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Lampert v. United States

filed*fn*: December 23, 1991.

ERNEST P. LAMPERT; DELPHINE LAMPERT, PLAINTIFFS/APPELLANTS,
v.
UNITED STATES OF AMERICA, DEFENDANT/APPELLEE.



On Appeal from the United States District Court for the Northern District of California. Robert F. Peckham, District Judge, Presiding. D.C. No. CV-85-07314-REP

Before: Goodwin, Skopil, and Noonan, Circuit Judges.

MEMORANDUM

The United States moves to dismiss this appeal for lack of appellate jurisdiction based on the Lamperts' failure to file a timely notice of appeal. A timely notice of appeal is mandatory and jurisdictional. Munden v. Ultra-Alaska Assocs., 849 F.2d 383, 386 (9th Cir. 1988). Federal Rule of Appellate Procedure 4(a)(1) provides that in a civil case where the United States is a party, an effective notice of appeal must be filed with the clerk of the district court within sixty days of entry of the order appealed from. The district court may extend that time period only if a party (1) moves for an extension of time no later than thirty days after the expiration of the original appeal period; and (2) makes a sufficient showing of excusable neglect for not meeting the original deadline. Alaska Limestone Corp. v. Hodel, 799 F.2d 1409, 1411 (9th Cir. 1986).

The Lamperts cannot meet the first requirement because they failed to seek an extension of time in the district court. A party's "failure to make a timely motion to file a notice of appeal out of time prohibits either the district court or this court from reviving its right to appeal." Id. In such instances, we "can neither grant an extension nor remand to the district court for a determination of whether an extension was warranted." In re Hoag Ranches, 846 F.2d 1225, 1229 (9th Cir. 1988).

DISMISSED.

Disposition

DISMISS ...


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