Unpublished Dispositionclayton Brokerage Co. of St. Louis, Inc., Plaintiff-appellee, v. Sarnawaz Ahmed; Medical Economics, Inc., Defendants-appellants, 772 F.2d 905 (6th Cir. 1985)

This matter is before the Court upon consideration of the appellant's response to this Court's show cause order.

It appears from the record that the final order denying relief pursuant to Rule 60(b), Federal Rules of Civil Procedure, was entered December 4, 1984. A Rule 59(e), Federal Rules of Civil Procedure, motion for reconsideration was untimely served and filed on December 21, 1984. That motion failed to toll the appeals period as provided by Rule 4(a) (4), Federal Rules of Appellate Procedure. Reconsideration was denied on January 18, 1985, and appellant filed a notice of appeal from the January 18, interlocutory order. However, it may be inferred that the appellant's intent was to appeal from the December 4, 1984, order. Peabody Coal Co. v. Local Unions Nos. 1734, 1508 & 1548, U.M.W., 484 F.2d 78 (6th Cir. 1973), cert. denied, 430 U.S. 940 (1977). The filing of the notice of appeal on February 15, 1985, occurred 43 days late. Rules 4(a) and 26(a), Federal Rules of Appellate Procedure.

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(a), Federal Rules of Appellate Procedure is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Peake v. First Nat. Bank and Trust Co. of Marquette, 717 F.2d 1016 (6th Cir. 1983). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time for filing a notice of appeal.

Accordingly, it is ORDERED that the appeal be and it hereby is dismissed for lack of jurisdiction. Rule 9(d) (1), Rules of the Sixth Circuit.