Cancellation No. 92/032,447) MARC MATHERS v. Yshheyna Hamilla

NOTE: This order is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-1181
(Cancellation No. 92/032,447)
MARC MATHERS,
Appellant,
v.
YSHHEYNA HAMILLA,
Appellee.
Appeal from the United States Patent and Trademark Office,
Trademark Trial and Appeal Board.
ON MOTION
Before NEWMAN, RADER, and SCHALL, Circuit Judges.
NEWMAN, Circuit Judge.
ORDER
Marc Mathers moves for an extension of time to file his brief or, in the alternative,
for leave to file his brief out of time. Yshheyna Hamilla opposes and moves to dismiss
Mathers' appeal for failure to prosecute. Mathers opposes. Hamilla replies.
Mathers filed a notice of appeal on December 30, 2008. The certified list of the
United States Patent and Trademark Office was filed on February 6, 2009 and the
appeal was docketed on February 9, 2009. Mathers did not file his brief by the due date
set by the court's rules. Instead, Mathers filed a motion for an extension of time on April
14, 2009.

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Hamilla argues that because Mathers did not file a timely brief or a timely motion
for an extension of time in compliance with Fed. Cir. R. 26(b)(1), the appeal should be
dismissed for failure to prosecute. Mathers asserts that he was under the impression
that he would receive a document from the United States Patent and Trademark Office
indicating that the "record on appeal was complete and that the period of time allowed
for preparation of the appeal brief had begun." Counsel for Mathers further states that
he relied on a former secretary who "had suddenly become unreliable and who
represented to the undersigned that she had made regular checks for the due date of
this action when, in fact, no such checks had been made."
Fed. Cir. R. 31(a)(1)(B) provides that in an appeal from an agency decision, the
appellant's brief is due within 60 days of the date of service of the certified list. Counsel
is charged with knowledge of the court's rules, and counsel's failure to properly review
or understand the rules does not excuse his noncompliance.
Furthermore, counsel for Mathers states in his extension motion, filed on April 14,
"Mast week the undersigned received an email from a contract vendor which stated that
the initial brief was due on April 14, 2009." Counsel does not explain why he did not
promptly act on this information and file a brief or an extension motion immediately.
Rule 26(b) requires that a motion for an extension of time be made at least 7 days prior
to the date sought to be extended or, if it is not, that it be accompanied by an affidavit or
declaration explaining the extraordinary circumstances justifying deviation from this
requirement. Mathers' extension motion does not include the required affidavit or
declaration and thus fails to comply with the court's rules.
2009-1181 2

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Because Mathers did not timely file his brief or file a proper extension motion, the
appeal is dismissed. See Julien v. Zerinque 864 F.2d 1572 (Fed. Cir. 1989) (court may
dismiss for failure to file a brief).
Accordingly,
IT IS ORDERED THAT:
The motion to dismiss is granted.
Each side shall bear its own costs.
All pending motions are moot.
FOR THE COURT
JUN -3 2009 /s/ Jan Horbaly
Date
cc: Charles E. Lykes, Jr., Esq.
Ferdinand M. Romano, Esq.
s17
ISSUED AS A MANDATE:
Jan Horbaly
Clerk
JUN -3 2009
u,strivilintwo
. #
JUN 0s 2009
JAN HURIMU
CLERK
2009-1181 3

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