AST & Science LLC v. Delclaux Partners SA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-11024
Non-Argument Calendar
____________________
AST & SCIENCE LLC,
Plaintiff-Counter Defendant-Appellee,
versus
DELCLAUX PARTNERS SA,
Defendant-Counter Claimant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-23335-DPG
____________________
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2 Opinion of the Court 24-11024
Before R OSENBAUM , J ILL PRYOR , and L UCK , Circuit Judges.
PER CURIAM:
Delclaux Partners SA’s (“Delclaux”) amended notice of ap-
peal challenges various orders, including (1) the district court’s or-
der and judgment granting appellee AST & Science LLC’s motion
for summary judgment on Delclaux’s amended counterclaim, and
(2) the district court’s denial of Delclaux’s motion for relief from
judgment pursuant to Federal Rule of Civil Procedure 60(b)(4),
which alleged that the district court lacked subject matter jurisdic-
tion in the first instance. Regardless of whether Delclaux’s Rule 60
motion tolled the appeal period, the statutory time limit required
Delclaux to file a notice of appeal by March 25, 2024—the first busi-
ness day after the 30-day appeal period following the February 23
order. See 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A),
26(a)(1)(C). However, Delclaux did not file its amended notice of
appeal until April 2, 2024.
Delclaux is incorrect to suggest that it could file its notice of
appeal from the Rule 60 motion at any time because that motion
only raised arguments concerning the district court’s subject mat-
ter jurisdiction. Although subject matter jurisdiction may be raised
at any point during proceedings, including on appeal, the timely
filing of a notice of appeal is nevertheless a statutory prerequisite
to appellate review in a civil case. See 28 U.S.C. § 2107(a); United
States v. Giraldo-Prado, 150 F.3d 1328, 1329 (11th Cir. 1998); Green v.
Drug Enf’t Admin., 606 F.3d 1296, 1300 (11th Cir. 2010) (noting that
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24-11024 Opinion of the Court 3
the timely filing of a notice of appeal in a civil case is a jurisdictional
requirement, and we cannot entertain an appeal that is out of
time). Thus, the notice of appeal is untimely and cannot invoke
our appellate jurisdiction. See Green, 606 F.3d at 1300.
Accordingly, this appeal is DISMISSED, sua sponte, for lack
of jurisdiction. All pending motions are DENIED as moot. No pe-
tition for rehearing may be filed unless it complies with the timing
and other requirements of 11th Cir. R. 40-3 and all other applicable
rules.
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