Unpublished Dispositiona.e. Rabe; Elaine Rabe, Plaintiffs-appellants, v. Norman J. Putnam; William F. Mckee; Robert E. Henderson;a.c. Group, Inc.; Vincent Tisci; Fred Borden;victor Gramoy; William Radalia,defendants- Appellees, 816 F.2d 682 (6th Cir. 1987)

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US Court of Appeals for the Sixth Circuit - 816 F.2d 682 (6th Cir. 1987) April 17, 1987

Before MARTIN, WELLFORD and MILBURN, Circuit Judges.


Appellant has responded to this Court's order to show cause why this appeal should not be dismissed as untimely filed.

The file indicates that the judgment dismissing appellant's civil rights action was entered December 8, 1986. Appellant filed a notice of appeal on February 3, 1987--27 days late. Rule 4(a), Federal Rules of Appellate Procedure. No time tolling motions were filed; no extension of time was sought or granted. In response to the show cause order, appellant asserts that his late filing was based upon misinformation received from the district court in Akron regarding the time in which to appeal.

The failure of an appellant to timely file a notice of appeal deprives this 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. Excusable neglect or good cause cannot be considered when an appellant fails to file a timely motion requesting an extension of time. Pryor v. Marshall, 711 F.2d 63, 64 (6th Cir. 1983). An inability or refusal to read and comprehend the plain language of the federal rules is not excusable. See In re Cosmopolitan Aviation Corp., 763 F.2d 507, 514 (2d Cir. 1985).

Because the notice of appeal was filed 27 days after it was due, this appeal is dismissed. Rule 9(b) (1), Rules of the Sixth Circuit.