Martindale v. SW Life Insurance Co

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 18, 2005
• Docket: 04-41414
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS August 17, 2005 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 04-41414 Summary Calendar

WILLIAM DONICE MARTINDALE, Etc.; ET AL.,

Plaintiffs,

versus

SOUTHWESTERN LIFE INSURANCE CO.; ET AL.,

Defendants,

SOUTHWESTERN LIFE INSURANCE CO.,

Defendant-Appellee,

EDWARD BROOKS,

Claimant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:00-CV-687 --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

After the district court entered an order in November 2002

approving a settlement in a class action against Southwestern Life

Insurance Company (“Southwestern”), Edward Brooks, appearing pro

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-41414 -2-

se, filed an untimely notice of appeal and several motions

challenging the judgment. We dismissed the appeal for lack of

jurisdiction. The district court then dismissed the post-judgment

motions as untimely and without merit by order entered March 23,

2004. On April 12, 2004, Brooks filed a motion to alter or amend

the judgment. On August 31, 2004, the district court entered an

order that denied all pending motions.

On October 13, 2004, Brooks deposited in the prison mail

system a notice of appeal as to both the March 23, 2004, order and

the August 31, 2004, order. Brooks’s notice of appeal is untimely

as it was not filed within 30 days of the entry of either order

that Brooks seeks to appeal. See FED. R. APP. P. 4(a)(1)(A).

Accordingly, we lack jurisdiction to entertain Brooks’s appeal.

See Dison v. Whitley, 20 F.3d 185, 186 (5th Cir. 1994). Brooks’s

contention that the time to file began when he received the August

31 order rather than the date the order was entered is without

merit. See FED. R. APP. P. 4(a)(1)(A); Latham v. Wells Fargo Bank,

N.A., 987 F.2d 1199, 1201 (5th Cir. 1993).

For the foregoing reasons, we DISMISS the appeal for lack of

jurisdiction. We note that this is the second time Brooks has

filed a facially untimely notice of appeal seeking to challenge the

settlement. Accordingly, we CAUTION Brooks that the filing or

prosecution of frivolous appeals will subject him to sanctions.

See FED. R. APP. P. 38; Clark v. Green, 814 F.2d 221, 223 (5th Cir.

1987).

APPEAL DISMISSED; SANCTION WARNING ISSUED.