David Stirling, Jr., & William G. Stirling v. Chem. Bank, Individually, & as Agent, David Stirling, Jr., & William G. Stirling v. Union Planters Nat'l Bank of Memphis, 511 F.2d 1030 (2d Cir. 1975). · Go Syfert
Search
David Stirling, Jr., & William G. Stirling v. Chem. Bank, Individually, & as Agent, David Stirling, Jr., & William G. Stirling v. Union Planters Nat'l Bank of Memphis, 511 F.2d 1030 (2d Cir. 1975). Cases Citing This Book View Copy Cite
83 citation events across 14 distinct courts.
Strongest positive: Bedoya v. United States (nysd, 1998-06-24)
Treatment trajectory · 1975 → 2026 · click a year to view as-of
1975 2000 2026
Top citers, strongest first. 32 distinct citers. How cited ↗
cited Cited as authority (rule) Bedoya v. United States
S.D.N.Y. · 1998 · confidence medium
See Rule 6(b); Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir.1975) (“[T]he 10-day period prescribed by Rule 59(e) ... cannot be enlarged.”).
discussed Cited as authority (rule) Endicott Johnson Corporation, Plaintiff-Appellee-Cross-Appellant v. Liberty Mutual Insurance Company, Defendant-Appellant-Cross-Appellee
2d Cir. · 1997 · confidence medium
This requirement is “ ‘mandatory and jurisdictional.’ ” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 , 103 S.Ct. 400, 403 , 74 L.Ed.2d 225 (1982) (per curiam) (quoting Browder v. Director, Department of Corrections, 434 U.S. *56 257, 264, 98 S.Ct. 556, 561 , 54 L.Ed.2d 521 (1978)); see Matarese v. LeFevre, 801 F.2d 98, 104 (2d Cir.1986), cert. denied, 480 U.S. 908 , 107 S.Ct. 1353 , 94 L.Ed.2d 523 (1987); In re Cosmopolitan Aviation Corp., 763 F.2d 507, 514 (2d Cir.), cert. denied, 474 U.S. 1032 , 106 S.Ct. 593 , 88 L.Ed.2d 573 (1985); Stirling v. Chemical Bank, 511 F.2d …
discussed Cited as authority (rule) Kai Wu Chan v. Reno
S.D.N.Y. · 1996 · confidence medium
See Rule 6(b), Fed.R.Civ.P.; Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir.1975) (“[T]he 10-day period prescribed by Rule 59(e) ... cannot be enlarged.”); Corbett v. Guardian Worldwide Moving Co., 164 F.R.D. 323, 327 (E.D.N.Y.1995).
discussed Cited as authority (rule) United States v. Robert Ernest Detrich, Ahmad Shah Nusraty, Mohammed Dawood Nusraty, Robert Ernest Detrich
2d Cir. · 1991 · confidence medium
Under Fed.R.App.P. 26, a court of appeals “may not enlarge the time for filing a notice of appeal.” See also United States v. Myers, 692 F.2d 861, 863 (2d Cir.1982) (“We have no authority to enlarge the time for filing a notice of appeal.”); Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir.1975) (“Appellant’s plea for an extension of time nunc pro tunc ... is addressed to the wrong forum.”), overruled on other grounds by Campos v. LeFevre, 825 F.2d 671 (2d Cir.1987), cert. denied, 484 U.S. 1014 , 108 S.Ct. 718 , 98 L.Ed.2d 667 (1988).
discussed Cited as authority (rule) Hilliard v. Scully
S.D.N.Y. · 1987 · confidence medium
Bearing in mind that the plaintiff is a pro se prisoner, cf. Haines v. Kerner, 404 U.S. 519, 520 , 92 S.Ct. 594, 595 , 30 L.Ed.2d 652 (1972); Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir.1975), the need to preserve plaintiff’s right to appeal outweighs any policy reasons favoring a rigid application of the 8V2 by 11 inch paper size rule. 3 Since it is undisputed that plaintiff attempted to file his first notice of appeal within the thirty-day period allowed by Fed.R.App.P. 4, plaintiff's motion for an extension of time is moot and the Court need not reach the merits of that motion.
discussed Cited as authority (rule) Vito Matarese v. Eugene Lefevre, Superintendent, Clinton Correctional Facility, and Robert Abrams, Attorney General, State of New York
