Alcatel Internetworking, Inc. v. Rates Technology, Inc. ( 2005 )

BRYSON, Circuit Judge.

ORDER

Alcatel Internetworking, Inc. moves to dismiss Gerald J. Weinberger’s appeal as untimely. Weinberger opposes. Alcatel replies.

On September 13, 2004 Weinberger filed a notice of appeal seeking review of an order of the United States District Court for the Central District of California entered on the docket sheet 38 days earlier, on August 11, 2004, in Alcatel Internetworking, Inc. v. Rates Technology, Inc., No. 03-CV-09449.

An appeal from a decision of a district court must be filed within 30 days of entry of the order appealed from. See Fed. R.App. P. 4(a)(1)(A). In this case, the notice of appeal was due no later than September 10, 2004.

Weinberger argues that his appeal is timely because the district court did not “enter” the order on August 11, 2004. Weinberger contends that the order itself is not marked “entered” as he claims is the district court’s usual practice and thus the order was never entered. We disagree. Pursuant to Fed. R.App. P. 4(a)(7)(A), an order is entered when it is noted as “entered” in the civil docket of the court. The district court’s docket sheet reflects that the order was entered on August 11, 2004. Because Weinberger’s notice of appeal was filed 33 days after entry of the order appealed from, his appeal is untimely and must be dismissed.

Accordingly,

IT IS ORDERED THAT:

(1) Alcatel’s motion to dismiss is granted.

(2) Each side shall bear its own costs.