IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20966 Summary Calendar

VIVIAN HOLLAND, Individually and Representative of Estate of Morse Wayne Holland; MORSE W. HOLLAND, Individually and as representative of Estate of Morse Wayne Holland; ANGELA SCOTT, as next friend of Xavier Christopher Scott,

Plaintiffs-Appellants,

versus

THE CITY OF HOUSTON; DAVID M. BOLING, LUCIOUS CARL JAMES, doing business as Cue Club and Disco; KAREN BLACKWELL, Trustee; L.D. BLACKWELL; HELEN BLACKWELL; BPM PARTNERS, INC.; 146 FAIRMONT,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-96-CV-2951 -------------------- November 3, 2000

Before Garwood, Higginbotham, and Parker, Circuit Judges.

PER CURIAM:*

The plaintiffs, Vivian Holland, Morse W. Holland, Angela

Scott, and Xavier Christopher Scott appeal the grants of summary

judgment in favor of defendants, the City of Houston and L.D.

Blackwell.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-20966 -2-

This court must examine the basis of its jurisdiction on its

own motion. United States v. Lister,

(5th Cir. 1995).

After May 1997, the only parties to this case were

plaintiffs and defendants L.D. Blackwell, Boling, James and the

City of Houston (the City). In October 1997 all, except James,

who had not appeared or answered, consented in writing to trial

and final disposition by the Magistrate Judge. On July 1, 1998,

the Magistrate Judge issued a sixteen page opinion granting

Blackwell’s motion for summary judgment as to all plaintiffs’

claims and, on the same date, a one page judgment on a separate

document dismissing the action against him with prejudice. On

January 7, 1999, the Magistrate Judge issued a sixty-three page

opinion granting the City’s motion for summary judgment as to all

plaintiffs’ claims and granting Boling’s motion for summary

judgment as to all plaintiffs’ state law claims but denying that

motion as to plaintiffs’

excessive force claim

against Boling; the same day the Magistrate Judge issued a one

page judgment on a separate document dismissing plaintiffs’ suit

against the City with prejudice (this judgment was entered on the

docket January 8, 1999). On January 21, 1999, plaintiffs moved

to dismiss their suit against Boling, and on January 25, 1999,

the Magistrate Judge in a five line order granted that motion.

On February 8, 1999, plaintiffs filed their notice of appeal to

this court from the July 1, 1998, judgment in favor of Blackwell

and the January 7, 1999, judgment in favor of the City.

By opinion issued April 20, 1999, this Court dismissed the

appeal for want of jurisdiction because not all parties had been No. 99-20966 -3-

disposed of, so there was no final judgment, and no certificate

had been entered under Fed. R. Civ. P. 54(b). Holland v. City of

Houston, No. 99-20127, 5th Cir., Apr. 20, 1999 (unpublished).

In the meantime, plaintiffs on January 14, 1999, had moved

for default judgment against James, attaching an affidavit of

their attorney that James had been served with process on October

21, 1996, and on January 15, 1999, the Magistrate Judge, in

response to that motion, issued a show cause order reciting that

James had been served on October 21, 1996, and had filed no

answer, and directing him to appear before the court on January

19, 1999, to show cause why default judgment should not be

entered against him. On January 19, 1999, James failed to

appear, and the Magistrate Judge reset the show cause hearing for

January 28, 1999 and issued orders requiring James to appear

then. On January 28, 1999, James again failed to appear, and the

plaintiffs presented evidence of their damages to the Magistrate

Judge. However, it was not until August 1999–well after our

April 1999 dismissal of the earlier appeal because not all

parties had been disposed of in the trial court (there was no

disposition as to James)–that any action was taken disposing of

the claims against him.

