986 F.2d 1429
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
ROSETTE, INC., Plaintiff-Appellant,
v.
Leo Edward BERGSCHNEIDER, Defendant-Appellee.
No. 91-2197, 92-2115.
United States Court of Appeals, Tenth Circuit.
Feb. 1, 1993.
Before LOGAN and JOHN P. MOORE, Circuit Judges, and LUNGSTRUM,* District Judge.
JOHN W. LUNGSTRUM, District Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of these appeals. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cases are therefore ordered submitted without oral argument.
These appeals stem from a diversity action commenced in August 1987. The district court entered final judgment in defendant's favor on September 29, 1989. On December 8, 1989, plaintiff filed a motion for reconsideration, see Fed.R.Civ.P. 60, which the district court denied on July 17, 1991. Plaintiff, on August 19, filed an admittedly untimely notice of appeal from the denial of reconsideration. That appeal is No. 91-2197.
On August 23, plaintiff filed with the district court a motion for an extension of time to file a notice of appeal from the denial of reconsideration. After initially granting the motion, the district court ultimately denied the extension of time. In appeal No. 92-2115, plaintiff timely appeals the denial of the extension of time.
Although conceding that the first notice of appeal was untimely, see Fed.R.App.P. 4(a)(1), plaintiff argues that the untimely notice of appeal was the result of excusable neglect, entitling plaintiff to an extension of time in which to file the notice of appeal. See Fed.R.App.P. 4(a)(5). This court will not disturb the district court's decision denying the motion for an extension of time absent a clear abuse of discretion. Romero v. Peterson, 930 F.2d 1502, 1505 (10th Cir.1991). Upon consideration of the record and the parties' arguments on appeal, we conclude that the district court did not abuse its discretion. We, therefore, AFFIRM the district court's order at issue in appeal No. 92-2115 denying the motion for an extension of time to file the notice of appeal.
In light of that conclusion, the notice of appeal filed in appeal No. 91-2197 remains untimely. Because a timely notice of appeal is a jurisdictional prerequisite, see, e.g., Certain Underwriters at Lloyds of London v. Evans, 896 F.2d 1255, 1256 (10th Cir.1990), we must DISMISS appeal No. 91-2197 for lack of appellate jurisdiction.
Honorable John W. Lungstrum, District Judge, United States District Court for the District of Kansas, sitting by designation
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3
