Segrave Aviation, Inc. v. Pratt & Whitney Canada Corp. , 232 F. App'x 321 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1870
SEGRAVE AVIATION, INCORPORATED; M&F AIR,
INCORPORATED,
Plaintiffs - Appellees,
versus
PRATT & WHITNEY CANADA CORPORATION,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard, Senior
District Judge. (4:01-cv-00161)
Submitted: May 9, 2007 Decided: July 9, 2007
Before KING, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Larry I. Moore, III, YOUNCE, MOORE & MOSELEY, LLP, Greensboro, North
Carolina, for Appellant. Edgar Wyles Johnson, Jr., Thomas J. White,
III, WHITE & ALLEN, PA, Kinston, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pratt & Whitney Canada Corporation (“PWCC”) seeks to
appeal the district court’s orders denying in part its motion for
summary judgment and denying its motion for partial reconsideration.
We dismiss the appeal from the March 30, 2005, order denying in part
the motion for summary judgment for lack of jurisdiction because the
notice of appeal was not timely filed. We also grant Segrave
Aviation, Incorporated and M & F Air, Incorporated’s (collectively
“Segrave”) motion to dismiss the appeal from the July 14, 2005,
order denying PWCC’s motion for partial reconsideration.
Parties are accorded thirty days after the entry of the
district court’s final judgment or order to note an appeal, Fed. R.
App. P. 4(a)(1)(A), unless the district court extends the appeal
period under Fed. R. App. P. 4(a)(5), or reopens the appeal period
under Fed. R. App. P. 4(a)(6). This appeal period is “mandatory and
jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264
(1978) (quoting United States v. Robinson, 361 U.S. 220, 229
(1960)).
The district court’s order was entered on the docket on
March 30, 2005. The notice of appeal was filed on July 28, 2005.
Because PWCC failed to file a timely notice of appeal or to obtain
an extension or reopening of the appeal period, we dismiss the
appeal. The district court’s order granting an extension of time
to file a Rule 59(e) motion beyond the ten-day period did not defer
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the commencement of the appeal period. See Alston v. MCI
Communications Corp., 84 F.3d 705 (4th Cir. 1996). Nor did the July
28, 2005, order denying Segrave’s motion for reconsideration by
amending the March 30 order start the appeal period anew. The
amendment did not materially alter the March 30 order.
Although the notice of appeal from the July 14, 2005,
order denying PWCC’s motion for partial reconsideration was timely,
we must dismiss the appeal for lack of jurisdiction. We may
exercise jurisdiction only over final orders, 28 U.S.C. § 1291(2000), and certain interlocutory and collateral orders, 28 U.S.C.
§ 1292 (2000); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541 (1949). The July 14 order PWCC seeks to
appeal is neither a final order nor an appealable interlocutory or
collateral order. Accordingly, we grant Segrave’s motion to dismiss
the appeal as to that order. We deny as moot that part of the
motion seeking to dismiss the appeal from the March 30 order. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
DISMISSED
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