Certain Underwriters at Lloyds of London v. Evans, EEO8782A830000-500 and E

• Citation: 896 F.2d 1255
• Decision Date: 23 February 1990
• Docket Number: Nos. 87-2851,No. EEO8782A830000-500 and E,No. 508,P,88-1230,EEO8782A830000-500 and E,508,s. 87-2851
• Parties: CERTAIN UNDERWRITERS AT LLOYDS OF LONDON, Subscribing to Policyndorsementlaintiffs-Appellees, v. Lee Ann EVANS, Personal Representative of the Estate of Andrew Glen Evans, Deceased, and Harvey Young Airport, Inc., an Oklahoma corporation, Defendants-Appellants, and Richard Hamm, individually, and Richard Hamm, doing business as United Aviation, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1255

896 F.2d 1255

CERTAIN UNDERWRITERS AT LLOYDS OF LONDON, Subscribing to Policy No. EEO8782A830000-500 and Endorsement No 508, Plaintiffs-Appellees, v. Lee Ann EVANS, Personal Representative of the Estate of Andrew Glen Evans, Deceased, and Harvey Young Airport, Inc., an Oklahoma corporation Defendants-Appellants and Richard Hamm, individually, and Richard Hamm, doing business as United Aviation, Defendant.

Nos. 87-2851, 88-1230.

United States Court of Appeals Tenth Circuit.

Feb. 23, 1990.

Robert A. Todd and Jon B. Wallis, Tulsa, Okl., for defendant-appellant Lee Ann Evans.

John Scott Hoff of Lapin, Hoff, Spangler & Greenberg, Chicago, Ill., and Barry G. West of Morrel & West, Tulsa, Okl., for defendant-appellant Harvey Young Airport, Inc.

Donald L. Sime of Brydges, Riseborough, Morris, Franke & Miller, Waukegan, Ill., for plaintiffs-appellees.

Before ANDERSON, SETH and BRORBY, Circuit Judges.

SETH, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Case No. 88-1230

Case No. 88-1230 involves a jurisdictional issue in the appeal filed by one of the defendants, Harvey Young Airport (HYA), and concerning the plaintiffs in the underlying federal court action, Certain Underwriters at Lloyds of London. The facts relevant to the jurisdictional issue are as follows.

On September 28, 1987, the district court entered summary judgment in favor of plaintiffs and against all defendants. On October 8, 1987, defendant Lee Ann Evans moved for a new trial. The district court treated the motion as one to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e), and the time within which to file notice of appeal was tolled in accordance with Fed.R.App.P. 4(a)(4); the district court denied the motion on November 17, 1987, and the time for filing notice of appeal began to run. Fed.R.App.P. 4(a)(4). On January 15, 1988, defendant HYA filed a motion for enlargement of time for filing notice of appeal pursuant to Fed.R.App.P. 4(a)(5), and requested a 30-day extension. Over plaintiffs' objections, the district court, on January 19, 1988, granted HYA an extension for filing its notice of appeal until February 15, 1988. HYA filed its notice of appeal on February 16 due to the legal holiday observed on February 15.

Asserting that the extension exceeded what is allowed by the Federal Rules of Appellate Procedure, and that the extension was otherwise without a sufficient basis, plaintiffs submit that HYA's appeal should be dismissed as this court is without jurisdiction due to an untimely notice of appeal. Based on the following, we agree.

It is well-established that an appellate court acquires jurisdiction of an appeal only upon the timely filing of a notice of appeal, and this requirement is mandatory and jurisdictional. See United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259; Gooch v. Skelly Oil Co., 493 F.2d 366, 368 (10th Cir.); Lathrop v. Okla. City Housing Authority, 438 F.2d 914 (10th Cir.), cert. denied, 404 U.S. 840, 92 S.Ct. 132, 30 L.Ed.2d 73. Federal Rule of Appellate Procedure 4(a)(1) provides, in pertinent part, that a notice of appeal in a civil case "shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from." Subsection 4(a)(5) of that rule, in pertinent part, further provides that:

"[t]he district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a).... No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later."

In addition, Federal Rule of Appellate Procedure 26(b), in relevant part, states that "[t]he court for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but the court may not enlarge the time for filing a notice of appeal...." And, Rule 2 of the appellate rules provides that, in certain cases, "a court of appeals may, except as otherwise provided in Rule 26(b), suspend the requirements or provisions of any of these rules...." Thus, it is clear from reading the above rules together that neither the district court nor this court has the authority to enlarge the time for filing notice of appeal beyond the time limits contained in the appellate rules.

