Delacueva v. TX Alchc Bvrg Cmsn

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20651
Summary Calendar
MARIA JESUS DELACUEVA,
Plaintiff-Appellee,
versus
TEXAS ALCOHOLIC BEVERAGE COMMISSION; ET AL.,
Defendants,
MIKE BARNETT; KEITH COLEMAN; ROBERT SAMFORD,
Defendants-Appellants.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-93-CV-4105
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September 17, 1997
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Maria Jesus Delacueva brought this civil rights action
against the Texas Alcoholic Beverage Commission, Mike Barnett,
Robert Samford, and Keith Coleman under 42 U.S.C. §§ 1981, 1983.
Barnett, Samford, and Coleman filed a motion for summary judgment
raising, inter alia, the defense of qualified immunity. 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that this opinion should not be published and is not precedent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.
No. 96-20651
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magistrate judge granted the motion in part and denied it in
part. The order was entered on April 17, 1996. On June 29,
1996, Barnett, Samford, and Coleman filed their notice of appeal
from the April 17 order.
This Court must examine the basis of its jurisdiction on its
own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th
Cir. 1987). An examination of the record in this case discloses
that no final judgment has been entered as a separate document as
required by Fed. R. Civ. P. 58.
The April 17 order contains the analysis and reasons for the
decision and is therefore not a "separate document" judgment as
required by Rule 58. See 6A J. Moore, J. Lucas, G. Grotheer,
MOORE'S FEDERAL PRACTICE, ¶ 58.02, at 58-17 (2d ed. 1991). See
also Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978). If we
were to treat the April 17 order as a Rule 58 judgment,
defendants' notice of appeal would be untimely therefrom because
the notice was filed more than 30 days after the entry of such
order. See Fed. R. App. P. 4(a)(1). The posture of this case is
virtually identical to that in Townsend v. Lucas, 745 F.2d 933,
934 (5th Cir. 1984). Following the procedure adopted in
Townsend, we dismiss the appeal. The defendants may rectify the
lack of a separate document judgment by a motion to the district
court for entry of judgment. After entry of the judgment, they
may appeal within the time prescribed by Rule 4(a)(1). See id.APPEAL DISMISSED.
No. 96-20651
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