Unpublished Dispositionarnold D. Mackey, Plaintiff-appellant, v. Marlene J. Mackey, Last Name Now Pierson, Defendant-appellee, 914 F.2d 1494 (6th Cir. 1990)

ORDER

This matter is before the court upon consideration of the appellee's motion to dismiss the appeal for lack of jurisdiction on the basis of a late notice of appeal. The appellant has not responded.

A review of the record indicates that the district court's order was entered December 18, 1989. On December 22, 1989, the plaintiff served a motion for reconsideration. This was within ten days after entry of judgment as computed pursuant to Fed. R. Civ. P. 6(a). Such motion tolled the appeal period. See Craig v. Lynaugh, 846 F.2d 11, 13 (5th Cir. 1988), cert. denied, 109 S. Ct. 2436 (1989). On January 25, 1990, the district court entered an order denying the motion for reconsideration. Thereafter, on April 10, 1990, plaintiff filed a motion for extension of time to file a notice of appeal. The district court denied that motion by order entered May 4, 1990. No new notice of appeal was filed.

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 8, Rules of the Sixth Circuit.