Lary v. Dallas Area Rapid, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 99-10134
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PENELOPE Y LARY,
TEMPORARY ADMINISTRATOR OF
THE ESTATE OF DAVID H. CONSTANTINE,
Plaintiff-Appellant,
VERSUS
DALLAS AREA RAPID TRANSIT;
VICTOR BURKE; ROGER SNOBLE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
_________________________
May 3, 2000
Before REAVLEY, SMITH, and
EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Appellees moved to dismiss for want of
appellate jurisdiction pursuant to FED. R. APP.
P. 27. We grant the motion and dismiss the
appeal.
Eighteen days after entry of summary
judgment, appellant moved to reconsider; the
eighteen days exceeded the time allowed under
FED. R. CIV. P. 59(e), which requires that
“[a]ny motion to alter or amend a judgment
shall be filed no later than 10 days after entry
of judgment.” The district court incorrectly
extended the deadline for filing the motion to
reconsider by applying FED. R. CIV. P. 6(e).1
Rule 6(e) does not apply to rule 59(e)
judgments. See Halicki v. Louisiana Casino
Cruises, Inc., 151 F.3d 465, 467-68 (5th Cir.
1998), cert. denied, 526 U.S. 1005 (1999).
Consequently, the motion to reconsider was
untimely and did not toll the thirty-day
deadline for filing notice of appeal. See
Washington v. Patlis, 868 F.2d 172, 174 (5th
* 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determined that this opinion should not be
published and is not precedent except under the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.
1 Including weekends, application of rule 6(e)’s
three-day extension would have rendered the
motion to reconsider timely.

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2
Cir. 1989).
Appellant contends that her notice of
appeal was timely under FED. R. APP. P.
4(a)(5)(A),2 because her counsel mistakenly
believed rule 6(e) applied. We have rejected
this argument in a case with strikingly similar
procedural facts. In Midwest Employers Cas.
Co. v. Williams, 161 F.3d 877, 878-80 (5th
Cir. 1998), we held that counsel’s mistaken
belief that, pursuant to rule 6(e), he had three
extra days to file a motion for new trial, did
not constitute “excusable neglect” warranting
extension of time to file a notice of appeal.
We are without jurisdiction, so the motion
to dismiss is GRANTED, and the appeal is
DISMISSED.
2 Rule 4(a)(5)(A) provides that “[a] district
court may extend the time to file a notice of appeal
if (i) a party so moves no later than 30 days after
the time prescribed by this Rule 4(a) expires; and
(ii) that party shows excusable neglect or good
cause.”

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