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Everett BURNSIDE, Plaintiff-Appellant, v. EASTERN AIRLINES, INC., Defendant-Appellee

United States Court of Appeals for the Fifth Circuit1975-09-17No. No. 75-2027
519 F.2d 1127

Summary

Holding. The appeal is dismissed because Burnside improperly used a Rule 60(b) motion to circumvent the mandatory thirty-day appeal deadline, and a second Rule 60(b) motion alleging substantially similar grounds does not provide a second opportunity for appellate review.

Burnside filed an employment discrimination complaint against Eastern Airlines in 1973. The district court dismissed his amended complaint in January 1974 for failure to respond to a motion to dismiss and for failing to appear at a class certification hearing. Nearly seven months later, Burnside filed a Rule 60(b) motion for relief from judgment, which the district court denied. After obtaining new counsel, he filed a second Rule 60(b) motion in January 1975, which was also denied. Burnside then appealed this second denial.

The appellate court found that Burnside had improperly used the Rule 60(b) motion process to circumvent the mandatory thirty-day deadline for filing a notice of appeal. The court emphasized that Rule 60(b) motions cannot serve as a substitute for timely appeals and that the filing deadline is jurisdictional. The court noted Burnside's pattern of delay, nonappearance, and unresponsiveness throughout the proceedings, and determined that filing a second Rule 60(b) motion with substantially similar grounds did not entitle him to a second opportunity for appellate review.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a Rule 60(b) motion for relief from judgment may be used as a substitute for a timely notice of appeal
  • Whether the thirty-day appeal deadline is mandatory and jurisdictional
  • Whether a second Rule 60(b) motion with similar grounds provides a second opportunity for appellate review

Procedural posture

Burnside appealed the district court's denial of his second Rule 60(b) motion for relief from a judgment dismissing his employment discrimination complaint.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

PER CURIAM:

Plaintiffs Burnside, Wooten and Hunter filed their initial complaint in this Ti-üe vn employment discrimination suit on August 3, 1973. On January 18, 1974, the district court dismissed remaining plaintiff Burnside’s amended complaint for failure to respond to defendant’s motion to dismiss. At the same time, the district judge ordered that the cause be dismissed as a class action by reason of plaintiff’s failure to appear at a special hearing called to consider the appropriateness of proceeding with the class action. Almost seven months later, on August 8, 1974, plaintiff Burnside filed a Rule 60(b) motion for relief from the district court’s granting of the motion to dismiss. The district court denied plaintiff’s motion, and plaintiff failed to prosecute an appeal from that denial. After substitution of counsel, plaintiff filed a second Rule 60(b) motion for relief on January 23, 1975. Six days later the district court denied plaintiff’s second motion, and plaintiff filed timely notice of appeal.

The clear purpose of plaintiff Burnside’s second Rule 60(b) motion for relief from judgment was circumvention of the time limit for notice of appeal provided in Fed.R.App.Proc. 3(a) and 4(a). The proper course of action for plaintiff Burnside, at best, would have been to file a notice of appeal within thirty days of the district court’s granting of the motion to dismiss. At a minimum, the filing of notice of appeal in the district court after denial of the initial Rule 60(b) motion might well have afforded plaintiff some relief. Had plaintiff pursued the latter, appellate review would be limited to the district court’s exercise of discretion in denying the Rule 60(b) motion, and would not have extended to consideration of the. motion to dismiss granted on January 18, 1974. Saenz v. Kenedy, 5 Cir. 1950, 178 F.2d 417, 419; Wagner v. United States, 2 Cir. 1963, 316 F.2d 871. The well-recognized rule, however, and that which comports with the time limit imposed by Rules 4(a) and 3(a), precludes the use of a Rule 60(b) motion as a substitute for a proper and timely appeal. Horace v. St. Louis Southwestern R. Co., 8 Cir. 1974, 489 F.2d 632; Hodgson v. United Mine Workers of America, 1972, 153 U.S.App. D.C. 407, 473 F.2d 118; Wojton v. Marks, 7 Cir. 1965, 344 F.2d 222; Demers v. Brown, 1 Cir., 343 F.2d 427, cert. denied, 1965, 382 U.S. 818, 86 S.Ct. 40, 15 L.Ed.2d 64. Upon an examination of the record as a whole, this Court is left with the firm conviction that plaintiff has engaged in unnecessary delay and exhibited a significant history of nonappearance and unresponsiveness. The time for notice of appeal on plaintiff’s initial Rule 60(b) motion having run, the filing of another such motion alleging substantially similar grounds for relief does not provide plaintiff with a second opportunity for appellate review. Cf. Ellis v. Richardson, 5. Cir. 1973, 471 F.2d 720. The appeal is dismissed.

. Plaintiff Burnside’s amended complaint of November 30, 1973, deleted Wooten and Hunter as plaintiffs and sought additional class relief for all past and present Black employees of Eastern Airlines.

. Filing of notice of appeal within the 30 day time period specified in Rules 4(a) and 3(a) is mandatory and jurisdictional, and absent compliance, the appeal must be dismissed. Gulf-Tampa Drydock Co. v. Vessel Virginia Trader, 5 Cir. 1970, 435 F.2d 150; Knowles v. United States, 5 Cir. 1958, 260 F.2d 852, 854.

. Plaintiffs failure to comply with Rule 30(a), requiring the preparation and filing of an appendix to the briefs, and Rule 30(b), requiring service on appellee of designation of those portions of the record which appellant intends to include in the appendix, are additional indicia of the unnecessary delay demonstrated in this case. Notwithstanding the power of the Clerk to dismiss for want of prosecution under Local Rule 9(b)(2), or the option of this Court to dispense with the requirement of an appendix, Rule 30(f), F.R.A.P., plaintiff Burnside’s appeal suffers from the antecedent defect of improper usage of a Rule 60(b) motion as a substitute for timely appeal.