Hylan B. Stoller, Estate of Deceased Intestate and Hisheirs, Lillian Stoller, Jean Stoller Merzon, Jack Stoller,barbara Stoller Zeien, Pamela Stoller Davis and Jason Artstoller, Plaintiffs-appellants, v. Ford Motor Company and Mercedes-benz of North America, Inc.,defendants-appellees, 889 F.2d 1098 (Fed. Cir. 1989)
Annotate this CaseON MOTION
Before FRIEDMAN, Circuit Judge.
ORDER
Hylan B. Stoller, et al. (Stoller) moves for leave to file his brief out of time.
On September 19, 1989, the court denied Stoller's earlier motion for an extension of time to file his brief and ordered Stoller to file his brief no later than September 21.* On September 21, the court received the instant motion requesting, unbelievably, more time to file the brief than was sought in the earlier motion that was denied. Stoller mentions that he was sent the May 1988 Rules of Practice rather than the May 1989 Rules of Practice. However, the provisions pertinent here are present in the 1988 rules. See the 1988 Rules of Practice, Fed. Cir. R. 26 and Practice Note ("a motion to enlarge the time ... must be made at least 7 days before the date sought to be extended"); (the movant must show "good cause"); (motion must be accompanied by an affidavit).
Accordingly,
IT IS ORDERED THAT:
(1) Stoller's motion for leave to file his brief out of time is denied.
(2) Stoller's brief not having been received by September 21, as previously ordered, the Clerk is directed to dismiss the case for failure to prosecute.
Stoller's brief was due September 8. On September 8, the court received Stoller's earlier motion requesting a 17-day extension of time. The motion was not accompanied by an affidavit, as required, was not filed seven days before the brief was due, as required, and did not give a single reason for the requested extension
Counsel was called on the afternoon of September 18 and informed that the brief was due by 4:30 p.m. on September 21.
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