Wade v. Farmers Ins Group

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 01-20805

Summary Calendar
____________________

ALEX MELVIN WADE, JR

Plaintiff - Appellant

v.

FARMERS INSURANCE GROUP

Defendant - Appellee

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
No. H-96-CV-3409
_________________________________________________________________
June 26, 2002

Before KING, Chief Judge, and DAVIS and EMILIO M. GARZA, Circuit
Judges.

PER CURIAM:*

Plaintiff-Appellant Dr. Alex Melvin Wade, Jr. appeals the

district court’s refusal to reconsider its dismissal for lack of

prosecution of Wade’s civil action alleging breach of contract

and a civil rights violation by his insurer. For the following

*
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that this opinion should not be published and is not precedent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.
reasons, we DISMISS the appeal for lack of subject matter

jurisdiction.

I. FACTUAL AND PROCEDURAL HISTORY

On October 11, 1992, pro se Plaintiff-Appellant Dr. Alex

Melvin Wade, Jr. was a passenger in a car that allegedly struck a

deer on an Indiana highway. On or about December 8 or 9, 1992,

Dr. Wade filed a personal injury claim with his insurer, Farmers

Texas County Mutual Insurance Company (“Farmers Texas”). On June

2, 1993, Farmers Texas denied that claim.

On October 11, 1994, as a pro se litigant, Dr. Wade filed in

Indiana state court what may be construed as a breach of contract

action against Defendant-Appellant Farmers Insurance Group

(“Farmers”).2 Wade subsequently amended his pleadings to include

an apparent claim that Farmers violated his civil rights pursuant

to 28 U.S.C. § 1983 (1994).3 On November 8, 1994, defendant

Farmers removed Wade’s action to federal district court in

2
Farmers Texas indicates that it was improperly
designated as “Farmers Insurance Group” when named as defendant
to this action. That error was never successfully corrected by
Wade, and Farmers Texas defended the action throughout its
course. The Defendant-Appellant to this action will thus be
referred to henceforth in this opinion as “Farmers.”
3
Neither of Dr. Wade’s original or amended complaints
expressly indicate any causes of action per se; his complaints do
not include the phrase “breach of contract” or refer expressly to
a § 1983 violation of his civil rights. In later filings, Wade
refers to his action as one for breach of contract and also
indicates that he believes a contract right is a “basic civil
right.” In accord with the leniency with which courts view pro
se pleadings, however, the Indiana district court properly
inferred such causes of action.

2
Indiana on diversity grounds. On August 9, 1995, the Indiana

district court granted Farmers’s motion both to dismiss the

action for lack of personal jurisdiction over Texas defendant

Farmers and, “alternatively,” to transfer the action to a

district court in Texas.4 Wade subsequently appealed that

decision to the Court of Appeals for the Seventh Circuit. On

August 30, 1996, the Seventh Circuit denied jurisdiction over

Wade’s appeal on the ground that an order both to dismiss an

action and to transfer it is interlocutory and unappealable.5 In

light of that Seventh Circuit decision, the Indiana district

court entered an order transferring Wade’s action to the District

Court for the Southern District of Texas, Houston Division, on

October 1, 1996.

To complicate matters, on or about September 27 or 29, 1996,

just a few days prior to the transfer of Wade’s civil action to

the district court in Texas, Wade was arrested and incarcerated

4
The Indiana district court determined that it could not
exercise long-arm personal jurisdiction over Texas defendant
Farmers. The court further indicated that the question of
whether Wade had a viable claim for a civil rights violation by
Farmers under § 1983, as well as some pretrial motions filed by
the parties, remained pending upon grant of the motion to
transfer the action to the district court in Texas.
5
The Seventh Circuit indicated that, if the Indiana
district court had issued an order only dismissing Wade’s action
that was not coupled with the transfer, such an order would be
final and appealable. See Wade v. Farmers Ins. Group, No. 94 C
1863, slip. op. at 6 & n.6 (7th Cir. Aug. 30, 1996).

3
in Indiana on an unrelated criminal matter.6 Wade was

subsequently extradited to Texas on or about January of 1997.

