Shanklin Corp. v. American Packaging Machinery, Inc.

208 F. App'x 817

Opinion

LINN, Circuit Judge.

ORDER

Shanklin Corporation moves to dismiss American Packaging Machinery, Inc.’s (APM) appeal, 2006-1488, for failure to prosecute. APM opposes. APM moves, out of time, for an extension of time until September 25, 2006 to file its brief.

On June 7, 2006, this court docketed APM’s appeal. The docketing package informed APM that its brief due date is governed by Fed. Cir. R. 31. Fed. Cir. R. 31(a)(1)(A) states that “the appellant must serve and file its initial brief within 60 days after docketing.” Thus, APM’s brief was due on August 7, 2006. No brief was filed.

APM argues that its brief is not overdue because Fed. R.App. P. 31(a)(1) provides that an appellant’s brief must be filed “within 40 days after the record is filed.” APM requests a brief due date 40 days after the record is “available” to APM. We note that the quoted provision of Fed. R.App. P. 31(a)(1) is stricken in this court’s rules of practice and that Fed. Cir. R. 31 governs the brief due date. See also Fed. Cir. R. 11(a)(1)(A) (the district court must retain the record).

The docketing statement that was sent to APM clearly states that Fed. Cir. R. 31 governs the brief due date. APM has not demonstrated any reason to suggest that dismissal of the appeal for failure to prosecute is not appropriate. See Julien v. Zeringue, 864 F.2d 1572, 1574 (Fed.Cir. 1989) (giving bar of the court notice that “failure to comply with this court’s rules, including the requirements for preparing and filing briefs ... may result in dismissal of an appeal for failure to prosecute.”).

Accordingly,

IT IS ORDERED THAT:

(1) Shanklin’s motion to dismiss 2006-1438 is granted. Shanklin’s brief in 2006-1509 is due within 40 days of the date of filing of this order.

(2) APM’s motion is denied as moot.

(3) The revised official captions are reflected above.