     Case: 16-30657      Document: 00513738232         Page: 1    Date Filed: 10/28/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 16-30657                                 FILED
                                  Summary Calendar                        October 28, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
ORA PRICE; LEONARD PRICE; AND DARRYL PRICE,

              Plaintiffs - Appellants

v.

ADMINISTRATIVE RECEIVER FOR THE HOUSING AUTHORITY OF
NEW ORLEANS; FIRST CHOICE SECURITY, in its official capacity;
KEVIN JOHNSON, individually and in his official capacity as President of
First Choice Security; JOSEPH C. HENSLEY, individually and in his
capacity as Sergeant for First Choice Security,

              Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:12-CV-00992


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiffs–Appellants Ora Price, Leonard Price, and Darryl Price (the
Prices) were lifetime residents of public housing run by the Housing Authority
of New Orleans (HANO). After being evicted from that housing in a state court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 16-30657
proceeding, the Prices, proceeding pro se, filed the instant suit in federal
district court, naming as defendants HANO and its administrative receiver,
various HANO contractors and subcontractors and their employees, a law firm
and its employees, and a state court judge.                 The district court granted
dismissals to most of these defendants based on, inter alia, judicial immunity,
lack of subject matter jurisdiction, lack of state action, and the Rooker-
Feldman doctrine. 1 On March 25, 2015, the district court dismissed the entire
case, including the claims against the remaining defendants (Appellees),
without prejudice, citing, inter alia, “concerns about federal subject matter
jurisdiction articulated in previous [dismissal] orders.”
       On March 30, 2016—more than a year later—the Prices filed a “Motion
to Set Aside Judgment / Vacate Order and Reopen Case,” arguing that the
district court erroneously concluded that it did not have federal question
jurisdiction. The district court construed the Prices’ motion, in relevant part,
as being brought under Federal Rule of Civil Procedure 60(b)(1) and denied the
motion as untimely on May 20, 2016. See Fed. R. Civ. P. 60(c)(1) (requiring
Rule 60(b)(1) motion “be made . . . no more than a year after the entry of the
[challenged] judgment or order”). The Prices filed their notice of appeal on
June 10, 2016.
       On appeal, the Prices primarily, if not exclusively, challenge the merits
of the district court’s March 25, 2015, order dismissing the case. Before we can
address that challenge, however, we must consider our jurisdiction.                       See
Williams v. Chater, 87 F.3d 702, 704 (5th Cir. 1996).




       1 The Rooker–Feldman doctrine derives from two Supreme Court cases, District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), and Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923), and bars a district court from exercising subject matter jurisdiction when
the federal plaintiff seeks to overturn a state judgment. See Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 291 (2005).
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       “[T]he timely filing of a notice of appeal in a civil case is a jurisdictional
requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). Here, the district
court’s March 25, 2015, order dismissing the case without prejudice was final
and appealable. See United States v. Wallace & Tiernan Co., 336 U.S. 793,
794–95 n.1 (1949) (recognizing dismissal of case without prejudice is final and
appealable); see also Ciralsky v. CIA, 355 F.3d 661, 666 & n.2 (D.C. Cir. 2004)
(collecting authorities). Thus, for this court to have jurisdiction to review the
Prices’ challenge to that order, the Prices were required to file a timely notice
of appeal.     Because the record is clear that they did not do so, 2 we lack
jurisdiction over the Prices’ appeal insofar as it purports to challenge the
underlying dismissal. See Edwards v. City of Hous., 78 F.3d 983, 995 (5th Cir.
1996) (en banc); see also Pryor v. U.S. Postal Serv., 769 F.2d 281, 284–85 (5th
Cir. 1985).
        The denial of a Rule 60(b) motion, however, “is appealable separately
from the underlying judgment.” Taylor v. Johnson, 257 F.3d 470, 474 (5th Cir.
2001). Here, the Prices filed their notice of appeal less than 30 days after the
denial of their “Motion to Set Aside Judgment / Vacate Order and Reopen
Case.” The Prices’ notice of appeal, therefore, would be timely as to the denial
of that motion if it was brought under Rule 60(b). See Fed. R. App. P. 4(a)(1)(A).
But even if timely, the appeal would “not bring up the underlying judgment for


