Bayene v. Farmland Foods
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
FARMLAND FOODS, INC.,
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
Federal Rule of Appellate Procedure 4 (“Rule 4”)
governs the time in which a notice of appeal must be filed.
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).
time limit is mandatory and jurisdictional, and failure to file a
timely notice of appeal deprives an appellate court of
See, e.g., Lowry v. McDonnell Douglas Corp., 211
F.3d 457, 462-64 (8th Cir. 2000) (citations omitted).
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
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).
only argues the merits of his claims and includes various
documents relating to a totally separate matter.
Court finds this is insufficient to show excusable neglect or
Thus, plaintiff’s notice of appeal is untimely and
is therefore invalid.
IT IS ORDERED:
Plaintiff’s Notice of Appeal (Filing No. 17) is
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.
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
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