891 F.2d 589 (5th Cir. 1990), 89-1480, F.T.C. v. Hughes

Docket Nº:89-1480
Citation:891 F.2d 589
Party Name:FEDERAL TRADE COMMISSION, Plaintiff-Appellee, v. Dudley M. HUGHES, Jr., d/b/a Dudley M. Hughes Funeral Company, Defendant-Appellant.
Case Date:January 11, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 589

891 F.2d 589 (5th Cir. 1990)

FEDERAL TRADE COMMISSION, Plaintiff-Appellee,

v.

Dudley M. HUGHES, Jr., d/b/a Dudley M. Hughes Funeral

Company, Defendant-Appellant.

No. 89-1480

United States Court of Appeals, Fifth Circuit

January 11, 1990

Rehearing Denied Feb. 8, 1990.

Ernest A. Laun, Dallas, Tex., for defendant-appellant.

Page 590

Lawrence DeMille-Wagman, Assoc. Director for Enforcement Bureau of Consumer Protection, F.T.C., Ernest J. Isenstadt, Maridel S. Morgan, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before WILLIAMS, JOLLY and DUHE, Circuit Judges.

PER CURIAM:

This is an appeal from a judgment taxing civil penalties against Dudley M. Hughes, Jr., for violations of certain Federal Trade Commission regulations governing the funeral industry, 16 C.F.R. pt. 453. 710 F.Supp. 1524. We dismiss the appeal for the reasons below.

A judgment in favor of the FTC was entered on February 13, 1989. Hughes filed and served a Motion for New Trial on March 1. An order denying the motion was entered on March 31. Hughes filed a Notice of Appeal from the February 13 judgment on May 25.

A notice of appeal must be filed within 60 days of the entry of judgment when an agency of the United States is a party. Fed.R.App.P. 4(a)(1). The time for filing a notice of appeal will run from the entry of an order denying a motion for new trial, provided the motion is timely. Fed.R.App.P. 4(a)(4). Hughes did not serve his Motion for New Trial within 10 days of the entry of judgment as required by Fed.R.Civ.P. 59(b). The Notice of Appeal was filed more than 60 days after the entry of the February 13 judgment and is therefore untimely as to that judgment.

A motion for new trial served more than ten days after entry of judgment may nevertheless be considered a motion for relief under Rule 60(b). Eleby v. American Medical Systems, Inc., 795 F.2d 411, 412 (5th Cir.1986). Although Hughes' Notice of Appeal is untimely as to the judgment, it was filed within 60 days of entry of the order denying the Rule 60(b) motion and is therefore timely as to that order. Id. at 413. The timeliness notwithstanding, the Notice of Appeal filed in this case is not sufficient to bring the order of denial before this Court.

A notice of appeal "shall designate the judgment, order or...

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