                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1180
                                   ___________

Kathleen Reddick,                     *
                                      *
            Appellant,                *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Southern District of Iowa.
ConAgra, Inc.; ConAgra Frozen Foods, *
A subsidiary of ConAgra, Inc.,        *    [UNPUBLISHED]
                                      *
            Appellees,                *
                                      *
Bakery, Confectionery, Tobacco        *
Workers and Grain Millers Local 50-G, *
                                      *
            Defendant.                *
                                 ___________

                             Submitted: October 7, 2004
                                Filed: October 14, 2004
                                 ___________

Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.
                         ___________

PER CURIAM.

      Kathleen Reddick appeals from the district court’s1 adverse grant of summary
judgment in her employment-discrimination action, as well as from the court’s
subsequent denial of her Federal Rule of Civil Procedure 60(b) motion.

      1
       The Honorable Charles R. Wolle, United States District Judge for the Southern
District of Iowa.
       In her January 2003 complaint, Reddick sought damages from her former
employer, ConAgra, Inc. and ConAgra Frozen Foods (jointly, ConAgra), claiming
reverse-race and gender discrimination under Title VII.2 During the summary
judgment proceedings, both Reddick and ConAgra offered affidavits from ConAgra
employee Charles Frazier. After a hearing, the district court granted summary
judgment to ConAgra on October 28, 2003, concluding that Reddick had not
established a prima facie case of reverse-race or gender discrimination. Further, even
assuming the existence of a prima facie case, Reddick had not generated a fact
question as to whether ConAgra’s legitimate nondiscriminatory reason for
terminating her was pretextual.

       On November 20, 2003, Reddick moved, under Rule 60(b), to set aside
judgment for fraud. She contended that ConAgra had submitted a fraudulent affidavit
from Frazier, without the existence of which she had established a prima facie case,
as well as one based upon pretext. She offered her counsel’s attestation that she had
been unable to meet with Frazier before the summary judgment hearing, along with
a third affidavit from Frazier.

       In opposing the motion, ConAgra relied in part on a fourth affidavit from
Frazier, wherein he attested, among other things, that he did not believe ConAgra’s
counsel had willfully misrepresented his testimony. After a hearing on the motion,
the district court found no fraud and noted that it had not relied on Frazier’s second
affidavit (the one ConAgra had offered) in granting summary judgment. The order
denying the motion was entered on December 23, 2003, and on December 30 Reddick
filed her notice of appeal (NOA) designating both the summary judgment ruling and
the denial of the Rule 60(b) motion.




      2
      The district court granted Reddick’s motion to dismiss voluntarily the other
defendant.

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       Reddick is precluded from challenging the adverse grant of summary judgment,
because her November 20 Rule 60(b) motion was not filed within ten days of the
October 28 entry of judgment, see Fed. R. App. P. 4 (a)(4)(A)(vi) (motion for relief
under Rule 60 filed no later than 10 days after entry of judgment tolls time for filing
NOA); Fed. R. Civ. P. 6(a) (computation of time); and she did not file her NOA until
December 30, after her Rule 60(b) motion was denied, which was well beyond the
thirty-day limit for filing a NOA from final judgment, see Fed. R. App. P. 4(a)(1)(A)
(time limit for NOA in civil case). Accordingly, we have jurisdiction to consider only
the denial of Reddick’s Rule 60(b) motion. See Arnold v. Wood, 238 F.3d 992, 994-
95 (8th Cir.) (timely NOA is mandatory and jurisdictional), cert. denied, 534 U.S. 975
(2001); United States v. Austin, 217 F.3d 595, 597 (8th Cir. 2000) (because timely
NOA is jurisdictional, issue is raised sua sponte even if parties appear to concede
jurisdiction).

       To the extent Reddick has not waived a challenge to the Rule 60(b) ruling by
failing to address it directly in her brief, see Harris v. Folk Constr. Co., 138 F.3d 365,
366-67 n.1 (8th Cir. 1998) (failure to assert in brief grounds for reversal of certain
orders amounts to waiver of issues on appeal), we conclude that the district court did
not abuse its discretion in denying Rule 60(b) relief, see Arnold, 238 F.3d at 998
(denial of relief under Rule 60(b) is reviewed for abuse of discretion; movant must
establish exceptional circumstances to justify relief); Brooks v. Ferguson-Florissant
Sch. Dist., 113 F.3d 903, 904 (8th Cir. 1997) (in reviewing denial of Rule 60(b)
motion, court does not squarely consider merits of underlying order). Given the
inconsistencies in Frazier’s four affidavits and the substance of his fourth affidavit,
it appears that any errors in Frazier’s second affidavit were at most the result of
misunderstandings and not fraud. See Waddell v. Hendry County Sheriff’s Office,
329 F.3d 1300, 1309 (11th Cir. 2003) (to obtain relief from final judgment based
upon fraud under Rule 60(b)(3), moving party must prove by clear and convincing
evidence that adverse party obtained favorable judgment through fraud,
misrepresentations, or other misconduct, and that conduct prevented moving party
from fully presenting her case). Further, and most important, the district court stated

                                           -3-
that it had not relied on the challenged affidavit in determining that ConAgra was
entitled to summary judgment.

      Accordingly, the judgment is affirmed. See 8th Cir. R. 47B.
                      ______________________________




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