Wade has remained incarcerated in various Texas prison facilities

pursuant to that unrelated criminal matter since 1997.7

On March 28, 1997, the Texas district court held a pre-trial

scheduling conference in the transferred civil action, but Wade

failed to appear. On March 31, 1997, the Texas district court

issued an order demanding that Wade show cause within ten days as

to why his civil action should not be dismissed for failure to

prosecute because there had been no activity in the action in the

six months since the action was transferred from Indiana and

because Wade failed to appear at the scheduling conference.8 The

6
Wade’s various filings indicate those two different
dates for his initial incarceration in Indiana.
7
The record is not clear regarding the subject of Wade’s
incarceration, regarding the exact date of Wade’s extradition to
Texas, or regarding specific dates that Wade entered various
Texas penal facilities. Wade indicates that he was extradited to
Texas in January of 1997 and convicted in Texas on April 30,
1997. Various filings by Wade indicate that Wade has been housed
at several Texas penal facilities.
8
An order setting the time and place of the conference
was issued by the Texas district court on February 20, 1997. The
district court noted that defendant Farmers was represented at
the conference. Wade claims in various subsequent filings that
Farmers was fully aware at the time of the March 1997 hearing
that Wade was incarcerated and thus unfairly failed to notify the
court of this fact. The record on appeal fails to corroborate or
contradict Wade’s assertion that Farmers was fully aware, but
failed to inform the court, of Wade’s incarceration during the
six months after transfer of the action, at the time of the pre-
trial conference, and when the court dismissed the action in May
of 1997.

4
district court indicated that it would dismiss the action if Wade

failed timely to show cause. Wade failed timely to respond, and

on May 12, 1997, the Texas district court dismissed Wade’s civil

action without prejudice for failure to prosecute. Wade filed no

direct appeal of this dismissal for failure to prosecute.

Wade’s first attempt to challenge the district court’s

dismissal of his action for failure to prosecute in the proper

Texas forum occurred on January 24, 2001 -- approximately two and

three-quarters years after the May 1997 dismissal -- when Wade

filed a motion to vacate judgment pursuant to Rule 60(b)(4) of

the Federal Rules of Civil Procedure (“FRCP”).9 Wade argued in

9
Between the March 1997 dismissal and Wade’s next attempt
to proceed in the Texas district court, the record reflects the
following events. In November of 1997, Wade mailed a
notification to the Texas district court that Wade’s address had
changed to a prison facility in Huntsville, Texas. Because Wade
mistitled his action (although the handwritten document clearly
includes Wade’s full name, “Alex Melvin Wade, Jr.”), the Texas
district court clerk was apparently unable to file the address
change with the correct record in this action. Thus, no
notification that Wade’s action was dismissed was transmitted to
Wade in 1997. In a letter to the Texas district court dated
August 27, 1998, Wade indicated his address as a state prison
facility in Jacksboro, Texas and requested notification of the
name and address of defense counsel. Wade also indicated in that
August 1998 letter his “intent to seek a re-opening of the case
if closed and to pursue the matter under Rule 60(b) of the
Federal Rules of Civil Procedure ....” In response, on September
2, 1998, the Texas district court clerk mailed to Wade a copy of
the docket sheet that indicated dismissal of his case by the
Texas district court in March 1997. On September 28, 1998,
within one month of being sent that docket sheet, Wade filed a
Rule 60(b)(4) motion, but did so in the wrong forum, the Indiana
district court. That motion was denied by the Indiana district
court on October 16, 1998. Wade’s subsequent Rule 60(b)(4)
motion made to the proper forum of the Texas district court came
approximately twenty-eight months after the docket was mailed to

