Diffenderfer v. Homer

¶4JOHN R. BROWN, Chief Judge:

¶5Appellant Florence Diffenderfer, plaintiff below, sought (1) the, convening of a three-judge court to declare a Florida statute unconstitutional, (2) various injunctions against the different defendants, and (3) other related relief. The basis of her suit is a challenge to the constitutionality of the Florida statutes requiring candidates for political office to pay filing fees and assessments for the candidates’ political parties.1 On con*1345sideration of the merits of her claim, the District Court dismissed the complaint for failure to state a claim upon which relief could be granted, and she now appeals from that decision.

¶6This Court, having carefully studied the briefs and record in the case, has determined that this appeal is appropriate for disposition without oral argument. Accordingly, pursuant to new Rule 18 of the Rules of the United States Court of Appeals for the Fifth Circuit, we have directed the Clerk of the Court to put this case on the summary calendar and to so notify the parties in writing.2 Our decision does not reach the substantive merits of plaintiff’s original claim, for we have concluded that the appeal must be dismissed as untimely filed.3

¶7The essential facts may be briefly stated. On April 9, 1968, appellant filed her complaint in the District Court for the Southern District of Florida on her own behalf and on behalf of all those similarly situated.4 Named as defendants were the County Manager of Dade County, Florida, the Dade County Supervisor of Registration, and the Florida Secretary of State. Subsequent to *1346the filing of the original complaint, appellant added a motion for temporary-injunction and other relief.

¶8On May 3, 1968, before any responses had been filed by defendants, the District Court held a hearing on the motion for temporary injunction. At that time the Court entered the final order denying the application for a three-judge court, denying the motion for temporary injunction, and dismissing the complaint, with prejudice, for failure to state a claim upon which relief could be granted. Notice of appeal was therefore required not later than June 2, 1968. 5 On June 28, 1968, fifty-six days after the entry of the final order on May 3, a motion to extend the time for taking an appeal was filed with the lower court. On the same day, that Court undertook by an ex parte order to extend the appeal period thirty days from the expiration of the original time. This action would give appellant until July 2, 1968, to file an appeal, and on that date the notice of appeal was filed.

¶9By the plain words of the Rules, timely filing of a notice of appeal is essential to the jurisdiction of an appellate court. E.g., Knowles v. United States, 5 Cir., 1958, 260 F.2d 852. We assume that in the case before us the question of timeliness is governed by former F.R.Civ.P. 73(a).6 At the time the motion for extension in this case was granted, Rule 73(a) provided, inter alia, that the District Court could extend the appeal time for thirty days upon a showing of “excusable neglect.” Although the term “excusable neglect” had formerly been limited to a party’s failure to learn of a judgment, apparently its meaning at the time of this case was slightly broader. See the Advisory Committee’s Note to amended Rule 73(a) (2), 39 F.R.D. 69, 130 ; 3A Barron & Holtzoff, Federal Practice & Procedure § 1553 (Supp.1968, Wright ed.). Whatever doubts we might have whether the excuse offered by appellant’s attorney here — that he mistakenly “believed the time for taking appeal in [the federal court] was the same time as that of the State of Florida Rules of Procedure” —could constitute “excusable neglect,” we do not reach it. This is because on. this critical finding the judge entered the order ex parte without affording a hearing to the adversary who at that point in time had the law’s precious nine points in the form of an unreviewable judgment.

¶10Of course the District Court was empowered under Rule 73(a) to consider a motion for extension whether that motion was first filed before or after the expiration of the ordinary appeal time. Harris Truck Lines v. Cherry Meat Packers, 1962, 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261. But for quite obvious reasons, after the expiration of the ordinary appeal time, the District Court may not grant an extension ex parte Rather, it must give notice and opportunity to be heard to all adverse parties. Winchell v. Lortscher, 8 Cir., 1967, 377 F.2d 247. See also Plant Economy, Inc. v. Mirror Insulation Co., 3 Cir., 1962, 308 F.2d 275 ; Cohen v. Plateau Natural Gas Co., 10 Cir., 1962, 303 F.2d 273, cert. denied, 1962, 371 U.S. 825, 83 S.Ct. 45, 9 L.Ed.2d 64 ; North Umberland Mining Co. v. Stand*1347ard Accident Ins. Co., 9 Cir., 1952, 193 F.2d 951. This is a sound7 rule which was not heeded. The appeal must therefore be dismissed as untimely.

¶11Appeal dismissed.

¶12APPENDIX

¶13RULE 17

¶14DOCKET CONTROL

¶15In the interest of docket control, the chief judge may from time to time, in his discretion, appoint a panel or panels to review pending cases for appropriate assignment or disposition under Rules 18, 19 or 20 or any other rule of this court.

¶16RULE 18

¶17SUMMARY CALENDAR

¶18(a) Whenever the court, sua sponte or on suggestion of a party, concludes that a case is of such character as not to justify oral argument, the case may be placed on the summary calendar.

¶19(b) A separate summary calendar will be maintained for those cases to be considered without oral argument. Cases will be placed on the summary calendar by the clerk, pursuant to directions from the court.

¶20(c) Notice in writing shall be given to the parties or their counsel of the transfer of the ease to the summary calendar.

¶21RULE 19

¶22MOTION TO DISMISS OR AFFIRM

¶23Within fifteen days after the appeal has been docketed in this court, the ap-pellee may file a motion to dismiss or a motion to affirm. Where appropriate, a motion to affirm may be united in the alternative with a motion to dismiss. The fifteen day provision may be waived by the court on proper showing of reasonable excuse for delay in filing a motion to dismiss or affirm, upon such terms and conditions as the court may prescribe, or such waiver may be granted sua sponte on the part of the court.

¶24(a) The court will receive a motion to dismiss any appeal on the ground that the appeal is not within the jurisdiction of this court.

¶25(b) The court will receive a motion to affirm the judgment sought to be reviewed on the ground that it is manifest that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument.

¶26The motion to dismiss or affirm shall be filed with the clerk in conformity with Rule 27 of the Federal Rules of Appellate Procedure.

¶27The appellant shall have ten days from the date of receipt of the motion to dismiss or affirm within which to file a response opposing the motion. Such response may be typewritten and four copies, with proof of service, shall be *1348filed with the clerk. Upon the filing of such response, or the expiration of the time allowed therefor, or express waiver of the right to file, the record on appeal, motion and response shall be distributed by the clerk to the court for its consideration.

¶28After consideration of the papers distributed pursuant to the foregoing paragraph the court will enter an appropriate order.

¶29The time for filing briefs pursuant to Rule 31 of the Federal Rules of Appellate Procedure shall not be tolled or extended by the filing of a motion to dismiss or affirm.

¶30RULE 20

¶31FRIVOLOUS AND UNMERI-TORIOUS APPEALS

¶32If upon the hearing of any interlocutory motion or as a result of a review under Rule 17, it shall appear to the court that the appeal is frivolous and entirely without merit, the appeal will be dismissed without the notice contemplated in Rules 18 and 19.