Bayene v. Farmland Foods

Filing 20

MEMORANDUM AND ORDER denying the plaintiff's 18 Motion for Leave to Appeal in forma pauperis. Plaintiff's Notice of Appeal 17 is untimely. The clerk of the court shall not process the appeal to the Court of Appeals. The clerk of the court is directed to forward a copy of this Memorandum and Order to the parties and to the Eighth Circuit Court of Appeals. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party and as directed) (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TADESSE BAYENE,

)
)
Plaintiff,
)
)
v.
)
)
FARMLAND FOODS, INC.,
)
)
Defendant.
)
______________________________)

8:10CV256

MEMORANDUM AND ORDER

This matter is before the Court on plaintiff’s Notice
of Appeal (Filing No. 17) and Motion for Leave to Appeal In Forma
Pauperis (Filing No. 18).

The Court dismissed plaintiff’s claims

in this matter on November 30, 2010 (Filing Nos. 13 and 14).
Plaintiff filed an objection to the dismissal (Filing No. 15),
which the Court liberally construed as a motion for
reconsideration and denied on February 4, 2011 (Filing No. 16).
More than one year later, on June 11, 2012, plaintiff filed his
Notice of Appeal (Filing No. 17).

Therefore, excluding the time

during the pendency of plaintiff’s objection, 493 days elapsed
between the Court’s judgment and the filing of plaintiff’s Notice
of Appeal.
Federal Rule of Appellate Procedure 4 (“Rule 4”)
governs the time in which a notice of appeal must be filed.

As

set forth in Rule 4, a notice of appeal “must be filed with the
district clerk within 30 days after the judgment or order
appealed from is entered.”

Fed. R. App. P. 4(a)(1)(A).

This

time limit is mandatory and jurisdictional, and failure to file a
timely notice of appeal deprives an appellate court of
jurisdiction.

See, e.g., Lowry v. McDonnell Douglas Corp., 211

F.3d 457, 462-64 (8th Cir. 2000) (citations omitted).

However,

Rule 4 permits an extension of time in which to file an appeal if
(1) such extension is requested within the “extension period,”
i.e., within 30 days after expiration of the appeal deadline; and
(2) regardless of the “extension period,” the appellant shows
excusable neglect or good cause for the delayed filing of the
appeal.

Fed. R. App. P. 4(a)(5)(A).
Plaintiff did not seek an extension of the time in

which to file a notice of appeal.

Regardless, an extension under

Rule 4 could still be appropriate, provided that the requisite
showing of excusable neglect or good cause has been made.
Plaintiff has failed to set forth any reason for his
failure to timely file his notice of appeal (Filing No. 17).

He

only argues the merits of his claims and includes various
documents relating to a totally separate matter.

(Id.)

The

Court finds this is insufficient to show excusable neglect or
good cause.

Thus, plaintiff’s notice of appeal is untimely and

is therefore invalid.
IT IS ORDERED:
1.

Plaintiff’s Notice of Appeal (Filing No. 17) is

untimely.

-2-

2.

The clerk of the court shall not process the

appeal to the Court of Appeals.

The clerk of the court is

directed to forward a copy of this Memorandum and Order to the
parties and to the Eighth Circuit Court of Appeals.
3.

Plaintiff’s Motion for Leave to Appeal In Forma

Pauperis (Filing No. 18) is denied.
DATED this 28th day of June, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* 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.
-3-