Unpublished Dispositionrichard Becker, Plaintiff-appellant, v. United States of America, Inc., Defendant-appellee, 848 F.2d 188 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 848 F.2d 188 (6th Cir. 1988) May 5, 1988

Before KRUPANSKY and DAVID A. NELSON, Circuit Judges, and BARBARA K. HACKETT, District Judge.* 

ORDER

This matter is before the court upon consideration of the appellee's motion to dismiss the appeal for lack of jurisdiction and the appellant's response.

It appears from the record that the judgment was entered September 28, 1987. Within 10 days of the entry of judgment, appellant served and filed a Fed. R. Civ. P. 59(e) motion for reconsideration which tolled the appeals period pursuant to Fed. R. App. P. 4(a) (4). Reconsideration was denied on November 19, 1987, and appellant appealed on December 29, 1987. The notice of appeal filed on December 29, 1987, was eight days 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. 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). It is the date of receipt of the notice of appeal in the district court, not the date of mailing the notice of appeal which confers jurisdiction on this court. Torras Herreria v. M/V Timur Star, 803 F.2d 215 (6th Cir. 1986). 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 motion to dismiss be granted and the appeal be and hereby is dismissed. Rule 8, Rules of the Sixth Circuit.

 *

The Honorable Barbara K. Hackett, U.S. District Judge for the Eastern District of Michigan, sitting by designation