Unpublished Dispositionronald T. Smedley, Plaintiff-appellee Cross-appellant, v. the City of Cincinnati, et al., Defendants,frank Wise; Robert Gill; James Copeland; City of Eastcleveland, Defendants-appellants Cross-appellees, 899 F.2d 1222 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 899 F.2d 1222 (6th Cir. 1990) April 11, 1990

Before BOYCE F. MARTIN, Jr. and NATHANIEL R. JONES, Circuit Judges, and JOHN FEIKENS, Senior District Judge* 


The defendants appeal (90-3064) and the plaintiff cross-appeals (90-3108) from the district court's order denying plaintiff's motion to reopen this civil rights action, but finding one of the defendants liable for the plaintiff's attorney's fees. Because the amount of attorney's fees has not yet been quantified, a Clerk's order to show cause why the appeal should not be dismissed was entered on February 15, 1990. The defendants have responded. No response has been filed by the plaintiffs. A prior appeal (89-8998) was dismissed sua sponte as premature.

As noted in our dismissal of the prior appeal, an award of attorney's fees or sanctions is not appealable until the amount of fees is determined. Morgan v. Union Metal Manufacturing, 757 F.2d 792 (6th Cir. 1985). The defendant's liability for attorney's fees is not reviewable before those fees are quantified. Id. at 795. Because the district court has not yet fixed the amount of attorney's fees and there remain issues to be resolved in the district court, we consider the case still to be within the district court's jurisdiction. Accordingly, we have no jurisdiction in the defendants' appeal.

The plaintiff's cross-appeal was not filed within 30 days of the district court's order of December 19, 1989. It is therefore not timely. Fed. R. App. P. 4(a) (1). A timely notice of appeal is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264 (1978).

It is therefore ORDERED that these appeals are dismissed for lack of jurisdiction. Rule 9(b) (1), Local Rules of the Sixth Circuit.


The Honorable John Feikens, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation