Cordova v. LA State Univ Agri ( 2022 )


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  • Case: 21-30239     Document: 00516279120         Page: 1     Date Filed: 04/13/2022
    United States Court of Appeals
    for the Fifth Circuit                                United States Court of Appeals
    Fifth Circuit
    FILED
    April 13, 2022
    No. 21-30239
    Summary Calendar                          Lyle W. Cayce
    Clerk
    J Cory Cordova,
    Plaintiff—Appellant,
    versus
    Louisiana State University Agricultural ; Mechanical
    College Board of Supervisors; Karen Curry; Nicholas
    Sells; Kristi Anderson; University Hospital ; Clinics,
    Incorporated; Lafayette General Medical Center,
    Incorporated; Lafayette General Health System,
    Incorporated,
    Defendants—Appellees.
    Appeal from the United States District Court
    for the Western District of Louisiana
    USDC No. 6:19-CV-1027
    Before Clement, Ho, and Oldham, Circuit Judges.
    Per Curiam:*
    *
    Pursuant to 5th Circuit Rule 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    opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
    Case: 21-30239      Document: 00516279120            Page: 2   Date Filed: 04/13/2022
    No. 21-30239
    It is ORDERED that our prior panel opinion, Cordova v. La. State
    Univ. Agri. & Mech. College Bd. of Supervisors, No. 21-30239, 
    2021 WL 5183510
     (5th Cir. Nov. 8, 2021), is WITHDRAWN and the following
    opinion is SUBSTITUTED therefor.
    *        *         *
    Plaintiff appeals both the district court’s March 24, 2021 final order
    dismissing all claims against the LSU Defendants and Lafayette General
    Defendants and its April 14, 2021 final order granting in part the LSU
    Defendants’ motion for attorney’s fees and costs.
    Federal Rule of Appellate Procedure 4(a)(1)(A) provides that a notice
    of appeal must be filed in the district court within 30 days after entry of the
    judgment or order appealed from. Rule 4(a)(4)(A)(iii), however, provides
    that in the event a party timely files a motion for attorney’s fees under
    Federal Rule of Civil Procedure 54, and if the district court extends the time
    to appeal under Federal Rule of Civil Procedure 58, the 30-day clock does not
    begin to tick until the district court’s entry of the order disposing of the
    motion for attorney’s fees.
    “A timely filed notice of appeal is an absolute prerequisite to this
    court’s jurisdiction.” Moody Nat. Bank of Galveston v. GE Life & Annuity
    Assur. Co., 
    383 F.3d 249
    , 250 (5th Cir. 2004) (citing Browder v. Dir., Dep’t of
    Corrs., 
    434 U.S. 257
    , 264 (1978)). “[P]ost judgment motions addressing
    attorney’s fees can only extend the time for appeal if (1) the motion is filed
    before the delay for appeal expires and (2) the court orders that the motion
    be considered as a Rule 59 motion.” Id.; see also Kleinman v. City of Austin,
    749 F. App’x 294, 295 (5th Cir. 2019) (unpub.) (quoting Moody for the
    proposition that “[m]otions addressing costs and attorney’s fees . . . are
    2
    Case: 21-30239        Document: 00516279120             Page: 3      Date Filed: 04/13/2022
    No. 21-30239
    considered collateral to the judgment, and do not toll the time period for filing
    an appeal.”).
    Though Plaintiff filed a motion for attorney’s fees and costs, the order
    respecting which was not issued until April 14, 2021, there is no order from
    the district court extending the time for Plaintiff to appeal its March 24, 2021
    order dismissing Plaintiff’s claims on the merits. 1 Plaintiff’s deadline to
    appeal that order was April 23, 2021. Because he did not file his notice of
    appeal with respect to the district court’s March 24, 2021 merits order until
    April 27, 2021, his appeal was untimely. As such, the court lacks jurisdiction
    to review Plaintiff’s appeal of the district court’s March 24, 2021 order
    dismissing his claims against the LSU Defendants and Lafayette General
    Defendants.
    His appeal of the district court’s April 14, 2021 order granting the
    LSU Defendants’ motion to tax costs, though timely filed, fares no better.
    Plaintiff dedicates his entire brief to arguing that the district court lacked
    subject matter jurisdiction in the first instance. But he does not even attempt
    to press, let alone substantiate, his argument that the district court erred in
    taxing costs against him. His failure to do so is fatal to his appeal. Davis v.
    Maggio, 
    706 F.2d 568
    , 571 (5th Cir. 1983) (“Claims not pressed on appeal are
    deemed abandoned.”).
    Plaintiff also argues that new evidence discovered on appeal reveals a
    conflict of interest that deprived him of due process in the proceedings in the
    district court and thus justifies relief under Rule 60(b). He asserts that,
    because the conflict of interest was brought to light during the pendency of
    this appeal, he had no opportunity to request Rule 60(b) relief from the
    1
    The district court denied the LSU Defendants’ request for attorney’s fees, but it
    granted their request for costs in the amount of $1,068.80.
    3
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    No. 21-30239
    district court. Thus, Plaintiff requests that this court grant relief under Rule
    60(b) and vacate the underlying “judgment [of the district court] dismissing
    his case on the merits.” This court’s jurisdiction is limited to appeals from
    the “final decisions of the district courts of the United States” and certain
    interlocutory orders and decrees. 
    28 U.S.C. § 1291
    . Plaintiff does not
    dispute that he did not file this Rule 60(b) Motion with the district court.
    Rule 60(b) does not equip this court with jurisdiction. See Cooter & Gell v.
    Hartmarx Corp., 
    496 U.S. 384
    , 406 (1990) (holding that “Rule 11 does not
    apply to appellate proceedings,” because “Federal Rule of Civil Procedure 1
    . . . indicates that the Rules only ‘govern the procedure in the United States
    district courts’”); Sheldon v. Khanal, 502 F. App’x 765, 773 (10th Cir. 2012)
    (rejecting request on appeal for Rule 60(b)(2) relief because “the Federal
    Rules of Civil Procedure apply to the district courts, not to the courts of
    appeals”). Plaintiff was required to either bring this Motion before the
    district court under Rule 62.1 or raise this issue in his briefing on appeal. He
    did neither.
    We DISMISS Plaintiff’s appeal of the judgment and AFFIRM the
    costs award.    We DENY Plaintiff’s Motion for Relief from Judgment
    Pursuant to Rule 60(b).
    4