                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                     F I L E D
                          UNITED STATES COURT OF APPEALS
                               FOR THE FIFTH CIRCUIT                                 January 30, 2007

                                                                                 Charles R. Fulbruge III
                                                                                         Clerk
                                       No. 06-10901
                                     Summary Calendar



THOMAS WHATLEY,
                                     Plaintiff-Appellant,

v.

ALLSTATE TEXAS LLOYD’S,
                                     Defendant-Appellee.



               Appeal from the United States District Court
                    for the Northern District of Texas
                           USDC No. 4:04-CV-815


Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

       Plaintiff       Thomas      Whatley       (“Whatley”)        filed     suit     against

Allstate Texas Lloyd’s (“Allstate”) in September of 2004 alleging

damages arising from a homeowner’s insurance dispute. Allstate

removed the case on November 4, 2004. On January 6, 2006, the court

entered an order dismissing the case without prejudice for lack of

prosecution. The court based its order on the fact that the parties

failed to adequately respond to an earlier show-cause order.

Accordingly, also on January 6, 2006, final judgment was entered,



       *
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
dismissing the action. Whatley appeals. Without reaching the merits

of the appeal, we conclude that Whatley’s notice of appeal was

untimley, and dismiss for want of jurisdiction.

       After the court dismissed the action on January 6, 2006,

Whatley filed a Motion for Relief from Judgment. The court denied

his motion by written order on May 15, 2006. Whatley then filed a

Motion to Reconsider the court’s ruling on May 25, 2006. On July

18, 2006, the court denied that motion. Whatley filed his Notice of

Appeal on August 17, 2006. Allstate argues the Notice of Appeal was

not timely. We agree.

       A Notice of Appeal generally must be filed within thirty days

after the entry of judgment. FED. R. APP. P. 4(a)(1)(A). However,

when the appealing party files a Motion for Relief from Judgment

under Federal Rule of Civil Procedure 60(b), the thirty-day period

for appeal does not begin to run until after the court has ruled on

that motion.1 Id. at 4(a)(4)(A)(vi).

       Whatley’s notice of appeal, filed on August 17, 2006,



was untimely if measured from the May 15, 2006 order denying his

Motion for Relief from Judgment.                    However it would be timely if

measured from the July 18, 2006 order denying his Motion to


       1
         It is unclear whether Whatley’s initial motion was based on Rule 59(b) or on Rule 60(b).
The district court treated it as a Rule 60(b) motion for Relief from Judgment on the basis of
inadvertence or excusable neglect. See FED. R. CIV. P. 60(b). Even if the motion was styled as a
Rule 59(b) Motion to Amend the Judgment, as Whatley has asserted, it would still have tolled the
thirty-day appeal period. See FED. R. APP. P. 4(a)(4)(A)(iv).

                                                2
Reconsider. The issue presented in this case is whether the thirty-

day period for appeal began to run on the date Whatley’s Motion for

Relief from Judgment was denied, or whether that period was further

tolled by his Motion to Reconsider.

     “A motion to reconsider an order disposing of a motion of the

kind enumerated in Rule 4(a) does not again terminate the running

of the time for appeal.” Trinity Carton Co. v. Falstaff Brewing

Corp., 816 F.2d 1066, 1070 (5th Cir. 1987) (internal quotation

marks omitted); Charles L.M. v. Northeast Indep. Sch. Dist., 884

F.2d 869, 870 (5th Cir. 1989) (holding that a motion to reconsider

based upon substantially the same grounds as urged in the earlier

motion does not interrupt the running of time for appeal). A

leading treatise puts it this way: “If a motion listed in Rule

4(a)(4) is made, and the time for appeal is extended, a motion to

reconsider the district court’s denial of the motion does not

suspend further the running of the appeal periods; the losing party

is entitled to only one suspension.”   16A Wright, Miller & Cooper,

Federal Practice and Procedure § 3950.4, at 198 (3d ed. 1999).

     Based on this rule, the thirty-day appeal period began to run

on May 15, 2006, when the court entered an order denying Whatley’s

motion for Relief from Judgment. Further, the thirty-day period was

not tolled as a result of Whatley’s Motion to Reconsider. Whatley’s

Notice of Appeal, filed on August 17, 2006--more than thirty days

after the appeal period began--was not timely. As a result this


                                3
Court lacks jurisdiction, and must dismiss. Moody Nat. Bank of

Galveston v. GE Life and Annuity Assur. Co., 383 F.3d 249, 250 (5th

Cir. 2004).

DISMISSED.




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