5
that motion, inter alia, that his action should not have been

dismissed for failure to prosecute because in March 1997 -- at

the time of the hearing at which he failed to appear and of the

subsequent dismissal of the action -- Wade had a legal

“disability” due to his incarceration and preoccupation with

defending pro se against the unrelated criminal prosecution, as

well as due to his failure to receive notice of the pending

dismissal of his civil action.10 Rule 60(b) requires that a

movant file within a “reasonable” time period for a motion to be

timely. See FED. R. CIV. P. 60(b).11 On March 1, 2001, the Texas

district court denied Wade’s Rule 60(b)(4) motion as untimely

based on the court’s finding that, despite Wade’s incarceration,

the time period between the March 1997 dismissal and Wade’s

him by the Texas court clerk in September 1998.
10
Rule 60(b)(4) allows for “Relief from Judgment or Order”
upon a showing that a judgment is “void.” FED. R. CIV. P.
60(b)(4).
11
Rule 60(b) includes six subsections delineating grounds
for relief from a judgment. The rule indicates that, while
movants must file within a “reasonable” time period, for motions
filed under subsections (1), (2), and (3) -- unlike Wade’s
subsection (4) filing -- that reasonable time period is limited
to “not more than one year after the [underlying] judgment, order
or proceeding” challenged by the motion. See FED. R. CIV. P.
60(b)(4). Thus, Rule 60(b) suggests on its face that any motion
not filed under its subsections (1), (2), or (3), such as Wade’s,
might be reasonably and timely filed even if filed more than one
year after the underlying order challenged by the motion,
depending on the circumstances.

6
January 2001 filing of the Rule 60(b)(4) motion in Texas district

court challenging that dismissal was unreasonable.12

Because Wade filed no direct appeal to this court of the

district court’s March 1997 order dismissing his claim for

failure to prosecute, the only remaining avenue of challenge

available to Wade was to attack the district court’s March 1,

2001 denial for lack of timeliness of his Rule 60(b)(4) motion.

On March 12, 2001, Wade filed his “Plaintiff’s Motion for

Reconsideration and Rehearing Pursuant to Title 28 U.S.C. FRAP

4(a)(b) [sic],” challenging the district court’s March 1 denial

of his Rule 60(b)(4) motion.13 On May 2, 2001, the Texas

district court denied that motion. The district court reasoned

12
The court noted that, although it was unfortunate that
a notice of the March 1997 order for Wade to show cause was
mailed to Wade’s last known address in Indiana-- and thus
returned to the Texas court unopened for failure of delivery --
it is the responsibility of even incarcerated litigants to inform
the court of a change of address. The court further noted that
Wade’s Rule 60(b) motion filed in the proper forum in January
2001 came twenty-eight months after his August 1998 letter
indicating his “intent” to file a Rule 60(b) motion and after the
Texas court clerk mailed Wade a docket sheet. In its March 1,
2001 order, the Texas district court did not refer to, or
discuss, Wade’s filing of a Rule 60(b) motion with the Indiana
district court on September 28, 1998 -- albeit in the wrong forum
but within one month of the docket being mailed to Wade in prison
-- as any factor that might mitigate the lengthy period it took
Wade to file his January 2001 motion in the Texas district court.
13
Wade also filed an affidavit on March 16, 2001,
outlining his alleged “legal disabilities,” as well as a copy of
the Rule 60(b) motion he filed in the Indiana district court in
September of 1998.

7
that Wade failed to show “good cause” for reconsideration of its

March 1 order denying Wade’s Rule 60(b)(4) motion as untimely.

On May 7, 2001, Wade filed a notice of appeal (“NOA”) to

this court. On May 10, 2001, Wade filed in the district court

both a motion to withdraw that NOA and a motion pursuant to FRCP

Rule 59(e) to correct, amend, and/or alter the district court’s

judgment. On June 18, 2001, the district court denied Wade’s

Rule 59(e) motion of May 10 and granted his motion to withdraw

his May 7 NOA. On June 21, 2001, the clerk of this court mailed

to Wade notification indicating that, because the district court

granted his motion to withdraw his May 7 NOA, no appeal by Wade

was, or would be, docketed in his case pursuant to that NOA.

On June 25, 2001, Wade filed in the Texas district court a

“Motion to Clarify Order of June 18, 2001.” The district court

denied that motion on July 23, 2001, indicating that its June 18

denial of Wade’s May 10 Rule 59(e) motion required no

clarification. On July 31, 2001, Wade filed a second NOA14 to

14
The second NOA in the record on appeal carries a stamp
indicating that the clerk of this court received it on July 31,
2001. Pursuant to the so-called “prison mailbox rule,” certain
filings by prisoner litigants such as Wade are deemed filed for
the purposes of jurisdiction upon submission by the prisoner of
the filing to the prison mailing system. See, e.g., FED. R. APP.
P. 4(c) (codifying the prison mailbox rule as to filings of
notices of appeal). Several of our sister circuits have extended
this mailbox rule to filings of Rule 59(e) motions. See, e.g.,
Thompson v. Rasberry [sic], 993 F.2d 513, 515 n.3 (5th Cir. 1993)
(per curiam) (“Other courts have extended the bright line mailbox
rule ... to contexts outside notices of appeal.”) (citing Smith
v. Evans, 853 F.2d 155 (3d Cir. 1988) (applying the mailbox rule
to a Rule 59(e) motion)) (citations omitted). Wade’s NOA

