Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 93-2156
_____________________
W. DOUGLAS WILLIAMS et al.,
Plaintiffs-Appellants,
v.
THE HONORABLE JACK BROOKS,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
July 15, 1993
Before KING, JOLLY and DeMOSS, Circuit Judges.
KING, Circuit Judge:
This is the second time this case has come before us on
appeal from a pre-trial order by the district court. W. Douglas
Williams and Texas Dynamics, Inc., appeal the district court's
denial of a Rule 60(b) motion seeking to reinstate their
complaint against Texas Congressman Jack Brooks that was
dismissed by the district court. The appellee, Congressman
Brooks, has filed a motion to dismiss the appeal on the ground
that the appellants are in effect attempting to use a Rule 60(b)
motion as an impermissible substitute for an appeal and that
their failure to have filed a timely notice of appeal from the

dismissal deprives this court of appellate jurisdiction under
Rule 4(a) of the Federal Rules of Appellate Procedure. We hold
that the district court abused its discretion in denying the Rule
60(b) motion.
I.
W. Douglas Williams and Texas Dynamics, Inc., filed suit
against Congressman Jack Brooks in Texas state court on February
22, 1988. The complaint alleged that Brooks had defamed Williams
and Texas Dynamics during a press interview. Brooks, who invoked
the defense of official immunity, removed the case to federal
district court. On March 16, 1990, the district court denied
Brooks' motion to dismiss on the grounds of official immunity.
Brooks filed a notice of interlocutory appeal of the district
court's denial of the order on April 27, 1990. Oral argument
occurred in this court on February 8, 1991.
While the interlocutory appeal was pending, the district
court, which believed it still possessed jurisdiction over the
case, dismissed the case with prejudice on the ground that the
parties had failed to file a joint pre-trial order in a timely
fashion. The appellants in this case, believing that the
district court had no jurisdiction to dismiss the case while the
interlocutory appeal was pending, initially did nothing in
response to the district court's dismissal. Meanwhile,
Congressman Brooks continued to pursue his interlocutory appeal.
On October 25, 1991, this court affirmed the original order of
the district court, which had denied Brooks' motion to dismiss on

immunity grounds. A petition for rehearing en banc was denied on
December 13, 1991. The mandate issued on December 23, 1991.
Brooks petitioned the Supreme Court for a writ of certiorari,
which was denied on May 18, 1992.
In January and October of 1992, after this court's mandate
had issued in Brooks' interlocutory appeal, Williams filed two
essentially identical post-judgment motions to set aside the
district court's dismissal of the case.1 The district court
ignored the first motion and denied the second motion. Williams
and Texas Dynamics presently appeal from the district court's
denial of second order, entered January 15, 1993.

II.
In order to resolve this appeal, we must engage in some
amount of meandering. Congressman Brooks argues that this appeal
must be dismissed as untimely under Rule 4(a) of the Federal
Rules of Appellate Procedure because the appellants failed to
appeal the district court's original dismissal within the thirty
days required by that rule. The appellants argue that the
district court lacked jurisdiction to dismiss the case while it
was on an interlocutory appeal and, thus, the appellants were not
required to appeal what was in effect a legal nullity. Without
citing any authority on point, the appellants argue that the
1 Although Williams' motions were not formally entitled as
"Rule 60(b)" motions, we must treat them as such since they was
filed more than ten days after the entry of judgment. See Harcon
Barge v. D & G Boat Rentals, Inc., 784 F.2d 665 (5th Cir. 1986)
(en banc).
3

filing of a notice of interlocutory appeal regarding an immunity
issue entirely divests a district court of jurisdiction in the
case until a remand by an appellate court.
As an initial matter, we agree that Congressman Brooks'
filing of the interlocutory appeal on the immunity issue divested
the district court of jurisdiction to proceed against him. A
number of other circuits have addressed the precise issue on this
appeal and have uniformly held that the filing of a non-frivolous
notice of interlocutory appeal following a district court's
denial of a defendant's immunity defense divests the district
court of jurisdiction to proceed against that defendant. See
Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992) (citing cases
from three circuits); Stewart v. Donges, 915 F.2d 572, 575-76
(10th Cir. 1990); see also United States v. Claiborne, 727 F.2d
842, 850 (9th Cir. 1984) ("Ordinarily, if a [party's]
interlocutory claim is considered immediately appealable . . . ,
the district court loses its power to proceed from the time the
[party] files its notice of appeal until the appeal is
resolved."); United States v. Dunbar, 611 F.2d 985 (5th Cir.
1980) (en banc). As the court in Stewart held, "[t]he
divestiture of jurisdiction occasioned by the filing of a timely
notice of appeal is especially significant when the appeal is an
interlocutory one" on an immunity issue. Stewart, 918 F.2d at
575.2
2 Immunity, whether qualified or absolute, is an entitlement
to be free from the burdens of time-consuming pre-trial matters
and the trial process itself. See Mitchell v. Forsyth, 472 U.S.
4