       2 Federal Rule of Appellate Procedure 4(a)(1)(A) provides, in pertinent part, that “the
notice of appeal . . . must be filed within 30 days after entry of the judgment or order appealed
from.” (emphasis added.) Under Rule 4(a)(7), the date of “entry” of a dismissal order depends
on whether the district court set forth judgment in a separate document in compliance with
Federal Rule of Civil Procedure 58(a). For those cases in which Federal Rule of Civil
Procedure 58(a) requires that judgment be set forth in a separate document but there is none,
judgment is deemed entered upon expiration of 150 days from the date of entry of the order
on the civil docket. See Fed. R. App. P. 4(a)(7)(A)(ii). In this case, we need not decide whether
Rule 58(a)’s separate document requirement applied or was satisfied because the Prices’
notice of appeal was, in any event, untimely. The Prices did not file their notice of appeal
until June 10, 2016, more than a year after the district court’s March 25, 2015, dismissal
order was docketed.
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                                        No. 16-30657
review.” Ta Chi Navigation (Pan.) Corp. S.A. v. United States, 728 F.2d 699,
703 (5th Cir. 1984).
       The Prices’ “Motion to Set Aside Judgment / Vacate Order and Reopen
Case” does not identify the Federal Rule of Civil Procedure pursuant to which
it was brought, and the Prices do not identify a specific rule on appeal. Because
the Prices’ motion was unquestionably filed more than 28 days after entry of
the dismissal order and argued that the district court erroneously concluded it
did not have federal question jurisdiction, we agree with the district court that
the Prices’ motion should be viewed as a Rule 60(b)(1) motion. See Demahy v.
Schwarz Pharma, Inc., 702 F.3d 177, 182 n.2 (5th Cir. 2012) (per curiam)
(recognizing that a motion seeking a change in a judgment or an order is
viewed as a Rule 60(b) motion when filed outside of Rule 59(e)’s 28 day time
limit); McMillan v. MBank Fort Worth, N.A., 4 F.3d 362, 367 (5th Cir. 1993)
(recognizing that “claims of legal error or mistake . . . are subsumed under
subsection (1)” of Rule 60(b)).
       Although the Prices’ Rule 60(b)(1) motion may have been timely, 3 we
need not resolve the timeliness question because we may affirm on any basis
supported by the record. See Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir.
1998). Here, the sole basis on which the Prices sought relief in their Rule
60(b)(1) motion was their allegation that the district court erroneously
concluded that it did not have federal question jurisdiction. Because this
alleged “mistake of law should have been raised on appeal from the judgment,”




       3  As discussed supra, the date of “entry” of the district court’s dismissal order depends
on whether Rule 58(a)’s separate document requirement applied and was satisfied. If it
applied and was not satisfied, “entry” occurred upon the expiration of 150 days from
docketing of the district court’s dismissal order on March 25, 2015. See Fed. R. Civ. P.
58(c)(2)(B). In that event, the Prices’ Rule 60(b)(1) motion would have been timely because
it was filed on March 30, 2016—less than a year later. See Fed. R. Civ. P. 60(c)(1). Otherwise,
the Prices’ Rule 60(b)(1) motion was untimely, as the district court concluded.
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Rule 60(b)(1) is not “an appropriate avenue of relief.” United States v. 329.73
Acres of Land, More or Less, 695 F.2d 922, 925–26 (5th Cir. 1983); see also
Benson v. St. Joseph Reg’l Health Ctr., 575 F.3d 542, 547 (5th Cir. 2009)
(recognizing that Rule 60(b)(1) motions are not substitutes for timely appeal
and must be filed within the time for taking an appeal to challenge legal error).
      For the foregoing reasons, we DISMISS the Prices’ appeal from the
March 25, 2015, dismissal order for lack of jurisdiction and AFFIRM the
district court’s order denying the Prices’ Rule 60(b)(1) motion.




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