Mendez v. The United States of America et al

Filing 12

MEMORANDUM AND ORDER on the court's own motion. Plaintiff shall have until October 22, 2012, to submit an affidavit to show excusable neglect or good cause for failing to file a timely notice of appeal. If Plaintiff fails to submit such an aff idavit by October 22, 2012, Plaintiffs appeal will not be processed. ***Pro Se Case Management Deadlines: ( Pro Se Case Management Deadline set for 10/22/2012: Check for affidavit on October 22,2012) Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party)(MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
IVAN L. MENDEZ,
Plaintiff,
v.
THE UNITED STATES OF
AMERICA, et al.,
Defendants.

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4:12CV3055

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. On July 18, 2012, the court
dismissed Plaintiff’s Complaint without prejudice. (Filing Nos. 9 and 10.) On
September 20, 2012, Plaintiff filed a Notice of Appeal. (Filing No. 11.)
Federal Rule of Appellate Procedure 4(a)(1) requires that the notice of appeal
in a civil case be filed within thirty days after the judgment or order appealed from
is entered. “A timely notice of appeal is both mandatory and jurisdictional.” Burgs
v. Johnson Cnty., Iowa, 79 F.3d 701, 702 (8th Cir. 1996). Morever, an untimely
notice of appeal cannot serve as a motion for extension of time to file appeal. Id.
However, the district court may extend the time to file a notice of appeal if a party
moves for an extension of time and shows excusable neglect or good cause. Fed. R.
App. P. 4(a)(5)(A)(ii).
Plaintiff filed his Notice of Appeal more than 30 days after the court’s July 18,
2012, Memorandum and Order. (See Docket Sheet.) Moreover, Plaintiff did not
move to extend the time to file a notice of appeal in this matter. (Id.) However, on
the court’s own motion, Plaintiff shall have until October 22, 2012, to file an affidavit
to show excusable neglect or good cause for failing to file a timely notice of appeal.
If Plaintiff fails to submit such an affidavit, Plaintiff’s appeal will not be processed.

IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have until October 22, 2012, to submit an affidavit to show
excusable neglect or good cause for failing to file a timely notice of appeal. If
Plaintiff fails to submit such an affidavit by October 22, 2012, Plaintiff’s appeal will
not be processed.
2.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: Check for affidavit on October 22,
2012.
DATED this 25th day of September, 2012.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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