2d Cir. · 1986 · confidence medium
The time limit for filing a notice of appeal is “ ‘mandatory and jurisdictional.’ ” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61 , 103 S.Ct. 400, 403 , 74 L.Ed.2d 225 (1982) (quoting Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264 , 98 S.Ct. 556, 561 , 54 L.Ed.2d 521 (1978)); see In re Cosmopolitan Aviation Corp., 763 F.2d 507, 514 (2d Cir.), cert. denied, — U.S. -, 106 S.Ct. 593 , 88 L.Ed.2d 573 (1985); Stirling v. Chemical Bank, 511 F.2d 1030, 1031 (2d Cir.1975); cf. United States v. Robinson, 361 U.S. 220, 224 , 80 S.Ct. 282, 285 , 4 L.E…
discussed Cited as authority (rule) Frank T. Labuguen v. Paul N. Carlin
7th Cir. · 1986 · confidence medium
See United States v. Lucas, 597 F.2d 243 (10th Cir.1979); Moorer v. Griffin, 575 F.2d 87, 89-90 (6th Cir.1978); Craig v. Garrison, 549 F.2d 306 (4th Cir.1977); Sanchez v. Dallas Morning News, 543 F.2d 556 , 557 n. 2 (5th Cir.1976), cert. denied, 441 U.S. 911 , 99 S.Ct. 2010 , 60 L.Ed.2d 383 (1979); Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir.1975); Alley v. Dodge Hotel, 501 F.2d 880 (D.C.Cir.1974), cert. denied, 431 U.S. 958 , 97 S.Ct. 2684 , 53 L.Ed.2d 277 (1977).
discussed Cited as authority (rule) Collin Fearon, Jr. v. Robert J. Henderson, Superintendent of Auburn Correctional Facility, Defendant (2×) also: Cited "see"
2d Cir. · 1985 · confidence medium
Id. at 1032.
discussed Cited as authority (rule) State of Oregon v. Champion International Corporation
9th Cir. · 1982 · confidence medium
In Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir. 1975), and Evans v. Jones, 366 F.2d 772, 773 (4th Cir. 1966), the Second and Fourth Circuits remanded to the respective district court for a determination whether excusable neglect was shown.
discussed Cited as authority (rule) Oregon v. Champion International Corp.
9th Cir. · 1982 · confidence medium
In Stirling v. Chemical Bank, 511 F.2d 1030,1032 (2d Cir. 1975), and Evans v. Jones, 366 F.2d 772, 773 (4th Cir. 1966), the Second and Fourth Circuits remanded to the respective district court for a determination whether excusable neglect was shown.
discussed Cited as authority (rule) Jones v. Wolfson
S.D.N.Y. · 1981 · confidence medium
Matter of Orbitec Corp., 520 F.2d 358 (2d Cir. 1975); Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir. 1975); C-Thru Products, Inc. v. Uniflex, Inc., 397 F.2d 952 (2d Cir. 1968); see also Pasquale v. Finch, 418 F.2d 627 (1st Cir. 1969).
discussed Cited as authority (rule) Cederbaums v. Harris
S.D.N.Y. · 1980 · confidence medium
The court of appeals stated: Nothing in Rule 4(a) precludes the district court, more than 60 days after entry of judgment, from granting an extension of time to sanction the late filing of a notice of appeal within the second half of the 60-day period, provided a purported notice of appeal has actually been filed within that period. 511 F.2d at 1032 (emphasis added).
discussed Cited as authority (rule) Edward Moore v. W. Raymond Nelson, Warden, Federal Correctional Institution, Danbury, Connecticut
2d Cir. · 1979 · confidence medium
Matter of Orbitec Corp., 520 F.2d 358 (2d Cir.1975); Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir.1975); C-Thru Products, Inc. v. Uniflex, Inc., 397 F.2d 952 (2d Cir.1968); see also Pasquale v. Finch, 418 F.2d 627 (1st Cir.1969).
discussed Cited as authority (rule) Estate Butler's Tire & Battery Co., Inc. v. Ferrous Financial Services
9th Cir. · 1979 · confidence medium
