Carl Peacock v. J.A.M. Distributing, Inc. , 364 F. App'x 916 ( 2010 )

Case: 09-40923 Document: 00511022542 Page: 1 Date Filed: 02/08/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 8, 2010
No. 09-40923 Charles R. Fulbruge III
Summary Calendar Clerk
CARL PEACOCK
Plaintiff-Appellant
v.
J.A.M. DISTRIBUTING, INC.
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Texas, Beaumont Division
USDC No. 9:08-cv-00229
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Appellant Carl Peacock appeals from an order denying his motion for relief
from judgment. Finding no abuse of discretion, we affirm.
Appellant brought suit claiming discrimination based on race. His suit
was dismissed by the district court pursuant to Fed. R. Civ. P. 12(b)(6) on August
25, 2009, because the suit was not timely filed within the statutory limit.
Thereafter, on August 28, Peacock filed his “motion to reconsider” which was
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-40923 Document: 00511022542 Page: 2 Date Filed: 02/08/2010
No. 09-40923
properly characterized as a motion for relief from judgment pursuant to Fed. R.
Civ. P. 60(b). Peacock’s motion, however, did not raise any new grounds
concerning the statute of limitations issues which were the basis for the August
25 dismissal. The “motion to reconsider” was denied on September 8, 2009.
Peacock’s notice of appeal specifically and only references an appeal from the
September 8, 2009 order denying his motion for relief from judgment.
Accordingly,the issue which this Court can review is the September 8, 2009
order. We have no jurisdiction to review the merits of the underlying judgment
or any other judgment or issues save the ruling on Peacock’s motion to
reconsider. Pope v. MCI Telecomm. Corp., 937 F.2d 258, 266 (5th Cir. 1991).
Peacock’s brief on appeal is almost entirely devoted to his assertion that
he has suffered discrimination at the hands of Appellee and relates to the merits
of the judgment of August 25, 2009, which is not before us. To the extent that
Peacock’s pro se brief, which we liberally construe, suggests that a previous suit
involving the same claim which was dismissed without prejudice for want of
prosecution, tolled the limitations period or undermines the order denying his
motion to reconsider, such arguments are unavailing. This tolling argument was
not made in the motion to reconsider and, in any event, a timely filed Title VII
suit dismissed for want of prosecution does not toll the 90-day limitations period.
Price v. Digital Equipment Corp., 846 F.2d 1026, 1027 (5th Cir. 1988) (citing
Taylor v. Bunge Corp., 775 F.2d 617, 618 (5th Cir. 1985)). Peacock has not
shown any shortcomings in the order appealed from and certainly no abuse of
discretion. The order denying the motion to reconsider under Fed. R. Civ. P.
60(b) relief is AFFIRMED, and therefore the judgment is also AFFIRMED. Any
and all other relief whether requested by Appellant or Appellee is denied, save
for the cost on appeal, which the Clerk is to assess against Appellant.
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