Anderson v. Rathman

Filing 15

MEMORANDUM OPINION AND ORDER that the petitioner's motion for leave to file an out-of-time notice of appeal is DENIED as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 4/21/2016. (AHI)

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FILED 2016 Apr-21 AM 10:46 U.S. DISTRICT COURT N.D. OF ALABAMA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA EASTERN DIVISION LASHAWN LORENZA ANDERSON, Petitioner, vs. JOHN T. RATHMAN, Respondent. ) ) ) ) ) ) Case No. 1:14-CV-00709-CLS-JHE ) ) ) ) MEMORANDUM OPINION AND ORDER The undersigned dismissed this action without prejudice for lack of jurisdiction on May 30, 2014. (Docs. 6, 10, & 11). Petitioner Lashawn Lorenza Anderson moved for leave to file an out-of-time notice of appeal on October 5, 2015, asserting that he had not received notice, and had only learned of the judgment, after he requested a case update in September of 2015. (Doc. 13).1 The Federal Rules of Appellate Procedure do not allow a district court to grant a motion for extension of time to file a notice of appeal if such motion is filed later than 30 days after the time to file a notice of appeal expires. Fed. R. App. P. 4(a)(5)(A). Even the district court’s power to reopen the time to file an appeal when 1 The Clerk’s Office maintains a record of having served a copy of the memorandum opinion and final judgment on Anderson by mail, so it is unclear why he did not receive it. Regardless, because the Court may not extend the time for filing his appeal, the question is moot for purposes of this motion. a party does not receive notice is limited to motions “filed within 180 days after the judgment or order is entered.” Fed. R. App. P. 4(6)(B). The final judgment in this action was entered on May 30, 2014. The 180-day period for reopening the time to file an appeal accordingly expired on November 26, 2014. Because these time limits are codifications of statutory time limits, they are jurisdictional. See Advanced Bodycare Solutions, L.L.C. v. Thione International, Inc., 615 F.3d 1352, 1359 n.15 (11th Cir. 2010); 28 U.S.C. § 2107. Therefore, this Court may not extend or reopen the time for Anderson to file his appeal, and his motion for leave to file an out-of-time notice of appeal, (doc. 13), is DENIED. DONE and ORDERED this 21st day of April, 2016. ______________________________ United States District Judge 2

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