United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 5, 2005
Charles R. Fulbruge III
Clerk
No. 04-50961
Summary Calendar
MICROSOFT CORPORATION,
a Washington Corporation,
Plaintiff-Appellee,
versus
H. C. DISTRIBUTORS, INC.,
a Texas Corporation; KEITH MCGOUGH,
Defendants-Appellants.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:03-CV-179
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
H. C. Distributors, Inc. and Keith McGough (“appellants”)
seek to appeal the district court’s entry of default judgment
against them in this 15 U.S.C. § 1121 trademark-infringement,
deceptive-trade-practices, and unfair-competition lawsuit filed
by Microsoft Corp. (“Microsoft”). Microsoft moves to dismiss the
appeal for lack of appellate jurisdiction. The appellants cross-
move for an extension of time to file their notice of appeal.
*
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this opinion should not be published and is not precedent except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. 04-50961
-2-
A timely notice of appeal is a prerequisite to the exercise
of jurisdiction by this court. United States v. Carr, 979 F.2d
51, 55 (5th Cir. 1992). It is undisputed that the appellants did
not file their notice of appeal within 30 days of the entry of
default judgment, and their FED. R. CIV. P. 60(b) motion did not
suspend the time for filing a notice of appeal. See Harcon Barge
Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 668 (5th Cir.
1986) (en banc); Matter of Ta Chi Navigation (Panama) Corp. S.A.,
728 F.2d 699, 703 (5th Cir. 1984). Consequently, this court
lacks appellate jurisdiction to consider the merits of the
default judgment. See FED. R. APP. P. 4(a)(1)(A); In re Ta Chi
Navigation, 728 F.2d at 703.
Nevertheless, the notice of appeal was filed within 30 days
of the district court order denying the motion for extension of
time to file a notice of appeal under FED. R. APP. P. 4(a)(5), as
well as the order denying the Rule 60(b) motion, and this court
has jurisdiction to consider whether the district court erred in
denying those motions. Microsoft’s motion to dismiss is
therefore DENIED. The appellants’ motion for this court to
extend the time for filing a notice of appeal is also DENIED.
See FED. R. APP. P. 4(a)(5)(A).
The district court’s denial of a Rule 4(a)(5) motion based
on the determination that the movant had not demonstrated
excusable neglect is reviewed for an abuse of discretion.
Midwest Employers Cas. Co. v. Williams, 161 F.3d 877, 882 (5th
No. 04-50961
-3-
Cir. 1998). The appellants assert that their motion for an
extension of time demonstrated both good cause and excusable
neglect entitling them to an additional 30 days to file a notice
of appeal, renewing their argument that they relied on erroneous
advice of counsel in failing to file the notice of appeal
earlier.
The district court did not abuse its discretion in denying
appellants’ motion because appellants have demonstrated neither
excusable neglect nor good cause for their failure to timely
file. The court clearly stated clearly that it did not believe
that McGough had erroneously relied on counsel’s mistaken advice.
Moreover, reliance on an attorney’s misinterpretation of an
unambiguous, well-settled rule affecting the date for filing a
notice of appeal is inexcusable. See Halicki v. Louisiana Casino
Cruises, Inc., 151 F.3d 465, 469-70 (5th Cir. 1998); see also
Peters v. United States, 9 F.3d 344, 345 (5th Cir. 1993).
The appellants likewise have not shown that the denial of
their Rule 60(b) motion was an abuse of discretion. See Seven
Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981). The
appellants contend that they were entitled to relief under Rule
60(b) due to excusable neglect, urging that they were not
represented by counsel, were unaware that they were required to
file an answer, and thought that settlement discussions were
ongoing. These contentions are refuted by the record. The
appellants additionally assert that Microsoft would not be
No. 04-50961
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prejudiced by overturning the default judgment and that they have
a meritorious defense to the lawsuit, but these arguments are
irrelevant to the question whether the denial of their Rule 60(b)
motion was error. FED. R. CIV. P. 60(b); Seven Elves, 635 F.2d at
402.
The district court’s orders denying the motion to extend
time and denying relief under Rule 60(b) are AFFIRMED.
AFFIRMED; MOTIONS DENIED.