IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10245

Summary Calendar

MITTIE FLEMING DBA,

Plaintiff-Appellant

v.

UNCLE BOB STORAGE INC. SOVRAN,

Defendant-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:10-CV-351

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Mittie Fleming DBA (Fleming), proceeding pro se, appeals the district

court’s dismissal of her civil action for failure to comply with an order instructing

the parties and their respective counsel to attend an in-person settlement

conference on a specified date and time. She also appeals the district court’s

denial of her two motions for new trial, purportedly filed pursuant to Federal

Rule of Civil Procedure 59, and the denial of her two motions for rehearing of the

orders denying her motions for new trial. 

United States Court of Appeals

Fifth Circuit

F I L E D

March 27, 2012

Lyle W. Cayce

Clerk

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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No. 11-10245

Fleming now moves this court for leave to proceed in forma pauperis (IFP),

and she requests copies of transcripts at the Government’s expense. This court

has a duty to examine the basis of its jurisdiction, sua sponte, if necessary. 

Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A timely notice of appeal is

a jurisdictional requirement in a civil case. Bowles v. Russell, 551 U.S. 205, 213-

14 (2007). 

Federal Rule of Appellate Procedure 4(a)(1)(A) requires that the notice of

appeal in a civil action be filed within 30 days of entry of the judgment or order

from which the appeal is taken. On January 13, 2011, Fleming timely filed a

motion for new trial under Rule 59, which suspended the time for filing a notice

of appeal. FED. R. APP. P. 4(a)(4)(A)(iv), (v); see Harcon Barge Co. v. D & G Boat

Rentals, Inc., 784 F.2d 665, 667-68 (5th Cir. 1986) (en banc). The district court

denied Fleming’s Rule 59 motion on January 19. Thus, the latest date on which

Fleming could have filed a timely notice of appeal was February 18, 2011, 30

days from entry of the district court’s January 19 order denying her first motion

for new trial. See FED. R. APP. P. 4(a)(1), (a)(4)(A). Fleming also filed a second

motion for new trial, but this motion had no tolling effect on the period for filing

a timely notice of appeal. See Charles L.M. v. Northeast Indep. Sch. Dist., 884

F.2d 869, 870 (5th Cir. 1989); Ellis v. Richardson, 471 F.2d 720, 721 (5th Cir.

1973). Furthermore, her second motion for new trial is considered a successive

motion as it alleges “substantially the same grounds as urged in the earlier

motion [for new trial].” Charles L.M., 884 F.2d at 870 (internal quotation marks

and citation omitted). Likewise, Fleming’s two motions for rehearing from the

motions for new trial do not offer anything new. Such successive motions are

“condemned by well-established authority.” Id. Accordingly, we will not review

Fleming’s second motion for new trial or her two motions for rehearing of the

orders denying her motions for new trial. See id.

Because Fleming’s notice of appeal was filed more than 30 days from the

January 19, 2011, entry of the order denying her first motion for new trial, it is

2

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untimely as to both the district court’s judgment of dismissal and its denial of

Fleming’s first motion for new trial. Given the absence of a timely notice of

appeal in this case, this appeal must be dismissed for lack of jurisdiction.

APPEAL DISMISSED; MOTIONS DENIED. 

3

Case: 11-10245 Document: 00511802332 Page: 3 Date Filed: 03/27/2012