Martindale v. SW Life Insurance Co ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 17, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41414
Summary Calendar
WILLIAM DONICE MARTINDALE, Etc.; ET AL.,
Plaintiffs,
versus
SOUTHWESTERN LIFE INSURANCE CO.; ET AL.,
Defendants,
SOUTHWESTERN LIFE INSURANCE CO.,
Defendant-Appellee,
versus
EDWARD BROOKS,
Claimant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:00-CV-687
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
After the district court entered an order in November 2002
approving a settlement in a class action against Southwestern Life
Insurance Company (“Southwestern”), Edward Brooks, appearing pro
*
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this opinion should not be published and is not precedent except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.
No. 04-41414
-2-
se, filed an untimely notice of appeal and several motions
challenging the judgment. We dismissed the appeal for lack of
jurisdiction. The district court then dismissed the post-judgment
motions as untimely and without merit by order entered March 23,
2004. On April 12, 2004, Brooks filed a motion to alter or amend
the judgment. On August 31, 2004, the district court entered an
order that denied all pending motions.
On October 13, 2004, Brooks deposited in the prison mail
system a notice of appeal as to both the March 23, 2004, order and
the August 31, 2004, order. Brooks’s notice of appeal is untimely
as it was not filed within 30 days of the entry of either order
that Brooks seeks to appeal. See FED. R. APP. P. 4(a)(1)(A).
Accordingly, we lack jurisdiction to entertain Brooks’s appeal.
See Dison v. Whitley, 20 F.3d 185, 186 (5th Cir. 1994). Brooks’s
contention that the time to file began when he received the August
31 order rather than the date the order was entered is without
merit. See FED. R. APP. P. 4(a)(1)(A); Latham v. Wells Fargo Bank,
N.A., 987 F.2d 1199, 1201 (5th Cir. 1993).
For the foregoing reasons, we DISMISS the appeal for lack of
jurisdiction. We note that this is the second time Brooks has
filed a facially untimely notice of appeal seeking to challenge the
settlement. Accordingly, we CAUTION Brooks that the filing or
prosecution of frivolous appeals will subject him to sanctions.
See FED. R. APP. P. 38; Clark v. Green, 814 F.2d 221, 223 (5th Cir.
1987).
APPEAL DISMISSED; SANCTION WARNING ISSUED.