770 F2d 165 Kevin Cruickshank v. Dateline a New York Company
770 F.2d 165
KEVIN CRUICKSHANK, PLAINTIFF-APPELLANT,
DATELINE, A NEW YORK COMPANY, DEFENDANT-APPELLEE.
United States Court of Appeals, Sixth Circuit.
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
BEFORE: MERRITT, MARTIN and WELLFORD, Circuit Judges.
This matter is before the Court upon consideration of appellant's response to this Court's show cause order.
It appears from the record that the district court entered an order dismissing the civil action on September 14, 1984. Reinstatement of the action pursuant to Rule 60(b) and 62(b), Federal Rules of Civil Procedure, was sought on November 27, 1984. Reinstatement was denied on December 7, 1984. The notice of appeal filed on March 8, 1985, was 144 days late as it applied to the September 14, 1984, order and 60 days late as it applied to the December 7, 1984, order. Rule 4(a), Federal Rules of Appellate Procedure. However, it does not appear from the record that a separate judgment as required by Rule 58, Federal Rules of Civil Procedure, has been entered by the district court.
The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction. Compliance with Rule 4(a), Federal Rules of Appellate Procedure, is a mandatory and jurisdictional prerequisite which this Court can neither waive nor extend. Peake v. First Nat. Bank and Trust Co. of Marquette, 717 F.2d 1016 (6th Cir. 1983). Rule 26(b), Federal Rules of Appellate Procedure, specifically provides that this Court cannot enlarge the time for filing a notice of appeal.
It is ORDERED that the appeal be and hereby is dismissed without prejudice to appellant filing a new notice of appeal within the time period provided by Rule 4(a), Federal Rules of Appellate Procedure, after the district court enters a separate judgment as required by Rule 58, Federal Rules of Civil Procedure. Rule 9(d)(1), Rules of the Sixth Circuit.