Pryor v. U.S. Postal Service
| Decision Date | 26 August 1985 |
| Docket Number | No. 84-2606,84-2606 |
| Citation | 769 F.2d 281 |
| Parties | 38 Fair Empl.Prac.Cas. 1323, 38 Empl. Prac. Dec. P 35,722, 3 Fed.R.Serv.3d 527 Rayford V. PRYOR, Jr., Plaintiff-Appellant, v. U.S. POSTAL SERVICE, et al., Defendants-Appellees. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Rayford V. Pryor, Jr., pro se.
Henry K. Oncken, U.S. Atty., Hays Jenkins, C.J. (Neil) Calnan, James R. Gough, Asst. U.S. Attys., Houston, Tex., for U.S. Postal Service.
Appeal from the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, GARWOOD, and JOLLY, Circuit Judges.
Following the dismissal of appellant's Title VII discrimination suit with prejudice for want of prosecution, appellant's "Motion to Retain on Docket" was denied for want of timely filing. We affirm.
On August 4, 1983, appellant Rayford V. Pryor, Jr. filed the original complaint in this action, alleging racial discrimination by his employer, appellee U.S. Postal Service, in violation of Title VII, 42 U.S.C. Sec. 2000e et seq. On October 4, 1983, appellee moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1), (2), (5) and (6), for lack of sufficient service of process on the appellee, for having named improper party-defendants, and for failing to state a claim upon which relief could be granted with respect to at least some of the complaint's allegations. On October 17, 1983, the trial court gave notice of setting of a November 4, 1983 motion conference by certified mail to the parties, with a response from appellant due on October 28. Appellant's counsel made no response.
Neither appellant nor his counsel appeared at the November 4 motion conference, nor did they seek any continuance or otherwise notify the court before or timely after the conference that they would be absent or of the reasons for their absence. The district court on November 4, 1983 entered an order of dismissal with prejudice for want of prosecution, and taxed costs to appellant. See Fed.R.Civ.P. 41(b), (d). Per special instructions by the court, the clerk of the court notified both appellant's counsel and appellant himself of the dismissal order. Appellant received his notice of dismissal on November 18, and responded with a letter to the district court expressing his concern. On brief, appellant indicates that he was reassured by his counsel that the matter would be reinstated, and that he "continued to entrust" the matter to counsel. He made no subsequent inquiries of the court, nor, apparently, personally pursued the matter any further.
On January 5, 1984, the clerk of the court returned to appellant's counsel a motion denominated "Motion to Retain on the Docket," for lack of a certificate of service and a statement of opposition as required by local rules. On this same day, the clerk of the court also returned appellant's "Amended Complaint" for want of signature of counsel. See Fed.R.Civ.P. 11. On January 13, appellee filed a response to appellant's Motion to Retain, apparently as a result of having received a copy of the motion that the clerk had returned to appellant on January 5. On January 27, the clerk returned yet another "Amended Complaint" On January 30, appellant's counsel again filed a "Motion to Retain on the Docket" 1 and an "Amended Complaint." 2 No further activity is noted in the record until March 2, when appellant's counsel filed what was denominated "Response to Plaintiff's Motion for Reconsideration and Retention on the Docket." This document repeated almost verbatim the language of appellant's January 30 Motion to Retain, and amplified that motion with the explanation:
to appellant's counsel, noting that such complaint could not be filed until and unless the suit actually had been retained on the docket.
No specific facts in support of these assertions were given to justify appellant's failure to appear at the November 4 motion conference or to explain the delay in filing the Motion to Retain.
On August 24, 1984, the court gave notice of a setting for a motion conference. That conference was held on September 26, at which time the court denied appellant's Motion to Retain on the Docket "because it is not timely and the Court has no jurisdiction." On October 19, appellant pro se filed what he denominated "Appeal of Order of Dismissal of Plaintiff's Motion and Memorandum to Reinstate and Retain on Docket," which arguably encompasses an attempted appeal of the November 4 judgment of dismissal and an appeal from the subsequent denial on September 26 of appellant's Motion to Retain.
A notice of appeal from a final judgment must be filed within the time limitations embodied in Fed.R.App.P. 4(a) and 28 U.S.C. section 2107. In this case, because the government was a party, the appropriate appeals period was sixty days. Adherence to this time limitation is mandatory and jurisdictional. Browder v. Director, Dept. of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978); Phillips v. Insurance Company of North America, 633 F.2d 1165, 1166 (5th Cir.1981). No motion for alteration or amendment of the judgment or for a new trial under Fed.R.Civ.P. 59 More than sixty days had elapsed from the date of judgment, November 4, 1983, until a motion had been filed successfully on January 30, 1984. Thus, this Court is without jurisdiction to hear an appeal of the district court's November 4, 1983 dismissal of the suit with prejudice. Consequently, insofar as appellant's "Appeal of Order" dated October 19, 1984 may purport to raise an appeal of the November 4, 1983 order of dismissal, that appeal is dismissed for lack of jurisdiction.
was filed within the 10-day period specified therein. 3 Nor did appellant file with the district court within thirty days of the running of the normal time for appeal any request for an extension of time in which to file an appeal on grounds of excusable neglect, as authorized by Fed.R.App.P. 4(a)(5). The appellate court has no authority to extend this time. Reynolds v. Hunt Oil Co., 643 F.2d 1042 (5th Cir.1981); Fed.R.App.P. 26(b)
APPEAL OF DENIAL OF MOTION TO RETAIN
Characterization of Motion
We turn now to consideration of the denial of appellant's Motion to Retain. At the outset, we note some uncertainty as to the character of this motion. Neither the January 30 "Motion" nor the March 2 "Response" refer to any of the Federal Rules of Civil Procedure, or to the titles or classifications of motions recognized therein. While these filings apparently seek relief appropriate to a Rule 59(e) motion to alter or amend a judgment (or perhaps a Rule 59(b) motion for new trial), they also can be said to seek relief from the judgment of dismissal on alleged grounds of excusable neglect, as befits a Rule 60(b)(1) motion. Because of our disposition of this appeal, however, we need not reach a definitive characterization, beyond noting that appellant's filings failed as a Rule 59(e) (or Rule 59(b)) motion because they were filed more than ten days post-judgment. For the purposes of this appeal, therefore, we will assume arguendo that appellant's January 30 "Motion to Retain on the Docket", and his March 2 "Response," were each a Rule 60(b)(1) motion.
The district court's order of September 26, 1984, denying "Plaintiff's motion to retain the case on the docket" fails to specify which of appellant's filings the order purports to deny. Appellant's Motion to Retain, filed on January 30, 1984, and appellant's "Response," filed March 2, 1984, which involve identical subject matter, were both arguably before the court. Appellant characterizes his March 2 "Response" as a request to the district court to reinstate his civil action to the docket, clearly considering it to be a motion in that respect. Nonetheless, it is unclear from the contents of this "Response" whether it was intended to be a motion in and of itself, as its introductory wording would indicate, or perhaps an amended motion, or whether it was merely a memorandum filed in support of the January 30 motion. Because the disposition of this appeal does not ultimately depend upon this classification, we will treat both of these filings, without determinative labels, as having been before the district court; they both pertain to the same subject matter, seek the same relief, and offer the same supporting rationale. We hence turn to consideration of these filings as a Fed.R.Civ.P. 60(b) motion for relief, as appellant, now pro se, apparently urges us to do.
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