Unpublished Dispositionw.j. Gray, Jr., Plaintiff-appellant, v. City of Jackson, et al., Sgt. Taylor and Investigator R.acuff, Defendants- Appellees, 848 F.2d 190 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 848 F.2d 190 (6th Cir. 1988) May 11, 1988

Before MERRITT and CORNELIA G. KENNEDY, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.


ORDER

This matter is before the court upon consideration of the appellees' motion to dismiss the appeal for lack of jurisdiction on the basis that the notice of appeal was filed late. Appellees also seek sanctions and costs against the appellant. The appellant has not responded.

Review of the district court record indicates that the judgment of the district court was entered April 23, 1986. The next entry is appellant's motion to amend the complaint filed August 12, 1986. This motion, even if liberally construed as a Fed. R. Civ. P. 59(e) motion, was not filed within ten days of the entry of judgment, and failed to toll the appeals period. Fed. R. App. P. 4(a) (4). The district court denied the motion to amend by order entered October 17, 1986. Appellant's subsequent motion to reconsider served December 6, 1986 was denied by the district court by order entered December 16, 1986. The order denying the motion to reconsider the successive Fed. R. Civ. P. 59(e) motion is not appealable. Carpenter v. Klosters Rederi, 604 F.2d 11 (5th Cir. 1979). The notice of appeal filed December 6, 1987, was over a year and one half late.

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). Fed. R. App. P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

It is ordered that the motion for sanctions be denied and that the motion to dismiss be and is hereby granted. Rule 8, Rules of the Sixth Circuit.