Unpublished Dispositionkenneth W. Williamson, Plaintiff-appellant, v. Ashland Oil, Inc., Defendant-appellee, 933 F.2d 1011 (6th Cir. 1991)

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US Court of Appeals for the Sixth Circuit - 933 F.2d 1011 (6th Cir. 1991) May 21, 1991

Before ALAN E. NORRIS and SUHRHEINRICH, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.


ORDER

The plaintiff appeals the order denying his motion under Rule 60(b), Fed. R. Civ. P., to vacate the prior summary judgment for defendant in this diversity action for benefits under a disability plan. The district court's order was filed and entered on March 11, 1991. The plaintiff's notice of appeal was filed on April 12, 1991.

The defendant now moves for dismissal of the appeal on grounds the notice of appeal was filed thirty-two (32) days after the judgment and therefore was untimely for purposes of Rule 4(a) (1), Fed. R. App. P. Additionally, the clerk of this court entered an order on April 29, 1991, directing the plaintiff to show cause why his appeal should not be dismissed for the same reasons. The plaintiff has failed to respond either to the motion to dismiss or the show cause order.

Compliance with the time limits of Rule 4(a) (1) is mandatory and jurisdictional. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988). The plaintiff has not shown either that his notice of appeal was in fact timely filed or that he applied for and/or received an extension of time to file his notice of appeal under Rule 4(a) (5), Fed. R. App. P.

It therefore is ORDERED that this appeal is dismissed sua sponte for lack of appellate jurisdiction. Rule 9(a), Rules of the Sixth Circuit.