This court concluded that there was jurisdiction to hear the appeal, despite the late filing of the request for extension, citing Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir. 1975), where under similar circumstances the court treated the notice of appeal as "the substantial equivalent of a motion to extend the time because of excusable neglect." Salazar, 538 F.2d at 270 .
discussed Cited as authority (rule) Headlee v. Ferrous Financial Services
9th Cir. · 1979 · confidence medium
This court concluded that there was jurisdiction to hear the appeal, despite the late filing of the request for extension, citing Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir. 1975), where under similar circumstances the court treated the notice of appeal as “the substantial equivalent of a motion to extend the time because of excusable neglect.” Salazar, 538 F.2d at 270 .
cited Cited as authority (rule) Jackie G. Williams and Patricia A. Williams v. United States
5th Cir. · 1977 · confidence medium
Ry., 128 U.S. 258 , 9 S.Ct. 107 , 32 L.Ed. 448 (1888); Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir. 1975); Smith v. United States, 425 F.2d 173 (9th Cir. 1970).
cited Cited as authority (rule) Charles Merrill Mount v. Book-Of-The-Month Club, Inc.
2d Cir. · 1977 · confidence medium
Stirling v. Chemical Bank, 511 F.2d 1030,1031-32 (2d Cir. 1975).
discussed Cited as authority (rule) Robert F. Haltmier v. Commodity Futures Trading Commission
2d Cir. · 1977 · confidence medium
Because petitioner appears pro se (see Haines v. Kemer, 404 U.S. 519, 520 , 92 S.Ct. 594 , 30 L.Ed.2d 652 (1972); Stirling v. Chemical Bank, 511 F.2d 1030, 1031-32 (2d Cir. 1975); Alley v. Dodge Hotel, 163 U.S.App.D.C. 320 , 501 F.2d 880 (1974), we consider that his informal efforts to appeal fell within the statutory bounds and fulfilled the essential requirements. 2 .
cited Cited as authority (rule) Dutta Seshachalam v. Creighton University School of Medicine
8th Cir. · 1977 · confidence medium
Stirling v. Chemical Bank, 511 F.2d 1030, 1032-33 (2d Cir. 1975); Evans v. Jones, 366 F.2d 772 (4th Cir. 1966).
cited Cited as authority (rule) Dehn v. Otter Tail Power Co.
N.D. · 1976 · confidence medium
See C-Thru Products, Inc. v. Uniflex, Inc., 397 F.2d 952, 954-55 (2d Cir. 1968); Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir. 1969).” Stirling v. Chemical Bank, supra at 1032.
cited Cited as authority (rule) Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Larry O. Kurtenbach
8th Cir. · 1975 · confidence medium
Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir. 1975) (per curiam); Torockio v. Chamberlain Mfg.
cited Cited "see" Sellitti v. R.H. Macy & Co. (In re R.H. Macy & Co.)
S.D.N.Y. · 1994 · signal: see · confidence high
See id. at 1032 .
cited Cited "see" In Re RH MacY & Co., Inc.
S.D.N.Y. · 1994 · signal: see · confidence high
See id. at 1032 .
discussed Cited "see" United States v. Michael O. Myers, Angelo J. Errichetti, Louis C. Johanson, and Howard L. Criden
2d Cir. · 1982 · signal: see · confidence high
App.P. 26(b); see Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir.1975), and no grounds have been presented on which we could disturb the District Court’s decision declining use of its authority to extend the deadline.
discussed Cited "see" In Re Snow
Bankr. E.D. Cal. · 1982 · signal: see · confidence high
See Stirling v. Chemical Bank, 511 F.2d 1030 at 1032 (2d Cir. 1975) “[Wjhere the losing party has promptly received the court’s order and opinion, and the only extenuating circumstance is the failure of the clerk to send notice of entry of judgment, we cannot affirm a finding of excusable neglect.” Fase, supra, at 77 .
discussed Cited "see" Fase v. Seafarers Welfare & Pension Plan (2×)
