Unpublished Dispositionbetty A. Rather, Plaintiff-appellant, v. Norfolk Southern Corporation, Defendant-appellee, 863 F.2d 884 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 863 F.2d 884 (6th Cir. 1988) Dec. 1, 1988

Before KEITH and KRUPANSKY, Circuit Judges, and CONTIE, Senior Circuit Judge.


ORDER

This matter is before the court upon consideration of the appellee's motion to dismiss on the basis of the untimely filing of the notice of appeal. The appellant has responded to the motion to dismiss, as well as the order of this court entered October 31, 1988, directing her to show cause why her appeal should not be dismissed for lack of jurisdiction. Additionally, Rather seeks appointment of counsel and leave to proceed in forma pauperis in this appeal.

Review of the record indicates that on May 27, 1988, the plaintiff filed a Fed. R. Civ. P. 60(b) motion for reconsideration of the April 14, 1988, judgment dismissing the complaint. The district court denied the Rule 60(b) motion on June 28, 1988. On September 30, 1988, plaintiff filed a pro se notice of appeal from the judgment entered April 18, 1988.

This court lacks jurisdiction in the instant appeal. The notice of appeal filed on September 30, 1988 seeking review of the order entered April 14 was 169 days late. Even if the September 30 notice of appeal is liberally construed as one seeking review of the June 28, 1988 order denying Rule 60(b) relief, the appeal was 64 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, 982 (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, 41 (6th Cir. 1984) (per curiam); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1018 (6th Cir. 1983).

Accordingly, it is ORDERED that the appellant's requests for in forma pauperis status and appointment of counsel be denied as moot. The appellee's motion to dismiss is granted and the appeal is hereby dismissed. Rule 8, Rules of the Sixth Circuit.