Jacqueline Mims v. General Motors

Case: 12-60271 Document: 00512103877 Page: 1 Date Filed: 01/07/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 7, 2013
No. 12-60271
Summary Calendar Lyle W. Cayce
Clerk
JACQUELINE WALKER MIMS,
Plaintiff-Appellant
v.
GENERAL MOTORS,
Defendant-Appellee
---------------------
JACQUELINE WALKER-MIMS,
Plaintiff-Appellant
v.
BARBARA JONES; RITA DERENCIUS
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:09-CV-617
USDC No. 3:09-CV-648
Case: 12-60271 Document: 00512103877 Page: 2 Date Filed: 01/07/2013
No. 12-60271
Before WIENER, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
This appeal arises out of consolidated suits by Jacqueline Walker Mims
asserting various claims arising out of her employment and termination of her
employment by General Motors Corporation LLC (GM). The district court
dismissed claims against appellees Barbara Jones and Rita Derencius and later
granted a motion by GM for summary judgment. Mims filed a motion for
reconsideration, which the court denied, and then filed a notice of appeal. She
now contends that the court abused its discretion by denying her request for
additional time to pursue discovery prior to entry of summary judgment.
We lack jurisdiction to consider Mims’s arguments, an issue we raise sua
sponte. See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Mims did not file
a timely notice of appeal from the underlying judgment. Instead, more than 28
days after the entry of judgment, she filed a motion seeking relief under Rule
59(e) and Rule 60(b) of the Federal Rules of Civil Procedure. Given the timing
of her motion, it did not suspend the time to appeal the underlying judgment.
See FED. R. APP. P. 4(a)(1)(A), (4). Although she timely filed a notice of appeal
from the denial of her postjudgment motion, that does not bring up the
underlying judgment for review; accordingly, we have jurisdiction to consider
only the order denying the postjudgment motion. See Halicki v. Louisiana
Casino Cruises, Inc., 151 F.3d 465, 470 (5th Cir. 1998); Barrs v. Sullivan, 906
F.2d 120, 121 (5th Cir. 1990). However, Mims addresses none of the issues
raised in that motion, focusing instead her contention that the court improperly
granted summary judgment without permitting discovery. We lack jurisdiction
to consider that argument.
*
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.
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Case: 12-60271 Document: 00512103877 Page: 3 Date Filed: 01/07/2013
No. 12-60271
Even if we had jurisdiction, we would affirm as Mims failed to make the
required showing under Rule 56(d) of the Federal Rules of Civil Procedure, nor
has she shown any abuse of discretion. See Adams v. Travelers Indem. Co. of
Conn., 465 F.3d 156, 162 (5th Cir. 2006).
DISMISSED FOR LACK OF JURISDICTION.
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