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United States Court of Appeals,

Fifth Circuit.

No. 93-2912

Summary Calendar.

Mary PHILLIPS, etc., et al., Plaintiffs-Appellees,

v.

MONTGOMERY COUNTY, etc., et al., Defendants,

Montgomery County, Texas, Montgomery County Sheriff's Department,

Joe Corley, Wayne Eason, Troy Brown, Gary Ennis, Charlie Morton,

Richard Bagley, J.C. Myrick, Calvin Little and Joe Little,

Defendants-Appellants.

July 1, 1994.

Appeal from the United States District Court for the Southern

District of Texas.

Before KING, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

PER CURIAM:

I.

On March 31, 1993, the plaintiffs filed their fifth amended

complaint alleging federal civil rights and state law violations.

They sued Montgomery County, Texas, the sheriff's department, nine

sheriff's department officers, and one prisoner.

On April 14, 1993, the county defendants filed a motion to

dismiss the fifth amended complaint or, alternatively, for summary

judgment, claiming, among other things, qualified immunity. On

August 16, the district court denied the motion, but dismissed

punitive damages claims against the county and dismissed one

plaintiff on standing grounds.

On August 20, the county defendants moved to dismiss the fifth
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amended complaint for lack of jurisdiction on the ground that all

necessary parties had not been joined. The plaintiffs moved for

joinder of parties. On September 10, the district court denied the

motion to dismiss and granted the joinder motion.

On September 16, the plaintiffs filed their sixth amended

complaint. It was identical to the fifth amended complaint except

that one plaintiff had been eliminated and two new ones had been

added. On November 16, the county defendants filed a motion to

dismiss the sixth amended complaint or, alternatively, for summary

judgment.

On December 2, the district court compared the November 16

motion with the April 14 motion and stated, "The same grounds are

asserted again, and are DENIED.... Because defendants have not

provided any new grounds to dismiss or for summary judgment, this

court DENIES the motion."

On December 6, the county defendants noticed an appeal from

the December 2 order denying their motion to dismiss. On December

8, they moved to stay the district court proceedings pending

appeal. The district court stated that the notice of appeal was

not timely, but granted the motion to stay.

II.

A government official may immediately appeal a trial court's

rejection of an immunity defense contained in a motion for summary

judgment. Nicoletti v. City of Waco, 947 F.2d 190, 191 (5th

Cir.1991) (citing Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct.

2806, 86 L.Ed.2d 411 (1985)). The appeal must be noticed within 30
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days. Fed.R.App.P. 4(a)(1). The first issue we must consider on

appeal is whether the county defendants filed a timely notice of

appeal.

The First Circuit has held that defendants may not fail to

appeal an order denying them immunity and then restart the 30-day

clock by moving for reconsideration. Fisichelli v. City Known as

the Town of Methuen, 884 F.2d 17, 19 (1st Cir.1989). Relying on

Fisichelli, the Eighth Circuit has held that defendants may not

fail to appeal an order denying them immunity and then restart the

30-day clock by refiling the same motion. Taylor v. Carter, 960

F.2d 763, 764 (8th Cir.1992). The First Circuit explained that if

the rule were otherwise, "a dilatory defendant would receive not

only his allotted bite at the apple, but an invitation to gnaw at

will." Fisichelli, 884 F.2d at 19.

In a case involving two defense motions to reconsider an order

granting injunctive relief, we have held that "a second motion to

reconsider does not interrupt the thirty-day period to appeal a

judgment where the second motion raises substantially the same

grounds as urged in the earlier motion." Nobby Lobby, Inc. v. City

of Dallas, 970 F.2d 82, 85 (5th Cir.1992). Although this principle

has not been applied to a motion to dismiss or for summary judgment

based on qualified immunity, we hold that the defendants in this

case cannot fail to appeal and then restart the appellate clock by

refiling substantially the same motion.

APPEAL DISMISSED.