which was granted on December
8, 1995, and the case was dismissed with prejudice. On January
10, 1996, Harrington filed a motion to extend time to file a
motion for reconsideration. On January 25, 1996, the district
court denied the motion for extension of time. On February 23,
1996, Harrington filed a notice of appeal.
II. DISCUSSION
A. Appeal of the Summary Judgment
The order for summary judgment was filed on December 8,
1995. Federal Rule of Appellate Procedure 4(a) states that
notice of appeal must be filed within 30 days of the entry of the
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judgment or order appealed from unless the United States
Government is a party to the suit in which case the time to file
a notice of appeal is extended to sixty days. Fed. R. App. P. 4.
Following this rule, the last day on which Harrington could have
filed a timely notice of appeal of the summary judgment was
February 6, 1996. In this case however, the notice of appeal was
not filed until February 23, 1996, seventeen days after the
deadline had passed. The notice of appeal was not timely filed;
therefore, we are without jurisdiction over Harrington’s appeal
from the summary judgment.
B. Appeal of the motion for extension of time to file a motion
for reconsideration.
In the Federal Rules of Civil Procedure there is no “motion
for reconsideration” in haec verba. Lavespere v. Niagara Mach. &
Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), cert.
denied, 510 U.S. 859 (1993). Any motion termed as such will be
treated as either a motion to alter or amend the judgment under
Rule 59(e) or a motion for relief from judgment under Rule 60(b).
Id. If the motion is filed within ten days of the entry of the
order or judgment, it will be treated as a 59(e) motion; if it is
filed after ten days, it will be treated as a 60(b) motion.
Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 288 (5th
Cir. 1989), Harcon Barge Co., v. D & G Boat Rentals, Inc., 784
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F.2d 665, 667-69 (5th Cir. 1986)(en banc), cert. denied, 479 U.S.
930. Rule 59(e) states that a motion to alter or amend must be
filed no later than 10 days after the entry of the judgment.
Fed. R. Civ. P. 59(e). “The requirement that post-trial motions
be filed within the relevant ten day period after entry of
judgment is jurisdictional, and may not be extended by a waiver
of the parties or by a rule of the district court.” United
States Leather, Inc. v. H & W Partnership, 60 F.3d 222, 225 (5th
Cir. 1995). Failure to serve a motion within the time prescribed
deprives the district court of jurisdiction to alter or
reconsider its earlier judgment. Id.
In this case Harrington filed a motion for an extension of
time to file a motion to reconsideration. The motion was filed
on January 10, 1996, which was not within 10 days of the entry of
the judgment; therefore, it would not be a valid Rule 59(e)
motion. Moreover what Harrington actually filed was a motion for
an extension of time which the court had no authority to grant
even had it been timely filed. As stated above, motions filed
after 10 days will be treated under Rule 60(b). In this case,
under Rule 60(b), there was no need for Harrington to file a
motion for an extension of time. A Rule 60(b) motion may be
filed up to a year after the judgment for certain stated grounds
and “within reasonable time” for all other grounds. Forsythe,
885 F.2d at 288. Therefore, there was no need for Harrington to
file a motion for an extension of time.
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III. CONCLUSION
For the foregoing reasons, we DISMISS the appeal of the
summary judgment for lack of jurisdiction and AFFIRM the district
court’s denial of the motion for an extension of time.
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