Le Williamson v. Deluxe Financial Services, Inc. ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 8, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
A N D Y TR OY LE WILLIA M SON,
Plaintiff - Appellant,
v. No. 05-3312
(D. Kansas)
DELU XE FINANCIAL SERVICES, (D.Ct. No. 03-CV-2538-KHV)
INC., formerly known as Deluxe
C orporation; JA N ELLE JO RD AN;
RU TH ANN LEW IS; KEITH DERKS,
Defendants - Appellees.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Andy Troy Le W illiamson was terminated from his position as a customer
support specialist at Deluxe Financial Services based on a pattern of tardiness and
a series of absences. Several of the absences were excused by his physician. Le
W illiamson filed suit in the United States District Court for the District of Kansas
alleging a violation of the Family M edical Leave Act, 29 U.S.C. §§ 2601 et seq.
On July 6, 2005, the district court entered an order granting summary judgment to
Deluxe Financial Services. A separate judgment was filed the same day.
Pursuant to Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure, Le
W illiamson had thirty days, or until August 5, 2005, to file a timely notice of
appeal. On August 5, Le W illiamson apparently attempted to file his notice of
appeal with the district court via e-mail but was unsuccessful. On August 8, he
filed a hard copy of the notice of appeal via a drop box when he discovered the
notice of appeal had not been entered on the district court’s docket. The district
court docket records the filing of the notice of appeal on August 8. Deluxe
Financial Services contends this Court lacks jurisdiction due to the untimely
filing. Le W illiamson argues his untimely filing should be excused because he
timely submitted the notice of appeal by e-mail. W e dismiss the appeal for lack
of jurisdiction.
A timely filing of a notice of appeal in a civil case is mandatory and
jurisdictional. Alva v. Teen Help, 469 F.3d 946, 951 (10th Cir. 2006); see also
United States v. Ceballos-M artinez, 371 F.3d 713, 715 (10th Cir. 2004) (“W ithout
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jurisdiction a court cannot proceed at all in any cause. Jurisdiction is power to
declare the law, and when it ceases to exist, the only function remaining to the
court is that of announcing the fact and dismissing the cause.”) (quotation
omitted). The pro se status of the appellant does not affect this rule. See
M ayfield v. U.S. Parole Comm’n, 647 F.2d 1053, 1055 (10th Cir. 1981)
(dismissing pro se appeal filed three days late).
Le W illiamson’s attempt to avoid the operation of Rule 4(a)(1)(A ) is
unavailing. Unfortunately for Le W illiamson, a generic “submission by e-mail” is
not the same as “filing” for purposes of Rule 4. To be “filed” within the meaning
of Rule 4, the document must be submitted to the clerk’s office by an approved
manner. In the District Court of Kansas, documents can be submitted directly to
the clerk’s office, by drop box, or electronically as specified by court rules.
Under the Administrative Procedure for Filing, Signing, and Verifying Pleadings
and Papers by Electronic M eans in the United States District Court for the District
of Kansas in Civil Cases (A dministrative Procedure), “[e]-mailing a document to
the clerk’s office or to the assigned judge does not constitute filing the document.
A document shall not be considered filed until the System generates a notice of
electronic filing.” (A dministrative Procedure at 6, available at:
http://www.ksd.uscourts.gov/cmecf/rules/CvAdminProc.pdf.) No such notice was
generated in this case. The likely reason is that Le W illiamson e-mailed his
notice of appeal to the wrong address: KSD _CM EF@ ksd.uscourts.gov. Although
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the Administrative Procedure does not specifically provide for e-mailing a notice
of appeal, most filings, with the exception of proposed orders, should be e-mailed
to: ksd_clerks_kansascity@ ksd.uscourts.gov. See Administrative Procedure at 6,
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It is for reasons like this that the Administrative Procedure specifically
precludes pro se filers from submitting electronically:
Pro se filers shall file paper originals of all complaints, pleadings,
motions, affidavits, briefs, and other documents that must be signed
or that require either verification or an unsworn declaration under
any rule or statute. The Clerk’s office will scan these original
documents into an electronic file in the system, but will also
maintain the original in a paper file.
(Id. at 15.) See also D. Kan. Standing Order 03-1, Rule 5.4.2 (“A party to a
pending civil action who is not represented by an attorney may not register as a
Filing User in the Electronic Filing System unless permitted to do so by the
court.”). Thus, Le W illiamson was not authorized to submit documents by e-mail.
He apparently had no problem complying with this rule on a regular basis in the
district court.
Le W illiamson argues he should be excused from the prohibition against
electronic filing for pro se parties because he was allowed to file a pleading by e-
mail on April 18, 2005. Even if we were to accept this argument, we note Le
The Administrative Procedure also provides specific addresses for Topeka and Wichita.
The presiding judge in this case, the Honorable Kathryn H. Vratil, sits in Kansas City.
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W illiam son also unsuccessfully attempted to file a pleading on M ay 27, 2005, to
the same incorrect e-mail address. That pleading was never filed. Instead, the
district court apparently sent Le W illiamson a reply e-mail indicating the e-mail
pleading should have been filed by counsel. Thus, he was on notice that filings
sent to the particular e-mail address would not be filed and that a pro se party
cannot electronically file.
In any event, this Court is not empow ered to extend the time to file a notice
of appeal. F ED . R. A PP . P. 26(b)(1). That power lies with the district court under
the narrow terms set out in Rule 4(a)(5). Alva, 469 F.3d at 951, n.2. Le
W illiamson made no attempt to avail himself of that exclusive safety valve.
D ISM ISSED .
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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