                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                       January 29, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    JO AN HEFFINGTON, individually
    and on behalf of her M inor Son G.M .,

                Plaintiff-Appellant,

    v.                                                   No. 05-3372
                                                  (D.C. No. 05-CV-4028-SAC)
    SEDGW ICK COUNTY DISTRICT                              (D . Kan.)
    CO UR T, W ichita, Kansas; NO LA
    FOULSTON, Sedgwick County
    District Attorney; JULIA
    CRAFT-ROCHAT, Sedgwick County
    Court-Appointed Attorney,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.




         Plaintiff-Appellant Joan Heffington appeals the district court’s order

denying her Fed. R. Civ. P. 60(b) motion. W e affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Heffington filed an amended pro se complaint, purportedly on behalf of

herself and her minor son, “G.M .,” against the Sedgwick County, Kansas, District

Court and individual defendants Nola Foulston, the Sedgwick County District

Attorney, and Julie Craft-Rochat, a private attorney who had been appointed as

counsel for G.M . in two juvenile criminal cases. The complaint included a due

process claim under 42 U.S.C. § 1983 and numerous state law claims relating to

an alleged illegal conspiracy between the defendants w ith respect to allegedly

false criminal charges filed against G .M . The district court granted with

prejudice the defendants’ motion to dismiss all claims and entered judgment of

dismissal on June 17, 2005. Among other bases for dismissal, the district court

held that plaintiff could not, proceeding pro se, bring claims on behalf of her

minor son, and that her § 1983 due process claim failed to assert any violation of

her own legal rights and interests.

      W ithout indicating what court rule it was filed under, Heffington filed a

M otion to Reconsider on July 5, 2005. In that motion, she did not challenge the

substance of the district court’s dismissal order. Instead, she argued the dismissal

should be set aside because, on the same day that the district court entered its

order dismissing the complaint, a magistrate judge entered a scheduling order,

which she construed as requiring the parties to mediate. Heffington argued that

the scheduling/mediation order should take precedence over the dismissal order.

The district court denied her motion to reconsider, reasoning that it was not filed

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under Fed. R. Civ. P. 60, because it stated no ground for relief set forth in that

rule. M oreover, the district court held that the July 5 motion was untimely if filed

under Fed. R. Civ. P. 59(e), which requires that a motion to alter or amend a

judgment “shall be filed no later than 10 days after entry of the judgment.”

Because the district court entered judgment dismissing plaintiff’s complaint on

June 17, a motion under Rule 59(e) had to be filed no later than July 1. See Fed.

R. Civ. P. 6(a) (excluding intervening Saturdays, Sundays and legal holidays from

the computation when the period of time prescribed or allowed is less than eleven

days). The district court concluded it had no authority to grant plaintiff an

extension of time to file her Rule 59(e) motion. See Fed. R. Civ. P. 6(b)

(precluding extensions of time for taking action under Rule 59(e)). The district

court also stated that, in any event, Heffington’s motion was w ithout merit.

      Plaintiff then filed a M otion to Set Aside Order under Fed. R. Civ. P. 60(b),

in which she argued that her July 5 motion was not untimely because, under Fed.

R. Civ. P. 6(e), the deadline to file was extended by three days due to service by

mail of the dismissal order. On the merits, she asserted that the district court

abused its discretion by denying her July 5 motion, and she asked the district

court to reconsider the magistrate’s scheduling order and its dismissal order,

because the law requires litigants in civil cases to consider mediation. The

district court denied this Rule 60(b) motion on August 31, noting that none of the

grounds asserted fell within the six grounds for relief specified in that rule. The

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district court further ordered that Heffington was precluded from filing, without

leave of court, any new motion in this case based on the same allegations or

grounds that had been decided in the court’s prior orders. On September 26,

2005, Heffington filed a notice appealing “the final judgment of the district court

. . . entered in this case on August 31, 2005.” R., Doc 36 at 1.

                                  Scope of Appeal

      “The filing of a timely notice of appeal is an absolute prerequisite to our

jurisdiction.” Parker v. Bd. of Pub. Util., 77 F.3d 1289, 1290 (10th Cir. 1996).

July 18, 2005, was the deadline for Heffington to file a notice appealing the

district court’s judgment of dismissal entered on June 17. See Fed. R. App. P.