Once the time for filing notice of appeal began to run in this case, HYA filed its motion for enlargement of time pursuant to Rule 4(a)(5) only one day before the expiration of the 30-day period provided therein for such motions, and 59 days after the tolling motion was denied. Because the district court granted HYA's Rule 4(a)(5) motion for enlargement of time more than 30 days after expiration of the 30 days prescribed by Rule 4(a) for filing notice of appeal, the court was authorized by the rules to grant, at the most, a 10-day extension from the time of its ruling. As noted above, Fed.R.App.P. 26(b) expressly prohibits extensions of time for filing notice of appeal beyond the time limits set out in the rules. Thus, even if it is assumed for argument that HYA made a sufficient showing of good cause for an extension of time under Rule 4(a)(5), the district court lacked the authority, under the circumstances of this case, to grant more than a 10-day extension for filing notice of appeal. This court likewise is without the authority to suspend the rules concerning the time limits for filing notice of appeal. Fed.R.App.P. 2.

Applying the above-cited appellate rules to this case, we must find that the extension of time granted by the district court was improper. See Fed.R.App.P. 26(b). As a result, HYA's notice of appeal in our Case No. 88-1230 was not timely filed and the appeal must be dismissed as this court is without jurisdiction. See generally Gooch v. Skelly Oil Co., 493 F.2d 366 (10th Cir.) (where extension of time within which to file notice of appeal was improperly granted, the appeal had to be dismissed for failure to timely file notice of appeal); see also United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282 (timely filing of notice of appeal is mandatory and jurisdictional). In light of this ruling, we need not consider whether HYA made a sufficient showing of good cause or excusable neglect for the enlargement of time.

Although HYA acknowledges that timely filing of a notice of appeal is mandatory and jurisdictional, HYA contends that its appeal should be heard on the merits because it presents "unique circumstances," citing Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261, and Thompson v. Immigration and Naturalization Service, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404. In essence, HYA claims that because it relied on the district court's extension of time, we cannot dismiss the appeal as untimely. We do not agree that those cases are controlling in our ruling on HYA's attempted appeal.

In Harris Truck Lines, the district court found, within the initial 30-day period for filing notice of appeal, that there had been a showing of excusable neglect sufficient to allow an extension of time within which to file notice of appeal; a two-week extension was granted. The Court of Appeals for the Seventh Circuit dismissed the appeal as untimely, ruling that appellant had failed to make a sufficient showing to the district court of excusable neglect warranting an extension of time. The Supreme Court reversed the court of appeals, stating that "[i]n view of the obvious great hardship to a party who relies upon the trial judge's finding of 'excusable neglect' prior to the expiration of the 30-day period [for filing notice of appeal] and then suffers reversal of the finding, it should be given great deference by the reviewing court." Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. at 217, 83 S.Ct. at 285.

The case at bar is distinguishable from Harris Truck Lines. The most important difference lies in the fact that in Harris Truck Lines the district court did not grant an extension of time for filing notice of appeal in excess of the limits imposed by the appellate rules. As noted above, the district court here granted an enlargement of time for filing notice of appeal which exceeded the maximum time limits prescribed by the appellate rules. See Fed.R.App.P. 4; 26(b).

Harris Truck Lines holds that when an extension of time is granted within the initial 30-day period for filing notice of appeal and is based on a finding of excusable neglect, the appellate court should give great deference to that finding. See our holding in Gooch v. Skelly Oil Co., 493 F.2d at 368 (finding of excusable neglect for purposes of Rule 4(a), should not be disturbed absent clear abuse of discretion); however, such is not the case at bar. Our dismissal of HYA's appeal is not based on our finding an insufficient showing of good cause or excusable neglect underlying the extension of time; our ruling here is the result of applying the express language of the Federal Rules of Appellate Procedure.

In addition, appellant in Harris Truck Lines detrimentally relied on the extension of time in allowing the initial 30-day period within which to timely file notice of appeal to expire; had the requested extension instead been denied, it still would have been possible for a timely notice to have been filed. Here, HYA was already outside the prescribed 30-day period, and its motion for an extension of time under Fed.R.App.P. 4(a)(5) was the only available means for filing notice of appeal. In light of...