United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 11, 2005
Charles R. Fulbruge III
Clerk
No. 04-10469
Summary Calendar
GLORIA ZAMUDIO,
Plaintiff-Appellant,
versus
NORMAN Y. MINETA, SECRETARY, DEPARTMENT OF TRANSPORTATION;
PAUL S. MILLER, Commissioner, The U.S. Equal Employment
Commission (EEOC),
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:03-CV-110-C
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Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Gloria Zamudio appeals from the district court’s grant of
the defendants’ motion to dismiss filed pursuant to FED. R. CIV.
P. 12(b)(1), (5), and (6) and from the district court’s denial
of her FED. R. CIV. P. 59(e) motion. Zamudio argues that the
dismissal of her complaint violated due process because she did
not have notice of the filing of the defendants’ motion to
dismiss prior to the dismissal of her complaint. She argues that
*
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this opinion should not be published and is not precedent except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. 04-10469
-2-
the district court erred in 1) dismissing her complaint as a
disciplinary sanction; 2) denying her Rule 59(e) motion; and
3) dismissing her complaint with prejudice rather than without
prejudice. Zamudio also argues that this court should address
the issue whether an employee’s spouse has a right to file a
claim with the EEOC against her spouse’s employer.
The certificate of service attached to the defendants’
motion to dismiss reflects that service on Zamudio was complete
on February 26, 2004, when the defendants mailed it to Zamudio’s
last known address. FED. R. CIV. P. 5(b)(2)(B) (“Service by mail
is complete upon mailing.”); accord, Vincent v. Consolidated
Operating Co., 17 F.3d 782, 785 n.9 (5th Cir. 1994). Zamudio has
not shown that the district court abused its discretion in
denying her Rule 59(e) motion, which argued lack of notice of the
filing of the motion to dismiss as a ground for postjudgment
relief. See Midland West Corp. v. FDIC, 911 F.2d 1141, 1145
(5th Cir. 1990). Zamudio’s argument that the district court’s
dismissal was but a disciplinary sanction is conclusional and
speculative.
Although Zamudio argues that a dismissal for lack of subject
matter jurisdiction should be without prejudice rather than with
prejudice, Zamudio does not challenge directly the district
court’s dismissal of her complaint for lack of subject matter
jurisdiction and/or for failure to state a claim. Arguments must
be briefed to be preserved. Yohey v. Collins, 985 F.2d 222,
No. 04-10469
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225-25 (5th Cir. 1993). When an appellant fails to address a
potential error in the district court’s analysis, it is the same
as if the appellant had not appealed the judgment. Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Zamudio has abandoned her challenge to the district
court’s Rule 12(b) dismissal by failing to challenge the legal
analysis forming the basis for the dismissal.
Zamudio asks this court to address the issue whether an
employee’s spouse has a right to file a claim or complaint
against her spouse’s employer with the United States Equal
Employment Opportunity Commission. We decline to address this
issue, the resolution of which was not necessary in the district
court’s dismissal of Zamudio’s complaint.
AFFIRMED.