Robert A. Austin v. Elizabeth Rose McHugh

Opinion

[DO NOT PUBLISH]

In the

United States Court of Appeals For the Eleventh Circuit

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No. 24-10286

Non-Argument Calendar

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ROBERT A. AUSTIN, Plaintiff-Appellant,

versus ELIZABETH ROSE MCHUGH, Magistrate, JAMES W. MCCANN, Judge,

Defendants-Appellees.

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2

2 Opinion of the Court 24-10286

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 2:23-cv-14370-AMC

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Before JORDAN, JILL PRYOR, and NEWSOM, Circuit Judges. PER CURIAM:

This appeal is DISMISSED, sua sponte, for lack of jurisdiction . Robert Allen Austin, proceeding pro se, appeals from the district court’s order dismissing his complaint as frivolous. Austin’s motion for relief under Rule 60, which was his first post-judgment motion challenging the dismissal, tolled the appeal period, such that it ran from the entry of the district court’s paperless order denying his motion. See Fed. R. App. P. 4(a)(4)(A) (providing that the time to file an appeal runs from the entry of the order disposing of the last such remaining motion). Because that paperless order was entered on December 11, 2023, the 30-day statutory time limit required him to file a notice of appeal on or before January 10, 2024. See 28 U.S.C. § 2107(a); Fed. R. Civ. P. 59; Fed. R. App. P. 4(a)(1)(A), (4)(A). However, Austin did not file his notice of appeal until January 26, 2024.

Accordingly, the notice of appeal is untimely and cannot invoke our appellate jurisdiction. See Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 21 (2017). No petition for rehearing may be filed unless it complies with the timing and other requirements of 11th Cir. R. 40-3 and all other applicable rules.