8
this court.15 For the following reasons, we find that Wade

failed to file a timely NOA to this court and thus that we lack

jurisdiction over this appeal.

II. LACK OF TIMELY NOTICE OF APPEAL

Wade failed to file a timely notice of appeal to this court.

For this court to have jurisdiction over an appeal of a civil

case, FRAP Rule 4(a) requires that an appellant file an NOA to

this court within thirty days of the underlying district court

judgment challenged on appeal, FED. R. APP. P. 4(a)(1)(A), unless

the appellant obtains permission from the district court to

extend the time to file the NOA up to a maximum of thirty

indicates that he may have submitted the document for filing as
early as July 28, 2001. We need not determine in this case
whether the mailbox rule applies to Wade’s filing because whether
Wade filed his NOA on July 28 or July 31 does not impact our
determination that the only pending NOA was not timely filed
based on either of those dates.
15
Wade’s brief on appeal to this court does not clearly
indicate the subject of his appeal. However, in accord with the
leniency that this court affords pro se litigants, we infer that
Wade attempts to appeal the district court’s March 1, 2001 denial
(as untimely) of Wade’s January 2001 Rule 60(b)(4) motion that
challenged the earlier dismissal of his action for lack of
prosecution. Wade also appears to argue that the district
court’s March 1997 dismissal of his action for lack of
prosecution was improper. However, appeal of that underlying
dismissal can never properly be before this court because Wade
filed no notice of direct appeal as to that dismissal and is now
time-barred from so doing.
Farmers failed to file a brief in response to Wade’s appeal,
claiming that it could not determine the issues for appeal from
Wade’s brief and alternatively requesting additional time to file
a response, if so directed by this court. Regardless, because we
find that Wade failed to timely file a notice of appeal so that
we lack jurisdiction over the instant appeal, we find it
unnecessary to require response briefing from Farmers.

9
additional days. FED. R. APP. P. 4(a)(5).16 However, the filing

of certain motions to the district court, including a motion for

relief under FRCP rule 59(e), will toll the time period for the

filing of the NOA until the disposition of the Rule 59(e) motion

by the district court. See FED. R. APP. P. 4(a)(4)(A)(iv)

(1998). In this case, the NOA that Wade filed on July 31, 2001,

unquestionably did not fall within the FRAP Rule 4(a) thirty-day

time limit for filing the NOA after the district court’s order of

March 1 denying Wade’s Rule 60(b)(4) motion. Wade filed the

second NOA almost 150 days after that March 1 denial of the Rule

60(b)(4) motion. Consequently, the only hope procedurally for

Wade’s appeal is that the motions he filed subsequent to March 1,

2001 tolled the time period for him to timely file an NOA.

A. Wade’s “Motion for Reconsideration and Rehearing
Pursuant to Title 28 U.S.C. FRAP 4(a)(b)”

On March 12, 2001, Wade filed his “Motion for

Reconsideration Pursuant to Title 28 U.S.C. FRAP 4(a)(b).” No

such motion exists within either the rules of federal civil

procedure pertaining to trials or the rules of appellate

procedure. Indeed, no motion to “reconsider” exists per se

within the FRCP. Courts, including this one, commonly construe

motions “to reconsider” as either motions for relief pursuant to

FRCP Rule 59(e) or pursuant to FRCP Rule 60(b). This court

16
The record indicates no such request made by Wade to the
district court for any extension of time to file any NOA.

10
construes a “motion to reconsider” filed within ten days of the

underlying judgment that it challenges as a motion for relief

under FRCP Rule 59(e), with the attendant benefit that such a

motion tolls the time period for filing of an NOA to this court.

