Unpublished Dispositiongene T. Favors, Plaintiff-appellant, v. Hicks, Sgt.; Wallace, Sgt.; Gibson, Deputy; J. Monge,sgt., Defendants-appellees, 881 F.2d 1075 (6th Cir. 1989)Annotate this Case
Aug. 11, 1989
Before NATHANIEL R. JONES and ALAN E. NORRIS, Circuit Judges, and RICHARD B. McQUADE, Jr., District Judge* .
This matter is before the court upon consideration of the appellant's response to this court's July 3, 1989, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. He states that he received the district court's March decision in April and that he filed his notice of appeal on May 31, 1989.
It appears from the record that the judgment was entered March 31, 1989. The notice of appeal filed on June 5, 1989, was thirty-five days late. Fed. R. App. P. 4(a) and 26(a). Although the decision was entered March 31, 1989, the appellant's April receipt of the decision did not affect the appeal period. See Fed. R. Civ. P. 77(d); Spika v. Village of Lombard, 763 F.2d 282, 286 (7th Cir. 1985), cert. denied, 474 U.S. 1056 (1986); Alamo Chem. Trans. Co. v. M/V Overseas Valdes, 726 F.2d 1073, 1074 (5th Cir. 1984); Pryor v. Marshall, 711 F.2d 63, 65 (6th Cir. 1983).
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). 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 it hereby is, dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.
The Honorable Richard B. McQuade, Jr., U.S. District Judge for the Northern District of Ohio, sitting by designation