2d Cir. · 1978 · signal: see · confidence high
“Because the timely filing of a notice of appeal is ‘mandatory and jurisdictional,’ United States v. Robinson, 361 U.S. 220, 224 , 80 S.Ct. 282 , 4 L.Ed.2d 259 (1960), compliance with the provisions of [Rules 3 and 4] is of the utmost importance.” Advisory Committee Note to Fed.R.App.P. 3; see Stirling v. Chemical Bank, 511 F.2d 1030, 1031 (2d Cir. 1975); Edwards v. Doctors Hospital, Inc., 242 F.2d 888, 891 (2d Cir. 1957), cert. denied, 356 U.S. 930 , 78 S.Ct. 770 , 2 L.Ed.2d 761 (1958).
discussed Cited "see" Fase v. Seafarers Welfare And Pension Plan (2×)
2d Cir. · 1978 · signal: see · confidence high
"Because the timely filing of a notice of appeal is 'mandatory and jurisdictional,' United States v. Robinson, 361 U.S. 220, 224 , 80 S.Ct. 282 , 4 L.Ed.2d 259 (1960), compliance with the provisions of (Rules 3 and 4) is of the utmost importance." Advisory Committee Note to Fed.R.App.P. 3; see Stirling v. Chemical Bank, 511 F.2d 1030, 1031 (2d Cir. 1975); Edwards v. Doctors Hospital, Inc., 242 F.2d 888, 891 (2d Cir. 1957), cert. denied, 356 U.S. 930 , 78 S.Ct. 770 , 2 L.Ed.2d 761 (1958). 9 This schedule for the filing of notice of appeal is not, however, without a certain degree of flexibility…
discussed Cited "see" John Sanchez v. Dallas Morning News
5th Cir. · 1976 · signal: see · confidence high
See Stirling v. Chemical Bank, 2 Cir., 1975, 511 F.2d 1030 . 4 Since we have before us today only the untested allegations of appellant’s affidavit, we remand this case to the district court for an evidentiary hearing and factual determination as to timeliness or excusable neglect, and to take consistent additional action as may be required.
discussed Cited "see" Rose M. Salazar v. San Francisco Bay Area Rapid Transit District
9th Cir. · 1976 · signal: see · confidence high
See, Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (CA2 1975); Alley v. Dodge Hotel, 163 U.S.App.D.C. 320 , 501 F.2d 880, 886 (1974); Cramer v. Wise, 494 F.2d 1185, 1186 (CA5 1974); Torockio v. Chamberlain Mfg.
cited Cited "see, e.g." Corbett v. Guardian Worldwide Moving Co.
E.D.N.Y · 1995 · signal: see also · confidence medium
R.Civ.P. 6(b); see also Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir.1975) (“[T]he 10-day period prescribed by Rule 59(e) ... cannot be enlarged.”).
cited Cited "see, e.g." Women's Pavilion, Inc. v. Town of Babylon
E.D.N.Y · 1980 · signal: see, e.g. · confidence medium
See, e. g., Stirling v. Chemical Bank, 511 F.2d 1030, 1031, 1032 (2d Cir. 1975); Evans v. Jones, 366 F.2d 772 (4th Cir. 1966).
discussed Cited "see, e.g." United States v. William McKnight (2×)
3rd Cir. · 1979 · signal: see, e.g. · confidence low
See, e. g., Stirling v. Chemical Bank, 511 F.2d 1030 (2d Cir. 1975); Craig v. Garrison, 549 F.2d 306 (4th Cir. 1977); United States v. Umfress, 562 F.2d 359 (5th Cir. 1977); Reed v. Michigan, 398 F.2d 800 (6th Cir. 1968); Seshachalam v. Creighton University School of Medicine, 545 F.2d 1147 (8th Cir. 1976); United States v. Stolarz, 547 F.2d 108 (9th Cir. 1976); Alley v. Dodge Hotel, 163 U.S.App.D.C. 320 , 501 F.2d 880 (1974); but see Brainerd v. Beal, 498 F.2d 901 (7th Cir.), cert. denied, 419 U.S. 1069 , 95 S.Ct. 655 , 42 L.Ed.2d 664 (1974).
Retrieving the full opinion text from the archive…
David Stirling, Jr., and William G. Stirling
v.
Chemical Bank, Individually, and as Agent, David Stirling, Jr., and William G. Stirling v. Union Planters National Bank of Memphis
75--7006.
Court of Appeals for the Second Circuit.
Feb 11, 1975.
511 F.2d 1030
Cited by 2 opinions  |  Published

