                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                     May 23, 2005

                                                        Charles R. Fulbruge III
                                                                Clerk
                              04-20714
                          Summary Calendar


                 SPRINT COMMUNICATIONS COMPANY LP,

                             Plaintiff-Counter Defendant-Appellee,

                               versus

               UCON TELECOMMUNICATIONS NETWORK, INC.,
                              Defendant-Counter Claimant-Appellant.


          Appeal from the United States District Court
               for the Southern District of Texas
                           4:02-CV-125


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     Ucon Telecommunications Network, Inc., appeals, inter alia,

denial of its motion to extend time to file a notice of appeal.

The motion was required because Ucon had not appealed from an

adverse summary judgment within 30 days as required by Federal Rule

of Appellate Procedure 4(a). It goes without saying that this time

limitation is “mandatory and jurisdictional”.        Huff v. Int’l

Longshoremen’s Assoc., Local #24, 799 F.2d 1087, 1089 (5th Cir.

1986) (citation omitted).



     *
       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this opinion should not be published and is not precedent except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.
      On 8 July 2004, 41 days after summary judgment was awarded

Sprint, Ucon filed a motion to withdraw as attorney and to extend

the time to file the notice of appeal.                For the latter, Ucon

claimed it satisfied Federal Rule of Appellate Procedure 4(a)(5),

which provides, inter alia, that a district court may extend the

time for filing a notice of appeal upon a showing of “excusable

neglect or good cause”.          FED. R. APP. P. 4(a)(5).      In the motion,

Ucon’s Milwaukee-based counsel asserted:             a good faith effort had

been made to replace withdrawing Texas counsel; and an extension of

time to appeal would not prejudice Sprint because the summary

judgment motion had been pending for over a year.            On 15 July 2004,

the district court granted the motion to withdraw as attorney but,

without explanation, denied the motion to extend time.

      Concerning that denial, Ucon timely filed a notice of appeal

on   16   August   2004.   The    notice    of   appeal   addressed    both   the

extension-motion-denial and the summary judgment awarded Sprint.

      On 13 October 2004, Sprint moved in our court to dismiss for

lack of jurisdiction; Ucon did not respond.                 By order dated 9

November 2004, that motion was carried with the case.

      Subsequently, Ucon filed its opening brief (18 January 2005).

It is undisputed that Ucon’s appeal from the summary judgment was

not timely.    Therefore, at present, our jurisdiction is limited to

the denial of Ucon’s motion to extend time to appeal.                 See United

States v. Clark, 51 F.3d 42, 43 (5th Cir. 1995).             In the requisite


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jurisdictional statement in its opening brief, however, Ucon failed

to address, or even acknowledge, the extension-motion- denial and

instead claimed jurisdiction over the appeal from the summary

judgment was proper under 28 U.S.C. § 1291.            And, despite having

acknowledged the extension-of-time-to-appeal issue in its notice of

appeal, Ucon’s brief addressed only its claims regarding summary

judgment.

     After   Sprint   addressed      the    jurisdictional   issue    in   its

response brief, Ucon finally addressed the extension-motion-denial

in its reply brief.     (Ucon claimed that, based on conversations

with our clerk’s office, it believed it should not address this

issue in its opening brief, despite its having failed to respond to

Sprint’s motion to dismiss.)         Obviously, because Ucon listed the

extension-motion-denial in its notice of appeal, it should have

addressed the issue in its opening brief, which was filed after

Sprint’s motion to dismiss was carried with the case.                For that

reason alone, we could dismiss.            Moreover, the conduct by Ucon’s

counsel borders on being sanctionable; this is especially true for

the misleading jurisdictional statement in Ucon’s opening brief.

     In the alternative, because Ucon did not demonstrate good

cause or excusable neglect, the district court did not abuse its

discretion   in   denying   Ucon’s    extension    motion.     See    Midwest

Employers Cas. Co. v. Williams, 161 F.3d 877, 882 (5th Cir. 1998)

(applying abuse of discretion standard to district court decision


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to extend time to appeal).      For example, in Pioneer Inv. Servs. Co.

v. Brunswick Assocs. Ltd. Partnership, the Supreme Court determined

a   lawyer’s   failure    to   meet   a       bankruptcy    court   deadline   was

excusable neglect because the deadline notice provided by the

bankruptcy court was inadequate.              507 U.S. 380, 395-97 (1993); see

also Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 469

(5th Cir. 1998) (adopting the Pioneer standard for Federal Rule of

Appellate Procedure 4(a)(5)), cert. denied, 526 U.S. 1005 (1999).

      In its reply brief, Ucon primarily claims its failure to

timely   appeal   was    due   to   its       inability    to   obtain   qualified

appellate counsel. Needless to say, this is not a sufficient basis

for the requisite good cause or excusable neglect; and Ucon has

cited no case holding that it is.

      Because Ucon’s notice of appeal was not timely as to any other

issues, we do not have jurisdiction to review them.

                                                                    DISMISSED




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