Unpublished Dispositionernestine Dennis, Next of Friend for David W. Dennis; Robertdennis; and Ernestine Dennis,defendants-appellants, Cross-appellees, v. Luise L. Jackson, Individually and As Personal Rep. of Theestate of Larry James, Deceased, Individually,(85-1722) Defendant-appellant, 787 F.2d 589 (6th Cir. 1986)Annotate this Case
DISMISSED IN PART AND DENIED IN PART
BEFORE: MERRITT, JONES and NELSON, Circuit Judges.
This matter is before the Court upon plaintiff's motion to dismiss defendant Jackson's (hereinafter defendant) appeal and cross-appeal in Case No. 85-1722, defendant's motion for an extension of time to file the notice of appeal, plaintiff's response in opposition to the motion to extend, defendant's motion to set aside the default judgment, plaintiff's response in opposition, and plaintiff's supplements to its motion to dismiss.
On September 10, 1985 defendant appealed from a district court order entered July 26, 1985. Another defendant had appealed from the order on August 13, 1985. On September 23, 1985, after plaintiff moved to dismiss, defendant moved this Court for an extension of time to file a notice of appeal and cross-appeal pursuant to Federal Rule of Appellate Procedure 4(a) (5). Subsequently, defendant filed the motion for an extension of time in the district court. The district court denied the motion because defendant did not file it within the time period prescribed in Rule 4(a) (5). The district court also denied a second motion to extend the time.
Upon consideration of all of the papers before the Court, it is concluded that the motion to dismiss must be granted. This Court has jurisdiction over all appeals from final orders of the district court where the notice of appeal is timely filed pursuant to Federal Rule of Appellate Procedure 4(a) (1). Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 264 (1978); Denley v. Shearson/American Express, Inc., 733 F.2d 39, 41 (6th Cir. 1984). In the instant case another party appealed within the 30 day period required by Rule 4(a) (1). Therefore, defendant had 14 days from the date on which the first appeal was filed to appeal. Federal Rule of Appellate Procedure 4(a) (3). Defendant's appeal and cross appeal, which was filed 28 days after the first notice of appeal was filed, was untimely.
Accordingly, it is ORDERED that defendant's motion to dismiss case number 85-1722 is granted. All other motions are ORDERED denied.