B & S Plastics, Inc., Plaintiff-appellant, v. Hydro Air Industries, Inc., Defendant-appellee, 106 F.3d 422 (Fed. Cir. 1996)

ORDER

This court, sua sponte, directed B & S Plastics, Inc. and Hydro Air Industries, Inc. to respond to the issue of whether B & S's appeal was timely filed. B & S and Hydro have responded.

On October 10, 1995, the district court entered summary judgment for Hydro. On November 9, 1995, Hydro filed a "notice of motion and motion for attorney fees." B & S moved for an extension of time to file a notice of appeal on December 5, 1995. On December 11, 1995, B & S filed a notice of appeal. Thereafter, the district court granted B & S's motion for an extension of time to appeal, stating that B & S's appeal time would run from the date the district court rules on Hydro's motion for attorney fees. Hydro's motion for attorney fees is still pending at the district court.

B & S contends that the filing of Hydro's motion for attorney fees tolled the time for appealing. However, the tolling concerns a future appeal; B & S does not explain why its December 11, 1995 notice of appeal is timely. In essence, B & S argues that its present appeal should not be dismissed because B & S is going to be able to appeal after the district court rules on Hydro's motion for attorney fees. Again, the two matters are not related. Because B & S did not file a notice of appeal within 30 days of the October 10, 1995 order, this court is without jurisdiction over this appeal.

Accordingly,

IT IS ORDERED THAT:

(1) B & S's appeal no. 96-1158 is dismissed for lack of jurisdiction.

(2) Each side shall bear their own costs.