Jay A. Ochanpaugh v. Penny Albright, No. 05-4284 (8th Cir. 2006)
Annotate this CaseCourt Description: Civil Case -jurisdiction. Appeal from dismissal of civil case was untimely as it was not filed within 60 days of judgment and post- judgment motions did not toll time for filing time for filing notice of appeal. Appeal dismissed for lack of jurisdiction.
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United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 05-4284 ___________ Jay A. Ochanpaugh; Caralee D. Ochanpaugh, Appellants, v. Penny Albright; Ida M. Jones, Appellees. * * * * * Appeal from the United States * District Court for the * Southern District of Iowa. * * [UNPUBLISHED] * ___________ Submitted: November 27, 2006 Filed: November 30, 2006 ___________ Before MURPHY, BYE, and MELLOY, Circuit Judges. ___________ PER CURIAM. Jay and Caralee Ochanpaugh (plaintiffs) appeal from the district court s1 dismissal of their civil action and the court s denial of their postjudgment motions to strike, which were filed more than ten days after the entry of judgment. Plaintiffs notice of appeal was untimely because it was not filed within sixty days after the district court entered its judgment, as required under Federal Rule of 1 The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa. Appellate Procedure 4(a)(1)(B); plaintiffs did not move for an extension of time to appeal, pursuant to Federal Rule of Appellate Procedure 4(a)(5), see Fed. R. App. P. 26(b)(1) (court may not extend time to file notice of appeal except as authorized by Rule 4); and none of plaintiffs postjudgment motions extended the time allowed to file their notice of appeal because, even if the motions were construed as Rule 59 motions, they were untimely, see Sanders v. Clemco Indus., 862 F.2d 161, 168-69 (8th Cir. 1988) (time for appeal not tolled by untimely Rule 59 motion). Accordingly, we dismiss this appeal for lack of jurisdiction. See United States v. Stute Co., 402 F.3d 820, 822 (8th Cir. 2005) (timely notice of appeal is mandatory and jurisdictional). ______________________________ -2-
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