Unpublished Dispositionlailing Williams, Plaintiff-appellant (90-6005)plaintiff-appellee (90-6148), v. Fashion Shops of Kentucky, Inc., Defendant-appellee(90-6005) Defendant-appellant. (90-6148), 924 F.2d 1060 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 924 F.2d 1060 (6th Cir. 1991)

Feb. 4, 1991


Before BOYCE F. MARTIN, Jr. and BOGGS, Circuit Judges, and ENGEL, Senior Circuit Judge.


ORDER

The plaintiff appeals judgment for defendant in this action for racial discrimination in employment. (Case No. 6005.) The plaintiff's notice of appeal was filed following a district court order extending the time for appeal. The defendant has moved for dismissal of the appeal on grounds of untimeliness. Further, the defendant has appealed the district court's order granting an extension of time. (Case No. 90-6148.) The plaintiff has filed a response opposing dismissal.

The district court's final judgment was entered on June 19, 1990. Pursuant to Fed. R. App. P. 4(a) (1), the plaintiff had thirty days, i.e., until July 19, 1990, in which to file a notice of appeal. On July 25, 1990, the plaintiff filed a motion for an extension of time and tendered a notice of appeal. Subsequently, the district court granted the motion to extend.

This Court's jurisdiction may be raised via a motion to dismiss. Baker v. Raulie, 879 F.2d 1396, 1397-98 (6th Cir. 1989). When as in this case, a motion to extend is filed after expiration of the thirty day appeal period, the time may be extended only on a showing of excusable neglect. Marsh v. Richardson, 873 F.2d 129 (6th Cir. 1989). The standard of review of an order granting an extension is abuse of discretion. Marsh, 873 F.2d at 130.

Leave to file a late notice of appeal on grounds of excusable neglect is to be granted only in unique or extraordinary circumstances. Id. In the instant case, counsel's miscalculation of the time for appeal and other responsibilities during that period does not rise to the level of excusable neglect. See Marsh, 873 F.2d at 131; Baker, 879 F.2d at 1399. The district court provided no findings or rationale for granting the motion to extend. In the absence of sufficient grounds for an extension of time, however, a remand for findings would serve no useful purpose. Baker, 879 F.2d at 1399.

It is therefore ORDERED that the district court's order extending the time for appeal is reversed, and the defendant's motion to dismiss is granted. It is further ORDERED that defendant's appeal is dismissed as moot. Rule 9(b) (1), Local Rules of the Sixth Circuit.