Sprint Communications Co. v. Ucon Telecommunications Network, Inc. , 138 F. App'x 607 ( 2005 )


Menu:
  •                                                       United States Court of Appeals
    Fifth Circuit
    F I L E D
    UNITED STATES COURT OF APPEALS
    FIFTH CIRCUIT                     May 23, 2005
    Charles R. Fulbruge III
    Clerk
    04-20714
    Summary Calendar
    SPRINT COMMUNICATIONS COMPANY LP,
    Plaintiff-Counter Defendant-Appellee,
    versus
    UCON TELECOMMUNICATIONS NETWORK, INC.,
    Defendant-Counter Claimant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    4:02-CV-125
    Before JONES, BARKSDALE, and PRADO, Circuit Judges.
    PER CURIAM:*
    Ucon Telecommunications Network, Inc., appeals, inter alia,
    denial of its motion to extend time to file a notice of appeal.
    The motion was required because Ucon had not appealed from an
    adverse summary judgment within 30 days as required by Federal Rule
    of Appellate Procedure 4(a). It goes without saying that this time
    limitation is “mandatory and jurisdictional”.        Huff v. Int’l
    Longshoremen’s Assoc., Local #24, 
    799 F.2d 1087
    , 1089 (5th Cir.
    1986) (citation omitted).
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    On 8 July 2004, 41 days after summary judgment was awarded
    Sprint, Ucon filed a motion to withdraw as attorney and to extend
    the time to file the notice of appeal.                For the latter, Ucon
    claimed it satisfied Federal Rule of Appellate Procedure 4(a)(5),
    which provides, inter alia, that a district court may extend the
    time for filing a notice of appeal upon a showing of “excusable
    neglect or good cause”.          FED. R. APP. P. 4(a)(5).      In the motion,
    Ucon’s Milwaukee-based counsel asserted:             a good faith effort had
    been made to replace withdrawing Texas counsel; and an extension of
    time to appeal would not prejudice Sprint because the summary
    judgment motion had been pending for over a year.            On 15 July 2004,
    the district court granted the motion to withdraw as attorney but,
    without explanation, denied the motion to extend time.
    Concerning that denial, Ucon timely filed a notice of appeal
    on   16   August   2004.   The    notice    of   appeal   addressed    both   the
    extension-motion-denial and the summary judgment awarded Sprint.
    On 13 October 2004, Sprint moved in our court to dismiss for
    lack of jurisdiction; Ucon did not respond.                 By order dated 9
    November 2004, that motion was carried with the case.
    Subsequently, Ucon filed its opening brief (18 January 2005).
    It is undisputed that Ucon’s appeal from the summary judgment was
    not timely.    Therefore, at present, our jurisdiction is limited to
    the denial of Ucon’s motion to extend time to appeal.                 See United
    States v. Clark, 
    51 F.3d 42
    , 43 (5th Cir. 1995).             In the requisite
    2
    jurisdictional statement in its opening brief, however, Ucon failed
    to address, or even acknowledge, the extension-motion- denial and
    instead claimed jurisdiction over the appeal from the summary
    judgment was proper under 
    28 U.S.C. § 1291
    .            And, despite having
    acknowledged the extension-of-time-to-appeal issue in its notice of
    appeal, Ucon’s brief addressed only its claims regarding summary
    judgment.
    After   Sprint   addressed      the    jurisdictional   issue    in   its
    response brief, Ucon finally addressed the extension-motion-denial
    in its reply brief.     (Ucon claimed that, based on conversations
    with our clerk’s office, it believed it should not address this
    issue in its opening brief, despite its having failed to respond to
    Sprint’s motion to dismiss.)         Obviously, because Ucon listed the
    extension-motion-denial in its notice of appeal, it should have
    addressed the issue in its opening brief, which was filed after
    Sprint’s motion to dismiss was carried with the case.                For that
    reason alone, we could dismiss.            Moreover, the conduct by Ucon’s
    counsel borders on being sanctionable; this is especially true for
    the misleading jurisdictional statement in Ucon’s opening brief.
    In the alternative, because Ucon did not demonstrate good
    cause or excusable neglect, the district court did not abuse its
    discretion   in   denying   Ucon’s    extension    motion.     See    Midwest
    Employers Cas. Co. v. Williams, 
    161 F.3d 877
    , 882 (5th Cir. 1998)
    (applying abuse of discretion standard to district court decision
    3
    to extend time to appeal).      For example, in Pioneer Inv. Servs. Co.
    v. Brunswick Assocs. Ltd. Partnership, the Supreme Court determined
    a   lawyer’s   failure    to   meet   a       bankruptcy    court   deadline   was
    excusable neglect because the deadline notice provided by the
    bankruptcy court was inadequate.              
    507 U.S. 380
    , 395-97 (1993); see
    also Halicki v. Louisiana Casino Cruises, Inc., 
    151 F.3d 465
    , 469
    (5th Cir. 1998) (adopting the Pioneer standard for Federal Rule of
    Appellate Procedure 4(a)(5)), cert. denied, 
    526 U.S. 1005
     (1999).
    In its reply brief, Ucon primarily claims its failure to
    timely   appeal   was    due   to   its       inability    to   obtain   qualified
    appellate counsel. Needless to say, this is not a sufficient basis
    for the requisite good cause or excusable neglect; and Ucon has
    cited no case holding that it is.
    Because Ucon’s notice of appeal was not timely as to any other
    issues, we do not have jurisdiction to review them.
    DISMISSED
    4