* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

August 5, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-50961

Summary Calendar

 

MICROSOFT CORPORATION, 

a Washington Corporation,

Plaintiff-Appellee,

versus

H. C. DISTRIBUTORS, INC., 

a Texas Corporation; KEITH MCGOUGH,

Defendants-Appellants.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:03-CV-179

--------------------

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 crossmove for an extension of time to file their notice of appeal.
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

-4-

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.