See, e.g., Richardson v. Oldham, 12 F.3d 1373, 1377 & n.9 (5th

Cir. 1994). Because interim weekend days are not counted by this

court against the ten-day time period for timely filing of a Rule

59(e) motion, see id. (citing FED. R. CIV. P. 6(a)), Wade’s March

12 motion is considered to be made within ten days of the

underlying March 1 judgment for the purposes of Rule 59(e).17 We

thus consider the motion as one made for relief under Rule 59(e)

that tolled the time for Wade to file an NOA until thirty days

after the disposition of the motion.18

B. After Disposition of the First Rule 59(e) Motion

Disposition of Wade’s March 12 Rule 59(e) motion to

reconsider occurred on May 2, 2001 when the district court denied

that motion. Such disposition triggered the requirement that

within thirty days -- i.e., by June 2, 2001 -- Wade either file

17
March 10 and 11, 2001, fell on Saturday and Sunday.
18
Because of the 1993 amendment of FRAP 4(a)(4), it is
inconsequential in this case whether we construe Wade’s March 12
motion as one under Rule 60(b) or Rule 59(e). The applicable
amended rule indicates that either a timely Rule 59(e) motion, or
a Rule 60(b) motion filed within ten days of a judgment, will
toll the time for filing of an NOA. See FED. R. APP. P. 4(a)(4).
Thus, the only relevant determination for the purposes of our
jurisdiction over this appeal is that the motion for
reconsideration was filed within ten days of the March 1 judgment
pursuant to either rule.

11
an NOA or request an extension to file from the district court.

Successive motions for relief under Rule 59(e) will not again

toll the time period for the filing of an NOA unless the district

court grants the motion to alter or amend the judgment. See

Trinity Carton Co., Inc. v. Falstaff Brewing Corp., 816 F.2d

1066, 1069 (5th Cir. 1987) (citing Wansor v. George Hantscho Co.,

Inc., 570 F.2d 1202, 1206 (5th Cir. 1978)); Wages v. Internal

Revenue Serv., 915 F.2d 1230, 1233-34 & n.3 (9th Cir. 1990)

(“[A]ny other rule would effectively give a disgruntled litigant

the ability to stretch the period for appeal indefinitely.”).

Consequently, Wade’s second motion to alter the judgment under

Rule 59(e), made on May 10, did not relieve him of his obligation

to file a timely effective NOA within thirty days from the May 2

denial of his first Rule 59(e) motion for reconsideration.

On May 7, 2001, Wade did timely file his first NOA to this

court, but he subsequently filed a motion to withdraw that NOA on

May 10, 2001, at the same time that he filed his second Rule

59(e) motion. Wade’s motion to withdraw his first May 7 NOA was

granted by the district court on June 18, at the same time the

court denied the second Rule 59(e) motion. Wade did not file the

second NOA for the instant appeal until July 28, 2001, earliest,

almost two full months past the June 2 deadline for Wade to file

an NOA to appeal the judgment denying his Rule 60(b)(4) motion

based on the May 2 disposition of Wade’s first Rule 59(e)

12
motion.19 Wade’s July 31 NOA is thus untimely. Consequently, we

have no alternative but to conclude that we lack jurisdiction

over Wade’s appeal.

III. CONCLUSION

For the foregoing reasons, we DISMISS Wade’s appeal for lack

of jurisdiction.

19
On June 25, 2001, Wade filed his “Motion to Clarify” the
district court’s June 18 order denying his second Rule 59(e)
motion, apparently believing that such motion would toll his
thirty-day time to file notice of appeal from the date of the
June 18 order. However, Wade’s belief fails to apprehend that
the successive Rule 59(e) motion would not toll his time to file
the NOA past the June 2 deadline. Moreover, no such motion to
clarify exists formally within the FRCP or is recognized as a
motion that might toll the period for the timely filing of an NOA
pursuant to FRAP Rule 4(a)(4) under any circumstance. That
motion, therefore, has no effect on our determination that we
lack jurisdiction over the instant appeal. We further note that
Wade’s second July 31 NOA was also filed approximately forty days
after the district court granted his withdrawal of the first NOA
on June 18, 2001.

13