However, we observe that simply because a court lacks
jurisdiction does not mean that a party should entirely ignore
that court's dismissal, as the appellants did for many months in
this case. Rather, the proper course to have taken would have
been to timely appeal the district court's dismissal on the
merits on the ground that the court lacked jurisdiction to
dismiss the case. Then again, in the particular circumstances
presented here, failure to appeal the original dismissal within
the ordinary thirty-day period required by Rule 4 was not the end
of the story. A party who fails to appeal a dismissal within the
thirty-day period may nevertheless have the case reinstated on
the ground that the judgment dismissing the case was void for
lack of jurisdiction by filing a motion pursuant to Rule 60(b)(4)
of the Federal Rules of Civil Procedure. That is, when the
district court lacked jurisdiction to dismiss in the first place,
a Rule 60(b)(4) motion should ordinarily be granted as a matter
of course.3 Although we agree with Congressman Brooks that
511, 526-27 (1985). "[I]t is effectively lost" if a case is
erroneously permitted to proceed at the district court level
while an interlocutory appeal of a denial of immunity is pending.
Id. at 526. Thus, the traditional rule that the filing of a
notice of appeal divests a district court of jurisdiction, see
Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58
(1982), applies with particular force in the immunity context.
We reserve the question whether an interlocutory appeal on
an immunity issue by one co-defendant in a multi-defendant case
would divest the district court of jurisdiction over the non-
appealing defendants.
3 See Carimi v. Royal Caribbean Cruise Lines, Inc., 959 F.2d
1344, 1345 (5th Cir. 1992); King Fisher Marine Serv. v. 21st
Phoenix Corp., 893 F.2d 1155, 1158 (10th Cir. 1990) (citing
Wright & Miller, Federal Practice & Procedure � 1444, at 223-25);
Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d
5

ordinarily a Rule 60(b) motion should not be used as a substitute
for appeal,4 precedent in this circuit forecloses application of
this general rule in the context of Rule 60(b)(4) motions
attacking judgments that are void for a lack of jurisdiction. As
we held in Briley v. Hidalgo, 981 F.2d 246 (5th Cir. 1993),
"[t]here is no time limit on an attack on a judgment as void"
under Rule 60(b)(4). Id. at 249 (citing Wright & Miller, Federal
Practice & Procedure, � 2862, at 197-98). In Briley, a Rule
60(b)(4) motion was filed by a party over a year after a default
judgment was entered against him. Id.
As noted, Williams filed two Rule 60(b)(4) motions, which
were essentially identical.5 According to the docket sheet, the
district court never ruled on the first motion. However, on
January 15, 1993, the court did deny the second motion, which
simply reurged the same grounds advanced in the first motion and
also noted that, by that point, the motion was unopposed.
Because the district court lacked jurisdiction to dismiss the
646, 648-49 (5th Cir. 1988); Bally Export Co. v. Balicar, Ltd.,
804 F.2d 398, 400-01 (7th Cir. 1986) ("[I]f the district court in
the underlying action had no jurisdiction over the defendants it
was a per se abuse of discretion to deny the defendants' rule
60(b)(4) motion."); see generally Annotation, Lack of
Jurisdiction, or Jurisdictional Error, as Rendering Federal
District Court Judgment "Void" for Purposes of Relief Under Rule
60(b)(4) of the Federal Rules of Civil Procedure, 59 A.L.R. Fed.
831.
4 See Re Air Crash at Dallas/Forth Worth Airport, 852 F.2d
842, 844 (5th Cir. 1988).
5 Both were entitled "Motion to Set Aside Default Judgment."
The first was filed January 10, 1992; the second motion was filed
November 21, 1992.
6

case, the court abused its discretion in denying the second Rule
60(b)(4) motion.

III.
Accordingly, we REVERSE the judgment of the district court
and REMAND for further proceedings. Furthermore, we DENY
Congressman Brooks' motion to dismiss the appeal.
7