511 F.2d 1030

David STIRLING, Jr., and William G. Stirling, Plaintiffs-Appellants,
v.
CHEMICAL BANK, Individually, and as agent, et al.,
Defendants-Appellees.
David STIRLING, Jr., and William G. Stirling, Plaintiffs-Appellants,
v.
UNION PLANTERS NATIONAL BANK OF MEMPHIS et al., Defendants-Appellees.

Docket No. 75--7006.

United States Court of Appeals,
Second Circuit.

Argued Jan. 28, 1975.
Decided Feb. 11, 1975.

Feldshuh & Frank, New York City (Sidney Feldshuh, Richard M. Kraver, New York City, of counsel), for plaintiffs-appellants.

Cravath, Swaine & Moore, New York City, for defendants-appellees Chemical Bank, Frank Beattie, John J. Irish and Paavo Prima.

Bleakley, Platt, Schmidt & Fritz, New York City (Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo, N.Y., of counsel), for defendants-appellees Marine Midland Bank--Western and Marine Midland Bank--Rochester.

Townley, Updike, Carter & Rodgers, New York City (Nixon, Hargrave, Devans & Doyle, Rochester, N.Y., of counsel), for defendant-appellee Lincoln First Bank of Rochester.

Milbank, Tweed, Hadley & McCloy, New York City, for defendants-appellees Chase Manhattan Bank and First National State Bank of New Jersey.

Debevoise, Plimpton, Lyons & Gates, New York City (Samuel E. Gates, Bernard J. Bonn III, New York City, of counsel), for defendants-appellees Union Commerce Bank and Union Planters Nat. Bank.

Before KAUFMAN, Chief Judge, and MANSFIELD and OAKES, Circuit Judges.

PER CURIAM:

[*~1030]1

By decision dated September 30, 1974, Judge Dudley B. Bonsal of the Southern District of New York granted motions dismissing with prejudice plaintiffs-appellants' claims against defendants-appellees in several related stockholders' class actions, except that common law fraud claims against defendant Union Commerce Bank were dismissed without prejudice (72 Civ. 4476). In another action (74 Civ. 66) a similar complaint was dismissed with leave to file an amended complaint with respect to certain diversity common law fraud claims against Union Planters National Bank. On November 8, 1974, orders were filed accordingly, and on November 11, 1974, judgment was entered on the order in 72 Civ. 4476. On December 2, 1974, an amended complaint was filed against Union Planters National Bank in 74 Civ. 66.

2

No notices of appeal from Judge Bonsal's orders were filed by plaintiffs until December 19, 1974, which was 41 days after entry of the order appealed from in 74 Civ. 66 and 38 days after entry of the order in 72 Civ. 4776. Since the notices were not filed within the 30-day period mandated by Rule 4(a), F.R.A.P., defendants promptly moved to dismiss the appeals on the ground that this court lacks jurisdiction to entertain them. See, e.g., United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); Graddy v. Bonsal, 375 F.2d 764 (2d Cir. 1967); Guido v. Ball, 367 F.2d 882 (2d Cir. 1966). Appellants argue, however, that undisputed circumstances attested to by their counsel demonstrate that there was the substantial equivalent of timely filing, which should suffice. They urge that a literal, rigorous adherence to the formalistic requirements of Rule 4(a) would work a manifest injustice, in view of the positive steps taken by them to file within the prescribed 30-day period. See, e.g., Alley v. Dodge Hotel, 501 F.2d 880 (D.C.Cir. 1974); Crump v. Hill, 104 F.2d 36 (5th Cir. 1939). In the alternative, appellants urge that since the circumstances surrounding the late filing amount to 'excusable neglect' as that term is used in Rule 4(a), they should be granted an extension of time nunc pro tunc, which would validate the December 19 filing as timely.

3

The circumstances relied upon by appellants are as follows: On December 6, 1974, copies of notices of appeal were served by appellants upon appellees' counsel and, on the morning of December 10, 1974, within 30 days after the entry of judgment in 72 Civ. 4476, notices were presented to the Clerk of the District Court by appellants' representative, American Clerical Service ('ACS'), for filing, which was refused by the Clerk because of failure to tender the prescribed filing fees. Thereupon appellants' counsel authorized ACS, still on the morning of December 10, to advance the filing fees and was unequivocally assured by ACS that the notices of appeal would be filed that morning. However, ACS failed to file the notices. When appellants' counsel discovered this later in December, he filed them on December 19.

