IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20966
Summary Calendar
VIVIAN HOLLAND, Individually and Representative of Estate of
Morse Wayne Holland; MORSE W. HOLLAND, Individually and as
representative of Estate of Morse Wayne Holland; ANGELA SCOTT, as
next friend of Xavier Christopher Scott,
Plaintiffs-Appellants,
versus
THE CITY OF HOUSTON; DAVID M. BOLING, LUCIOUS CARL JAMES, doing
business as Cue Club and Disco; KAREN BLACKWELL, Trustee; L.D.
BLACKWELL; HELEN BLACKWELL; BPM PARTNERS, INC.; 146 FAIRMONT,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-2951
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November 3, 2000
Before Garwood, Higginbotham, and Parker, Circuit Judges.
PER CURIAM:*
The plaintiffs, Vivian Holland, Morse W. Holland, Angela
Scott, and Xavier Christopher Scott appeal the grants of summary
judgment in favor of defendants, the City of Houston and L.D.
Blackwell.
*
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that this opinion should not be published and is not precedent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.
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This court must examine the basis of its jurisdiction on its
own motion. United States v. Lister, 53 F.3d 66, 68 (5th Cir. 1995).
After May 1997, the only parties to this case were
plaintiffs and defendants L.D. Blackwell, Boling, James and the
City of Houston (the City). In October 1997 all, except James,
who had not appeared or answered, consented in writing to trial
and final disposition by the Magistrate Judge. On July 1, 1998,
the Magistrate Judge issued a sixteen page opinion granting
Blackwell’s motion for summary judgment as to all plaintiffs’
claims and, on the same date, a one page judgment on a separate
document dismissing the action against him with prejudice. On
January 7, 1999, the Magistrate Judge issued a sixty-three page
opinion granting the City’s motion for summary judgment as to all
plaintiffs’ claims and granting Boling’s motion for summary
judgment as to all plaintiffs’ state law claims but denying that
motion as to plaintiffs’ 42 U.S.C. § 1983 excessive force claim
against Boling; the same day the Magistrate Judge issued a one
page judgment on a separate document dismissing plaintiffs’ suit
against the City with prejudice (this judgment was entered on the
docket January 8, 1999). On January 21, 1999, plaintiffs moved
to dismiss their suit against Boling, and on January 25, 1999,
the Magistrate Judge in a five line order granted that motion.
On February 8, 1999, plaintiffs filed their notice of appeal to
this court from the July 1, 1998, judgment in favor of Blackwell
and the January 7, 1999, judgment in favor of the City.
By opinion issued April 20, 1999, this Court dismissed the
appeal for want of jurisdiction because not all parties had been
No. 99-20966
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disposed of, so there was no final judgment, and no certificate
had been entered under Fed. R. Civ. P. 54(b). Holland v. City of
Houston, No. 99-20127, 5th Cir., Apr. 20, 1999 (unpublished).
In the meantime, plaintiffs on January 14, 1999, had moved
for default judgment against James, attaching an affidavit of
their attorney that James had been served with process on October
21, 1996, and on January 15, 1999, the Magistrate Judge, in
response to that motion, issued a show cause order reciting that
James had been served on October 21, 1996, and had filed no
answer, and directing him to appear before the court on January
19, 1999, to show cause why default judgment should not be
entered against him. On January 19, 1999, James failed to
appear, and the Magistrate Judge reset the show cause hearing for
January 28, 1999 and issued orders requiring James to appear
then. On January 28, 1999, James again failed to appear, and the
plaintiffs presented evidence of their damages to the Magistrate
Judge. However, it was not until August 1999–well after our
April 1999 dismissal of the earlier appeal because not all
parties had been disposed of in the trial court (there was no
disposition as to James)–that any action was taken disposing of
the claims against him.
On August 13, 1999, the Magistrate Judge issued a memorandum
and recommendation, on the basis of the January 28, 1999,
hearing, recommending that the district court enter default
judgment against James and in favor of the plaintiffs for various
specific amounts of damages, prejudgment and post-judgment
interest, and one-fourth of costs.
