UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1300
TIMOTHY BRYAN LARRIMORE,
Plaintiff -Appellant,
v.
ELI LILLY AND COMPANY,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
District Judge. (7:05-cv-00216-D)
Submitted: July 18, 2008 Decided: August 5, 2008
Before MICHAEL and MOTZ, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Dismissed in part; vacated and remanded in part by unpublished per
curiam opinion.
Timothy Bryan Larrimore, Appellant Pro Se. Henry Little Kitchin,
Jr., HELMS, MULLIS & WICKER, Wilmington, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timothy Larrimore appeals from the district court’s
orders dismissing his complaint against Eli Lilly & Co., for
failure to state a claim upon which relief could be granted, and
imposing sanctions and a prefiling injunction. To the extent that
Larrimore challenges the dismissal order, we dismiss the appeal for
lack of jurisdiction because the notice of appeal was not timely
filed.
Parties are accorded thirty days after the entry of the
district court’s final judgment or order to note an appeal, Fed. R.
App. P. 4(a)(1)(A), unless the district court extends the appeal
period under Fed. R. App. P. 4(a)(5), or reopens the appeal period
under Fed. R. App. P. 4(a)(6). This appeal period is “mandatory
and jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S.
257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220,
229 (1960)).
The district court’s order was entered on the docket on
March 27, 2006. The notice of appeal was filed on March 10, 2008.
Because Larrimore failed to file a timely notice of appeal or to
obtain an extension or reopening of the appeal period, we dismiss
the appeal in part as to the underlying dismissal order.
Larrimore’s notice of appeal was timely, however, as to
the district court’s order imposing sanctions and a prefiling
injunction. We review the imposition of a prefiling injunction for
-2-
abuse of discretion. Cromer v. Kraft Foods N. Am., Inc., 390 F.3d
812, 817 (4th Cir. 2004). Federal courts may issue prefiling
injunctions when vexatious conduct hinders the court from
fulfilling its constitutional duty. Id.; Procup v. Strickland, 792
F.2d 1069, 1073-74 (11th Cir. 1986) (en banc). Before enjoining
the filing of further actions, however, the district court must
afford the litigant notice and an opportunity to be heard. Cromer,
390 F.3d at 819; In re Oliver, 682 F.2d 443, 446 (3d Cir. 1982).
Here, the district court sua sponte issued the injunction. Because
the court imposed the injunction without affording Larrimore an
opportunity to be heard, we vacate the order and remand for further
proceedings. See Cromer, 390 F.3d at 819.
In conclusion, we dismiss the appeal as untimely as to
the order dismissing Larrimore’s complaint against Eli Lilly, and
vacate the order imposing sanctions and a prefiling injunction and
remand for further proceedings. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
DISMISSED IN PART;
VACATED AND REMANDED IN PART
-3-