Keasey v. Federal Express Corp.

ORDER

On December 9, 2003, the district court entered a final judgment for the defendant in this action under the Family Medical Leave Act of 1993, 29 U.S.C. § 2601 , et seq. The plaintiff filed his notice of appeal thirty-one days later, on January 9, 2004. On January 23, 2004, this court issued an order directing the plaintiff to show cause why his appeal should not be dismissed for lack of jurisdiction. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 , 108 S.Ct. 1717 , 100 L.Ed.2d 178 (1988) (“the taking of an appeal within the prescribed time is mandatory and jurisdictional”).

On February 13, 2004, the plaintiff filed a response to the show cause order, seeking an extension of time to appeal from this court. The defendant opposes the motion for an extension of time and requests that the appeal be dismissed for lack of jurisdiction. Pursuant to Fed. R.App. P. 26(b), this court lacks the authority to grant an extension of time to appeal. Although the district court may grant an extension of time to appeal, Fed. R.App. P. 4(a)(5)(A)(l) requires that a motion to extend be filed “no later than 30 days after the time prescribed by this Rule 4(a) expires.” To be timely, the plaintiff should have filed a motion for an extension of time in the district court by Monday, February 9, 2004. This time limit is strictly enforced. Beard v. Carrollton Railroad, 893 F.2d 117, 120 (6th Cir.1989) (holding that a motion for an extension of time to appeal filed 64 days after the entry of the judgment “simply came too late”). A review of the district court docket sheet indicates that the plaintiff failed to file a timely motion for an extension of time with that court.

The January 9 notice of appeal was not timely filed, and no extension of time to appeal can be granted. Therefore, the appeal is DISMISSED for lack of jurisdiction.