Lyle J. Parks, Petitioner-appellant, v. Robert Brown, Jr., Respondent-appellee, 891 F.2d 292 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 891 F.2d 292 (6th Cir. 1989) Dec. 6, 1989

Before KEITH, NATHANIEL R. JONES and BOGGS, Circuit Judges.


ORDER

This matter is before the court upon consideration of the appellant's response to this court's September 12, 1989, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction because of a late filed notice of appeal. Appellant evidently believed he had a thirty-day appeal period which ran from the entry of ruling denying his motion to alter or amend the judgment.

It appears from the record that the judgment was entered May 16, 1989. A Fed. R. Civ. P. 59 motion to alter or amend the judgment was filed on June 7, 1989, but it was not served upon opposing counsel within ten days as required by Rule 59 and it failed to toll the appeal period. See Fed. R. App. P. 4(a) (4); Marane, Inc. v. McDonald's Corp., 755 F.2d 106, 110-111 (7th Cir. 1985); Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016, 1019 (6th Cir. 1983). The Rule 59 motion was denied on June 7, 1989. The notice of appeal filed on July 5, 1989, was twenty 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. Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir. 1989) (per curiam); 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.