Unpublished Dispositionkhalil-ullah Al-muhaymin, Plaintiff-appellant, v. Jeff Reynolds, Defendant-appellee, 918 F.2d 178 (6th Cir. 1990)Annotate this Case
Nov. 15, 1990
Before KEITH, KENNEDY and SUHRHEINRICH, Circuit Judges.
This court entered an order in appeal no. 90-6014 on September 14, 1990, directing the appellant to show cause within twenty-one days why the appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant has failed to respond. Appellant has filed a motion to proceed in appeal no. 90-6014 in forma pauperis.
It appears from the documents before the court that the final order was entered June 29, 1990. Appellant's motion to reconsider that decision was dated July 17, 1990, and filed July 23, 1990. Such motion was not served within the ten-day period provided by Fed. R. Civ. P. 59(e) and failed to toll the appeal period. Kennedy v. City of Cleveland, 797 F.2d 297, 304-05 (6th Cir. 1986), cert. denied, 479 U.S. 1103 (1987). The motion was denied by ruling entered July 26, 1990. The notice of appeal (appeal no. 90-6014) dated July 28, 1990, and filed July 31, 1990, was one day late. See Fed. R. App. P. 4(a) and 26(a). A second notice of appeal (appeal no. 90-6147) dated August 21, 1990, and filed August 24, 1990, sought to appeal the decision and ruling denying reconsideration. Such notice of appeal as it applies to the decision was twenty-five days late. See Fed. R. App. P. 4(a) and 26(a). Also, the ruling denying reconsideration is not appealable. Walker v. Mathews, 546 F.2d 814, 817 n. 1 (9th Cir. 1976); Peabody Coal Co. v. Local Union Nos. 1734, 1508 & 1548, UMW, 484 F.2d 78, 81 (6th Cir. 1973).
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 appeal nos. 90-6014 and 90-6147 be, and they hereby are, dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit. The motion for leave to proceed in forma pauperis in appeal no. 90-6014 is denied as moot.