[*~1031]4

Although the foregoing circumstances, if not disputed, may well have entitled appellants to an extension of time on grounds of excusable neglect, they do not satisfy the timeliness requirement of Rule 4(a), which is 'mandatory and jurisdictional,' United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); Federal Deposit Ins. Corp. v. Congregation Poiley Tzedeck, 159 F.2d 163, 165--66 (2d Cir. 1946). Were appellants pro se litigants we might be inclined toward a liberal interpretation of their unsuccessful filing efforts, see Haines v. Kerner,404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), in view of the pro se litigant's unfamiliarity with procedural requirements. See, e.g., Alley v. Dodge Hotel, supra. However, appellants were represented by experienced legal counsel, whose duty it was to protect his clients by seeing that the important filing deadline would be met. That deadline is not satisfied by service of a notice of appeal upon other parties, Federal Deposit Ins. Corp. v. Congregation Poiley Tzedeck, 159 F.2d 163, 166 (2d Cir. 1946), nor is the deadline extended by the untimely filing of a motion to amend or alter the judgment, 9 Moore's Federal Practice 204.12(2), p. 955 (1973 ed.), i.e., after the 10-day period prescribed by Rule 59(e), F.R.Civ.P., for filing such a motion, which cannot be enlarged, see Rule 6(b), F.R.Civ.P.; Spurgeon v. Delta Steamship Lines, Inc., 387 F.2d 358 (2d Cir. 1967); 9 Moore's Federal Practice 204.12(1), pp. 951--52 (1973 ed.).

5

Appellants' plea for an extension of time nunc pro tunc to December 19 is addressed to the wrong forum. Rule 4(a) authorizes the district court, not the court of appeals, upon a showing of excusable neglect, to grant an extension of not more than 30 additional days beyond the expiration of the original 30-day period for filing. Rule 26(b), F.R.A.P., furthermore, provides that a court of appeals 'may not enlarge the time for filing a notice of appeal'. See Alabama Labor Council, AFL--CIO P.E.U. Loc. No. 1279 v. Alabama,453 F.2d 922, 925 (5th Cir. 1972); 9 Moore's Federal Practice 226.02(2) (1973 ed.).

6

Appellees contend that it is now too late for appellants to obtain such an extension of time from the district court, since they failed to move within the additional 30-day period during which the time might have been extended. In the absence of unusual circumstances we would agree. For instance, if appellants, during the 30-day period following expiration of the time for filing a notice of appeal, had neither filed a notice of appeal nor moved in the district for an extension of time, no jurisdictional basis would exist for the district court to grant an extension of time nunc pro tunc and dismissal of a notice of appeal filed more than 60 days after entry of judgment would be mandated. See Edwards v. Doctors Hospital Inc., 242 F.2d 888, 891 (2d Cir. 1957), cert. denied, 356 U.S. 930, 78 S.Ct. 770, 2 L.Ed.2d 761 (1958).[1] Here, however, the filing of the notice of appeal within 60 days, coupled with a prima facie showing of excusable neglect, and the timely service of the notice of appeal on the opposing parties, constituted a sufficient manifestation on the part of the appellants to permit the district court, in the exercise of its discretion, to treat the notice of appeal as the substantial equivalent of a motion to extend the time because of excusable neglect. See Evans v. Jones, 366 F.2d 772 (4th Cir. 1966); Reed v. People of State of Michigan, 398 F.2d 800 (6th Cir. 1968). Nothing in Rule 4(a) precludes the district court, more than 60 days after entry of judgment, from granting an extension of time to sanction the late filing of a notice of appeal within the second half of the 60-day period, provided a purported notice of appeal has actually been filed within that period. See C-Thru Products Inc. v. Uniflex, Inc., 397 F.2d 952, 954--55 (2d Cir. 1968); Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir. 1969).

7

Although we thoroughly disapprove of the careless procedure followed by appellants' counsel, who demonstrated a singular disregard for or ignorance of the pertinent rules, we will remand the case, in view of the showing made, to the district court for the purpose of determining whether there was excusable neglect entitling appellants, in the district court's discretion, to an extension of time nunc pro tunc to December 19, 1974, for the filing of their notices of appeal. If the district court should so find, the notice filed on that date will be deemed valid as to all appellants except Union Planters National Bank. Otherwise the appeals in 72 Civ. 4476 must be dismissed.

[*~1032]8

The purported appeal from the order dismissing the complaint against Union Planters National Bank in 74 Civ. 66 must in any event be dismissed for the reason that the order appealed from is not final, since plaintiffs, acting pursuant to leave granted by the district court, filed an amended complaint setting forth their claims based on common law fraud. See 9 Moore's Federal Practice 110.13(1), pp. 152--53 (1973 ed.); id. at 110.09, p. 127.

1

The record in that case reveals that the notice of appeal was filed more than 60 days after judgment was entered