Hillip A. Peavy, Plaintiff-appellant, v. Shoney's Incorporated, and Raymond A. Smith, Defendants-appellees, 956 F.2d 278 (10th Cir. 1992)

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US Court of Appeals for the Tenth Circuit - 956 F.2d 278 (10th Cir. 1992) March 5, 1992

Before SEYMOUR and STEPHEN H. ANDERSON, Circuit Judges, and SAM,*  District Judge.


DAVID SAM, District Judge, Sitting by Designation.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff-appellant Phillip A. Peavy appeals from the district court's denial of his Motion To Set Aside Journal Entry. That order was entered on the district court docket on June 10, 1991. Mr. Peavy's Notice of Appeal was filed on August 12, 1991. Fed. R. App. P. 4(a) (1) requires that notices of appeal in civil cases be filed within thirty days after entry of the order or judgment being appealed. Compliance with this rule is "mandatory and jurisdictional." Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978). Mr. Peavy's notice was filed some sixty-three days after the district court entered its order. As a consequence, it is untimely, and this appeal must be dismissed.

Accordingly, Appellant's Motion To Include Exhibits In Addendum, Motion To Certify Questions of State Law, and Motion to Take Judicial Notice of Proceeding are DENIED. Appellee's Motion to Dismiss Appeal is GRANTED.


Honorable David Sam, District Judge, United States District Court for the District of Utah, 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