Emily Milburn v. Gilbert Gomez, et al

Filing

NON DISPOSITIVE UNPUBLISHED OPINION FILED. Judge: CES , Judge: ECP , Judge: JWE. Awaiting District Court Action deadline due on 12/06/2010. Case 09-41122 placed in abeyance for limited remand in 3:08CV193 from the Southern District of Texas [09-41122]

Emily Milburn v. Gilbert Gomez, et al

Doc. 0

Case: 09-41122

Document: 00511257008

Page: 1

Date Filed: 10/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 7, 2010 N o . 09-41122 Lyle W. Cayce Clerk

E M I L Y MILBURN, Individually and as next friend of D.L.M., Plaintiff-Appellee, v. S E R G E A N T GILBERT GOMEZ, OFFICER DAVID ROARK, and OFFICER S E A N STEWART, D e fe n d a n t s -A p p e lla n t s .

A p p e a l from the United States District Court for the Southern District of Texas U S D C 3:08-cv-00193

B e fo r e STEWART, PRADO, and ELROD, Circuit Judges. PER CURIAM:* A t issue on appeal is whether Defendants-Appellants are entitled to s u m m a r y judgment on qualified immunity grounds in a suit alleging claims u n d e r 42 U.S.C. § 1983 and Texas state law. We lack jurisdiction to consider the m erits of this appeal because the district court dismissed Defendants-Appellants' m o t io n for summary judgment as untimely. See Edwards v. Cass C'nty, 919 F.2d 2 7 3 , 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Dockets.Justia.com

Case: 09-41122

Document: 00511257008

Page: 2

Date Filed: 10/07/2010

No. 09-41122 t h e ir letter briefs, properly treat this appeal as a petition for a writ of mandamus o n the issue of timeliness. See id. at 276. Based on our review of the record, it a p p e a r s that Defendants-Appellants' summary-judgment motion was timely, in a c c o r d a n c e with the deadlines in the first district judge's docket-control order.1 T h a t order was still in effect after the case was transferred to the second district j u d g e .2 I t is therefore unclear on this record why the district court deemed the s u m m a r y -ju d g m e n t motion untimely. Accordingly, we remand so that the

d is t r ic t court may reexamine the timeliness of the motion or specify its reasons fo r denying the motion as untimely so that we might determine whether the d is t r ic t court abused its discretion in this regard.

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. 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."
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