Unpublished Dispositionalan Washington, Plaintiff-appellant, v. John Doe, Michael Zwick, (john Doe) Murnan, Defendants-appellees, 811 F.2d 608 (6th Cir. 1986)

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US Court of Appeals for the Sixth Circuit - 811 F.2d 608 (6th Cir. 1986)

Dec. 9, 1986


Before ENGEL, JONES and NELSON, Circuit Judges.


ORDER

This matter is before the Court upon consideration of the appellant's response to this Court's show cause order and motion for appointment of counsel.

It appears from the record that the judgment was entered July 28, 1986. Rules 6(e), Federal Rules of Civil Procedure, and 26(c), Federal Rules of Appellate Procedure, provide for three days for mailing. However, the extra three day period applies only when the time for performing an act is computed from the service of a document rather than the date of entry and is not applicable to the appeals period provided by Rule 4(a), Federal Rules of Appellate Procedure. Sofarelli Associates, Inc. v. United States, 716 F.2d 1395 (Fed. Cir. 1983); Welsh v. Elevating Boats, Inc., 698 F.2d 230 (5th Cir. 1983); Lashley v. Ford Motor Company, 518 F.2d 749 (5th Cir. 1975). The notice of appeal filed on August 29, 1986, was two 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 National Bank & Trust Co., 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 hereby is dismissed for lack of jurisdiction. Rule 9(d) (1), Rules of the Sixth Circuit.

It is further ORDERED that the motion for appointment of counsel be denied.