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Bivens v. Barkley

Supreme Court of Delaware

July 22, 2014

ROGER BIVENS, [1] Petitioner Below-Appellant,
v.
JESSICA BARKLEY, Respondent Below-Appellee

Submitted July 15, 2014

Motion for Reargument filed July 30, 2014; Denied July 31, 2014. Case Closed July 31, 2014.

Editorial Note:

This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.

Court Below--Family Court of the State of Delaware, in and for Sussex County. File No. CS09-01929, Petition No. 13-26984.

Before STRINE, Chief Justice, HOLLAND, and RIDGELY, Justices.

OPINION

ORDER

Randy J. Holland Justice

This 22nd day of July 2014, it appears to the Court that:

(1) On July 1, 2014, the appellant, Roger Bivens, filed a notice of appeal from a Family Court order dated and mailed on April 25, 2014. Under Supreme Court Rules 6(a)(i) and 11, the notice of appeal should have been filed on or before May 27, 2014.

(2) On July 2, 2014, the Senior Court Clerk issued a notice under Supreme Court Rule 29(b), directing Bivens to show cause why the appeal should not be dismissed as untimely filed. In his response to the notice to show cause filed on July 15, 2014, Bivens states that he suffers physical and mental disabilities, he underwent surgery on his right arm, and he has been on bed rest as a result of back problems. He asks that this Court to forgive his untimely appeal.

(3) " Time is a jurisdictional requirement." [2] Unless an appellant can demonstrate that the failure to file a timely notice of appeal is attributable to court-related personnel, the jurisdictional defect created by an untimely filing of an appeal cannot be excused.[3] Medical hardship does not excuse failure to comply strictly with the jurisdictional time requirement for filing an appeal.[4] Bivens does not contend, and the record does not reflect, that his failure to file a timely appeal is attributable to court-related personnel. Thus, this appeal must be dismissed.

NOW, THEREFORE, IT IS HEREBY ORDERED, under Supreme Court Rule 29(b), that the within appeal is DISMISSED.


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