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On August 26, 1999, the district judge issued a two page
order approving and adopting the Magistrate Judge’s report and
recommendation and rendering default judgment against James in
the stated amounts as to each plaintiff as had been recommended
by the Magistrate Judge, together with pre and post-judgment
interest at specified rates and taxing one-fourth of the costs
against James. This order was entered on the docket on Friday,
August 27, 1999.
On September 2, 1999, the Magistrate Judge purported to
enter a final judgment in the case, decreeing that plaintiffs
take nothing from Blackwell, the City and Boling, and recover
from James the exact sums and interest specified in the district
court’s August 26, 1999, order, and taxing one-fourth of the
costs against James. This order was entered on the docket the
same day.
On Friday, October 1, 1999, plaintiffs filed their notice of
appeal, challenging the judgment in favor of Blackwell and the
City.
In November 1999, Blackwell and the City filed motions to
dismiss the appeal, Blackwell contending that the notice of
appeal as to him should have been filed within 30 days of July 1,
1998, when the Magistrate Judge issued a Fed. R. Civ. P. 58
separate document judgment dismissing the case against him, and
the City contending that Blackwell’s motion was well taken and
that the notice of appeal as to the City should have been filed
within thirty days of January 7, 1999, when the Magistrate Judge
issued a Rule 58 separate document judgment dismissing the case
No. 99-20966
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against it. On December 17, 1999, a motions panel of this court
denied Blackwell’s motion (and, inferentially, the City’s) in a
two sentence order simply stating that the motion “is DENIED.
The motion is totally without merit.” Plainly, the grounds of
the motion was facially without merit, as this court had already
held that the case was not even appealable until sometime after
February 8, 1999, because not all parties had been disposed of in
the district court. At that time, the only undisposed of party
was James.
However, the district court order entered August 27, 1999,
was a final judgment as to James and finally disposed of the case
against him, and thus, all parties having been disposed of
(Boling had been dismissed January 25, 1999), the time for giving
notice of appeal from the July 1, 1998, judgment in favor of
Blackwell and the January 7, 1999, judgment in favor of the City,
each a final judgment as a separate document, commenced to run
then, namely August 27, 1999. The notice of appeal as not filed
until October 1, 1999, more than thirty days after August 27,
1999, and was hence untimely. We note that the district court’s
judgment as to James entered August 27, 1999, complies with Rule
58, notwithstanding its brief statement that the court has
reviewed, and approves and adopts, the report and recommendations
of the Magistrate Judge. See, e.g., United States v. Perez, 736
F.2d 236, 237-38 (5th Cir. 1984); Interfirst Bank Dallas v. FDIC,
808 F.2d 1105, 1108-09 (5th Cir. 1987).
The September 2, 1999, judgment of the Magistrate Judge does
not change the result. There was no intervening tolling motion.
No. 99-20966
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Simple reentry of the same judgment does not start a new notice
of appeal time. See, e.g., Wilson v. Atwood Group, 725 F.2d 255,
(5th Cir. 1984) (en banc). Moreover, the Magistrate Judge had no
power to render judgment against James, as he had never consented
to trial by the Magistrate Judge (and, indeed, has never appeared
in any way in the case). See, e.g., Mendes JR Intern. Co. v. M/V
Sokai Maru, 978 F.2d 920, 922-24 (5th Cir. 1992); Caprera v.
Jacobs, 790 F.2d 442 (5th Cir. 1986).
Nor are we bound to a contrary result by the December 17,
1999, action of the motions panel. Motions panels’ denials of
motions to dismiss do not bind the merits panel. See cases cited
in Cimono v. Raymark Industries Inc., 151 F.3d 297 at 311 n.26
(5th Cir. 1998). Moreover, it is evident that the December 17,
1999 Motions Panel action was directed to the wholly different
(and wholly meritless) argument for want of jurisdiction then
advanced by Blackwell and the City.
Accordingly, the appeal is dismissed because the notice of
appeal was untimely.
DISMISSED