Williams v. Home Life Financial ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-60143
Summary Calendar
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LUTHER WILLIAMS, Family; WILLIE JONES, Family; ALONZO
LEWIS, Family; LIZZIE E WILLIAMS,
Plaintiffs-Appellants,
versus
HOME LIFE FINANCIAL ASSURANCE CORPORATION;
ANTHEM HEALTH & LIFE INSURANCE CO.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
(3:96-CV-933-LN)
December 16, 1999
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff Lizzie E. Williams (“Williams”), acting pro se, appeals the district court’s final
judgment in her breach of contract suit against Home Life Financial Assurance Corporation/Anthem
Health and Life Insurance Company (“Anthem”) and the court’s denial of her second motion for
reconsideration. This court must examine the basis of its jurisdiction on its own motion if necessary.
See United States v. Lister, 53 F.3d 66, 68 (5th Cir. 1995). Finding that Williams’ notice of appeal
was untimely, we dismiss this appeal for lack of jurisdiction.
As an initial matter, Williams’ notice of appeal, while purporting to apply to all plaintiffs, is
signed only by Williams. A multiparty pro se notice of appeal is not effective as to any of the pro se
parties that did not sign the appeal except a signer’s spouse and minor children. See Fed. R. App.
P. 3(c); Carter v. Stadler, 60 F.3d 238, 239 (5th Cir. 1995) (citing Mikeska v. Collins, 928 F.2d 126,
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
126 (5th Cir. 1991)) (“[A] multiparty pro se notice of appeal was not effective as to any of the pro
se parties that did not sign the appeal.”). Accordingly, the appeal as to all plaintiffs other than
Williams is DISMISSED for lack of jurisdiction.1
With regard to Williams’ appeal, timely notice of appeal is a jurisdictional prerequisite to
judicial review. See Charles L.M. v. Northeast Ind. Sch. Dist., 884 F.2d 869, 870 (5th Cir. 1989)
(finding that court lacks jurisdiction if notice of appeal is untimely). Here, the district court entered
final judgment on March 12, 1998. Less than ten days later, on March 17, 1998, Williams filed her
first motion to reconsider, which was treated as a motion to alter or amend the judgment under
Federal Rule of Civil Procedure 59(e) and therefore tolled the running of the thirty-day time period
for filing a notice of appeal. See Charles L.M., 884 F.2d at 869. The district court denied William’s
first Rule 59(e) motion on March 18, 1998.
Williams filed a second motion for reconsideration on March 30, 1998. This second
motion—also considered a motion to alter or amend under Fed. R. Civ. P. 59(e)—did not raise any
new grounds for relief. A successive Rule 59(e) motion raising substantially similar grounds as urged
in an earlier motion is deemed successive and does not toll the time in which to file a notice of appeal.
See Charles L.M., 884 F.2d at 870; see also United States v. One 1988 Dodge Pickup, 959 F.2d 37,
39 (5th Cir. 1992) (“Rule 4(a)(4) does not embrace a second Rule 59 motion that merely challenges
the denial of the original Rule 59 motion.”). Thus, Williams’ time in which to file her notice of appeal
ended on April 17, 1998. See Fed. R. App. Proc. 4(a). Her notice of appeal—filed on February 26,
1999—was therefore untimely, and this court is without jurisdiction to consider her claims. See
Charles L.M., 884 F.2d at 870.
1
The clerk did not send a “Mikeska letter” to the non-signing plaintiffs advising them that they
had the right to file a notice of appeal within fourteen days of Williams’ appeal or prior to the
limitation period of Fed. R. App. Proc. 4(a). See Mikeska v. Collins, 928 F.2d 126, 126 (5th Cir.
1991) (requiring clerk to notify non-signing parties of their right to file a notice of appeal). However,
because (1) the clerk had never been provided with the addresses of the non-signing plaintiffs, and
(2) Williams’ notice was already unt imely, the absence of a Mikeska letter does not affect our
decision. See Carter, 60 F.3d at 239 (finding that Mikeska did “not enlarge . . . the time period
permitted for appeal . . . . Accordingly, after the fourteen days had expired, Carter could not appeal
despite the lack of Mikeska notice.”).
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Finally, Anthem argues that we should award it sanctions in view of the frivolous nature of
Williams’ appeal. See Fed. R. App. P. 38. “An appeal is frivolous if the result is obvious or the
arguments of error are wholly without merit.” Coghlan v. Starkey, 852 F.2d 806, 811 (5th Cir.
1988). Particularly in view of Williams’ pro se status, we decline to impose sanctions based upon her
procedural defects. See Clark v. Green, 814 F.2d 221, 223 (5th Cir. 1987) (noting this court’s
caution in sanctioning pro se litigants). However, we note that this is not the first time that Williams
has brought these claims before us. We caution Williams that should she file another frivolous lawsuit
or appeal involving the same general subject matter involved in this appeal, we will not hesitate to
impose the sanctions authorized by Federal Rule of Appellate Procedure 38.
For the foregoing reasons, Williams appeal is DISMISSED. We also DENY Anthem’s
motion for sanctions.
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