Unpublished Dispositionrobert S. Pollock, Plaintiff-appellee, v. Branter Ltd. Partnership, Core Petroleum, Edward Davis, T &j Investments, Phoenix Energy Corporation, W.r.beshears, Petroleum Funding Corporation,defendants-appellants, 933 F.2d 1009 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 933 F.2d 1009 (6th Cir. 1991) May 28, 1991

Before RALPH B. GUY, Jr. and RYAN, Circuit Judges, and JOINER, Senior District Judge* .

ORDER

This matter is before the court for consideration of the defendants' response to the court's order of November 20, 1990, directing the defendants to show cause why their appeal should not be dismissed for lack of jurisdiction.

On August 31, 1990, the district court entered final judgment for the plaintiff. The defendants filed their notice of appeal on October 2, 1990, outside the time limits set forth in Rule 4(a), Fed. R. App. P. In response to this court's show cause order, the defendants filed a motion on December 6, 1990, in the district court for relief under either Rule 60(b), Fed. R. Civ. P., or Rule 4(a) (5), Fed. R. App. P., so as to extend the time in which to bring their appeal. The district court granted the motion on December 10, 1990.

Rule 4(a) (5) requires that a motion for an extension of time to file a notice of appeal be filed not later than thirty days after the expiration of the original appeal time prescribed by the rule. The defendant's motion was not filed within that time period and Rule 4(a) (5) prohibits the district court from considering the defendants' motion under these circumstances. See Pryor v. Marshall, 711 F.2d 63, 64-65 (6th Cir. 1983). Nor may a litigant use Rule 60(b), Fed. R. Civ. P., to circumvent the restrictions imposed by Rule 4(a) (5). See 9 MOORE'S FEDERAL PRACTICE 204.13 (2nd ed.1991). Upon review and consideration, the court concludes that it lacks jurisdiction in this case.

Therefore it is ORDERED that the show cause order of November 20, 1990 is discharged, and this appeal is dismissed sua sponte for lack of jurisdiction. Rule 9(b), Local Rules of the Sixth Circuit.

 *

The Honorable Charles W. Joiner, Senior District Judge for the Eastern District of Michigan, sitting by designation