Monday, July 13, 2009

Mailing Days Do Not Extend Time to Appeal in the Eleventh Circuit

In Howard Gregory Cordell v. Pacific Indemnity Co. (08-15281), the Eleventh Circuit rejected the appellants contention that the "mailing days" provided by the Federal Rules extend the deadline to file a notice of appeal.

On a procedural note, the court addressed a decision by a motions panel that the appellee argued made moot the entire appeal. The Eleventh Circuit stated: “[a] ruling on a motion or other interlocutory matter, whether entered by a single judge or a panel, is not binding upon the panel to which the appeal is assigned on merits, and the merits panel may alter, amend, or vacate it.”
As to the deadline to file the notice of appeal:

We have held that “[t]he 30-day requirement of Fed.R.App.P. 4(a) is not affected by Fed. R. Civ. P. 6(e); since the appeal time starts from the entry of the judgment and not from service of the notice, Rule 6(e) does not apply so as to enlarge the time allowed for filing the notice of appeal.” Lashley v. Ford Motor Co., 518 F.2d 749, 750 (5th Cir. 1975) (per curiam). Next, Federal Rule of Appellate Procedure 26 provides, in pertinent part, that “[w]hen a party is required or permitted to act within a prescribed period after a paper is served on that party, 3 calendar days are added to the prescribed period unless the paper is delivered on the date of service stated in the proof of service.” FED. R. APP. P. 26(c). However again, we have held that because “the court of appeals has no jurisdiction over a case until a notice of appeal is timely filed, Fed.R.App.P. 26(c) has no application to the 30-day requirement.”

Finally, the court rejected the pro se appellants argument that they demonstrated excusable neglect or good cause to allow the untimely filing.


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