Unpublished Dispositionharald Stiller, Plaintiff-appellee, Cross-appellant, v. City of Detroit, Water and Sewage Department,defendant-appellant, Cross-appellee, 772 F.2d 908 (6th Cir. 1985)

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US Court of Appeals for the Sixth Circuit - 772 F.2d 908 (6th Cir. 1985) 8/12/85

E.D. Mich.




On March 19, 1985, this Court entered an order directing the cross-appellant to show cause why his appeal should not be dismissed for lack of jurisdiction due to a late notice of cross-appeal. The cross-appellant has failed to respond thereto.

It appears from the record that the judgment was entered January 18, 1985. The judgment was final and appealable although it did not determine the amount of attorney fees to be awarded. Morgan v. Union Metal Manufacturing, 757 F.2d 792 (6th Cir. 1985). The City of Detroit timely filed a notice of appeal on February 13, 1985 (appeal number 85-1170). Rule 4(a) (3), Federal Rules of Appellate Procedure, provides that if a notice of appeal is timely filed that any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by Rule 4(a) (1), whichever period last expires. The notice of cross-appeal filed by Stiller on March 19, 1985, was 20 days late (appeal number 85-1258). Rule 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 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.

It is ORDERED that cross-appeal number 85-1258 be and it hereby is dismissed for lack of jurisdiction. Rule 9(d) (1), Rules of the Sixth Circuit.