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876 F2d 103 Gallagher v. J Phillips

876 F.2d 103

Robert Allen GALLAGHER, Plaintiff-Appellant,
v.
Billy J. PHILLIPS, Robert Buker, State Fire Marshal, William
Hennosy, State Fire Marshal, Defendants-Appellees.

No. 89-3315.

United States Court of Appeals, Sixth Circuit.

June 9, 1989.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 KEITH and ALAN E. NORRIS, Circuit Judges; and BAILEY BROWN, Senior Circuit Judge.

ORDER

1

This matter is before the court upon consideration of the appellees' motion to dismiss the appeal as late, response of appellant to the motion to dismiss and appellant's response to this court's show cause order filed April 25, 1989. Appellant states that he is not represented by an attorney, and that Fed.R.Civ.P. 26(b) and 6(b)(2) permits the court to grant an extension of time for filing a notice of appeal.

2

It appears from the file that the judgment was entered June 28, 1988. The notice of appeal filed on April 11, 1989 was over eight months late. Fed.R.App.P. 4(a) and 26(a).

3

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. 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. Fed.R.App.P. 4(a)(5) provides that an extension of time for filing a notice of appeal may be sought from the district court not later than thirty days past the prescribed appeal period. The time for filing such a motion in the district court expired on August 29, 1988.

4

It is ORDERED that the motion to dismiss be granted and the appeal hereby is dismissed. Rule 8, Rules of the Sixth Circuit.