                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-2451

M ICHAEL M ARRS,
                                                  Plaintiff-Appellant,
                                  v.

M OTOROLA , INC., et al.,

                                               Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 05 C 5463—Susan E. Cox, Magistrate Judge.



                        N OVEMBER 7, 2008




  Before C UDAHY, P OSNER, and F LAUM, Circuit Judges.
  P ER C URIAM. Michael Marrs sued Motorola, Inc.,
Motorola Disability Income Plan, Motorola Post-Employ-
ment Health Benefits Plan, and Motorola, Inc. Pension
Plan (collectively “Motorola”) for alleged violations of
ERISA. The parties filed a stipulation agreeing to class
action certification. The case proceeded as a class action
with Marrs serving as class representative. Eventually
the district court granted the defendants’ motion for
summary judgment and dismissed the suit, and Marrs
2                                               No. 08-2451

filed a timely notice of appeal which names Michael Marrs
as appellant but does not state that he is appealing on
behalf of the class or as class representative and does not
mention other claimants or a class.
   Marrs has moved for leave to correct the notice of appeal
to clarify that he is appealing in both his individual
capacity and a representative capacity. He argues that his
“technical omission” did not cause us to lose jurisdic-
tion of the appeal on behalf of the class because the
original notice specified the judgment from which he
appeals and the judgment encompassed the class. He
also argues that the rest of the class, which includes
fewer than 100 persons, would be left without a remedy
if we do not allow him to correct the notice.
  Motorola responds that Marrs’s motion is actually a
motion for additional time to file a notice of appeal on
behalf of the class, that the deadline for filing the notice
has long passed, and that none of the grounds for extend-
ing the deadline are available to him. Motorola argues
that the notice of appeal that Marrs filed gives this court
jurisdiction over only his individual claims because the
notice “contains no indication of any kind whatsoever
that he intended the appeal to be in a representative
capacity.” Murphy v. Keystone Steel & Wire Co., 61 F.3d
560 (7th Cir. 1995).
  Federal Rule of Appellate Procedure 3(c), which governs
notices of appeals, is jurisdictional. Smith v. Barry, 502
U.S. 244, 248 (1992); Torres v. Oakland Scavenger Co., 487
U.S. 312, 317 (1988); AlliedSignal, Inc. v. Goodrich Co., 183
F.3d 568, 571 (7th Cir. 1999). Rule 3(c)(3) states that “in a
No. 08-2451                                                 3

class action, whether or not the class has been certified, the
notice of appeal is sufficient if it names one person quali-
fied to bring the appeal as representative of the class,” and
subsection (4) states that the “appeal must not be dis-
missed for informality of form or title of the notice of
appeal, or for failure to name a party whose intent to
appeal is otherwise clear from the notice.” In Murphy
we held that the notice of appeal must indicate that the
class representative is appealing in his representative
capacity. Murphy v. Keystone Steel & Wire Co., supra,
61 F.3d at 571 n. 7; see also Olenhouse v. Commodity
Credit Corp., 42 F.3d 1560, 1572 (10th Cir. 1994); Ford v.
Elsbury, 32 F.3d 931, 933-34 (5th Cir. 1994). Marrs’s
notice does not.
  We said in Murphy that “if only the named plaintiffs
were included in the text of the notice, they could better
argue that it would be ‘clear from the notice’ that the
whole class intended to appeal” but that the inclusion of
the Union, which was not part of the class, “limited the
appeal to the specifically named parties.” 61 F.3d at 571.
Marrs, in contrast, is the only class representative and
the only person listed on the notice of appeal. In Clay v.
Fort Wayne Community Schools, 76 F.3d 873 (7th Cir. 1996),
a class of parents and a class of students, each with its
own representative plaintiffs, filed suit against a school
system but only the parent plaintiffs were listed in the
notice of appeal. We held that we lacked jurisdiction to
consider the merits of the student plaintiffs’ appeal
because “notice by the adult plaintiffs is simply not the
functional equivalent of notice by the student plaintiffs.”
Id. at 876. In contrast, Marrs’s case involves only one
4                                                No. 08-2451

class. But these differences between the present case and
Murphy and Clay are too slight to warrant a different result.
Marrs argues that “correcting” the notice of appeal now
before any briefing has begun would not prejudice the
appellees. True; but in Murphy we held that lack of preju-
dice is not a defense to the application of Rule 3(c). Murphy
v. Keystone Steel & Wire Co., supra, 61 F.3d at 571.
    The motion to correct the notice of appeal is D ENIED.




                            11-7-08