On August 13, 1999, the Magistrate Judge issued a memorandum

and recommendation, on the basis of the January 28, 1999,

hearing, recommending that the district court enter default

judgment against James and in favor of the plaintiffs for various

specific amounts of damages, prejudgment and post-judgment

interest, and one-fourth of costs. No. 99-20966 -4-

On August 26, 1999, the district judge issued a two page

order approving and adopting the Magistrate Judge’s report and

recommendation and rendering default judgment against James in

the stated amounts as to each plaintiff as had been recommended

by the Magistrate Judge, together with pre and post-judgment

interest at specified rates and taxing one-fourth of the costs

against James. This order was entered on the docket on Friday,

August 27, 1999.

On September 2, 1999, the Magistrate Judge purported to

enter a final judgment in the case, decreeing that plaintiffs

take nothing from Blackwell, the City and Boling, and recover

from James the exact sums and interest specified in the district

court’s August 26, 1999, order, and taxing one-fourth of the

costs against James. This order was entered on the docket the

same day.

On Friday, October 1, 1999, plaintiffs filed their notice of

appeal, challenging the judgment in favor of Blackwell and the

City.

In November 1999, Blackwell and the City filed motions to

dismiss the appeal, Blackwell contending that the notice of

appeal as to him should have been filed within 30 days of July 1,

1998, when the Magistrate Judge issued a Fed. R. Civ. P. 58

separate document judgment dismissing the case against him, and

the City contending that Blackwell’s motion was well taken and

that the notice of appeal as to the City should have been filed

within thirty days of January 7, 1999, when the Magistrate Judge

issued a Rule 58 separate document judgment dismissing the case No. 99-20966 -5-

against it. On December 17, 1999, a motions panel of this court

denied Blackwell’s motion (and, inferentially, the City’s) in a

two sentence order simply stating that the motion “is DENIED.

The motion is totally without merit.” Plainly, the grounds of

the motion was facially without merit, as this court had already

held that the case was not even appealable until sometime after

February 8, 1999, because not all parties had been disposed of in

the district court. At that time, the only undisposed of party

was James.

However, the district court order entered August 27, 1999,

was a final judgment as to James and finally disposed of the case

against him, and thus, all parties having been disposed of

(Boling had been dismissed January 25, 1999), the time for giving

notice of appeal from the July 1, 1998, judgment in favor of

Blackwell and the January 7, 1999, judgment in favor of the City,

each a final judgment as a separate document, commenced to run

then, namely August 27, 1999. The notice of appeal as not filed

until October 1, 1999, more than thirty days after August 27,

1999, and was hence untimely. We note that the district court’s

judgment as to James entered August 27, 1999, complies with Rule

58, notwithstanding its brief statement that the court has

reviewed, and approves and adopts, the report and recommendations

of the Magistrate Judge. See, e.g., United States v. Perez,

(5th Cir. 1984); Interfirst Bank Dallas v. FDIC,

(5th Cir. 1987).

The September 2, 1999, judgment of the Magistrate Judge does

not change the result. There was no intervening tolling motion. No. 99-20966 -6-

Simple reentry of the same judgment does not start a new notice

of appeal time. See, e.g., Wilson v. Atwood Group,

,

(5th Cir. 1984) (en banc). Moreover, the Magistrate Judge had no

power to render judgment against James, as he had never consented

to trial by the Magistrate Judge (and, indeed, has never appeared

in any way in the case). See, e.g., Mendes JR Intern. Co. v. M/V

Sokai Maru,

(5th Cir. 1992); Caprera v.

Jacobs,

(5th Cir. 1986).

Nor are we bound to a contrary result by the December 17,

1999, action of the motions panel. Motions panels’ denials of

motions to dismiss do not bind the merits panel. See cases cited

in Cimono v. Raymark Industries Inc.,

at 311 n.26

(5th Cir. 1998). Moreover, it is evident that the December 17,

1999 Motions Panel action was directed to the wholly different

(and wholly meritless) argument for want of jurisdiction then

advanced by Blackwell and the City.

Accordingly, the appeal is dismissed because the notice of

appeal was untimely.

DISMISSED