Unpublished Dispositionreginald Mcwilliams, Plaintiff-appellant, v. Lamar Alexander, et al., Defendants-appellees, 838 F.2d 471 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 838 F.2d 471 (6th Cir. 1988)

Feb. 3, 1988


Before BOYCE F. MARTIN, Jr., RALPH E. GUY, Jr., and BOGGS, Circuit Judges.


ORDER

This matter is before the court upon consideration of the appellant's January 15, 1988, response to this court's December 1, 1987, order directing him to show cause within 21 days why his appeal should not be dismissed for lack of jurisdiction. Appellant states that he mailed his notice of appeal on November 2, 1987.

It appears from the record that the judgment was entered October 13, 1987. The notice of appeal filed on November 13, 1987, was 1 day late. Fed. R. App. P. 4(a) and 26(a).

The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Although appellant states he mailed his notice of appeal on November 2, 1987, mailing does not constitute filing. It is the date the notice of appeal is received in the district court which confers jurisdiction on this court. Torras Herreria v. M/V Timur Star, 803 F.2d 215 (6th Cir. 1986); Haney v. Mizell Memorial Hosp., 744 F.2d 1467 (11th Cir. 1984); Pryor v. Marshall, 711 F.2d 63 (6th Cir. 1983). Compliance with Fed. R. App. P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend. McMillan v. Barksdale, 823 F.2d 981 (6th Cir. 1987); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir. 1985); Denley v. Shearson/American Express, Inc., 733 F.2d 39 (6th Cir. 1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016 (6th Cir. 1983). Fed. R. App. P. 26(b) 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(b) (1), Rules of the Sixth Circuit.