Viktor Khalimsky v. Liberty Mutual Fire Ins , 364 F. App'x 158 ( 2010 )

Case: 09-30560 Document: 00511024540 Page: 1 Date Filed: 02/10/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 10, 2010
No. 09-30560 Charles R. Fulbruge III
Clerk
VIKTOR KHALIMSKY; FAINA LUSHTAK,
Plaintiffs - Appellants
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY,
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CV-8959
Before KING, JOLLY, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiffs–Appellants appeal the district court’s order entered April 13,
2009, granting summary judgment in favor of Defendant–Appellee on the
Appellants’ medical expenses and loss of income claims. The parties brought a
joint motion for leave to file an interlocutory appeal and a joint motion to stay
trial pending appeal. On June 18, 2009, the district court stayed proceedings
and granted the motion to certify the summary judgment order as interlocutory.
Appellants filed their notice of appeal on June 26, 2009.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-30560 Document: 00511024540 Page: 2 Date Filed: 02/10/2010
No. 09-30560
However, Appellants did not file the requisite petition for permission to
appeal within ten days after the § 1292(b) order was filed in the district court,
and Appellants still have not filed such a petition. 28 U.S.C. § 1292(b) (“The
Court of Appeals which would have jurisdiction of an appeal of such action may
thereupon, in its discretion, permit an appeal to be taken from such order, if
application is made to it within ten days after the entry of the order[.]”); F ED. R.
A PP. P. 5(a)(1) (“To request permission to appeal when an appeal is within the
court of appeals’ discretion, a party must file a petition for permission to
appeal.”). “As a court of limited jurisdiction, we must note an absence of
jurisdiction, even if not urged by the parties.” Aucoin v. Matador Servs., Inc.,
749 F.2d 1180, 1181 (5th Cir. 1985). “Specifically, in the absence of a timely
request for permissive appeal under F ED. R. A PP. P. 5(a), we lack jurisdiction to
consider granting a discretionary appeal.” Id. “ The petition [for appeal under
Rule 5(a)] is an important complement to a procedure designed to answer the
question of whether an immediate appeal will materially advance the ultimate
termination of the litigation.” Id.Here, the notice of appeal filed in the district court is not an adequate
request under Rule 5(a) because it does not contain a statement of reasons why
the court should allow the appeal, and it “does not timely inform the appellate
court in a manner which allows it promptly to respond.” Id. Therefore, we
DISMISS this appeal for lack of appellate jurisdiction. Id.DISMISSED.
2