991 F2d 791 Smith v. Norfolk Southern Corporation

991 F.2d 791

B. J. SMITH, Plaintiff-Appellant,

No. 92-1759.

United States Court of Appeals,
Fourth Circuit.

Submitted: August 21, 1992
Decided: April 5, 1993

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Southern District of West Virginia, at Bluefield. Elizabeth V. Hallanan, District Judge. (CA-89-210)

B. J. Smith, Appellant Pro Se.

William Clemens Beatty, Huddleston, Bolen, Beatty, Porter & Copen, Huntington, West Virginia, for Appellee.



Before WIDENER, HALL, and PHILLIPS, Circuit Judges.



B. J. Smith noted this appeal outside the thirty-day appeal period established by Fed. R. App. P. 4(a)(1), and failed to move for an extension of the appeal period within the additional thirty-day period provided by Fed. R. App. P. 4(a)(5). The time periods established by Fed. R. App. P. 4 are "mandatory and jurisdictional." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)). Appellee has moved to dismiss the appeal. Appellant's failure to note a timely appeal or obtain an extension of the appeal period deprives this Court of jurisdiction to consider this case. We therefore grant Appellee's motion and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.