                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 17, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-40670
                        Conference Calendar



ELIJAH W. RATCLIFF; ET AL.,

                                    Plaintiffs,

ELIJAH W. RATCLIFF,
                                    Plaintiff-Appellant,

versus

BRIAN KEITH RAINWATER; FARM BUREAU INSURANCE,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                        USDC No. 9:02-CV-71
                       --------------------

Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Elijah W. Ratcliff appeals the district court’s judgment in

favor of Brian Keith Rainwater in this diversity action following

a jury trial in which the jury determined that Rainwater did not

intentionally cause his vehicle to crash into Ratcliff’s vehicle

and that Ratcliff’s negligence caused the accident.     This court

must examine the basis of its jurisdiction on its own motion if


     *
        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that this opinion should not be published and is not precedent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. 03-40670
                                  -2-

necessary.     United States v. Lister, 53 F.3d 66, 68 (5th Cir.

1995).   A timely notice of appeal is a jurisdictional

prerequisite to judicial review.     United States v. Carr, 979 F.2d

51, 55 (5th Cir. 1992).    The notice of appeal in a civil action

must be filed within 30 days of the entry of the judgment or

order from which the appeal is taken.       FED. R. APP. P. 4(a)(1).

     Ratcliff did not file his notice of appeal within 30 days of

the entry of judgment.    Ratcliff’s motion for a mistrial was not

filed within ten days of the entry of the judgment.       Id. at 606.

Therefore, it cannot be considered a FED. R. CIV. P. 59(e) motion,

and it did not toll the time for filing a notice of appeal.        See

Washington v. Patlis, 868 F.2d 172, 174 (5th Cir. 1989).

Ratcliff’s notice of appeal was timely filed within thirty days

of the denial of his postjudgment motion for a mistrial.

Because the notice of appeal was timely as to the denial of that

motion, we have jurisdiction to consider the issues raised in

that motion.     See Carr, 979 F.2d at 55.

     Ratcliff argues that:    (1) the trial court abused its

discretion in failing to enter a default judgment against

Rainwater; (2) the trial court abused its discretion in denying

his motion for leave to file an amended petition; (3) the trial

court abused its discretion in refusing to require Rainwater to

comply with discovery requirements; (4) the trial court abused

its discretion in not sanctioning Goldstar EMS for refusing to

answer interrogatories; (5) the trial court erred in dismissing
                           No. 03-40670
                                -3-

his claim against Farm Bureau Insurance Company; (6) the trial

court erred in dismissing Allstate Insurance Company as an

involuntary plaintiff; (7) the trial court erred in not allowing

Ratcliff to amend his complaint; (8) the trial judge erred in not

recusing himself; (9) the trial court abused its discretion in

selecting seven jurors instead of twelve and in telling the jury

that the trial would probably not last more than one day;

(10) the trial court erred in not allowing Ratcliff to read his

deposition testimony at trial; (11) the trial court erred in not

allowing Ratcliff to present the transcript of the trial on his

traffic ticket in state court; and (12) the trial court erred in

requiring Ratcliff to speak from the podium during the trial.

     Because Ratcliff’s postjudgment motion was filed more than

ten days after the entry of the judgment, it should be construed

as a FED. R. CIV. P. 60(b) motion.   See Texas A&M Research Found.

v. Magna Transp. Inc., 338 F.3d 394, 400 (5th Cir. 2003).

Ratcliff does not assert any of the grounds for relief listed

under Rule 60(b); his arguments challenge only the underlying

judgment, which is beyond the scope of this court’s review.       See

Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996)

(en banc).   Ratcliff therefore has not shown that the district

court’s denial of his Rule 60(b) motion was “so unwarranted as to

constitute an abuse of discretion.”    See Seven Elves, Inc. v.

Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981).
                           No. 03-40670
                                -4-

     Ratcliff’s appeal is without arguable merit and is

frivolous.   See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983).   Because the appeal is frivolous, it should be dismissed.

See 5TH CIR. R. 42.2.

     APPEAL DISMISSED.
