IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51133
Summary Calendar
OLIVERO GARCIA, JR., Individually and as next friends of Talissa
Marie Garcia, and Others, Minor Children; NOELA N. GONZALEZ-
GARCIA, Individually and as next friends of Talissa Marie Garcia,
and Others, Minor Children,
Plaintiffs-Appellants,
versus
CITY OF SAN ANTONIO; ET AL.,
Defendants,
CITY OF SAN ANTONIO,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-98-CV-840-HG
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June 16, 2000
Before GARWOOD, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Olivero Garcia, Jr., and Noella N. Gonzalez Garcia,
individually and as next friends of Talissa Maria Garcia and
others, minor children, seek to appeal the district court’a grant
of summary judgment for the defendants in this 42 U.S.C. § 1983
action.
*
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that this opinion should not be published and is not precedent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. 99-51133
-2-
The City of San Antonio argues that the Garcias have failed
to file a timely notice of appeal and requests this court to
dismiss the appeal. Because the Garcias’ motion for new trial
was filed within 10 business days of the entry of judgment, it
was a Fed. R. Civ. P. 59(e) motion which suspended the time for
filing a notice of appeal until the motion was denied. See Fed.
R. App. P. 4(a)(4)(A)(v); Harcon Barge Co., Inc. v. D & G Boat
Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986). The district
court denied the Rule 59(e) motion in an order entered on
September 23, 1999. The Garcias had thirty days from this date
to file a notice of appeal from the final judgment.
Instead, they filed a second motion for reconsideration
from the order denying the motion for new trial. This motion was
filed on September 30, 1999, within 10 days of the order denying
the motion for new trial and is a Rule 59(e) motion from the
order denying the first Rule 59(e) motion. Fed. R. App.
P. 4(a)(4) does not contemplate a Rule 59(e) motion that
challenges the denial of an original Rule 59(e) motion. In Re
Stangel v. United States, 68 F.3d 857, 859 (5th Cir. 1995). The
district court denied this motion in an order entered on October
29, 1999.
The Garcias filed a notice of appeal on November 23, 1999,
in which they stated that they sought to appeal the district
court’s order of October 28, 1999, denying the motion for
reconsideration. According to their notice of appeal, the
Garcias are attempting to appeal from the district court’s denial
of their second post-judgment motion. This motion challenging
No. 99-51133
-3-
the denial of the first Rule 59(e) motion is not a motion
contemplated by the Federal Rules of Civil Procedure. Stangel,
68 F.3d at 859. It is not a proper Rule 59(e) motion and does
not toll the period for appeal. The underlying judgment is the
district court’s grant of summary judgment entered on September
7, 1999. The Garcias filed an original Rule 59(e) motion from
that judgment, which was denied by an order entered on September
23, 1999. Thus, in order to timely appeal the underlying
judgment, the Garcias had 30 days from September 23 to file a
notice of appeal. See Fed. R. App. P. 4(a)(1)(A), 4(a)(4)(A)(v).
The notice of appeal filed on November 23, 1999, is untimely.
We DISMISS the appeal for lack of appellate jurisdiction.