Robert A. Austin v. Elizabeth Rose McHugh, et al, No. 24-10286 (11th Cir. 2024)

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USCA11 Case: 24-10286 Document: 11-1 Date Filed: 03/04/2024 Page: 1 of 2 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-10286 Non-Argument Calendar ____________________ ROBERT A. AUSTIN, Plainti -Appellant, versus ELIZABETH ROSE MCHUGH, Magistrate, JAMES W. MCCANN, Judge, Defendants-Appellees. ____________________ USCA11 Case: 24-10286 2 Document: 11-1 Date Filed: 03/04/2024 Opinion of the Court Page: 2 of 2 24-10286 Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 2:23-cv-14370-AMC ____________________ Before JORDAN, JILL PRYOR, and NEWSOM, Circuit Judges. PER CURIAM: This appeal is DISMISSED, sua sponte, for lack of jurisdiction. Robert Allen Austin, proceeding pro se, appeals from the district court’s order dismissing his complaint as frivolous. Austin’s motion for relief under Rule 60, which was his first post-judgment motion challenging the dismissal, tolled the appeal period, such that it ran from the entry of the district court’s paperless order denying his motion. See Fed. R. App. P. 4(a)(4)(A) (providing that the time to file an appeal runs from the entry of the order disposing of the last such remaining motion). Because that paperless order was entered on December 11, 2023, the 30-day statutory time limit required him to file a notice of appeal on or before January 10, 2024. See 28 U.S.C. § 2107(a); Fed. R. Civ. P. 59; Fed. R. App. P. 4(a)(1)(A), (4)(A). However, Austin did not file his notice of appeal until January 26, 2024. Accordingly, the notice of appeal is untimely and cannot invoke our appellate jurisdiction. See Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 21 (2017). No petition for rehearing may be filed unless it complies with the timing and other requirements of 11th Cir. R. 40-3 and all other applicable rules.

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