Bozarth v. Iron County Jail , 688 Utah Adv. Rep. 53 ( 2011 )

259 P.3d 1077 (2011) 2011 UT App 267

Eddie Ray BOZARTH Jr., Plaintiff and Appellant,
v.
IRON COUNTY JAIL, et al., Defendants and Appellees.

No. 20110487-CA.

Court of Appeals of Utah.

August 11, 2011.

Eddie Ray Bozarth Jr., Vernal, Appellant Pro Se.

Before Judges ORME, THORNE, and VOROS.

DECISION

PER CURIAM.

¶ 1 Eddie Ray Bozarth Jr. seeks to appeal the trial court's order dismissing his complaint for failure to prosecute. This is before the court on its own motion for summary disposition based on lack of jurisdiction due to an untimely filed notice of appeal.

¶ 2 Bozarth filed his complaint on October 12, 2010. Under rule 4 of the Utah Rules of Civil Procedure, a complaint must be served on defendants no later than 120 days after filing. See Utah R. Civ. P. 4(b)(i). Bozarth did not serve defendants within 120 days. Accordingly, the trial court dismissed his complaint for failure to prosecute pursuant to rule 4(b)(i). See id. (stating that if a complaint is not timely served, "the action shall be dismissed"). The trial court dismissed the action on March 3, 2011. Bozarth filed a document construed as a notice of appeal on May 26, 2011.

¶ 3 A notice of appeal must be filed within thirty days of the order or judgment appealed. See id. R. 4(a). The timely filing of a notice of appeal is jurisdictional. See Serrato v. Utah Transit Auth., 2000 UT App 299, ¶ 7, 13 P.3d 616. If an appeal is not timely filed, this court lacks jurisdiction and must dismiss it. See Bradbury v. Valencia, 2000 UT 50, ¶ 8, 5 P.3d 649. Bozarth's notice of appeal was not filed within thirty days after the dismissal of his complaint. Accordingly, this court lacks jurisdiction over the appeal and must dismiss it. See id.

¶ 4 Dismissed.