Jay A. Ochanpaugh v. Penny Albright

206 F. App'x 627

• Court: Court of Appeals for the Eighth Circuit
• Decided: November 30, 2006
• Docket: 05-4284
• Status: Unpublished

Opinion

PER CURIAM.

Jay and Caralee Ochanpaugh (plaintiffs) appeal from the district court’s 1 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 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’ post-judgment 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 Sand ers 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).

1 . The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa.