[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 14, 2006
No. 06-11219 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-22678-CV-CMA
DOUGLAS W. SHIVERS,
Plaintiff-Appellant,
versus
EDWIN D. HILL, President,
International Brotherhood
of Electrical Workers,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 14, 2006)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
PER CURIAM:
This case began in the Circuit Court for Dade County, Florida. Douglas W.
Shivers sued Edwin D. Hill, president of the International Brotherhood of
Electrical Workers, pursuant to the Labor Management Relations Act, 29 U.S.C.
§§ 185, 412. Hill removed the case to the district court, and on April 6, 2005, the
district court dismissed the case without prejudice to re-filing, after Shivers failed
to respond to Hill’s motion to dismiss or take a voluntary dismissal. On July 18,
2005, Shivers moved the court to re-open the case, attaching an amended
complaint to his motion. The court denied the motion on August 9, 2005, because
the court could not discern any extraordinary circumstances that compelled it to
circumvent its April 6 order and allow Shivers to re-open the case rather than file a
new complaint.
On December 6, 2005, Shivers filed a notice of appeal seeking review of the
August 9 order. We dismissed that appeal on January 12, 2006, holding that the
notice of appeal was untimely to appeal the August 9 order. Shivers v. Hill, No.
05-16802 (11th Cir. Jan. 12, 2006).1
In the interim, Shivers returned to the district court for relief. On January 5,
1
Shivers seems to have combined two appeals. The notice of appeal filed on December 6,
2005, contains a heading for case no. 04-22678-CIV-Altonaga/Bandstra, the suit which the district
court refused to re-open. The same notice, however, refers to an order the court issued on
September 2, 2005, in case no. 05-22238-CIV-Altonaga/Turnoff. The latter case remained open at
the time Shivers filed his notice of appeal, and we dismissed that appeal as lacking finality in the
same January 12, 2006 decision mentioned in the above text. Shivers v. Hill, No. 05-16802 (11th
Cir. Jan. 12, 2006).
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2006, he moved the court for an extension of time in which to appeal the court’s
decision not to re-open the case. The court responded in an order dated January 9,
2006, denying the extension on the ground that the court no longer had
jurisdiction; Shivers had appealed the matter to this court. The January 9 order is
before us in this appeal.
Shivers mainly contends, here, that the district court should have granted
him extensions so he could deal with his health problems, a Social Security
hearing, and hurricane damage, even though he sought no extension until January
5, 2006. Shivers cites Rule 4(a)(5) of the Federal Rules of Appellate Procedure as
relevant authority to justify an extension based on excusable neglect or good cause.
A district court’s decision on a motion for extension of time to appeal is
itself appealable and evaluated for abuse of discretion. Advance Estimating Sys.,
Inc. v. Riney, 77 F.3d 1322, 1323-25 (11th Cir. 1996)(reviewing denial).
Neither party seems to fully grasp the issue that emerges from the district
court’s order dated January 9, 2006, responding to Shivers’ motion for an
extension in which to file his appeal. In that order, the court instructed that a
motion for extension “is appropriately addressed to the United States Court of
Appeals for the Eleventh Circuit, where a notice of appeal has been filed, and not
this Court.” Based on the language from the court’s order, it was not denying the
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motion because it was untimely; rather, it was merely stating that it lacked
jurisdiction to consider a motion for an extension of time to appeal where the case
was already on appeal and within this court’s jurisdiction. We have held that
“‘[t]he filing of a notice of appeal is an event of jurisdictional significance–it
confers jurisdiction on the court of appeals and divests the district court of its
control over those aspects of the case involved in the appeal.’” United States v.
Tovar-Rico, 61 F.3d 1529, 1532 (11th Cir. 1995)(quoting Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 402 (1982)(per curiam)).
Shivers notice of appeal filed on December 6, 2005 divested the district
court of jurisdiction over the matters brought on appeal. This case remained in this
court until January 12, 2006, when we ordered the dismissal of the appeal filed on
December 6, 2005 because it was untimely. During this period, the case was
exclusively within our jurisdiction, and the district court had no discretion to
entertain the motion for an extension filed on January 5, 2006. The court properly
dismissed the motion for lack of jurisdiction.
Shivers’s brief raises several issues not presented to the district court. We
do not address them. Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994).
AFFIRMED.
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