4(a)(1)(A). A timely motion filed under Fed. R. App. P. 4(a)(4)(A) could extend

the deadline for a notice of appeal, but plaintiff did not file such a motion.

W hether her July 5 motion was filed under Fed. R. Civ. P. 60 or Fed. R.

Civ. P. 59(e), it was not filed within ten days of the entry of judgment and

therefore did not extend her time to appeal.

      Heffington asserts that, under Fed. R. Civ. P. 6(e), the deadline to file her

July 5 motion was extended by three days, because the district court served her by

mail with the judgment of dismissal. But that three-day extension applies only

“[w]henever a party must or may act within a prescribed period after service”

made in a specified manner. Fed. R. Civ. P. 6(e). In Parker, 77 F.3d at 1291, w e

held that the three-day mail provision of Rule 6(e) does not extend the ten-day

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deadline for filing a Rule 59(e) motion, because the deadline for filing such a

motion is triggered by entry of judgment and not by service of notice. The same

reasoning applies to a Rule 60 motion, which under Fed. R. App. P. 4(a)(4)(A )(vi)

must be filed within ten days of entry of judgment in order to extend the time

period for filing a notice of appeal. Therefore, because Heffington failed to file a

notice of appeal within thirty days of entry of judgment, and no intervening

motion extended that deadline, this court does not have jurisdiction to hear her

appeal of the district court’s judgment of dismissal. 1

         Plaintiff also did not file a timely notice of appeal of the district court’s

denial of her July 5 motion, which was entered on August 4, 2005. Construing

her September 26, 2005, pro se notice of appeal liberally, we conclude, however,

that this court does have jurisdiction to consider her appeal of the district court’s

denial of her Rule 60(b) motion, which was entered on August 31, 2005. See

Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1036 n.3 (10th Cir. 1993)

(liberally construing pro se notice of appeal as to which order was appealed

from).



1
       W e note, however, that the district court’s review of defendants’ motion to
dismiss was both thorough and generous to the plaintiff’s interests, and that the
district court’s dismissal of the complaint under M eeker v. Kercher, 782 F.2d 153,
154 (10th Cir. 1986) (“[A] minor child cannot bring suit through a parent acting
as next friend if the parent is not represented by an attorney.”), and Warth v.
Seldin, 422 U .S. 490, 499 (1975) (“[T]he plaintiff generally must assert his own
legal rights and interests, and cannot rest his claim to relief on the legal rights or
interests of third parties.”), appears to have been correct.

                                            -5-
                      Review of Denial of Rule 60(b) M otion

      “A district court’s decision to grant or deny a Rule 60(b) motion is

reviewed for an abuse of discretion. Yapp v. Excel Corp., 186 F.3d 1222, 1230

(10th Cir. 1999). Relief under Rule 60(b) “is extraordinary and may only be

granted in exceptional circumstances.” Id. at 1231 (quotation omitted). The

district court held that Heffington’s m otion did not raise any ground listed in Rule

60(b). In her reply to defendants’ opposition, she did argue that her motion

sought relief under Fed. R. Civ. P. 60(b)(1) and Fed. R. Civ. P. 60(b)(3). She

accused the district court of “inexcusable neglect,” R., Doc. 34 at 1, based on its

alleged delay in mailing the judgment of dismissal to her, and she argued further

that as a result of that lack of proper notice, “defendants were in violation of

Rule 60 due to ‘mistake, inadvertence, surprise, or excusable neglect,’” id. at 2.

Plaintiff also claimed that “tw o different decisions entered the same day by tw o

different judges implies ‘fraud (whether heretofore denominated intrinsic or

extrinsic), misrepresentation, or other misconduct of an adverse party.’” Id.

      W e agree with the district court that Heffington’s motion raised no proper

ground for relief under Rule 60(b). Further, the underlying issue raised by

plaintiff–that the district court’s dismissal of the complaint for failure to state a

claim upon which relief could be granted should be set aside in favor of a

magistrate judge’s scheduling order–is without merit. W e hold that the district

court did not abuse its discretion in denying plaintiff’s Rule 60(b) motion.

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       The judgment of the district court is AFFIRM ED. The motion to proceed

in forma pauperis is DENIED. W e remind Heffington of her responsibility to pay

the appellate filing fee in full.


                                                 Entered for the Court


                                                 M onroe G. M cKay
                                                 Circuit Judge




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