United States Court of Appeals

for the Fifth Circuit

No. 22-20076

iiiTec, Limited, 

Plaintiff—Appellant,

versus

Weatherford Technology Holdings, L.L.C.; Marathon 

Oil Company; In-Depth Systems, Incorporated, 

Defendants—Appellees.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:19-CV-3386

Before Higginbotham, Jones, and Oldham, Circuit Judges.

Per Curiam:*

Appellant iiiTec appeals the district court’s grant of summary 

judgment in favor of Appellees. Because iiiTec failed to timely file its notice 

of appeal, we GRANT Appellees’ motion to dismiss for lack of jurisdiction

and DISMISS the appeal.

* 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not be published and is not precedent except under the limited circumstances set forth in 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

December 27, 2022

Lyle W. Cayce

Clerk

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Background

This appeal involves a contract dispute over a complex assignment of 

intellectual property rights. In 2008, iiiTec agreed to develop Marathon’s 

radio frequency identification (RFID) technologies and assign to Marathon 

all related intellectual property. Marathon then licensed certain RFID 

technologies to its subsidiary, In-Depth, who in turn sub-licensed its assigned 

IP back to iiiTec. In 2017, Weatherford Tech purchased all of Marathon’s 

RFID technology and IP. Soon thereafter, iiiTec lost its sublicense to InDepth’s assigned IP due to nonpayment of royalties. iiiTec then sued 

Appellants in federal court.

The district court granted summary judgment for Appellees and 

entered final judgment on June 25, 2021. Twenty-eight days later, on July 

23, iiiTec sought leave to file an extended motion to reconsider above and 

beyond the 25-page limit prescribed by the district’s local rules. iiiTec 

attached to this filing a 53-page proposed motion to reconsider. Later that

day, iiiTec filed a 14-page motion to alter, amend, or reform judgment under 

Federal Rules of Civil Procedure 59 and 60. On October 4, 2021, the district 

court denied iiiTec’s request for a page limit extension and struck iiiTec’s 

14-page motion to alter. In its order, the district court granted iiiTec 45 days 

“to file one motion of no more than twenty-five pages.” iiiTec filed a shorter 

motion to reconsider on November 2, which the district court denied on 

January 14, 2022. iiiTec filed its notice of appeal on February 10, 2022. 

Appellants subsequently moved to dismiss the appeal for lack of jurisdiction.

Discussion

iiiTec’s “failure to timely file” its notice of appeal “would deprive 

this court of jurisdiction.” Al-Qarqani v. Saudi Arabian Oil Co., 19 F.4th 794, 

798 (5th Cir. 2021) (citing Bowles v. Russell, 551 U.S. 204, 214, 127 S. Ct. 

2360, 2366 (2007)). A notice of appeal must be filed “within 30 days after 

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entry of the judgment or order appealed from.” Fed R. App. P.

4(a)(1)(A); 28 U.S.C. § 2107(a).

But a timely filed motion to alter or amend the judgment under Rule 

59 will toll the period for filing a notice of appeal until 30 days after the court 

disposes of the motion. Fed. R. App. P. 4(a)(4)(A). Such a motion is 

timely if filed no later than “28 days from entry of the judgment, with no 

possibility of an extension.” Banister v. Davis, 140 S. Ct. 1698, 1703 (2020)

(citing Fed. R. Civ. P. 6(b)(2)). A motion for relief under Rule 60 will 

similarly toll the deadline to appeal if “filed no later than 28 days after the 

judgment is entered.” Fed. R. App. P. 4(a)(4)(A)(vi).

Here, iiiTec filed two motions on July 23, 2021, the twenty-eighth day 

after judgment. The first was a request to exceed the page limit on its 

proposed Rule 59/60 motion;1the second was a short 14-page motion to alter

the judgment. A request for leave to file is not one that can toll the deadline 

to appeal, but a motion to alter is. See Fed. R. App. P. 4(a)(4)(A). Thus, 

when the court struck iiiTec’s motion to alter on October 4, the deadline to 

appeal reset to thirty days later on November 3. But by that date, iiiTec still 

had not filed its notice of appeal; it had only filed another Rule 59/60 motion 

to reconsider.2 Under Rule 59, the motion was untimely for exceeding the 

strict 28-day period to file; and under Rule 60, the motion could not toll the 

deadline because it was filed more than 28-days after final judgment. See 

1

iiiTec’s characterizes the proposed motion attached to its request for a page limit 

extension as a motion to reconsider, arguing that it tolled the deadline independently of the 

motion to alter. But iiiTec did not file the proposed motion. Rather, it sought leave to file 

it. As the motion was never filed, it could not toll the deadline to appeal. Indeed, it appears 

iiiTec knew this, which is why it filed on the same day the short Rule 59/60 motion to alter.

2 Although iiiTec appealed the denial of this motion, it does not raise the issue in 

its briefs or seek reversal of that order. Failure to do so constitutes forfeiture. See Williams 

v. Henagan, 595 F.3d 610, 615 (5th Cir. 2010).

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Banister, 140 S. Ct. at 1703; Frew v. Young, 992 F.3d 391, 395 (5th Cir. 2021); 

Fed. R. App. P. 4(a)(4)(A)(vi). Thus, iiiTec’s notice of appeal, filed on 

February 10, 2022, was not timely.

For the foregoing reasons, Appellees’ motion to dismiss the appeal 

from final judgment for lack of jurisdiction is GRANTED. This appeal is 

DISMISSED.

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