Rosette, Inc., Plaintiff-appellant, v. Leo Edward Bergschneider, Defendant-appellee, 986 F.2d 1429 (10th Cir. 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.