904 F.2d 427 (8th Cir. 1990), 89-5424, Vogelsang v. Patterson Dental Co.

Docket Nº:89-5424.
Citation:904 F.2d 427
Party Name:Donald A. VOGELSANG, Appellant, v. PATTERSON DENTAL COMPANY, a Delaware corporation, PDA, Inc., a Minnesota corporation, Appellees.
Case Date:May 29, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 427

904 F.2d 427 (8th Cir. 1990)

Donald A. VOGELSANG, Appellant,

v.

PATTERSON DENTAL COMPANY, a Delaware corporation, PDA, Inc.,

a Minnesota corporation, Appellees.

No. 89-5424.

United States Court of Appeals, Eighth Circuit

May 29, 1990

Submitted Feb. 12, 1990.

Page 428

Steve G. Heikens, Minneapolis, Minn., for appellant.

R. Ann Huntrods, St. Paul, Minn., for appellees.

Before JOHN R. GIBSON, WOLLMAN and MAGILL, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Donald Vogelsang appeals from a district court 1 order denying his motion for an extension of time to file a notice of appeal. Following an adverse judgment on Vogelsang's age discrimination claim, Vogelsang's attorney deposited a notice of appeal in the mail. This notice was not received by the district court clerk within the thirty days required by Federal Rule of Appellate Procedure 4(a)(1). When the attorney learned that the notice had not been received, some fifty-six days after the adverse judgment was entered, he filed a motion with the court requesting an extension of time in which to file a notice of appeal. The district court determined that the mailing was insufficient to constitute a filing under the rule, that there was no excusable neglect justifying a late filing, and that there was insufficient evidence presented to establish that the notice was entitled to a presumption of delivery. Accordingly, the court denied the motion. We affirm the judgment of the district court.

The district court entered an order granting summary judgment for the defendants in Vogelsang's age discrimination suit on February 17, 1989. The order was mailed to the parties and Vogelsang's counsel received a copy on February 22, 1989. In an affidavit later filed with the district court, Vogelsang's counsel stated that on February 22, prior to departing on a trip, he drafted, signed, and dated a notice of appeal. He also stated that when he returned from his trip, March 13, six days before the notice of appeal was due, he discovered that the notice had not yet been filed. He then altered the date on the notice from February 22 to March 13, and deposited the notice in the United States mail. The clerk's office, however, did not receive the notice.

On April 14, Vogelsang's attorney realized that the clerk's office had not received the notice of appeal and therefore filed a motion requesting a time extension in which to file a notice of appeal. The district court, in a carefully researched opinion, ruled that a notice of appeal is filed when received by the clerk, not when deposited in the mail; that Vogelsang had failed to establish excusable neglect; and that, since Vogelsang's attorney had not

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proven that the notice was timely mailed, he was not entitled to a presumption that the notice had been delivered. Vogelsang v. Patterson Dental Co., 716 F.Supp. 1215 (D.Minn.1989).

Under Rule 4(a)(1) and 28 U.S.C. Sec. 2107 (1982), "a notice of appeal in a civil case must be filed within 30 days of entry of the judgment or order from which the appeal is taken." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). The purpose of this rule is

to set a definite point of time when litigation shall be at an end, unless within that time the prescribed application has been made; and if it has not, to advise prospective appellees that they are freed of the appellant's demands. Any other construction of the statute would defeat its purpose.

Id. (quoting Matton Steamboat Co. v. Murphy, 319 U.S. 412, 415, 63 S.Ct. 1126, 1128, 87 L.Ed. 1483 (1943)). Moreover, it is well-established that this time limit is mandatory and jurisdictional, id., and if notice is not filed in a timely fashion, an appellate court is without authority to exercise its jurisdiction. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988).

I.

Vogelsang first argues that the district court erred in finding that an affidavit stating that his attorney mailed the notice of appeal was insufficient to establish filing with the...

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