Zahorik v. Trott et al

Filing 107

ORDER denying as moot 104 Motion to Abstain; denying as moot 104 Motion for Extension of Time; denying 105 Amended Motion for Extension of Time on Notice of Appeal or in the Alternative, Indicate a Ruling on Motion for Relief that is Barred by a Pending Appeal.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, 3)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
VINCENT ZAHORIK
V.
TRACY TROTT, ET AL.

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CIVIL ACTION NO. G-13-248

ORDER
Before the Court is the “Amended Motion to Extend Time on Notice of Appeal or
in the Alternative, Indicate a Ruling on Motion for Relief that is Barred by a Pending
Appeal” of Plaintiff/Appellant, Vincent Zahorik; the Motion is opposed by the Tennessee
Defendants.
Zahorik’s Notice of Appeal was due by July 9, 2014, thirty days after this Court
denied his Motion for Reconsideration of its Final Judgment. Zahorik admits that he
received the Court’s Order denying reconsideration on June 13, 2014. Zahorik’s Notice
of Appeal was filed on July 11, 2014, two days too late. Because a timely Notice of
Appeal is mandatory and jurisdictional, Bowles v. Russell, 551 U.S. 205, 209-10 (2007),
it appears the Court of Appeals lacks jurisdiction to consider Zahorik’s appeal.
Zahorik’s Motion for an Extension was likewise untimely. Under Rule 4(a)(5) of
the Federal Rules of Appellate Procedure, Zahorik had only thirty days from the time to
appeal to file such a Motion: August 8, 2014. As a consequence, Zahorik’s Motion was
filed on September 2, 2014, was too late and must be denied.

In the alternative, Zahorik requests that the Court issue an indicative order
informing the Court of Appeals that it would grant him an extension of the time to appeal
if it were permitted to do so by the Court of Appeals. Zahorik’s request will be declined.
But, in the opinion of this Court, it is doubtful the Court even could re-create jurisdiction
in Zahorik’s case under these circumstances.
It is, therefore, the ORDER of this Court that the “Amended Motion to Extend
Time on Notice of Appeal or in the Alternative, Indicate a Ruling on Motion for Relief that
is Barred by a Pending Appeal” (Instrument no. 105) of Plaintiff/Appellant, Vincent
Zahorik, is DENIED.
It is further ORDERED that the “Motion to Extend Time on Notice of Appeal or
in the Alternative, Indicate a Ruling on Motion for Relief that is Barred by a Pending
Appeal” (Instrument no. 104) of Plaintiff/Appellant, Vincent Zahorik, is DENIED as
moot.
DONE at Galveston, Texas, this

9th

2

day of September, 2014.