Da'Ville v. Wise, 72-1330 Summary Calendar.

• Citation: 470 F.2d 1364
• Decision Date: 02 January 1973
• Docket Number: No. 72-1330 Summary Calendar.,72-1330 Summary Calendar.
• Parties: Louella S. Da'VILLE, Individually and as natural tutrix of the minor, Peyton Renee Da'Ville, Plaintiff-Appellant, Insurance Company of North America, Intervenor-Appellant, v. R. S. WISE et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

470 F.2d 1364 (1972)

Louella S. Da'VILLE, Individually and as natural tutrix of the minor, Peyton Renee Da'Ville, Plaintiff-Appellant, Insurance Company of North America, Intervenor-Appellant, v. R. S. WISE et al., Defendants-Appellees.

No. 72-1330 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

January 2, 1973.

Preston N. Aucoin, Ville Platte, La., for Louella S. Da'Ville.

V. Farley Sonnier, Lafayette, La., for Ins. Co. of North America.

Carl J. Barbier, New Orleans, La., for plaintiff-appellant.

H. Lee Leonard, Lafayette, La., for defendants-appellees.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

PER CURIAM:

Charles Da'Ville, aged 20, was employed by Movible Offshore, Inc. He was working on an idle drilling drawworks on an offshore artificial island or fixed structure situated on the Outer Continental Shelf of the Gulf of Mexico within the seaward extension of Louisiana when he met his death, on May 7, 1969. His widow, plaintiff-appellant individually and as administratrix of their infant child, filed suit in the court below under Title 28 U.S.C. Section 1331(a), and Title 43 U.S.C., Section 1333 (the Outer Continental Shelf Lands Act) for damages for Da'Ville's wrongful death against (a) Pacific Indemnity Company as the liability insurer of Movible Offshore, and (b) Da'Ville's co-employees from Movible Offshore, Wise, a tool pusher, and Rawls, a driller. The Insurance Company of North America, Movible Offshore's compensation carrier, intervened to recover from Pacific Indemnity all amounts paid and required to be paid by it to the widow and child under the Longshoremen's and Harbor Workers' Compensation Act, Title 33 U.S.C., Section 901 et seq.

On December 3, 1971, the United States District Court, Western District of Louisiana, Opelousas Division, granted defendants-appellees' motion for summary judgment on the ground that the Outer Continental Shelf Lands Act, Title 43 U.S.C. Section 1333(c), makes the Longshoremen's and Harbor Workers' Compensation Act the exclusive remedy for such workmen for injuries sustained through negligence of their employers or fellow workmen.

On January 4, 1972, plaintiff-appellant filed her notice of appeal. Defendants-appellees moved this Court to dismiss the appeal for lack of jurisdiction on the ground that such notice was not timely filed within the 30-day limitation of Rule 4(a), F.R.A.P. We carried the Motion to Dismiss with the case.

Since the district court entered judgment December 3, 1971, the 30-day appeal period of Rule 4(a) begins from the next day thereafter and would bar as untimely an appeal taken after January 2, 1972. But that day was a Sunday so that the actual final day for appeal would extend over to Monday, January 3. Rule 4(a), F.R.App.P., supra. The notice of appeal was file stamped "Filed, January 4, 1972", and the cover letter from plaintiff-appellant's counsel to the district court accompanying the notice was dated January 3, 1972. This document was also stamped by the Clerk of the district court in Shreveport, Louisiana: "Filed, January 4, 1972".

Normally this would end the matter. We would be constrained to dismiss the appeal for lack of jurisdiction as time barred. F.R.A.P. 3(a) and 4(a); Martin v. Wainwright, 5 Cir. 1972, 469 F.2d 1072 No. 72-1946, November 17, 1972; Tribbitt v. Wainwright, 5 Cir. 1972, 462 F.2d 600. However, a strong possibility exists in this case that the notice was in fact received by the Opelousas Division office of the Clerk on Monday, January 3, then forwarded to the Shreveport office of the Clerk without being first stamped with a date when received in the Opelousas office. The district court's Opelousas Division is a small one composed of only two rural parishes (counties), Evangeline and Saint Landry. We find that except when court is in session the Opelousas office is staffed only by a part-time employee...