Frank Summa v. Energy Conservation Products, Inc. , 864 F.2d 148 ( 1988 )

864 F.2d 148

Unpublished Disposition
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Frank SUMMA, Plaintiff-Appellant,
v.
ENERGY CONSERVATION PRODUCTS, INC., Defendant-Appellee.

No. 88-1403.

United States Court of Appeals, Federal Circuit.

Nov. 9, 1988.

Before BISSELL, Circuit Judge, BALDWIN, Senior Circuit Judge, and MAYER, Circuit Judge.

BISSELL, Circuit Judge.

DECISION

1

The "Memorandum Opinion and Order" of the United States District Court for the Southern District of New York, 85 Civ. 1766 (CSH) (Jan. 15, 1988), denying Frank A. Summa's motion for an order extending the time to file a notice of appeal, is affirmed.

OPINION

2

On August 10, 1987, the district court granted Energy Conservation Products, Inc.'s (ECP) motion for summary judgment and dismissed Summa's complaint. Under the Federal Rules of Appellate Procedure, a notice of appeal must be filed within 30 days after the date of entry of the judgment or within 60 days "upon a showing of excusable neglect or good cause." Fed.R.App.P. 4(a)(1), (5). The time limits imposed by Rule 4 are not merely procedural requirements waivable at the discretion of the court, but rather are "mandatory and jurisdictional" in nature. Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978). Summa failed to take any action with respect to filing an appeal until almost 90 days after the entry of judgment. No matter how excusable the neglect, the district court could not expand the 60 day time limit of Rule 4(a)(5). Accordingly, the district court properly denied Summa's motion for a time extension to file his appeal. See McCormack v. Schindler, 520 F.2d 358, 361 (2d Cir.1975) (stating that Rule 4(a)(1), (5) requires "that no appeal can be taken unless something is done within 30 days after expiration of the period prescribed by the first paragraph no matter how excusable the neglect").

COSTS and SANCTIONS

3

Under the circumstances of this case, ECP's request for sanctions against Summa for filing a meritless appeal are denied. The parties shall bear their own costs.