Watts Ex Rel. Watts v. Delgado

202 F. App'x 704

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 13, 2006
• Docket: 06-10390
• Status: Unpublished

Opinion

PER CURIAM: *

The notice of appeal filed by plaintiff-appellant Kerry S. Watts on April 3, 2006 designates the district court’s final judgment and its order denying motion for reconsideration as the orders appealed from. The final judgment in this case was entered on December 21, 2005, and the order denying motion for reconsideration was entered on March 6, 2006. Fed. R.App. P. 4(a)(1)(A) requires that the notice of appeal must be filed with the district court within 30 days after the judgment or order appealed from. In the event a motion for a new trial under Rule 59 is timely filed, the time to file an appeal of the judgment runs from the entry of the order disposing of the motion. Fed. R.App. P. 4(a)(4)(A)(v). Watts contends that her notice of appeal was timely as to both the judgment and the order denying motion for reconsideration because it was filed within 30 days of March 6, 2006, the date of entry of the order denying motion for reconsideration.

As for the judgment, Watts’ argument presumes that the motion for new trial (which was disposed of in the district court’s order denying motion for reconsideration) was timely filed. Fed.R.Civ.P. 59(b) requires that a motion for a new trial be filed no later than 10 days after entry of the judgment. Watts’ motion for new trial was filed on February 1, 2006, long after the time for filing a motion for a new trial had elapsed. Accordingly, the filing of the motion for new trial did not suspend the time for filing a notice of appeal from the judgment, and the notice of appeal filed on April 3, 2006 was untimely as to the judgment.

As for the order denying motion for reconsideration, although the motion for new trial was untimely under Fed.R.Civ.P. 59(b), it was filed within the one year period contemplated for a motion under Fed.R.Civ.P. 60(b)(1). Treating the motion for new trial as a Rule 60(b)(1) motion, the denial of such a motion is reviewed for an abuse of discretion. Watts’ appellate brief is focused on the judgment and why it should be reversed; it provides no argument for why the district court abused its discretion in denying the motion for new trial. Accordingly, this issue is deemed abandoned. Smith v. State Farm Fire & Casualty Co., 695 F.2d 202, 206 (5th Cir.1983).

Appeal DISMISSED.

* 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.