IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50821

Summary Calendar

EDWARD BANKS, 

 Plaintiff–Appellant,

v.

BANK OF AMERICA, N.A.; DHI MORTGAGE COMPANY, LIMITED, 

formerly known as CH Mortgage Company I, Limited; JUANITA 

STRICKLAND, 

 Defendants–Appellees.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:13-CV-426

Before PRADO, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

Bank of America, N.A., argues that Edward Banks’s notice of appeal was 

not timely filed, such that we lack jurisdiction over the appeal and must 

dismiss. We agree and dismiss the appeal.

* 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.

United States Court of Appeals

Fifth Circuit

FILED

March 18, 2015

Lyle W. Cayce

Clerk

 

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No. 14-50821

I

Banks filed suit against DHI Mortgage Company, Ltd. (DHI), Bank of 

America, and Juanita Strickland in Texas state court. Bank of America 

removed to the district court on the bases of federal-question and diversity 

jurisdiction. Banks filed a motion to remand. The district court denied this 

motion, concluding that although there was no basis for federal-question 

jurisdiction, diversity jurisdiction was proper. On October 31, 2013, the court 

granted DHI’s and Strickland’s motions to dismiss. On April 3, 2014, the court 

granted Bank of America’s motion for summary judgment and entered a final 

judgment. On May 1, 2014, Banks filed a “motion for reconsideration, or, in 

the alternative, motion for new trial.” On June 16, 2014, the district court

construed Banks’s motion as a motion for relief under Rule 60(b) and denied 

the motion. Banks filed his notice of appeal on July 25, 2014.

II

Subject to certain exceptions, a notice of appeal in a civil case must be 

filed “within 30 days after entry of the judgment or order appealed from.”1 

When certain motions are filed, “the time to file an appeal” is extended to begin 

to run “from the entry of the order disposing of the last such remaining 

motion.”2 Here, Banks’s motion for reconsideration is the relevant motion. The 

court disposed of this motion on June 16, 2014. Banks’s notice of appeal was 

due on July 16, 2014, but was filed on July 25, 2014. Banks’s notice of appeal 

is untimely.

1 FED. R. APP. P. 4(a)(1)(A); see also 28 U.S.C. § 2107(a).

2 FED R. APP. P. 4(a)(4)(A).

2

 

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No. 14-50821

“The filing of a timely notice of appeal . . . is mandatory and 

jurisdictional.”3 Banks does not dispute that the notice of appeal was untimely. 

Instead, he contends that because his appeal challenges the district court’s 

subject-matter jurisdiction, this court may exercise jurisdiction over the 

untimely appeal.

Banks relies on an exception to res judicata that allows “a collateral

attack on a state court judgment on the ground that the state court did not have 

jurisdiction over the subject matter” in certain narrow circumstances.4 This 

exception does not apply to the present case, as Banks brings a direct appeal

of a federal court judgment. Further, when a party directly appeals on the 

ground that a federal district court lacked subject-matter jurisdiction, we 

enforce the normal deadlines for filing a notice of appeal.5 Accordingly, we lack 

jurisdiction over Banks’s appeal.

* * *

For the foregoing reasons, we DISMISS the appeal.

3 Kinsley v. Lakeview Reg’l Med. Ctr. LLC, 570 F.3d 586, 588 (5th Cir. 2009) (citing 

Bowles v. Russell, 551 U.S. 205, 214 (2007)).

4 Key v. Wise, 629 F.2d 1049, 1056 (5th Cir. 1980) (emphasis added).

5 See, e.g., Arena v. Graybar Elec. Co., 669 F.3d 214, 219 (5th Cir. 2012) (dismissing a 

party from an appeal based on lack of subject-matter jurisdiction when that party’s notice of 

appeal was untimely).

3

 

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