Unpublished Dispositionvincent T. Zitnik, Plaintiff-appellant, v. Norcliffe Thayer Company, A/k/a Oxy Skin Medication, Beechamproducts Usa, Division of Beecham, Inc.,defendants-appellees, 924 F.2d 1060 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 924 F.2d 1060 (6th Cir. 1991) Feb. 1, 1991

Before KEITH and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.


This matter is before the court upon consideration of the appellant's response to this court's November 30, 1990, order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction because of a late notice of appeal. Appellant's response asks this court to dismiss the appeal without prejudice so that he may file another appeal at a later date, if necessary. However, a review of the record indicates that we lack jurisdiction in this appeal.

It appears from the record that the final order of the district court was entered December 28, 1989. The notice of appeal filed on November 13, 1990, was nine months 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. The motion of appellant to dismiss without prejudice is denied because this court lacks jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit.