434 F2d 65 Dyotherm Corporation v. Turbo Machine Company

434 F.2d 65

DYOTHERM CORPORATION, Appellant,
v.
TURBO MACHINE COMPANY.

No. 18823.

United States Court of Appeals, Third Circuit.

Argued Oct. 27, 1970.
Decided Nov. 24, 1970.

Norman N. Schiff, Newark, N.J., for appellant.

Robert B. Frailey, Paul & Paul, Philadelphia, Pa. (Henry N. Paul, Jr., Philadelphia, Pa., on the brief), for appellee.

Before McLAUGHLIN, SEITZ and ALDISERT, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

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1

Plaintiff appeals an order of the district court, 48 F.R.D. 380, dismissing its complaint for lack of prosecution.

2

Defendant moves to dismiss the appeal on the ground that it is untimely. The district court's order was entered on December 29, 1969. No notice of appeal was filed within 30 days thereafter. However, within the succeeding 30 days plaintiff filed what amounted to a motion for an extension of time to file a notice of appeal. It alleged excusable neglect. On February 25, 1970, the district court extended the time to file a notice of appeal until March 6, 1970. To the extent the extension exceeded 30 days, i.e., beyond February 27, 1970, it was a nullity. F.R.App.P. 26(b). No formal notice of appeal was filed by February 27, 1970. The appeal must therefore be dismissed unless, as plaintiff contends, its application for an extension of time for filing a notice of appeal can itself be considered such a notice. We think it cannot. After all, the extension merely kept plaintiff's options open. It gave notice of its intent to appeal when it filed its untimely notice on March 4, 1970.

3

The appeal from the order of the district court will be dismissed.