IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30522
Summary Calendar
MARY EVANS and GLEN EVANS,
Plaintiffs-Appellants,
versus
WAL-MART STORES, INC.,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 00-852-D-3
--------------------
January 22, 2003
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
In this matter, the presiding magistrate judge entered a
final judgment dismissing all of appellants’ claims on summary
judgment. Seventeen days after the final judgment was entered,
appellants mailed a “Motion for Review” and an accompanying legal
memorandum to the Louisiana Fifth Circuit Court of Appeal. A
notice of appeal was not filed with the United States District
Court for the Western District of Louisiana at that time,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-30522
-2-
although the presiding magistrate judge was sent a copy of the
Motion for Review. It is obvious that the filing of the Motion
for Review in the Louisiana state court does not constitute a
filing of a notice of appeal.
After the period for filing a notice of appeal had expired,
pursuant to Rules 3, 4, Fed. R. App. P., appellants filed a
motion to extend or reopen the time for filing a notice of appeal
with the federal district court. This was the first filing they
made in the district court following the magistrate judge’s final
judgment. The magistrate judge, unconvinced by appellants’ claim
of “excusable neglect,” denied the motion as well as a subsequent
motion for reconsideration. Appellants then filed a notice of
appeal from these rulings.
On appeal, appellants do not set out how or why the
magistrate judge abused its discretion in denying the motion to
extend time to file notice to appeal, notwithstanding that it is
the only issue properly before us as no timely notice of appeal
was filed with respect to the summary judgment granted by the
magistrate judge. Rather, appellants attempt to argue the merits
of the summary judgment motion. Appellants have failed to show
that the magistrate judge abused its discretion in denying an
extension of time to file the notice of appeal.
Indeed, our review of the record clearly shows that the
magistrate judge was correct in its ruling. Thus, we have no
jurisdiction to review the merits of the summary judgment issued
No. 02-30522
-3-
by the magistrate judge inasmuch as there was no timely notice of
appeal filed with the clerk of the district court with respect to
such judgment. We therefore find appellants’ arguments devoid of
merit.
The orders properly before us on appeal are AFFIRMED and we
have no jurisdiction to review the magistrate judge’s decision
with respect to summary judgment.