     Case: 09-41122     Document: 00511257008          Page: 1    Date Filed: 10/07/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           October 7, 2010

                                       No. 09-41122                         Lyle W. Cayce
                                                                                 Clerk

EMILY MILBURN, Individually and as next friend of D.L.M.,

                                                   Plaintiff-Appellee,
v.

SERGEANT GILBERT GOMEZ, OFFICER DAVID ROARK, and OFFICER
SEAN STEWART,

                                                   Defendants-Appellants.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC 3:08-cv-00193


Before STEWART, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
        At issue on appeal is whether Defendants-Appellants are entitled to
summary judgment on qualified immunity grounds in a suit alleging claims
under 42 U.S.C. § 1983 and Texas state law. We lack jurisdiction to consider the
merits of this appeal because the district court dismissed Defendants-Appellants’
motion for summary judgment as untimely. See Edwards v. Cass C’nty, 919 F.2d
273, 275-76 (5th Cir. 1990). We may, however, as both parties acknowledged in


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-41122       Document: 00511257008          Page: 2     Date Filed: 10/07/2010

                                       No. 09-41122

their letter briefs, properly treat this appeal as a petition for a writ of mandamus
on the issue of timeliness. See id. at 276. Based on our review of the record, it
appears that Defendants-Appellants’ summary-judgment motion was timely, in
accordance with the deadlines in the first district judge’s docket-control order.1
That order was still in effect after the case was transferred to the second district
judge.2
       It is therefore unclear on this record why the district court deemed the
summary-judgment motion untimely.                  Accordingly, we remand so that the
district court may reexamine the timeliness of the motion or specify its reasons
for denying the motion as untimely so that we might determine whether the
district court abused its discretion in this regard.




       1
        The first district judge’s docket-control order states that the deadline for dispositive
motions is thirty days after the mediator declares an impasse. The record reflects that the
mediator declared an impasse on September 10, 2009. Therefore, Defendants-Appellants had
until October 13, 2009 to file a motion for summary judgment. Defendants-Appellants filed
their summary-judgment motion on September 16, 2009.
       2
        The notice of transfer to the second district judge states that “[d]eadlines in existing
scheduling orders remain in effect; however all court setting are cancelled.”

                                               2
