UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1064
WESLEY EDWARD SMITH, III,
Plaintiff – Appellant,
v.
CHARLESTON COUNTY SCHOOL DISTRICT; BARBERA DILLIGARD, Dr.;
RONALD MCWHIRT, Dr.; JOSEPH DAWSON, JR., Mr.; JOSEPH DAWSON,
III; ELIJAH RIVERS, Mr.; OWENS BUSH, Dr.; JESSICA FREEMAN,
Mrs.; JUNE MULLINS, Mrs.; NANCY MCGINNLEY, Dr.; HILARY
DOUGLAS, Dr.; NANCY COOK, Mrs.; ANDERSON W. TOWNSEND, Mr.;
ALICE MONTGOMERY, Mrs.,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cv-00715-RLW)
Submitted: March 12, 2009 Decided: March 18, 2009
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Wesley Edward Smith, III, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wesley Edward Smith, III, seeks to appeal the district
court’s order denying his Fed. R. Civ. P. 59(e) motion, which
sought reconsideration of the district court’s order dismissing
his civil action for improper venue. * We dismiss the appeal for
lack of jurisdiction because the notice of appeal was not timely
filed.
In civil cases in which the United States is not a
party, parties are accorded thirty days after the entry of the
district court’s final judgment or order to file a notice of
appeal. See Fed. R. App. P. 4(a)(1)(A). A district court may
extend the time to file a notice of appeal if a party moves for
an extension within thirty days after expiration of the original
appeal period and the party has shown excusable neglect or good
cause warranting an extension. See Fed. R. App. P. 4(a)(5)(A);
Washington v. Bumgarner, 882 F.2d 899, 900-01 (4th Cir. 1989).
A bare notice of appeal does not constitute a motion for an
extension of time, however, if “no request for additional time
is manifest.” Shah v. Hutto, 722 F.2d 1167, 1168-69 (4th Cir.
*
Although Smith did not specify whether his post-judgment
“Reply in Support of Venue Opposing Court Decision” was filed
pursuant to Fed. R. Civ. P. 59(e) or 60(b), because it was filed
within the ten-day time limit for Rule 59(e) motions, it is
treated as such. See Dove v. CODESCO, 569 F.2d 807, 809 (4th
Cir. 1978).
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1983) (en banc). The time period within which to file a notice
of appeal is “mandatory and jurisdictional.” Browder v. Dir.,
Dep’t of Corr., 434 U.S. 257, 264 (1978) (internal citations
omitted).
The district court’s order denying Smith’s motion was
entered on the docket on December 2, 2008. The notice of appeal
was filed on January 6, 2009. Smith did not move for an
extension of time nor did his notice of appeal include a request
for additional time. Because Smith failed to file a timely
notice of appeal or to obtain an extension or reopening of the
appeal period, we dismiss the appeal. 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
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