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CaseIQ

Pischke v. Sunshine Biscuits, Inc.

United States Court of Appeals, Ninth Circuit

Nov 20, 1989

Judgment

CaseIQ

890 F.2d 420 (9th Cir. 1989) John PISCHKE, Plaintiff-Appellant, v. SUNSHINE BISCUITS, INC., a Delaware corporation, Defendant-Appellee. JOHN PISCHKE, Plaintiff, SUNSHINE BISCUITS, INC., a Delaware corporation, Defendant/Third-party/Plaintiff-Appellant, v. BAKERY, CONFECTIONERY AND TOBACCO WORKERS INTERNATIONAL UNION, Local 125 AFL-CIO, Third-party/Defendant-Appellee. Nos. 87-2493, 87-2791. United States Court of Appeals, Ninth Circuit November 20, 1989

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Argued and Submitted Sept. 12, 1989.

N.D.Cal.

DISMISSED.

Appeal from the United States District Court for the Northern District of California; Charles A. Legge, District Judge, Presiding.

Before CHOY, CANBY and WILLIAM A. NORRIS, Circuit Judges.

ORDER

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Although the motions panel in an order of April 4, 1988 deemed jurisdiction present, the merits panel has an independent duty to examine jurisdictional questions. Hard v. Burlington Northern R.R., 870 F.2d 1454, 1458 (9th Cir.1989) (citations omitted). The fact that a motions panel has denied a motion to dismiss does not free the panel from this duty because the time for filing an appeal is mandatory and jurisdictional. Id. citing Browder v. Director, Dept. of Corrections, 434 U.S. 257, 264 (1978).

Because appellant Pischke failed to file a notice of appeal from the only final order of the trial court--the grant of summary judgment to Sunshine Biscuits for which judgment was entered on September 11, 1987--this appeal is barred by Munden v. Ultra-Alaska Assoc., 849 F.2d 383 (9th Cir.1988).

The appeal is DISMISSED.